The State of Justice

What above all else is eroding public confidence in the nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice.
Nor is Justice Scalia’s observation original. Almost 100 years ago, another man wrote this: “Judges march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, nonetheless, with averted gaze, convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the altar of regularity.” Like Scalia, he too was a judge. Benjamin N. Cardozo, “The Growth of the Law” (1924).

It is a given that most of our judges are terrific in every way — qualified, fair, interested in justice as well as law. But the Caperton case nevertheless illustrates a sad reality about judges. And that is that some judges have become so removed from the real world, their senses of justice and common sense have become dulled — not from misuse, but from disuse. Justice matters little (or not) to some of them.
If you want proof, look right and left. One California Court of Appeal Justice has announced publicly that she is not there to do justice, but instead only to follow (and shape) the law. Her court’s Web site is emblazoned with the motto, “Striving for Justice,” but nevermind. The words carved into the façade of the Supreme Court building itself are “Equal Justice Under Law,” but nevermind. Indeed, one of that building’s admired occupants wrote: “I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” The author was Oliver Wendell Holmes, Jr.
Is hatred of justice a quality to be admired in a judge? I say no, but there it is for all to see. Judges are steeped in the law and should be. But too much steeping dissolves justice until it disappears. Justice gets lost sometimes, and judges are the ones who lose it. Why should we care? Because it kills public trust in the system in which we have so much invested.