Civil Disobedience in the Supreme Court: Retroactivity and the Compromise between Formal and Substantive Justice

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In the area of criminal law, specifically criminal procedure, the Supreme Court makes a compromise between the sometimes competing notions of "formal" and "substantive" justice. This compromise, found in the Court's doctrine of retroactivity, was developed to prevent the perceived injustice of allowing the factually guilty to challenge their previously rendered convictions on the basis of new developments in case law. The doctrine of retroactivity (which is really one of nonretroactivity) prevents these challenges by providing courts with a mechanism to apply some decisional law prospectively, depending on the law at issue and the stage of the litigant's case. As a judicial contrivance that departs from centuries of precedent, the doctrine of retroactivity may be understood as an act of "civil disobedience" by the Supreme Court designed to avoid the unpalatable and perhaps, unjust, effect that a mechanistic application of the law would produce. This article will demonstrate that, in making this compromise, the Supreme Court subordinates the role of formal justice to achieve the substantive goal of punishing wrongdoers. In order to arrive at this point, this article will first examine the theories of "formal" and "substantive" justice.

A. Formal and Substantive Justice

Formal justice (sometimes referred to as "procedural justice" (1)) is a principle of justice for an institution, such as a government. (2) The legal philosopher, John Rawls, described formal justice as "adherence to principle ... [or] obedience to system." (3) Its central precept is that the law must be administered evenhandedly. (4) This precept is often formulated as "treat like cases alike." (5) Treating like cases alike requires that the law be administered in accordance with itself, regardless of the circumstances of a particular case and without consideration of its "defects or virtues." (6) Formal justice--a highlight of the American legal system--requires officials to apply the law in the same way to everyone, regardless of whether they approve of the content of the law or the result such uniform application produces.

Substantive justice, on the other hand, involves a value judgment about the content of law and its consequences. (7) It is concerned with the outcome or effect of the law. (8) Whereas formal justice finds value internally in the regular and consistent application of law, substantive justice finds value through externalities such as morality, religion, or culture. For example, a system of criminal law may dictate that punishment be proportionate to the crime, or that punishment serve ends such as retribution or rehabilitation. These are substantive goals and substantive justice would be achieved if these ends were met. Accordingly, the theory of substantive justice does not embody any particular substantive goal; indeed, what is considered "substantively just" may vary from person to person.

There is debate as to whether a system of formal justice necessarily produces substantively just outcomes. (9) However, the notion that justice may be achieved solely through rigid adherence to the rule of law (or, that formal justice is the epitome of justice) is easily refuted. For example, imagine a law which prohibited people with red hair from entering the park. This law could be equally enforced, with only those who have red hair being punished under the rule. While the evenhanded application of this law would satisfy the requirements of formal justice, it can fairly be said that few people would find such a law just.(10) On the other hand, a law that prohibited people from littering in the park is, arguably, substantively just (because it forwards a worthwhile environmental purpose), but it would be unjust if the park police arbitrarily enforced this rule, based on whim, bias, or any other reason. Thus, injustice appears to result when either formal or substantive justice is missing from the equation. …


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