All's Not Fair at Sinclair

Mark Hyman is right about one thing in his most recent commentary: life is not fair. It’s certainly not fair (to pick an utterly random example) that the owners of a media conglomeration get to use the publicly owned airwaves to foist off their political opinions on their audience at the expense of using this time to better serve particular community needs.

But while life may not be fair, we should expect judges to be.

Hyman disagrees. According to him, judicial fairness is a “fairy tale.” Mocking those who have brought up the issue of fairness in connection with the nomination of John Roberts to the Supreme Court, Hyman says the only real issue should be whether Roberts “follows the Constitution” (invoking that vacuous phrase for the second time in as many days).

It’s odd that Hyman would chastise those who have brought up fairness as an appropriate criterion for a Supreme Court justice. After all, the very first person who brought up fairness in the context of Robert’s nomination was President Bush himself, who said in his remarks announcing the nomination that Roberts “has the qualities Americans expect in a judge: experience, wisdom, fairness and civility." (Of course, like all Bush appointees, the president also says that Roberts has “a good heart.")

Hyman says that there is no mention of “fairness” in the Constitution. He’s right, but only in the most technical of senses. The letters F-A-I-R might never appear together in the document, but the idea they collectively represent is all over the place. What is the equal protection clause of Article XIV if not a statement that the law should be applied fairly to citizens? Indeed, the Constitution in its entirety is a document that lays out what is fair and unfair for the government to do in relationship with the people.

Then there’s the Declaration of Independence with that pesky phrase “all men are created equal.” In fact, the entire Declaration is based on the premise that the British crown was treating American colonists unfairly.

This should serve as a pretty good indicator that fairness was a quality held in high esteem by the Founders. Hyman suggests, however, that “fairness” and “justice” can be at odds. No doubt King George III felt similarly.

Hyman reels off a number of trite examples of how life isn’t fair, but he misses the point. We expect more of the law and those who enforce and interpret it than the caprice of nature and chance. True, justice and fairness are not synonyms, but the American system of justice (as opposed to, say, that practiced by the Taliban) is predicated on a presumption that all people share the same rights under the law. In other words, justice is based on an underlying assumption that people should be treated fairly and equally.

For purposes of illustration, let’s look at a couple of examples of the difference between “fairness” as it applies to life and to the law.

Let’s say that you work a desk job that requires you to pound out text on a computer keyboard for eight hours a day and, because of the ergonomical nightmare that is your workstation, you end up with carpal tunnel syndrome. That’s life being unfair.

But you would expect the law to treat you fairly. For example, you’d probably assume that the Americans With Disabilities Act would cover you, particularly since your disability came from performing your job. That’s the case of the law mandating that people be treated fairly.

But not according to Judge Roberts, who ruled in exactly this sort of case that the ADA did not cover an employee who developed carpal tunnel while on the job.

Or how about this: your junior-high-aged daughter is catching the subway home from school and has some French fries in her backpack. While waiting for the train, she eats one (1) French fry. The local gendarmes, enforcing a “no-eating-in-the-subway” ordinance, handcuff your little girl, take her downtown in the back of a police van, fingerprint her, and leave her in shackles until you come to pick her up. The fact that your daughter was caught eating a single French fry when thousands of people probably eat full meals in the train station without being seen by the authorities is a case of life being unfair.

But there’s also the issue of fairness as it applies to the enforcement of the law. In a similar situation, an adult caught munching on a French fry would simply be issued a citation. Certainly the courts should step in and correct this overzealous action against your daughter, telling authorities that they have no right to treat your girl like a murderer when an adult would only get a ticket, right?

Not according to Judge Roberts. He ruled that because the teenage girl wasn’t an adult, the authorities were completely within their rights to shackle her for felonious French fry eating.

My guess is that most Americans would agree that fair application of the law is an important quality for a judge to have. “Fairness” bothers Hyman, however, because it raises the specter of certain groups of people he doesn’t care for demanding the same rights that he enjoys (an attitude he gives away in his use of the phrase “protected groups”).

I’m tempted to draw an analogy between this attitude and those of public figures of the past who said the law didn’t need to treat African Americans or women fairly because life itself wasn’t fair (after all, they were born with darker skin and/or with two X chromosomes) and it wasn’t the business of the law to undo these perceived inequities.

I’m tempted to draw this analogy between Hyman and the racist and misogynist thinking his train of thought parallels, but I won’t. It wouldn’t be fair.

And that’s The Counterpoint.

Hyman Index: 2.56