By Robert A. Vella
Those inside the legal profession continue to assert that America’s judicial system is primarily administered through a structure of ethical codes and standards designed to facilitate unbiased interpretations of the law – high justice, in other words. They claim that political and other forms of bias by judges are the exception and not the rule. Legal scholars repeatedly point towards the U.S. Supreme Court as an illustrative example, where precedent, consistency, and independence mark the attributes of judicial review.
I have no doubt that this is the goal of America’s judicial system, and I have no doubt that the many judges, lawyers, and scholars within it believe they are performing up to those lofty expectations. However, they are first and foremost human beings, and as such cannot be completely objective in all cases and at all times. Subjective thinking must occur; otherwise, they wouldn’t be human.
And, when the nation is as culturally and politically polarized as it is now, America’s judicial system must suffer from increased instances of subjective bias. Here’s a case that reveals this failure of high justice, where a huge corporation makes a nearly $1 billion decision based on the unexpected death of a single Supreme Court Justice.
Dow Chemical Co. has been embroiled in legal disputes concerning whether or not the Michigan-based company conspired to fix urethanes—chemicals used for foam-type insulation and padding in refrigerators and upholstered furniture. A jury had found that the chemical giant had indeed worked to fix the prices of these chemicals. A lot of money was awarded to the plaintiffs in the case.
Dow appealed the verdict and judgment. The United States Court of Appeals for the Tenth Circuit affirmed the trial court’s decisions on September 29, 2014. The Tenth Circuit’s opinion is available at the “Court Documents” link on the left side of this page. On November 7, 2014, the Tenth Circuit denied Dow’s request for rehearing.
On March 9, 2015, Dow filed a petition for a writ of certiorari in the Supreme Court of the United States, seeking further review of the verdict and judgment. The Supreme Court likely will rule on Dow’s petition in late 2015 or in the first half of 2016.
Dow Chemical was hoping the Supreme Court would hear its annoyance with the jury’s findings and reverse the ruling. Then Antonin Scalia had to go and die.
Dow Chemical Co. said it agreed to pay $835 million to settle an antitrust case pending before the U.S. Supreme Court after Justice Antonin Scalia’s death reduced its chances of overturning a jury award.
Now, I ask you… can there be high justice in the United States if the personal ideology of a single judge can have this big an impact?