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Op-Ed

Fairness Isn’t Fair

October 19, 2020

It gets harder and harder to compromise when one side is so obviously right.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Is fairness fair? Well, yeah, it probably is, but my point is that being fair doesn’t guarantee fairness. In fact, it could make fairness impossible.

I say this after being seriously impressed by a select group of New York Times readers who responded to the newspaper’s requests for suggestions of how to reform the U.S. Supreme Court.

(Irrelevant aside: Does it make sense for me to call a media outlet a “newspaper” when I never look at the paper version of the Times? Shouldn’t it be a “newscomputerscreen?”)

Readers came up with all sorts of great ideas for getting partisanship out of the court. Any number of them could work just fine if only someone actually changed the system (don’t hold your breath).

But let’s assume reform actually takes place. Then what?

I’ll tell you: no one will be happy.

Think of any issue you feel strongly about. Do you really want a deadlocked court or a compromising court?

Say, for example, you have a case that will decide whether a coal-burning monstrosity gets to keep making big profits while destroying the planet. Is anybody happy with a ruling that costs the coal company some money and only delays planetary death?

How about a ruling that doesn’t do anything because the court can’t decide?

Fairness isn’t fair.

We need more unfairness — in favor of whatever side I’m on.

More questions. What exactly is fair anyway? Who gets to decide what’s fair? Are there good people on both sides?

Should we make sure that equality is balanced out by a bit of fascism?

Then there’s the apparently unanswerable question (at least for Democrats) over whether to pack the court. Of course this is a terrible idea. It’s unfair and a bad precedent.

Unfortunately, the unfairness/bad precedent argument is being made by a group claiming a president who lost by 3 million votes is carrying out the will of the people. This same group (you may know who they are) refused to approve judges appointed by a guy who did get the most votes and then packed the lower courts when the minority-vote president got to the White House.

See? No one is interested in fairness. We might as well get packing.

Critical advice. The State Bar of Georgia last week tweeted out a vital reminder:

Still holding our breath for Journey's follow-up track "Don't Stop Breathing."

Please do not stop breathing. It’s important.

Prophecy? I’m not a believer in prophecy or omens but … not long before the vice-presidential debate, I watched a movie called “The Burnt Orange Heresy.”

No spoilers here — but SHEESH!

You can watch the movie or look it up.

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