Disappointment in the Law

"There's going to be a lot of disappointment in the law."  So says Justice Sotomayor, or so she said recently in a presentation to law students sponsored by the American Bar Association.

We should be thankful for the warning, but it might be said that the law has always been disappointing in one way or another.  I venture to say that to lawyers, the law may be disappointing on a daily basis.  That may be the case for their clients as well, sadly.  The law isn't satisfying by its nature, being restrictive in many cases, a nuisance in others.

But clearly the Justice wasn't speaking about the law's often disappointing intricacy and obtuseness, or the disappointment caused by its flawed application by some of the many minions of the legal system.  She was apparently referring to something she anticipates will disappoint us in our regard for the law as something which is worthy of regard; in other words, in the law as a representation of justice.  It seems from what she said that she expects to write many dissents in the future.

As I've written before, I distinguish the law from what's moral, and therefore from what's just.  That's to say, I believe the law is the law regardless of whether its considered moral or just.  There may be unjust laws; there may be unjust decisions made by courts.  This doesn't mean they aren't law.

Neither does it mean it mean that laws may not disappoint because they're bad laws or are unjust.  So, Justice Sotomayor, being a member of the Supreme Court, likely means that she expects to be disappointed by decisions made by that august body in the future and expects others will be disappointed as well.

She already expressed disappointment with the decision of the majority of the Court to avoid addressing the Texas abortion law which was the subject of the last post.  "Disappointment" is probably too mild a word to describe what she wrote regarding the majority's evasion.  It's too mild a word to describe what I felt about it.

What she means can't be determined precisely, but I suspect that what she anticipates is that forthcoming decisions by the Supremes should be expected to reflect the positions and, presumably, prejudices of the majority of the Justices who are described as conservatives.  Just what "conservative" means in these dark times is debatable, but given the cases which are scheduled to come before them I'd guess that she anticipates disappointment with decisions in those cases addressing abortion and the Second Amendment, and other cases where individual rights--those viewed as contained within the Bill of Rights especially--are opposed to what would arguably seem to be the public interest.

The conflict between those rights as perceived and the health and welfare of others isn't something new.  And in fact it's been recognized, at least in the past and at least in the law, that those rights aren't absolute and are subject to qualification.  Now, though, it isn't apparent that we possess the intelligence and sophistication required to recognize the need for qualifications, or when we do possess them whether there is enough interest in them for them to be applied.  

Our gun-mad nation seems so enamored of firearms that many believe there is no limitation whatsoever on the desire to acquire, and perhaps even use, them regardless of what they may be.  Anti-maskers and anti-vaxxers are so extreme in their opinions that they seem convinced that their "right" not to wear masks and not be vaccinated must be honored regardless of any risk to others (which they busily downplay in any case).  Already we've seen the First Amendment construed to include "money" as a form of speech, regardless of the propensity for corruption, and corporations granted the right to practice religion or hold religious beliefs without legal restriction.

Members of the "conservative" majority on the Supreme Court are aware that some question their motivations, suggesting that they will make decisions consistent with political positions and prejudices.  So we see them busily denying they will do so, claiming that they aren't "political hacks" and that they aren't a "cabal."  Claiming that they are is said to be an attempt to intimidate the Court.  They sound rather defensive, I think.  Reacting to claims of political motivations by calling them attempts at intimidation emphasizes the significance of such motivations, in my mind.  If political motivations play no part in a Justice's decisions, why would concern about them be considered intimidating by that Justice?

"What power has law where only money rules?" asked Petronius Arbiter, courtier in the court of Nero.  Not much, it would seem; and the power of money is unrivaled when it comes to politics, thanks in part to the Supremes themselves.    Where money is power, the law will protect the moneyed interests.  Those with money will want to keep it, and in a time of limited resources that will mean keeping money out of the hands of others, and the government.  Perhaps this is what Justice Sotomayor fears will foster disappointment in the law.  If not, it's a legitimate fear.  The protection of legal rights, individual rights, is essentially selfish when it comes to gaining and preserving money and power, and that would seem the overwhelming concern of those who already have money, and power. 

The Grotesque Texas "Fetal Heartbeat" Law

Yes, it's a scarlet letter, but "A" may stand for any number of words beginning with that letter, including "abortion."  And to some of us, at least, abortion is far more of a sin than adultery, which even the most sanctimonious of us enjoy until discovered.  Let it stand as such, then.

It's apparent that reasonable discussion of abortion may no longer be possible (even its name is contentious) but let's endeavor to focus instead on this remarkable, and peculiar, law.  I think it's no exaggeration to describe it as grotesque regardless of where one stands on whether or not abortion should be prohibited.  Those who are convinced abortion is a dire sin or a criminal act akin to murder may not care whether it makes any sense from a legal perspective or whether it is or is not constitutional, true.  But any lawyer should care, and a lawyer I am and have been for a long time.  As a lawyer, I find it an ugly and distorted thing, as laws go.

It's unsurprising that it's been drafted, very deliberately, in an effort to avoid a constitutional challenge based on Roe v. Wade and successor cases.  But it's not artfully drafted in any sense.  It's clumsily written.  The evasion it attempts is ham-handed, even stupidly obvious.  It appears to be a cut-and-paste job.  It's as if the drafters took a law intended to make abortion a criminal offense, and then altered it in as heavy-handed a way as possible to make of it a civil law, granting a civil cause of action to private citizens.

Reading it, I was reminded of an old SCTV skit in which Rick Moranis and Dave Thomas were editing film using cleavers.  It's a Frankenstein's monster of a law, consisting of odds and ends from other laws stitched together.

It achieves its apparent purpose, to make a criminal law a civil cause of action,  by first granting standing to sue to people who suffer no direct harm or risk by virtue of the prohibited acts.  It stands standing on its head, in a manner of speaking; standing is not standing for purposes of this law.  Then, it grants "damages" in a minimum amount of $10,000 to a prevailing party who is not damaged by any of the prohibited acts in any sense otherwise recognized in the law.  Thus, damages are to be awarded to those who sustain no damages.  In addition, it provides for attorney's fees to be awarded to a successful plaintiff, but not to a successful defendant.  It makes any lawyer who defends a defendant liable for those attorney's fees.  It limits defenses which can be raised to the point where there is virtually no defense against an action.  Every effort is made, seemingly, to encourage suit and discourage any contest by making it very likely that a plaintiff will be successful.

It's clearly a parody or perversion of the laws that make a private citizen a "private attorney general" to protect the public from harm for, e.g., civil rights violations, environmental damages, lack of transparency in government, and other laws which contain similar "fee-shifting" provisions.  It's clearly an effort to impose a fine, or penalty or forfeiture in the guise of "damages."  It's brazenly, cynically, grotesque.  No effort is made to give it even the appearance of a just, equitable law.

Our Supreme Court has managed to duck the serious constitutional questions it acknowledges are presented by the law, thus assuring its enforcement until such time as it cannot be ignored by the Justices.  The wisdom of this evasion is questionable.  One would hope that if the Court decides to overrule Roe v. Wade it would do so openly rather than merely allowing its precedent to be so utterly ignored and over ridden.   

There's much more which can be said about the law and its encouragement of litigation, and of course about abortion generally, but I'm striving to limit this post to a merely legal analysis.  The fact that it is such a poorly drafted and peculiarly partial and unfair law may lead one to question it on other grounds as well, however.