President Obama nominated Sonia Sotomayor for Justice of the Supreme Court. He described her as a person of compassion. Do we want a person of compassion or a “strict constructionist”? Or, do we want a person who will do justice and right bad or unjust laws?
Before we can decide, we must examine some of the myths and realities of the American judicial system. First, we have the concept of justice, the very foundation of any judicial system, although some have argued it is to uphold the law. Philosophically, a judicial system cannot exist in a democracy if it does not uphold justice and correct the wrongs of the past. In fact the people are told “Equal Justice Under Law”, the motto on the Supreme Court building; “to secure justice”, the commonplace stated purpose of court rules of procedure; “to establish justice”, the opening purpose in the Preamble to the US Constitution; and we designate the members of the Supreme Court as “justices”. Notice that “to uphold the law” is not included in the above. This is the argument, along with the insistence on precedent, used by those special interests who favor unjust laws.
I guess we indeed require that justice be done, regardless of one’s political ideological persuasion. And if there need be an interpretation or new construction of the Constitution, that such a finding does justice. In other words, the guiding principle is not political ideology, but doing justice under the Constitution, and that includes overturning precedent when so required.
Precedent, or “stare decisis”, is another principle or doctrine of American jurisprudence that serves to establish an aura of acceptance by the people that America is a land under law, not men. This doctrine has an inherent fallacy or inconsistency with the message that the courts are here to do justice. Suppose a decision was a bad one, or motivated by a personal agenda? How does it get overturned and corrected if the doctrine of precedent is cast in concrete? However, precedents are indeed overturned, but only occasionally are Supreme Court opinions overturned (See 1954 Brown partially overturning the 1896 Plessy v. Ferguson on equal but separate facilities). Like the debate on the ideological leanings of a Justice, there is evidence to show that the personal views of judges do influence their decisions on a particular precedent . And the concern for justice is not a factor.
Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges. (See Judicial precedent and HOA bias).
As an example with respect to HOAs regarding a default decision on the constitutionality of an a two year-old Arizona HOA statute,
And I concluded with the appeal, “For the Court to do justice and maintain its integrity, my ‘letter of fact’ and supporting materials must be made part of the case.” All that I asked, the real issue, was to remove a “gag order” on my materials containing factual information that could have no other result than to have the judge, sua sponte, as permitted under the law, put the factual materials on record in order for justice to be done. (See Actions by AZ judge in HOA constitutionality case found ethical).
There are very strong arguments to right not only unjust HOA laws, but HOA laws that are not consistent with the Constitution.