Courts and Their Role in Society

Judiciary Role

The author of this report is tasked with discussing whether courts can help solve complex problems. Of course, the guiding documents and many of the amendments to the United States Constitution were written a century or two ago but these are the documents that are supposed to be guiding the decisions made by courts of all levels. This would range from district courts to circuit courts and all of the way up to the Supreme Court of the United States. What will be discussed and answered to in this report shall include the limits of litigation as compared to political debate and social limits, the prerequisites for a successful litigation reform effort, the proper role of the courts when it comes to public policy issues, whether the courts should keep their rulings narrow or make them broader, and whether court decisions can change public policy and/or society. While courts most certainly have their place and time when it comes to making or restoring order when it comes to the law, they should be careful to know what their job really is and they should also realize that even the highest courts in the land have their limitations when it comes to effecting social change.

Analysis

The assignment parameters lay bare just some of the issues that are decided using Constitutional amendments and other portions. These issues include civil rights, voting rights, abortion rights, gender discrimination, affirmative action, LGBT rights, marriage equality, educational quality, sentencing of criminals and gun control. For the purposes of this report, the focus will be on LGBT rights including gay marriage. When it comes to any given case, LGBT-related or otherwise, there is an amendment or clause in the Constitution that clearly applies to what is going on. In other instances, the correlation is deemed to be implied and/or is subject to interpretation. For example, the Equal Protection clause of the United States Constitution is often what is held up as the clarion call that justifies things like gay marriage and other equal rights for LGBT people. However, there are also naysayers that suggest that if that clause could be applied in one instance, it could be applied in other instances that may not be so palatable or acceptable to society. For example, the recent Supreme Court case Obergefell v. Hodges effectively legalized gay marriage was seen as a shining moment or marriage equality and LGBT rights in general. However, some have countered that the same clause championed by the advocates for the decision that was made with Obergefell v. Hodges could be used to legally sanction other relationships. This obviously sounds absurd to many, but the question is not completely beyond the pale. For example, it is explicitly illegal in many jurisdictions for a man to have more than one wife at one time. The same is true when it comes to women having more than one spouse. There are other, and much more extreme and disgusting, examples that some have used such as bestiality and romance with objects. Others have said that "equal protection" can mean different things to different people. For example, prior law (in most of the country) was that a person could marry someone of the opposite biological gender. Some might say that this was upheld "equally" for both sexes since women could marry only one man and men could only marry one woman. Of course, critics of that line of thought would lash back and say that homosexuals and bisexuals (not to mention people of other gender orientations) should not be limited in who they can marry so long as there is only one marriage at one time for each person. More analysis along the lines of what the court does, why it does it and the logical strands behind it all will be coming later in this report (Beckwith, 2015).

As far as the limits of litigation go, the one thing that is never limited, sometimes unfortunately, is the ability to file a lawsuit. Even if it is completely frivolous and soulless, anyone can file a lawsuit for even the inanest reasons. What matters, however, is whether the lawsuit has any grounds via which the person suing might be victorious in a court of law. For example, many would say that prior LGBT rights-related cases had great amounts of merit because LGBT people were not being extended the same rights and privileges that heterosexual couples have enjoyed for generations. A judge will typically look over the situation, take testimony and come to a definitive conclusion as to whether the contract was breached and how to remedy the situation. In a contested divorce, the judge will decide who will get what assets and debts based on either fairness or equal division, depending on the state. However, those two types of cases and many other can get very contentious and controversial based on how much specificity (or lack thereof) the relevant legal documents have. Much the same thing can be attributed to the laws of the land. Indeed, lawsuits are filed against people, corporations and the governments of our land all of the time and the verbiage that does (or does not) exist in the law relative to the situation is often the guiding force of who wins, who loses and why. Indeed, that has been done in relation to LGBT based on existing verbiage (e.g. Equal Protection Clause) or verbiage that "should" be there (equal protection for LGBT people overall) (Hicks, 2016).

However, there are always limitations to this approach. Even to this day, the laws and regulations that apply to the LGBT community are mostly by court mandate or assertion rather than printed law. Indeed, there are states that have decided that the Equal Protection Clause protects LGBT people and their rights. Other states have disregarded that notion and made laws that assert the contrary or something else entirely. Other states and localities have just done nothing. Regardless, until the Obergefell decision, there was really no federal mandate or ruling of any kind that LGBT advocates could hang their proverbial hat on. The Equal Protection Clause, of course, is part of the Fourteenth Amendment to the United States Constitution (Rosenbloom, O'Leary, & Chanin, 2010).

When the proper precedent and/or laws do exist, litigation would be the easy and quick way to deal with extreme overreaches like that. However, many laws are less than clear and this can lead to a lot of legal fees being racked up and time spent wrangling about the law. A lot of cases come down to officials or people using discretion and there may not be a clause in the law that strictly allows or disallows what is happening. In many other cases, a person will technically subjugate themselves to another agreement and then will cry foul because they think their Constitutional rights are being violated. In light of the Obergefell ruling, litigation would easily be the best option where LGBT laws are not clarified or that run counter to the assertion made in the Obergefell decision. For example, a gay couple demanding equal rights would likely have to sue on the grounds that the precedent set by Obergefell and there is a very strong chance that the Supreme Court's Obergefell decision would be the guide, but it all depends on the circumstances.

Political debate and social movements have their own limitations and issues. However, they can do some good. For example, the social movements (of which there were and still are many) behind gay marriage have been pushing for their cause in every state and at every opportunity. It took quite a long time, but the prior-referenced Obergefell v. Hodges case was seen as a triumph for that movement. Political debate has led to great things as well. Even before Obergefell and the developments prior to it came about, many states were already starting to recognize the equal rights of gays and thus they have little to change even with the gravity of the Obergefell ruling. Other states, like the aforementioned Kansas, would be a different story.

To come back to litigation, there are some very fatal flaws that exist when it comes to our legal system. Things have become so nasty, there are many cases where a corporation or even a person, in some instances, will settle a legal case as soon as possible just because protracted litigation will be more damaging than fighting the case and trying to win. To state the obvious, this is a very damning thing to take note of when it comes to litigation. Further, there are people that cling to the idea that the legal sphere should be about "fairness" and not about what the laws do or do not say. This may sound like a good idea to some, but it is facetious and sheer lunacy to others. Indeed, the laws say what they say and they do not say what they do not say. For example, having a bathroom arrangement that allows people to pick the bathroom gender of their gender identity could create some problems. On the other hand, having a group of unisex bathrooms would be a cleaner yet workable solution to others. Short of that, what is "fair" or proper to different people will obviously vary based on perspective.

Another problem is that the courts themselves are not helping matters. Indeed, they often make things worse. One example would be the rather flexible definitions and extrapolations that some courts mete out. In other cases, the judges seem to have lost all sense of justice, following guidelines and doing their job. Even if there are "bad" laws and guidelines, issuing rulings that are consistent with those laws and regulations is technically the right thing to do. For example, a judge in Nebraska that is not personally in agreement with any anti-LGBT laws in that state would technically be bound to follow what is actually on the books. Even ruling and judging with their conscious is technically a violation as that is a decision to be made, technically, by appeals courts and other courts that determine constitutionality. Judges running amok and ignoring what the laws of the land say might sound good and might be done for the right reasons, allowing judges to ignore laws or write laws is not a solution.

As far as reforming litigation and making it "stick," there are a few things that should be established. First, the person suing should have standing to sue. This is commonly practiced already but might need to be tightened. Second, anyone that provably or obviously files a ridiculous lawsuit should bear some rather severe punishment for doing so. At a bare minimum, the person should pay the legal fees for the party that they wrongfully sued. Third, cases should absolutely be decided by the verbiage as it stands and not what is "interpreted" whenever possible. Of course, the laws themselves and the contracts that are written have to follow this line of thought as well. Even so, any decision rendered should stick to the letter of the law as much as is possible. Indeed, if there is a contract where money is split between two parties but it is not said what the split shall be, then 50/50 it is, just as one example. Next, litigation should not be allowed to be used as a cudgel to get a "quick and dirty" settlement from a firm or person just because the sued party wants to avoid legal costs. There needs to be an expedient decision made as to whether the case has any real merit. If not, it should immediately be dismissed and the suing party should be punished if the case was obviously frivolous, as mentioned before. Lastly, lawyers need to be reined in on what they can collect in terms of legal fees for a given case. At a bare minimum, this should be done for individuals as most people using a lawyer are not rich and legal fees can be crippling. Even in contingency cases where the client wins only if the lawyer wins the case for them, the percentage of the judgement that is sometimes claimed by the lawyers is obscene. The culmination of all of the above should keep the docket cleaner, should make it clear what is legal and what is not and so forth. Indeed, someone suing for a violation of LGBT rights where none exist is something a lower court cannot deal with as it not their place. If discriminating against transgender people is happening but it is not a crime in the relevant jurisdiction, the judges have to honor that. Regardless, the frivolous lawsuits that ignore what the law (and is not) are going to come regardless and judges must deal with them appropriately. The Supreme Court has its role and so do lower courts. That being said, the lower court rulings can be appealed and the matter, if it truly has merit, should eventually make its way to the Supreme Court or another court that can make some social change and justice. The problem, however, is that people's definition of such a case can be very disparate and different.

As for the proper role of the courts, the short answer is that they should only be deciding each case on its merits and/or deciding whether a law passes constitutional muster, depending on the court and the jurisdiction. When it comes to criminal cases, it all comes down to whether the person is guilty of the law that they are accused of violating. When it comes to civil cases, it comes down to which side prevails given the evidence that exists, the agreements that were made and who can prove what they assert and who cannot prove what they assert. When it comes to the legitimacy of our laws and whether they pass Constitutional muster, the general role of courts that deign to consider such things should generally only be looking at whether a law is valid based on whether it is Constitutional, whether it is usurped by a higher-level law. For example, if Congress ever passed the much-hyped Employment Non-Discrimination Act, a proposed law that would include LGBT people as a protected class, this law would overrule any state or local law that runs contrary (Congress, 2016).

However, there are times and situations where the court exceeds these bounds. Sometimes it is controversial but sometimes it is necessary. For example, for any United States Supreme Court to decide Dred Scott or Plessy v. Ferguson the way they did is beyond disgusting. To keep with the gay marriage/LGBT topic, many would say the same thing about any upholding or defense of the Defense of Marriage Act (DOMA). The fact that those decisions went that way and were not overruled much sooner than they were is rather appalling. For as good as some rulings are in terms of rolling back bad laws or bad Supreme Court precedent, there are other situations where the courts are perhaps going beyond what they should be doing. For example, some people may say that the Equal Protection Clause just applies to general civil rights as defined and mentioned in the Constitution. Of course, gay marriage is not mentioned in that or any other founding document. Indeed, it is an interpretation of the Fourteenth Amendment and the Obergfell decision was a 5-4 split ... as close as it can be.

Given the above, the courts should generally stick to narrow rulings in many to most cases. To suggest that they should or could engage in public policy making on a common basis is not reasonable or wise. The Obergefell v. Hodges ruling is a good example of an exception. That decision was more about saying that gay marriage bans or limitations are illegal rather than saying that gay marriage should be legal. Effectively, the Supreme Court said that gay marriage should be allowed but really only because they said banning it was not proper. Regardless, this all comes down to separation of powers. Courts most certainly have an effect on the laws that are allowed and those that are disallowed. However, this should only become an issue if there is a Constitutional basis for it and the courts themselves do not explicitly write law ... not should they be doing so. Allowing otherwise would be directly against the Constitution and other founding documents (Scholastic, 2016).

Finally, we come to the question about whether courts can change public policy and/or society. The answer is yes, albeit in limited ways. Obergefell was a bellwether decision that obviously could have gone either way. Even if the decision as the opposite, it most certainly would have come up in a future court. This is no small thing given that the court could certainly take a liberal turn given the death of Antonin Scalia and the chance (perhaps likely chance) that Hillary Clinton will be elected President later this year. Several of the Supreme Court justices presiding right now are not all that young and the next President could easily be appointing two or three justices, if not more. It is perhaps not the best thing that even the Supreme Court is subject to ideological and political shifts and/or that the justices are appointed by obvious partisans. However, reasonable people will disagree about many things unless the underlying amendments and laws are very specific. The Constitution is very hard to amend and that is as it should be, though.

Even when the Supreme Court lobs a major ruling out for all to react to, there are always many people that stand against these rulings do not just go away because the Supreme Court renders its verdict. This might be quizzical and odd to some given that the Supreme Court is the highest and most elite court in the land. In other words, if the Supreme Court says something about a law, that is the way it is ... in theory. However, the Supreme Court has obviously been wrong before (e.g. Plessy, Dred Scott, etc.) and there will surely be other corrections to prior court rulings as the years and decades come and go. However, even clear-cut cases where a wrong (or many wrongs) were righted (e.g. Brown v. Board), there are those that resist and cling to their outmoded and/or bigoted ideals to the very end. One elephant in the room when it comes to people resisting rulings like Obergefell and related ones is that many people oppose LGBT "lifestyles" based on religions and scripture grounds. Since religion and speech are protected by the First Amendment, there are those that pose the pointed yet valid question as to which one "wins" if there is a clear conflict. Pro-LGBT-people say that bigotry is technically protected under the First Amendment but that the laws of the land should not be allowed to outlaw things from LGBT people that should be available to them. On the other hand, coming down hard on religious people is a slippery slope and is not on Constitutional grounds itself. Indeed, even the vile speech of the Westboro Baptist Church has been upheld by the Supreme Court before, as laid forth in Snyder v. Phelps (U.S. Courts, 2016).

To be clear, the courts can and should step in when the legislatures of the nation (of any level) clearly go beyond what they could or should be doing. The Brown v. Board of Education and rulings along those same subject lines proved that to be the case even if society lagged behind in terms of accepting it (Rosenberg, 2008). The same thing is happening right now with gay marriage. The county clerk kerfuffle in Kentucky is just one example of many that could be cited. Indeed, Kim Davis openly defied the Obergefell ruling and what it meant to her job (Siemaszko, 2016). In doing so, she was ignoring a clear and unambiguous ruling from the Supreme Court and was weakly trying to stand behind her supposed First Amendment rights (which many say do not apply given her status as an elected official and government employee, hence church and state separation would apply). With all that being said, the courts need to pick their battles and they should not stretch too much when it comes to what is actionable from a Constitution interpretation standpoint and what is not. Any ideas about what other countries are doing or what the Constitution "should mean" given current societal and cultural context should really not be part of what decisions are made because they are almost never relevant. Sure, there are situations (like those mentioned) where action to right wrongs is needed ... as mentioned before. However, Congress writes laws, the President signs or veto law (at the federal level) and each lower level has its own way of doing things but yet they similar to identical in most cases. So long as the proper pecking orders and rules are being followed, the courts that interpret laws should stay out of it. There are even some issues where people might call on the high court but the author of this report would shout that down. What precise rights that are extended to legally married couples in a given state should not generally be interfered with by the courts. So long as the rights are extended equally to all types of couples (including homosexual ones), what those rights are is not consequential because no discrimination is occurring. If there is something that is seen as a "right" or something should extend to all Americans, that is something federal legislation would fix due to the Supremacy Clause.