So we have this Amy Coney Barrett stuff going on, will she or won’t she let’s have a confirmation hearing abortion health care blah, blah, blah.
None of this really matters. The SCOTUS surely affects the country – not in a good way, we submit, and we’re certainly not alone in that perspective, as a few links will demonstrate – but the effect is actually quite subtle, and accordingly quite difficult to address because basically to get to the nub of the problem you have to dig deep and in the US we are not good at that. We never were, really, but in the last few decades we’re not able to do it at all.
We allude to an odd practice in federal courts as directed by the SCOTUS: even though the death penalty, however you or I might feel about it, has never been and can never be found unconstitutional by the SCOTUS, the federal court system – including the SCOTUS – requires that all cases involving the death penalty be flagged and put on a separate track. Since there is no legal reasoning that justifies this special treatment, the special treatment must be justified, if indeed it is, by something else. What, then?
This: a political, professional and class determination that across-the-board opposition to the death penalty is a legitimate professional position and should be heard whenever it arises, even though the position itself is legally unjustifiable. Put differently, a significant portion of the chattering classes abhors the death penalty (for reasons not relevant at the moment) and the chattering classes have influence at the SCOTUS, and so they get special treatment.
It’s favoritism shown to the chattering classes, not just at the SCOTUS but throughout the federal court system.
Amy Coney Barrett’s confirmation hearing will not address this legally unjustifiable “death penalty is different” anomaly. Maybe it shouldn’t. The death penalty is such a rarity anyway. But the real reason it won’t come up and never comes up is that everyone participating in the hearing, and everyone reporting on it, are members of the chattering classes, and they don’t out themselves. It’s not in their interest to admit their favored litigant status out in the open where the correspondingly disfavored litigants might see it and start complaining. Or worse.
We’ve pointed this out before. Transcending the treatment of any particular case or issue, the SCOTUS communicates under the radar, so to speak, that certain litigants and certain positions get favored treatment, and everyone gets it and follows along.
Sometimes they say revealing things, though. Chief Justice John Roberts famously said at his confirmation hearings – speaking of confirmation hearings – that “If the constitution says the little guy should win, the little guy’s going to win in court before me…” He was probably responding to an accusatory question, but still: why is it necessary to say that? This is a problem in and of itself.
You can go back a long way, to the late 1970’s, to find “scholars” noticing that something disturbing had happened at the SCOTUS in terms of our former ideal of “equal justice under the law”. As time has gone on, more and more scholars have noticed.
But identifying how this, well, what shall we call it – institutional failure has come about involves paying attention to subtle details. We recently had some public awareness of the SCOTUS invented “qualified immunity” issue, which is good. QI is a problem. But arguably absolute immunity is more of a problem and that wasn’t even discussed.
A long time ago we had a case where a smart young man, while working for an employer, had come up with an important and potentially very valuable invention in connection with his employment. Figuring out who owns what in that situation should not be difficult, at least in the United States, because of Article I, section 8 of the constitution.
What did the employer argue about why he should own all rights to his employee’s invention? The uninteresting argument was that he had paid for the facilities and the time and he should benefit from his own investment, which at one time was addressed by giving employers what became known as a “shop right”. But that’s not important right now.
The interesting – really, kind of astonishing – argument was that the employee had signed away his right in anything he invented at the beginning of his employment when he signed his employment agreement. The “agreement” did in fact provide for that, but it was drafted by the employer and also provided that no matter what else the agreement said, the employer-employee relationship was “at will”, meaning that either party could terminate the employment relationship at any time for any lawful reason.
This was an astonishing argument because there are two kinds of employment: a) at will; and b) contractual. In other words, in an at will employment arrangement there is no contract. To have a provision in an employment contract to the effect that it’s an employment at will arrangement is completely incoherent, the two categories are mutually exclusive. But if you can clear that hurdle – the incoherence hurdle – it does let the employer, a favored litigant in a battle with an employee, have it both ways: he gets all the advantages of an employment contract with none of the disadvantages. He can fire his employee any time for any lawful reason. And keep the rights to his employee’s inventions.
This is a pretty outrageous position for the employer to take, but the fact is, employment “contracts” of this type are always upheld specifically to deprive inventors of their ownership right to their own inventions, which is flagrantly unconstitutional.
Has the SCOTUS done anything to address this problem? Is the SCOTUS even aware of it? No, not so far as we know, and if they ever did take up a case about this we suspect it would come out wrong, because “inventors” who fight their employers over their inventions fall under the “disgruntled employee” category and are hugely disfavored.
Chief Justice Roberts said the little guy would win if he deserved to because instead of being a given that’s an issue. And once it’s an issue there can only be arguments about it. And arguments are cheap, and what really matters is “policy”, and policy tells you that employers are more socially important and responsible than some pesky inventor, because once you’ve met a few inventors you know that they’re indeed pesky.
So as with too many situations, and however sincere Chief Justice Roberts was in saying what he said, the truth is that the deck is stacked against the little guy. Stacked heavily, and that’s especially true of the SCOTUS.
The real problem in this country is not Donald Trump being president. It’s that the courts and the legal profession have failed the country. Miserably.