COMMENTARY: Justice or "Checkbook" Justice?

by Robert A. Schwartz, Attorney at Law

June 11, 2007

Bob Schwartz Photo Do people with money, power or celebrity operate under a different legal standard than those without? Is justice for sale? We seem to be offended by this notion but let it happen. We have come to expect that Charlie Sheen will get chance after chance to clean himself up without long jail time. We have come to expect that when Paris Hilton goes to jail, the cameras will be there because, after all, it is reality TV. We are not shocked to learn that the Florida state court judge presiding over the case regarding the burial of Anna Nicole Smith — the judge who broke down in tears while announcing his ruling in open court — was trying to get his own Judge Judy-type TV show.

So if we know it’s happening and accept it, it’s somehow OK? No, but this is not any different from big business getting treated differently that the consuming public. The wealth, power and celebrity of big business and corporate America contribute to state and federal legislators and elected officials with the real expectation of changing the civil (tort) laws to protect big business from civil suits and monetary damages. They get exactly what they pay for, too.

‘Justice for Sale’

Texas Watch, a leader in consumer court watchdog organizations, noted in 2005 that the Texas Supreme Court is radically pro-defendant, pro-corporation and anti-consumer. Executive Director Alex Winslow said the state Supreme Court is activist because it shows no judicial independence, overturns citizen juries and is ideologically bound.

To prove his point, Winslow cited statistics that showed consumers won 21 percent of their cases during the 2004–05 term, while corporate, government and insurance interests won 76 percent of their cases. He said another “activist” tendency is the court’s willingness to reverse lower courts’ decisions. He said the court overturned nearly 80 percent of jury verdicts that favored consumers.

In 1999, Frontline featured the segment “Justice for Sale,” in which correspondent Bill Moyers examined the impact of campaign cash on the judicial election process and explored the growing concern among judges themselves that campaign donations may be corrupting America’s courts.

In the 39 states where voters elect some or all of their judges, special-interest money is pouring into judicial races helping to finance TV ads, media advisers and pollsters and threatening to compromise judicial independence and neutrality.

In Texas, which Moyers calls “the heavyweight in partisan, expensive, knock-down, drag-out brawls for control of a state Supreme Court,” Frontline looked at how special interests and their fundraising dramatically changed the makeup of the Texas Supreme Court. Moyers said that 20 years ago, Texas was known as the “lawsuit capital of America,” with judges and juries favoring trial attorneys and their clients. By 1998, the Texas Medical Association had successfully spearheaded a campaign by business to take back the courts. Since that time, all nine members of the Texas Supreme Court have been Republicans and staunchly pro-business.

Throughout the segment, Frontline tracked the mounting evidence — polls, surveys and reports — that trust in judges and the courts is eroding because of the perception that campaign contributions to judges affect their decisions on the bench. For example, a June 1999 survey conducted by the Texas Supreme Court and the Texas State Bar found that almost half the judges in Texas believe campaign contributions significantly influence judicial decisions. Lawyers who appeared before the courts were even more skeptical of the system, with 79 percent believing campaign contributions affect the decisions.

Nothing has changed since then. When are we, the consuming public, going to stand up and demand that this stop?