What the Law is vs. What the Law Ought to Be

Recently, the Supreme Court ruled that a female employee who sued for what seemed to be obvious discrimination in her wages could not bring suit because she took longer than the statutory 180 days to bring the complaint. In her defense, she did not know of the discrimination that took place over the course of 20 or so years until late in the game. Predictably, women's rights groups cried foul saying the Court was stripping protections from women and was enshrining the wage gap. Was the decision misogyny at its worst? Hardly.

The law, as passed by Congress, required that complaints be filed with 180 days of the discriminatory act regardless of when it is discovered. Common sense dictates, certainly in the case of wages (which are often held in confidence), that sometimes it takes more than 180 days to discover an act of discrimination. The law as passed by Congress certainly has its flaws. Even the Bush Administration (which argued in favor of the woman's position) sees the flaws and argued against them.

That said, the argument of the lawyers and the woman's groups was that what the letter of the law says does not matter. If the law is deficient, the Court should simply ignore the law and impose a fair solution. It doesn't matter what the law is; what matters is what the law should be. A fair question would be why such groups believe a Congress or legislature is even necessary or desired.

There are several dangers with this position. First, it attempts to insulate and elevate the judiciary above and beyond the reach of the principle of checks and balances. This was most clearly seen in the case of Terri Schiavo, regardless of where you stood in the case. The legislature and executive at both the state and federal level attempted to check the judiciary in that case, and the judiciary told them to go to hell.

People complained about violating checks and balances, yet two branches tried to stop an action of the judiciary. It betrays the idea that checks and balances only apply to the executive and legislature, yet the judiciary is somehow immune. They also complained of interference in a "private matter", yet the matter was already fully vested in the government before any law was passed… the judiciary is government and a public body.

The legislature writes laws based (in theory) on the lobbying and influence of the people. There are few cases, namely those strictly involving the Constitution, where those laws should be overturned. However, imprudent or even stupid laws aren't unconstitutional. It's up to the people to get their elected officials to change the laws. Bambenek's Third Law might perhaps elucidate a principle here:

Those who complain loudest about a tyranny of the majority most often wish to impose a tyranny of the minority in its place.

This should not be read to defend an imperfect law with regards to discrimination; however, the law as written must be the basis for the law as interpreted. In court, only two sides are presented, the defense and the plaintiff, and one side must win. In the legislature, at least, all sides can get a say and there is a general possibility of compromise. Sure, there are lobbyists and there are abuses, but lobbyists of every stripe and ideology get to have a say.

No one is particularly fond of lobbyists and the abuses that tend to accompany them. The fact that "public interest" law firms have emerged which solely exist to effectively "lobby" the courts to create or define laws should give everyone pause. Lawyers have an exclusive profession and they have a particular worldview. Anyone can call a legislator and give them your opinion. Only lawyers can give judges their opinion, and those people, lawyer jokes aside, are not representative of the entirety of society.

That lawyers are running to court to get laws written and that the court has gotten in the business of writing laws, cuts an overwhelming majority of people out of the picture. The important thing to realize is that, regardless of your political affiliation,  this sword cuts both ways. Typically, judicial activism is a left-wing activity. However, if right-wing activists make the bench, left-wing people will find that they'll be on the losing end of court decisions, and there is no one they could lobby, no one they can pressure, and no one they can convince to get their ideas even considered. This is not the way to run a society.

Judges, especially on the federal level, are unaccountable and hold office for decades. It is telling that for a judge to make the Supreme Court his best strategy is to remain essentially silent on every conceivable issue in order to survive the confirmation process. Democracy is not helped by only considering stealth candidates for the bench. The public right to know is compromised when there is nothing to know.

These public interest law firms and groups need to realize that it is in their own interest and the interest of society at large for the courts to apply the law as written.  The practice of judges making up laws as they go and applying the law as they think it ought to be is fraught with peril and destined for rampant corruption. Sooner or later, a price will be paid for such disregard for judicial integrity.

John Bambenek is the Assistant Politics Editor for BC Magazine and is an academic professional for the University of Illinois. By trade, he is an information security professional, part of the Internet Storm Center and a courseware author and certification grader for the GIAC family of security certifications. He is a syndicated columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education. He is the current owner of BlogSoldiers, a blog-only traffic exchange.

This entry was posted on Tuesday, June 12th, 2007 at 6:56 pm and is filed under Current Events, Feminism, Politics, Vox Populi. You can follow any responses to this entry through the RSS 2.0 feed. | 11 views | Trackback | Print this page |

John Bambenek is the Assistant Politics Editor for Blogcritics and is an academic professional for the University of Illinois. He is a freelance columnist who blogs at Part-Time Pundit and the executive director of The Tumaini Foundation which helps AIDS orphans and other children in Tanzania to get an education. He is the current owner of BlogSoldiers, a blog-only traffic exchange. | More from John Bambenek