Wednesday, June 25, 2008

A Meditation on Social Justice

Should a Supreme Court Justice be concerned about social justice? My response is “yes” but first let’s discuss what is meant by social justice.

Some would argue that the expression “social justice” refers to economic redistribution from the rich to the poor. These advocates of social justice favor programs like progressive taxation, low income subsidies, and transfer payments as a means of moving toward a more egalitarian society. The justice in this conception of social justice is demonstrated when all members of society share equally in society’s economic benefits.

Others, while driven by conscience or moral values, are similarly distressed that in a society whose abundance is as great as ours the poor remain trapped and the rich get richer. But these folks believe that the means to achieve social justice are best served when government leaves the market to its devices.

In my view, a judge has no business adopting or seeking to implement either of these approaches to social justice because they represent competing policy decisions that should be made by the people. A judge’s responsibility is to apply the law and Constitution as written, and avoid imposing her or his own personal opinion about what the law should be. How to achieve economic equality, if that is the choice, is a decision to be made by the legislature and not the courts.

I state the issue in its extreme point of view for purposes of my argument because, in some cases, the legislature punts to the courts or elsewhere to make the decision.

But there is another aspect of social justice. In my view, the most important role of the courts is to protect the people from the power of government and vested interests. Not simply power, but the abuse of power. Social justice is advanced when the abuse of power is identified and called to account. Here are three examples that illustrate my argument.

In Tenants v. Seattle Housing Authority, the Seattle Housing Authority adopted a rule that barred its low income tenants from posting political and other messages on the doors to their apartments. So, for example, a poster that said “Impeach Bush” or “Mayor Nickels is a Moron” would have been outlawed. The tenants sued, claiming this rule violated their Constitutional rights to free speech, and the Washington Supreme Court agreed and struck down the Housing Authority’s rule.

My view of it is that a person’s home is their castle, and a poor person’s low income housing apartment was entitled to the same rights of expression as the richest mansion on Lake Washington. And it occurs to me that a poor person may have no better opportunity to express their protest than to put a protest poster on their front door. The poor have very little power in our society, and if all they can do to register their dissent is to show the powerful their middle finger, then I say: you go dude.

My opponent, Justice Fairhurst, joined the dissent who would have upheld the Housing Authority’s rule banning free speech. That approach fails to protect the people from the abuse of the power of government.

In Christiansen v. Ellsworth, a landlord evicted his tenant with a Notice to Pay Rent or Vacate the Premises that gave the tenant 2 business days’ notice. Landlord/tenant law says the landlord has to give 3 days notice and Superior Court Civil Rule 6 says if the time required to do something is less than 7 days then you don’t get to count holidays and weekends. In this case the landlord gave the tenant the notice on the first day of a 3 day holiday weekend, and he counted the three days of the holiday in calculating the statutory three days of notice. That means the landlord did not comply with the law. The trial court and Court of Appeals agreed and they dismissed the landlord's case, and it went to the Supreme Court who reversed, declaring that Civil Rule 6 did not apply and it didn't matter if the notice expired over the holiday weekend.

Justice Fairhurst wrote that the notice to the tenant was “more like a waiting period and not a deadline because it required no action on the part of the tenant.” That's just plain wrong; the notice did require action: pay the rent or get out.

But the bigger problem - it seems to me - is the failure to recognize the relationship of power between these parties: the landlord and the tenant. And in ruling for the landlord, Justice Fairhurst failed to protect the less powerful from the more powerful.

In Ventenbergs v. Seattle, the City of Seattle granted monopoly rights to two national corporations to haul garbage, including construction debris. When the monopolists complained that a local guy with a couple of trucks was hurting their profits, the City shut him down. Our Constitution prohibits granting special privileges to corporations, but our Court wrote an exception into it for garbage, and Justice Fairhurst joined their ruling.

And once again the big and powerful had their way with the small and weak. In my view, social injustice is allowed to fester when the Court fails to protect us from the abuse of power.

In all three cases, application of the plain language of the Washington Constitution or the Civil Rules would have advanced social justice; it really is that simple.

Vote Bond for Justice.