REFER TO GREY: Contemplations by Robert Greigos © 2007-2024

The gathering storm regarding a replacement for retiring Supreme Court Justice David Souter is an eye opener. Social Conservatives during the Bush Administration hoped to stack the deck with "strict constructionists" they believed would overturn the controversial Roe v. Wade decision upholding a woman's right to choose in matters of abortion. Fearing a crushing setback with a potential series of Obama appointees they have begun implementing a vicious set of strategies in hopes of limiting their losses until another Conservative candidate can regain the Presidency. Their primary rallying cry appears to be "Seat no Judge who will legislate from the Bench. We live by Rule of Law, not by Whim of the Court."

What is so peculiar about their assertion is that it is largely wrong. While France and Mexico live by a system of jurisprudence based upon "civil-law", we in the United States do not. Neither does Canada or the United Kingdom. Our jurisprudence is based on "common-law." And the difference is significant. Civil-law is based upon legislated statutes. Common-law is built on judicial precedent. The U.K. doesn't even have a Constitution. Their whole system of government functions in compliance with legal precedent. Common-law has, in fact, been written by Judges adjudicating cases. The entire common-law system has been "legislated from the Bench."

Now, it is also true the U.S. has a Constitution and a Congress that legislates. But common-law is not ignored. The purpose of the U.S. Supreme Court, as implied by the Preamble to the U.S. Constitution, is to "form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." And per Article III: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made ..."

That phrase "in law and equity" is important. It does not place law above equity. It does not ignore considerations of equity. It does not place equity above law. It attempts to harmonize law and equity. It implies law, legislated or not, is not likely to be perfect and must be reconciled with the aspirations of justice.

(The exact meaning of the term "equity" can be debated, but it is usually taken to mean a significant portion of what is implied by the term "justice".)

The problem Conservatives have with this interpretation of Founding Fathers' intent is that it leaves the rules of the game open to change as our collective sense of fairness, equity, and general welfare evolves. When rules are subject to change, by statute or adjudication, there is no certainty as to who will be winners and who will be losers. The equity concept "most good for the most people" is blatantly abhorrent to Conservatives because it devalues individual achievement in favor of consequence to others and the environment. Christian Conservatives, in particular, feel their "special" relationship with God under threat by dilution, as "one of a chosen few" must increasingly be traded for "one of many".

Obama will make a choice. I suspect he will choose to both "establish justice" and "insure domestic tranquility". May he be successful. If he is, we might all enjoy an improvement in general welfare.