The Hard Years: A Look at Contemporary America and American Institutions

By Eugene J. McCarthy | Go to book overview
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4
The Courts, the Last Appeal

It seems that almost every problem we have today eventually goes to court for solution. Many go to the Supreme Court for the final word. Whether it is an issue of delegate selection within a political party or an order telling a protest group to move off the Mall in Washington, it goes to the Supreme Court. When the justices meet on the issue of driving Vietnam veterans off the Mall, we have an activist court, despite what Warren Burger might wish.

In our society the last test and last line of defense is in the courts. It is at this level that the right of due process must be safeguarded at all costs. But the courts today are severely overburdened, a condition that weakens them as the last line of defense. The principal causes of this condition are more complex than the often-cited ones of "too many appeals" or "too few judges."

Changing the physical shape of the bench in the Supreme Court from a straight to a shallow inverted U form is not likely to help much -- though it may, as Chief Justice Burger said, enable the justices to see which one of them is talking. (We have long believed that justice is blind, not deaf.)

The obvious question is: Why do so many issues go to court?

I think one reason is that most of our institutions are not operating properly. An institution is really a formalization of law in which people find that, by applying reasonable rules of conduct and accepting that they must make some concessions, a tolerable accommodation is possible. Today this is not the case in many areas of American life. Institutions that formerly resolved disputes in the manner of a community now find themselves in court. Stockholders are suing directors of their own corporations. Patients are suing doctors for malpractice. Universities are sued by students and by athletes. Churches are sued by dissident members on the issue of who

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