Thursday, November 30, 2006

Justice Is Blind, Which Is Why Absurd Results Can Happen If Attorneys Fail Their Obligation to Be Effective White Sticks

WARNING: The following post contains legal scholarship analysis writing content. Reader discretion is advised.

Cap'n Ed (a guy against whom I am undefeated in poker) is in a snit about yesterday's ruling that the Greenback discriminates against blind people:

The scourge of judicial activism raises its silliness quotient just a little higher this week with a ruling that found American currency discriminatory. US District Court Judge John Robertson declared that the venerable greenback puts blind people at such a disadvantage that it violates the Constitution, and ordered the Treasury to revamp its currency offerings forthwith...

Cries of judicial activism or overreach are kind of like playing the race card. If you start calling every decision you disagree with an act of an imperial judiciary with out first checking to see if that's actually the case, you look bad and hurt your cred later on when you try to point out an actual act of bench imperialism.

Such is the case here. Judge Robertson wasn't the culprit; crappy attorneys for the Treasury Department were.

We arrive at that insight on page twelve of the decision, where the court recites the statute (not a Constitutional provision as Ed asserts - really Ed, you ought to read these decisions before commenting on them. Otherwise, you're just like a Strib editor with less bandwith) which the US currency purportedly violates:

No otherwise qualified individual with a disability in
the United States, as defined in section 706 (20) of
this title, shall, solely by reason of his or her
disability, be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity [footnote omitted] receiving
Federal financial assistance or under any program or
activity conducted by any Executive agency or by the
United States Postal Service

(Sec. 504 of the Rehabilitation Act, 29 USC sec. 794. Emphasis mine.)

The nub of this decision revolves around the word "activity" in that section. The plaintiffs asserted that the term "activity" extended to the printing and minting of currency. And that would be a fair interpretation. The government should have argued that the actual use of the currency - the source of the plaintiff's problem - was not a governmental activity. Just like manufacturing paper envelopes might be the activity of, say, the Mead Corporation, but the end user mailing anthrax in those envelopes would not be.

Alas, as we learn in law school, you must always read the footnotes. Footnote 8, the marker of which appears after the word "activity" in the above-quoted section, shows us who's really to blame for the result of this case (also on page 12, emphasis mine):

8 It appears to be undisputed, despite the awkward "fit" of the language,
that the design, production and issuance of currency is a "program or
activity" under the Rehabilitation Act. [Citations omitted]

See? The judge actually acknowledges that there's some doubt as to the meaning of the language in the statute, but the defendant didn't even try to argue for a different interpretation. He or she left the issue "undisputed" and went on to make loser arguments like sovereign imunity. They tried to trot out a parade of horribles to tip the balancing test applied to cases like these (see pg. 14 of the opinion) in their favor, which is never a good idea when you represent an unsympathetic defendant like the Big Mean Iron Fist of Government against a plaintiff like the Poor Handicapped Folk Whose Life Is Already Hard Enough.

The judge in this case didn't have a choice. Counsel for the government failed to provide him one. That's why the bromide "justice is blind" exists. It is the court's duty to screen out the outside world (with a few exceptions) and only make decisions based on the relevant law and the relative merits of the evidence and arguments. That is the very epitome of judicial nonactivism.

But in this case, counsel for the defense failed to offer any argument on the one point it could win. Judicial overreach? No. The defense just literally allowed the blind to lead the blind.

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