It came as a bit of a surprise to me to learn that our Supreme Court has specifically ruled out the “level playing field” principle in its rulings. It’s not in the Constitution, or so some of the Justices say. In other words, our justices are not concerned about justice in the sense of fairness, and they’re officially blind to the broader “general welfare” clause in the Constitution (which would seem to encompass fairness).
This is a form of scholasticism, and it’s a very different view of the Court’s role and responsibilities than the one that prevailed during much of the 20th century. It means our Court is not morally centered; it’s more like a bureaucracy that merely applies the mandated rules and regulations. In a changing society – one that is far different from the one that inspired our Founding Fathers – this is a serious deficiency. It makes our political system more rigid and less flexible.
In practice, moreover, the Court’s official indifference to fairness has had a highly partisan edge to it. It has resulted in a consistent pattern of favoritism toward the rich and powerful interests in our society. As the Center for American Progress reports in a review of its rulings over the past several years, the Court has consistently sided with the positions of the U.S. Chamber of Commerce (America’s premier business lobby). The Court has become an instrument of corporate interests, often at the expense of any sense of fairness toward the rest of us. The Lilly Ledbetter fair-pay case and the recent Citizens United case, which opened the floodgates to corporate money in political campaigns, are only two of the more egregious examples.
I think we should look again at the idea of packing the Court, which President Roosevelt tried to do unsuccessfully in 1937. It’s certainly not a popular idea, and it would take a major sea change in our politics, but if the number of Justices were increased to eleven or even thirteen and maybe had a mandatory retirement age (say 70), this would provide for a more frequent turnover of the Justices and a greater likelihood that the majority would be attuned to the changing needs of our society.
The other idea – probably even farther fetched – would be to press for a “level playing field” amendment to the Constitution which would specifically charge our elected officials and judges to weigh both procedural and substantive fairness in their deliberations in fulfillment of the “general welfare” clause in the very Preamble to our Constitution – a part of its stated purpose. I know, litigators would love it. But nobody ever said social justice was easy.