Nine Days Of American Justice

Photo by Marko Milivojevic on Pixnio

It’s been a big couple of weeks for those of us who are involved in the legal system of America. A couple of weeks with many high-profile events. These remind us that justice is hard.

• Ghislaine Maxwell, Jeffrey Epstein’s right-hand-woman, is now standing trial for sex trafficking in New York City. She has complained through her family to the United Nations about not having been granted bail (on grounds that she poses a significant flight risk) but has been permitted to call a “false memory” expert, U.C. Irvine psychology and law professor Elizabeth Loftus.
• On 16 November 2021, the “QAnon Shaman” who so visibly participated in the insurrection that attempted to disrupt Congress’ electoral vote count on 06 January 2021 in Washington was sentenced to 41 months for his role in the attempted pro-Trump insurrection of that day (please note that the second link in this paragraph goes to a compilation of videos and graphics prepared by the New York Times which depicts frequent incidents of vulgarity and violence, including a fatal shooting, much of which was filmed by the people who unlawfully entered the Capitol that day).
• On Friday, 19 November 2021, Kyle Rittenhouse was found not guilty on all remaining counts, with the jury apparently accepting his claim of self-defense arising out of his decision to insert himself into protests-turned-violent in Kenosha, Wisconsin in August of 2020.
• On 22 November 2021, a jury in Mt. Pleasant, Texas issued the largest single-fatality vehicular death verdict in Anglo-American legal history, awarding an eye-popping total of $730,000,000 in damages to the family of Toni Combest, who was killed in a 2016 vehicular collision with a truck hauling a propellor for a U.S. Navy submarine. The plaintiffs are Ms. Combest’s four adult children. That an appeal is on its way ought to be obvious.
• On 23 November 2021 a man accused of driving a car through a holiday parade in Waukesha, Wisconsin and killing six people (many more were injured) was arraigned. His factual guilt appears to be in no substantial doubt and his motive is highly unclear. Much is not yet known about this very recent and horrific crime, and I will not speculate further beyond cautioning readers to not jump to conclusions quickly.
• On the same day, Juul Labs Inc. agreed to a $14,500,000 settlement with the State of Arizona concerning allegations that it marketed its vaping products to minors. Juul Labs had previously agreed to settle a similar suit brought by the State of North Carolina for $40,000,000 and faces literally thousands of individual lawsuits pending around the country.
• Also on the same day, a federal jury in Cleveland found in favor of two urban Ohio counties against three major pharmaceutical retailers (Wal-Mart, CVS, and Walgreens) for promoting and selling opioids after it was known that the products were addictive and harmful. The amount of damages will be the subject of a hearing to be held later. The retailers are all but certain to appeal.
• As if that wasn’t enough, still more legal action on 23 November 2021 came when two Colorado attorneys who participated in the spurious and unfounded challenges to the 2020 election results were sanctioned $187,000 for their misconduct, specifically for “prematurely repeating in court pleadings unverified and uninvestigated defamatory rumors that strike at the heart of our democratic system and were used by others to foment a violent insurrection that threatened our system of government.”
• On Wednesday, 24 November 2021, a jury found a group of white supremacists and neo-Nazis civilly liable to nine plaintiffs for deaths and injuries arising out of the protests-turned-violent in Charlottesville, Virginia in August of 2017 to the tune of nearly $26,000,000.
• And also on 24 November 2021, a jury in Brunswick, Georgia found three white men guilty of almost all of the charges of murder and assault related to their racially-motivated pursuit and killing of Ahmaud Arbery on 23 February 2020. In light of their convictions, I have removed the word “alleged” from the description I would previously have used of the charges. All of the defense attorneys have announced that their clients intend to appeal these verdicts.

If that seems dizzying, it is. And it’s not all. There are hundreds of legal challenges to all manner of things that all levels of government have done in response to the ongoing COVID-19 pandemic: here’s a list of roughly 100 of them that one panel of editors deemed particularly noteworthy, most of which are still pending.

These are cases from around the country, civil and criminal, with all manner and all calibers of lawyers and judges. They deal with some of the most difficult issues that we confront as a society: our difficulty getting along politically; our difficulty accepting the equality of people based on race and gender and wealth and power and fame; our difficulty dealing with addictions and mental health problems; our difficulty with understanding risks and consequences of decisions made both as individuals and as people who collectively share an ambiguous history.

All of these disputes are playing out in court rather than in other sorts of places where important decisions get made, like legislatures or town halls or churches or in private, negotiated agreements. Courts are, among other things, places of last resort for resolution. I often encounter the theory that when a dispute goes to court at all, it means some other way of resolving that dispute has failed. There’s something to that; we can’t relegate every hard decision to courts, because courts only have limited ways of dealing with the disputes that come before them.

Courts are also places where the law, the end product of politics, becomes real and tangible and actually affects peoples’ real lives. It may not be particularly pleasant to witness and is almost never pleasant to experience. Airy theory in academic lecture halls and rhetoric on the campaign trail or the floor of a legislature are all well and good, but it is judges and juries who make those ideas manifest, often in decidedly unglamorous ways. The list of notable legal events above is what this looks like: these are the practical results of decisions we have collectively made, through our politics, our history, and our culture.

It’s hard to create justice. It’s often hard to appreciate it when you see it. It’s sometimes hard to even want it, compared to sexier things that people¹ go to court to pursue, like “victory for our side,” and “revenge,” and “mercy” and sometimes just plain “lots and lots of money” or its sibling, “not having to pay lots and lots of money.”

Justice is frequently defined by its opposite, which in turn is identified using Potter Stewart’s calculus: “I know it when I see it.”² If this seems intellectually unsatisfactory, it is, but philosophers have a hard time finding a consensus affirmative definition of justice. Plato, Aristotle, Augustine, Aquinas, Hobbes, Kant, Mill, and Rawls all have significantly different definitions, and concepts of what is fair, equitable, deserved, and of utility within these philosophers’ schema are all over the board.

Posited: justice has, at minimum, several necessary conditions: it is at minimum (1) the result of a law or rule (2) which was legitimately created and (3) enforced in a manner free from bias, which (4) is based upon a good-faith assessment of the truth, and (5) produces a result that benefits the public as a whole. Are these sufficient? I don’t know but I think so. Those things are difficult enough to achieve, and even more difficult to get diverse groups of people to agree has been achieved.

Hopefully, people look at all of this activity and conclude that yes, justice is hard, but it’s possible to achieve, and worth pursuing as an end in and of itself.

Especially young people, that they might consider pursuing their careers in a legal system which will surely have great need of them in the future. After all, justice is hard and it is easy to grow bitter and cynical when it seems elusive. Yet its pursuit is what makes us noble, and the only thing harder than achieving justice is living with its absence.

1. Always other people, never people like yourself
2. Jacobellis v. Ohio, (1964) 378 U.S. 184 at 197, Stewart, J., concurring)