Judges, Juries, and Hypocrisy

Yesterday's LA Times offers a sobering account of the Bush Administration's quiet war on the discretion of state governments to regulate and sue industries whose practices threaten their constituents. AEI's Michael S. Greve is on hand to defend the need for such federal intervention to protect business from the supposed threat of "trial lawyers, ambitious state attorneys general and parochial state legislatures." And politicians and activists rightly call conservative technocrats like him out on their fair weather federalism in advocating both a sacred prohibition against the federal government steering states towards the left and a sacred responsibility for the federal government to steer states to the right. But there's a second level of hypocrisy that goes undiscussed here.

Hearing Greve breathlessly recount the threat posed by clever lawyers forcing obscene settlements from misunderstood businesses, you might get the sense that we should let someone other than trial lawyers determine guilt or innocence and mete out punishment. Then you might remember that we already do. They're called juries.

Conservatives are always claiming that their opposition to judicial decisions which limit the power of their constituencies is based in an abiding faith in democracy and a distrust of unelected judges. But in the same breath they argue for tort reform in order to protect those same constituencies from regulation by juries. And they gleefully marshall technocratic arguments to suggest that a sampling of "the people" shouldn't be trusted to decide such cases. They're stuck making that argument because for all the talk about Americans hating lawyers and malpractice suits and regulations, it isn't trial lawyers who decide cases and determine damages. It's a (not fully representative) sampling of the American people (sometimes overly restricted by tort reform). So conservatives' concern isn't about democracy. It's about power.