The law loves the status quo. Courts are often the most “conservative” of the branches of government. By “conservative” I mean in the Edmund Burke sense of seeking to “conserve” that which it deems good about our society and government. I do not mean “conservative” in the sense of the radicalism of the neocons in the last several years. Neocons are a lot more “neo” than “conservative.”
This love the law bears for the status quo fathered a judicial system which creates a myriad of barriers for anyone who wants to use the law to change the status quo. Perhaps you have been injured by a careless driver who slammed into you when he ran a red light. Or maybe you’ve just been fired because you protested being sexually harassed on the job. Maybe you are a Catholic who wants the president’s “Faith Based Initiative” to spend more money on Catholic charities and less on Protestant ones.
In all these situations you want to change the status quo so you sue. You are the plaintiff. But the law loves the status quo. Obsessively, compulsively, deeply. So the law doesn’t want you to win your lawsuit because, if you do win, you will have changed the status quo.
So the law makes it hard for you to win. Here is how.
Imagine that your lawsuit is a boxing match. Under the rules of this prize-fight you, the plaintiff, must get in the ring with your arms tied behind you. The defendant, the one defending the status quo so beloved by the law, gets to hit you as hard as he can, not once, but several times. You are required under the rules to just stand there as he pummels you, trying his level best to knock you out. You are not allowed even to duck as he hits you. This goes on for the first four rounds of the fight. For rounds four and five, one of your arms is untied. You are allowed to ward off blows with that arm but you can’t hit back. If you are still standing; for round six, both your arms are untied and you can actually fight. You are battered, bloody and exhausted but for one round, you get to fight back. This is called the trial. Should you actually win the trial in round six by knocking out the defendant, your arms are retied behind your back and the defendant is awakened and gets to start hitting you again, but this time with only one arm. If you get knocked down now, you lose. But if you stay on your feet, the defendant gets to appeal to another court. The defendant argues that even though you stayed on your feet, you should have fallen down. In the last round, the judges on the court of appeal decide whether you were allowed to keep standing. They can, if they choose, order a brand new fight under the same rules or they can just say the defendant really won even though you knocked him out right in front of the jury, something they were not there to see. Or, they can say you won.
The odds are against you. Because if you win, the status quo changes.
Round one is called, “standing.” If you don’t have it, you cannot proceed in the fight. Now we can get, finally, to those Supreme Court decisions. But, I am leaving town for the weekend and you’ll have to wait until next week.