Tuesday, September 17, 2013

The Rule of Fairness

Holmes still speaks to us on important matters, perhaps because he insisted on looking through formal doctrines to see the reality we try to govern. The central pillar of the rule of law, he thought, was the principle of fairness. People charged with crimes, he said, were entitled to a fair hearing, and fairness was to be judged according to the circumstances. Sounds like common sense, but in the famous Leo Frank case a majority of the Court upheld what amounted to a judicial lynching. A majority of the Supreme Court voted to defer to a Georgia jury, which in the presence of a mob convicted a Jewish immigrant of murder (wrongly, as later events proved). Scholars today remind usthat Holmes dissented in that case, and for a time persuaded the Supreme Court to follow him, by saying that "This is not a matter for polite presumptions; we must look facts in the face." The forms were preserved, but the rule of law had been flouted, and Holmes characteristically insisted that it was the duty of the Supreme Court to judge for itself whether a fair trial had been conducted. This briefly became the Supreme Court's principle in habeas corpus cases, where the fairness of state proceedings was in question, but with the recent revival of states' rights in Congress and among a majority of the Supreme Court,we are back to polite fictions; the Court majority once again refuse to face the reality of criminal proceedings in local courts. A similar abandonment of duty is evident in cases concerning the rights of immigrants. The United States Supreme Court declines to revisit past convictions in which the defendant was an immigrant wrongfully deported from the United States because of a guilty plea in a state court, when the plea was entered in ignorance of the likely consequence. The Massachusetts Supreme Court has just announced a contrary doctrine, in effect brushing aside formalities and recognizing its duty to protect the rights of defendants, even those of "criminal aliens."