Are we living in France? To hear critics of Sonia Sotomayor, President Obama’s nominee to the Supreme Court, we are living under something like the Code Napoleon, the massive body of French statute law which is very different from what we use in the United States.
U.S. law is a combination of statute law and English common law. This means there is flexibility in it and ongoing court rulings modify the law over time, adapting to changing circumstances.
When Sonia Sotomayor said appeals courts are where the law is made, what she meant was that when someone loses a case in a federal district court (or state or other courts) and turns to a federal appeals court for redress, the principles of flexible common law often come into play.
The Supreme Court plays a similar role, when, in cases like “Brown v. the Board of Education” that made school segregation illegal, it adapts the application of the laws to actual social circumstances of the day.
In “Brown v. the Board of Education,” the Supreme Court took into consideration the patterns of social life in the United States in 1954 and ruled that in actual practice a statute-based policy of “separate but equal” schools inevitably turns into one of “separate but unequal.’ Not because of anything in any state law, but because local administrators and officials, working under pressure from powerful racist tendencies in their communities, would not be able to actually make sure that African American students got equal access to educational resources.
“Brown versus the Board of Education” is thus a fine example of the flexibility of the principle of common law.
In our own time, several states are trying to implement policies to require that a photo ID issued by an official body be presented every time a citizen exercises his or her right to vote. Since the laws in question would cover everybody equally, it is argued that they do not impose an unequal burden on different categories of voters, are not discriminatory and therefore are constitutional.
An upper income white person living in suburbia where everybody has a car and some money might not have a problem. But lower income minority persons living in poor rural areas, without cars or money, might find themselves virtually disenfranchised. Having no automobiles to drive, such people are likely not to have a drivers’ licenses to present to election judges.
They may have to travel many miles by public transportation or, if public transportation does not exist, by taxi to get an equivalent state identification card. They may have to take off work to do so. Employers are supposed to let employees off work to vote, but there is no law anywhere that says they have to let them off work to take a whole day to get an ID card so as to be able to register to vote. And to get such a card, they may have to prove residence at the address from which they intend to vote. This in and of itself can be a big struggle, if you are living, for example, with relatives in their house or apartment.
Many low-rent landlords do not give their tenants written leases. Canceled rent checks written to landlords are not an option for people who don’t have bank accounts and have to do everything with cash.
If you are living in the basement of your cousin’s house, there may be no phone or electric or heating gas bill in your name, making it hard to prove you actually live there.
These problems are multiplied many times when the would-be voter is forced by economic or personal circumstances to move frequently.
Since survival comes before voting, many lower income people (disproportionately minority) end up not voting anyway. Voter ID laws will exacerbate this problem, an inequitable result of supposedly equitable legislation.
In short, statute law per se does not recognize that voting requirements which are easy and simple for one category of voters, may entail and epic struggle against mighty odds for another category.
To comprehend the social context of the actual application or functioning of the law, courts have to employ the flexibility of common law, which permits scrutiny even of established statutes if, in their application, they are going to have a discriminatory and unjust impact.
And to be able to do this, the Supreme Court in particular, is improved by bringing in new judges whose personal life experiences have exposed them to categories of people and situations, which are most likely to highlight the intentional absurdity of the words of the great French writer
Anatole France: “The law in its majestic equality forbids the rich as well as the poor to sleep under bridges, beg in the streets and steal bread.’