Under the Rule of Law, Fairness is Irrelevant

Florida's Supreme Court now has a second chance. To mollify the United States Supreme Court, Florida's justices must clarify that their decision to extend the deadline for recounting presidential election ballots had nothing to do with justice, or fairness, or trying to discern the will of the people. They didn't really mean that fluff about using their "equitable powers," they'll have to say in rewrite; their only concern was applying traditional rules of statutory interpretation. A properly revised equity-free opinion will likely satisfy the U.S. Supremes, most of whom would gladly duck the issue and leave the inevitable flak to Florida.

Media commentary on the many Bush vs. Gore cases has emphasized traditional American political distinctions. Unlike most nations, here in the U. S. we have a federal system, within which separate state and federal courts have different but overlapping jurisdictions. And here, too, we maintain a separation of powers, with the legislative, executive, and judicial branches of government each restricted to its own assigned place. At times like this it's clear that interactions among the two judicial systems and three branches of government can be jarring. The post-election dispute has already generated enough material to keep law professors and social studies teachers busy for years to come.

Despite the non-stop analysis, however, too little has been made of another crucial distinction: that between law and equity. The interplay between the legal and the equitable forms the backdrop to the give-and-take between lawyers and justices at the December 1st Supreme Court hearing, the Court's December 4th remand back to Florida, and, no doubt, the in-chambers discussion among the Florida justices as they reconceptualize their decision as one based purely on the law.

Loosely speaking, equity is an interest in fairness, or justice, or doing the right thing despite legal technicalities. Every advanced legal system recognizes that the strict rule of law can become overly technical, rigid, out of touch with human needs. Equity courts developed under the common law in England as a mechanism to sidestep judges so blinded by the pure brilliance of supposedly logical analysis that they refused to see individual hardship. In the U. S., most equity courts merged back into law courts, so that every judge has both powers of law and powers of equity--the power to follow the law, and the power under certain circumstances to opt for fairness instead.

Many judges, uncomfortable in equity's uncharted waters, cling tightly to law's certainty. But some do depart from legal technicalities, from strict logic and rigid precedent, from narrow categorization and mindless generalization. They aim to relieve misery, to prevent injustice, to restore balance. For their troubles they're often vilified, as was Chief Justice Earl Warren, whose preference for justice-seeking rather than legal minutiae made him hero to some but villain to others.

Where Florida's Supreme Court went wrong was openly invoking, in its written opinion, "the equitable powers of this court to fashion a remedy." That's a no-no. Explicit reference to equity is a sign that the law may not be on your side. That's especially true in the Florida case, where the court should have known not to base its interpretation of conflicting statutes on Florida's constitution, which is irrelevant to the election of a president. All that constitution-related rhetoric about discerning the will of the voters, it turns out, is legally beside the point.

It should be easy for the Florida court to claim, in its revised opinion, that it's relying only on traditional canons of statutory construction, not on equity. That should satisfy the U. S. Supremes and let them retreat out of the public glare.

The irony remains, however. The nation's pretense about the value of every vote to the contrary, trying to divine the will of the people (or at least the will of those who voted) really is less important to the legal system than melding together conflicting statutes in a technically acceptable manner. As the Bush forces have maintained since Election Day, the rule of law prefers finality to accuracy.

Regardless of how the many related cases are decided, and regardless of who becomes the next president, the final reassuring message will be that the system works. Even though precedents and canons of construction and legal principles support both sides of the case, the loser will bow more or less gracefully to the will of the courts. The inevitable result will be much punditry about the virtues of the rule of law and the joys of legitimacy. Whether that legitimacy is deserved in a system for which justice is secondary should become the topic of more extended public discussion than has yet taken place.

ACLU By ACLUSponsored

Imagine you've forgotten once again the difference between a gorilla and a chimpanzee, so you do a quick Google image search of “gorilla." But instead of finding images of adorable animals, photos of a Black couple pop up.

Is this just a glitch in the algorithm? Or, is Google an ad company, not an information company, that's replicating the discrimination of the world it operates in? How can this discrimination be addressed and who is accountable for it?

“These platforms are encoded with racism," says UCLA professor and best-selling author of Algorithms of Oppression, Dr. Safiya Noble. “The logic is racist and sexist because it would allow for these kinds of false, misleading, kinds of results to come to the fore…There are unfortunately thousands of examples now of harm that comes from algorithmic discrimination."

On At Liberty this week, Dr. Noble joined us to discuss what she calls “algorithmic oppression," and what needs to be done to end this kind of bias and dismantle systemic racism in software, predictive analytics, search platforms, surveillance systems, and other technologies.

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