Readers may recall the October column in which we discussed James F. Simon's What Kind of Nation. That text was basically a historical review of Thomas Jefferson's Republican battle with Federalists and against John Adams in the Presidential election of 1800. It explained how John Marshall, appointed by Adams as Chief Justice of the Supreme Court, eventually made that Court a co-equal with both the Congress and the Presidency. Despite much animosity between Jefferson and his Virginia cousin, John Marshall, it was Marshall who made the Court the supreme interpreter of the Constitution.
As this column was written shortly after the two political conventions -- before we knew the November election outcome -- it was evident that a major political issue of the 21st century will remain that of Constitutional interpretation and the role of courts. The common political theme, "We don't want the Courts to legislate from the bench" dates back to the 18th century. In Simon's book, the famous case of Marbury v. Madison ignited the Court's (and Marshall's) ire. Marshall should have disqualified himself from the case, yet it was he who wrote the decision -- in fact, virtually all of the decisions -- of the Court in his early years as Chief Justice.
In the very last days of John Adams' administration, Adams attempted to "pack the courts" with Federalist judges. At the time, John Marshall served as his Secretary of State. As such, Marshall signed the appointments, making them official. Marbury, a minor Federalist politician from Northern Virginia, was appointed to a minor justice of the peace position, but the appointment was never delivered before Adams left office. The incoming Secretary of State, James Madison, found the appointment. However, Madison allegedly did not deliver it, per Jefferson's instruction. Marbury therefore sought a writ of mandamus under the Judiciary Act of 1789 against Madison to enforce the appointment. The action was brought in the Supreme Court before a court that was, at the time, entirely stuffed with Federalists, including the most disagreeable Samuel Chase. It's been said that Chase had delighted in fining and sentencing anti-Federalist journalists to jail for violation of the Sedition Act. The Sedition Act fortunately expired as a Republican Congress took over, although it was obviously unconstitutional.
Marshall wrote a scathing opinion of Jefferson's and Madison's refusal to deliver the assignment to Marbury. To his credit, Marshall found in favor of Madison on a technicality -- that the Supreme Court did not, under the Judiciary Act, actually have jurisdiction. Perhaps Marbury should have sought his relief in a lower court.
Fair and Impartial Courts
Lady Justice, standing with her balance scales in one hand and her sword in the other, is supposed to be blindfolded. Any adjuster who has been around litigation long enough soon realizes, however, that justice is not always what one acquires in a trial. I recall one Virginia case a number of years ago in which an old man drove over a jaywalking pedestrian. Having not looked for approaching traffic, the pedestrian was severely injured and subsequently brought suit. At that time -- and apparently still at this date of publication -- Virginia is a "contributory" negligence state, not of comparative negligence. The pedestrian was, by her own admission, negligent. By law, this sole fact should have barred her claim.
But "should have" doesn't always match reality. In this case, the jury ruled in the plaintiff's favor. If the people of Virginia or of other states retaining the old common law rule of contributory negligence want their courts and juries to make those decisions, then they should change the law either by court decision or legislation (as have almost all the other states of the Union). I guess this was "legislation from the bench" in that the judge apparently didn't do much of a job of upholding the state's law.
Peter Bennett, chairman of the tort and insurance practices section of the American Bar Association (ABA), wrote in the Winter 2008 issue of The Brief that "maintaining an independent judiciary has been a goal of our citizens, our courts, our profession, and the ABA throughout history." He quotes the ABA's Goal XI, which is "to preserve the independence of the legal profession and the judiciary as fundamental to a free society."
"While in terms of governing the country, the majority generally rules, our courts exist to ensure that we continue our tradition as a nation founded on the rule of law, that no person is above the law and that certain bedrock rights are never disenfranchised if the majority gets out of control," said Bennett. "The process of electing judges has become increasingly political and complex in the majority of our states where judges stand for some form of election. Historically, judicial elections barely merited a blip on the radar screen. Voter turnout is generally mediocre at best, and most voters may know little about the candidates."
Normally, a judge's politics shouldn't matter if they decide cases on the basis of the law and sound judgment, but the reality is that is not often the case. Everybody has a viewpoint, and not everyone will agree with the judge, the jury, or the appellate system. Considering some of the horrible and far-reaching decisions our nation's Supreme Court has reached in many cases, former Chief Justice Roger Taney's Dred Scott opinion among them, wise justice has not always prevailed.
Blame Virginia Again
In the 1868 case of Paul v. Virginia, the Supreme Court ruled that insurance was not "commerce" under the intent of the interstate commerce clause of the Constitution. Therefore, insurance was a state-by-state matter. In 1944, in the case of U.S. v. Southeastern Underwriters Association, the Court changed its mind. This about-face created chaos, as insurers found themselves subject to all the federal anti-trust laws that would outlaw such practices as the stabilization of rates. Congress was forced to act, conceiving the McCarran-Ferguson Insurance Regulation Act, which returned regulation to the states, as long as the states actually regulated the business. That's why insurance law differs by state and why the state insurance department or commissioner approves a licensed adjuster's right to do business.
As we discussed in October, however, the federal government -- perhaps in the wake of the Hurricane Katrina debacle -- has stuck its nose in the tent and wants to resume some of that regulatory role. Deregulation was big in the 1980s and 90s, but our current financial fiascos certainly show that laissez faire can often be lousy fare. Who knows what a Federal Insurance Commission, created like sausage in the legislative mill of Congress, might look like. The Feds already control much of our health insurance vis-?-vis the Employees Retirement Income Security Act. To whom can you complain locally when your group insurer tells you to forget it -- that they won't pay for that surgery you desperately need?
Impartial Supreme Court
Anyone who believes that the Supreme Court is always going to be impartial hasn't been paying attention. Yes, we have John Marshall to thank for making the Court a co-equal branch of government, and most of our states are patterned on the federal system. The reality, however, is that the Justices and judges -- at the federal, state, and local levels -- are creatures of politics and personalities. This means that some are wise, and some not so much.
Currently, Lady Justice has kept a steady hand on those balance scales. Alas, the scales are very fragile and can tip easily. Our next president will have an opportunity to determine if those scales tip to one side or the other. That is important to all of us, and will be even more so, should Congress preempt our state insurance regulatory agencies and install its own version of the rules.
Ken Brownlee, CPCU, is a former adjuster and risk manager based in Atlanta, Ga. He now authors and edits claim-adjusting textbooks.
