The Problem with the Judiciary

The Problem with the Judiciary
by pragerfan

October 9, 2022
Updated: November 16, 2023

While it may be argued that respect for the United States Supreme Court is waning among the Left, the Judiciary remains, on the whole, perhaps the most respected of America's three branches of government. Day in and day out, with little fanfair, the judicial branch of the United States metes out justice in a mostly even-handed manner. Juries are summoned and convened. Those accused of crimes are given their proverbial day in court. Those convicted of crimes face fines or are sent to prison. The acquitted and the innocent go free. Though not without exceptions, the American justice system has largely operated this way for over two hundred years.

In addition to criminal procedure, there is also civil procedure. United States courts at the federal, state, and local levels routinely hear cases involving contract disputes, labor disagreements, torts, civil fraud, just to name a few areas of law. In these cases there is no crime per se committed; one party alleges that another party defrauded it in some way, or that it did not live up to the terms of some written agreement. Employees might take a company to court over unfair labor practices. There is even small claims court where judges sort out rent disputes and other petty problems that citizens can't or won't sort out for themselves.

Americans have always cherished our right to tell it to the judge. This right is codified in the Sixth and Fourteenth Amendments to the U.S. Constitution, among others. It is said that to live well, one needs a good priest, a good doctor, a good accountant, and a good lawyer. We Americans do a lot of lawyering. For example, by some estimates there are twenty times as many attorneys per capita in the United States as there are in Japan. The Japanese don't seem too concerned about having their day in court, but for most Americans, that day is more important than the Fourth of July.

Until recently, our judiciary was working pretty well. There has however been a disturbing trend that, perhaps unsurprisingly, seems to have coincided with the rise of the so-called "woke movement." The woke movement begins with the proposition that America is inherently inherently racist, sexist, or oppressive. Wokism teaches that America wasn't founded in 1776 but in 1619 (the year that African blacks first sold other African blacks and put them on cargo ships as slaves bound for the Americas). The woke movement teaches that even today, American institutions are "systemically racist," even though America is perhaps the least racist country on earth — or at least it intends to be. Importantly, woke ideology minimizes, ignores, or denies the facts that every culture practiced slavery — Arab, Muslim, African, Asian, Native American — slavery was never unique to America; and that slavery was finally ended in America at the staggering cost of over six hundred thousand American lives.

2020 was a great year for woke ideology but a terrible year for America — just two examples suffice — the complete bungling of the response to the coronavirus pandemic by elites like Dr. Anthony Fauci who should have known better — and the so-called "George Floyd" riots in which disgruntled residents, mostly on the Left, destroyed private and government property to the tune of several dozen people killed and billions of dollars in damage. Leaders of major U.S. cities such as Minneapolis, Seattle, Chicago, and others, fiddled while police stations and businesses burned. Against this backdrop, the specter of unrestrained power of private corporations arose to restrict freedom of bodily integrity in the name of public health, and to restrict free speech in the name of the war on "misinformation" — misinformation being any thought, word, or deed that contravenes the political zeitgeist of the left.

Since at least 2015, America has seen social media companies like Twitter, Facebook, Google, and others tread on freedom of speech. This has been largely permitted by the Courts as these companies are privately-owned (in reality, they are publicly owned by their shareholders but because Uncle Sam isn't one of them, they are considered "private" even when owned by the American taxpayer). The legal theory is, in a nutshell, that because a company is privately held, it has plenary power to determine who can say what on its platform. This has led to absurdities such as Twitter (now called X) allowing islamic terrorists to create and maintain accounts on its platform while suspending the account of a duly elected President of the United States.

Corporate censorship of opposing views took on public health dimensions in mid-2020 and 2021. Companies demanded their employees get the jab for coronavirus or risk losing their jobs. Expressing any opposition, no matter how slight, regarding vaccinations in the workplace was tantamount to religious heresy. Employers scrutinized social media posts of employees for opposition to vaccinations and other politically incorrect subjects often resulting in loss of opportunity or career growth, workplace harassment, disciplinary action, or the loss of employment. There's no question expressing an opposing view on masks, vaccinations, or regarding any other "woke" issue jeopardized one's job.

Even today, wading into any workplace debate involving race or to a lesser extent public health must be done with extreme caution, and then only in the most vague generalities. Be specific and you become a target. For example, management lauds diversity programs but raising legitimate questions of whether the programs actually contribute to the profit of the company, or when diversity programs have accomplished their intended goals and can be sunset, is strictly verboten. It's also verboten in corporate America to point out that "black lives matter" (BLM) ideology is rooted in Marxist-Leninist principles. The elites who run America's businesses don't want to be reminded that the BLM flag they hoist in the name of diversity, equity, and inclusion also stands for an ideology — Marxism — which led to the slaughter of over a hundred million human beings in the twentieth century alone.

What does any of this have to do with the American judicial system? Civil procedure relies on the legal concept of tort. Tort, very loosely speaking, refers to the harm done to one party due to another party's failure to perform, which in turn causes injury or harm. A motorist rear-ended by a careless driver has a tort — the damage to his car and his person as a result of the failure of the other motorist to exercise due care and to drive safely. If the motorist cannot reach an out-of-court settlement with the other party, the case will go before a judge who will decide how much compensatory damages to which the motorist is entitled. The offender (or more often, his insurance company) compensates the motorist as ordered by the judge, and the tort is settled. This is, perhaps, a vast oversimplification of tort law, but since I'm not a lawyer, it will suffice for now.

But the very concept of tort presupposes that harm has already been done. Legal action is taken after the fact. A driver damages my car, and afterwards we settle the matter in court. I can't sue the other driver before he hits my car. I don't have a tort until the harm occurs, and therefore I don't have standing to sue, because until harm is done there is nothing to sue for.1

In the last few years we have witnessed private-sector abuses of power, especially by so-called "Big Tech," that rival U.S. government internment of Japanese-American citizens in relocation camps in the 1940s. Forced vaccinations at the behest of employees' jobs, the draconian restrictions on speech by social media platforms (rightly or wrongly, social media is today's public square), the discipline or firing of employees who disagree with woke race ideology, the collusion of social media platforms with government — all of these egregiously assault the spirit if not the letter of the Constitution, and our American way of life. Indeed, Senior Judge Laurence Silberman of the United States Court of Appeals in Washington D.C., the nation's most influential Appellate Court, has stated with respect to free speech and the private sector that
The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is — I say this advisedly — fundamentally un-American (underline mine).
The Judiciary remains philosophically and procedurally ill-equipped to act before harm has been done. But often waiting until after harm has been done is morally intolerable, or poses an unacceptable abrogation of civil liberties. The private sector — especially corporate America — has become a sort of unaccountable quasi-government. Liberals often criticize corporations as being driven by profits, and occasionally rightly so, but ironically, by jumping onto woke political bandwagons instead of focusing on profits, corporations have amassed unprecedented power over the lives of working Americans. When corporations can tell their employees that they cannot speak out against prevailing public opinion, or that they cannot refuse to take an experimental, unproven vaccine, without the fear of recrimination, reprimand, and the possible loss of their jobs, corporations have ceased to be neutral bystanders in the political process. They have become active participants. They no longer respect the spirit of the United States Constitution, and have become, as Judge Silberman says, "fundamentally un-American."

America probably has more lawyers and judges than any country on earth, yet even our legal system could not devise a way to enable employees to refuse private-sector vaccine mandates without losing their jobs. A few brave souls did refuse the vaccine and did end up taking their companies to court. Some lost, others won. As it was, government vaccine mandates ultimately did not withstand judicial scrutiny. When the Biden administration lost in court, sued by government employees who were fired for not taking the vaccine, private sector mandates began to fall as well. Companies now found themselves refunding confiscated pay to employees who refused the vaccinations — embarassing to say the least, and a bait-and-switch on those who had to get the jab to stop their employer's harassment and wage garnishing. But all of this occurred after harm had been done.

Many conservatives see these court battles as victories. It's hard to agree with this assessment. These court battles should never have happened. No American should have been forced to take an experimental unproven vaccine under threat of his job. There should have been a way to take the company's policy to court before harm was done, to get a judge, or an arbitrator, or other high authority to tell CEOs, "you don't have the right to discipline or fire employees for refusing an experimental medical procedure," "you can't discipline or or fire employees for expressing a political opinion online as private citizens," and "you don't get to harass or terminate employees for not complying with or speaking out against your diversity mandates." These practices are fundamentally un-American yet all of these these practices still run rampant in American business today.

That a private-sector company should be able to force vaccinations or curtail free speech is inconsistent with the American ethos. Yet, for nearly ten years corporations led by Big Tech have cowed Americans into relative silence both in and out of the workplace by threatening their jobs. One can sue for wrongful termination but such cases are incredibly difficult to win. How many employees have the financial means to sue United Airlines, or IBM, or GE, or Google or Facebook or Twitter? Lawsuits which decide important societal questions often drag on for years. Even if a party prevails at law, by then far more damage will have been done to other citizens financially unable to put their jobs on the line to uphold their rights.

Therefore, the Judicial branch is of little use in protecting private sector abuses of freedom of speech, religion, and privacy. Corporations get away with trampling on citizens' rights because the Constitution protects citizens from abuses of government, not abuses of big business. Until laws are passed or the Constitution is amended to provide the same Constitutional protections against out-of-control corporations that the Constitution provides against out-of-control government, the jobs and health of American citizens will continue to be sacrificed on the twin altars of leftism and corporate woke-ism.

When courts fail to safeguard liberty, "just cause" employment doctrine may be a better solution.

It has been argued that "just cause" replace "at will" as the nation's employment standard. "Just cause" means employees can only be terminated for good (i.e. just) cause. Good cause is defined as "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of operations, or other legitimate business reasons" — underline mine. Engaging in free speech by expressing an opinion as a private citizen, or refusing to take an experimental vaccine, or to wear a mask, do not constitute "job-related grounds." Unfortunately, Montana is the only state in the Union that has a form of just cause employment. Just cause needs to be expanded to more states.

Just cause employment is not a conservative or liberal issue — it is an anti-left, pro-freedom issue. Only left-wing woke employers that trample on their employees' free speech and other rights need to be afraid of just cause — and be assured these employers will fight it tooth and nail.

1 The idea of arresting murderers before their murders were been committed was briefly and perhaps terrifyingly explored in the 2002 blockbuster Minority Report. The film was based on a 1956 short story, "The Minority Report" by Philip K. Dick — the idea of "pre-crime" is nothing new. If there is any message that Minority Report conveys, it is that pre-crime smacks of "1984" big-brotherism, and is fraught with physical, moral, and legal peril — simply put, pre-crime is a bad idea.