Friday, October 10, 2014

Supreme legal joy

The pinnacle of any legal career is being appointed a judge at the Supreme Court, the highest court of the land.  In most cases, it is lifetime job with no fear of being fired. Still, the responsibility placed on these judges is by definition heavy since they only rule on the most important cases.  However, significant differences exist in different countries between the legal procedures for high court cases.

For example, in the United States, the US Supreme Court may, but is not required to, rule on circuit court (first level of Federal appeals) rulings.  The key word is may since the court itself decides, by a decision of four of the nine judges, to take on a case in a given year.  The criteria for “the ideal case” are as mysterious and discussed as the elections of a new pope.  For instance, just recently, the Supreme Court announced the 50 cases it would hear in the coming year.  Most of the public discussion was on the omission, i.e. it would not hear any of the pending appeals regarding circuit court decisions to effectively allow single sex marriages.  Two reasons for this choice to ignore this controversial issue have been proposed: all of the circuit courts have reached the same conclusion, meaning that there is no need for the Supreme Court to intervene; alternatively or concurrently, the four judges against single-sex marriage are not sure of the support of the other conservative judge to reach a majority and therefore choose to wait for a more propitious moment. On the other hand, the Court, in its wisdom, did choose to hear a fascinating case, at least in my eyes.  Some crooked captain of a fishing trawler, caught with undersized fish at sea and instructed to hand over said fish to the police upon return to the port, ordered the crew to replace the small fish with larger ones.  Applying a section of law aimed at organized crime forbidding destruction of evidence during an investigation, the district attorney wants to give that crooked captain 20 years in prison instead of a fine that he otherwise would have gotten.  That is an issue that amuses more than divides (albeit not that captain).  Thus, US Supreme Court judges have this wonderful privilege of ignoring what is not convenient, for whatever reason.

In Israel, the high court hears two kinds of cases.  One is appeals of rulings of the appeal courts, like in the US.  In practice, the Court finds countless procedural reasons for not discussing appeals, quite often justifiably.  Its other role is the High Court of Justice, in Hebrew “Bagatz”, which gets it into quite a bit of trouble.  Any person, including a foreigner or illegal alien, that believes that his/her fundamental rights are being breached may petition for a hearing.  More often than not, these petitions involve minority rights and controversial issues.  For this reason, many voters, including the religious sector, want the Knesset to legislate a limit to the Court’s power while their opponents love the fact that the Court can do what the Knesset is scared to do.  However, for the judges themselves, this center stage position in the societal conflicts is both hard work and sometimes uncomfortable.  I would imagine that they envy their US colleagues, who can hide behind the shadows.

So, to paraphrase Orwell, the life of all Supreme Court judges is not created equal, even if the US Constitution says that we are.

N.S. My late great uncle, Simon Rifkind served as a Federal District Judge and took on a special assignment for the Supreme Court to rule on water distribution of the Colorado River.

No comments:

Post a Comment