Watching Justice Ruth Bader Ginsburg of the US Supreme Court interviewing on C-Span made me think of the thin line between adjudicating a dispute and adjudicating a social problem. One of the questions the moderator addressed to Justice Ginsburg was about the effect the Supreme Court's ruling had on society, and Justice Ginsburg answered that the court should always be careful not to make wide ranging rulings before it knows what other cases are out there. As an example, she mentioned a series of cases from the 1970's in which the Supreme Court declared that women are a 'suspicious classification', to which greater protection is given. She said that when the Chief Justice decided that his opinion is going to make this statement she felt as if the court still doesn't know enough about "what's out there" and that it should wait at least for 7 or 8 more cases before reaching that conclusion. One or two cases, according to her, were simply not enough to learn the territory well enough to make a decision that's wider than the case at bar itself. It was "too soon" (that's the term she used) to know how women are treated in the workplace and other environments, for the court to be making new rules that would apply to all women, rather than just the specific women that choose to approach the court with their case. While the court can easily study the facts of the single case in front of it through looking into evidence and listening to witnesses, it is not so well equipped to learn about society in general and implement policies that strife to make big changes.
I'm not sure how much I agree to this approach. At first glance, it's true - the courts (perhaps as opposed to a parliament) don't know "what's out there." The court's knowledge of society is limited to what the parties choose to bring before it, and everything it learns is in relation to the specific event that is adjudicated at that time. One could see how this would require a restraint decision, that would not exceed the limits set on the court by its own procedure. But Justice Ginsburg's approach seems to ignore two major factors: the first is the effect a single case has on society even when it does not include general statements; and the second is the effect this approach has on the particular litigants bringing their case before the court.
A court's decision on socially or politically important matters has an effect bigger than the case itself. Interesting verdicts are usually reported in the news, and many times inaccurately. The media, always looking for the story, would not go into the legal details that makes the legal decision applicable only to the one specific case that was decided. On the contrary, in order to make every report more interesting, it's more likely that the general sides of every decision would receive much greater attention. If that's true, while, on a legal level, the verdict remains particular and the court remains socially cautious, on a public level the verdict received a widespread effect nonetheless. It seems to me that Justice Ginsburg, in this sense, thinks in concepts of social effects that are somewhat outdated.
In addition, on not less important, Justice Ginsburg's approach has an effect over the particular parties depending on the court's ruling and their incentives. If, for instance, the court refrains from ruling the women are a 'suspicious classification' until it had heard several cases leading to that result, it means that the first woman to bring her discrimination case before the court would be treated differently than the seventh or tenth woman to do so. While in later cases women would enjoy the benefits of being recognized as a group that is likely to be discriminated against, and therefore need to prove much less in order to win their case, the first woman to approach the court would not enjoy those benefits. In fact, she is much more likely to loose than they are. This seems to be problematic both on a particular level and on a social level. On a particular level, the courts, that are supposed to treat all similar cases equally, treats similar cases differently just because one preceded the other. That goes against everything the common law system stands for. On a social level, this result prevents change from happening, by creating an incentive for people who feel that their rights have been breached to wait until someone else brings their suit first. Since people are more likely to win their case if they come later in line, there is no reason for anyone to be first. That way, in stead of promoting a more just society through correction of social injustices, the court seems to promote status quo, in which disenfranchised groups are deprived their rights.
I'm not sure how much I agree to this approach. At first glance, it's true - the courts (perhaps as opposed to a parliament) don't know "what's out there." The court's knowledge of society is limited to what the parties choose to bring before it, and everything it learns is in relation to the specific event that is adjudicated at that time. One could see how this would require a restraint decision, that would not exceed the limits set on the court by its own procedure. But Justice Ginsburg's approach seems to ignore two major factors: the first is the effect a single case has on society even when it does not include general statements; and the second is the effect this approach has on the particular litigants bringing their case before the court.
A court's decision on socially or politically important matters has an effect bigger than the case itself. Interesting verdicts are usually reported in the news, and many times inaccurately. The media, always looking for the story, would not go into the legal details that makes the legal decision applicable only to the one specific case that was decided. On the contrary, in order to make every report more interesting, it's more likely that the general sides of every decision would receive much greater attention. If that's true, while, on a legal level, the verdict remains particular and the court remains socially cautious, on a public level the verdict received a widespread effect nonetheless. It seems to me that Justice Ginsburg, in this sense, thinks in concepts of social effects that are somewhat outdated.
In addition, on not less important, Justice Ginsburg's approach has an effect over the particular parties depending on the court's ruling and their incentives. If, for instance, the court refrains from ruling the women are a 'suspicious classification' until it had heard several cases leading to that result, it means that the first woman to bring her discrimination case before the court would be treated differently than the seventh or tenth woman to do so. While in later cases women would enjoy the benefits of being recognized as a group that is likely to be discriminated against, and therefore need to prove much less in order to win their case, the first woman to approach the court would not enjoy those benefits. In fact, she is much more likely to loose than they are. This seems to be problematic both on a particular level and on a social level. On a particular level, the courts, that are supposed to treat all similar cases equally, treats similar cases differently just because one preceded the other. That goes against everything the common law system stands for. On a social level, this result prevents change from happening, by creating an incentive for people who feel that their rights have been breached to wait until someone else brings their suit first. Since people are more likely to win their case if they come later in line, there is no reason for anyone to be first. That way, in stead of promoting a more just society through correction of social injustices, the court seems to promote status quo, in which disenfranchised groups are deprived their rights.
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