One of the talking points my friends on the right (real friends, not the McCain usage) bring up is concern over who Obama will appoint to the Supreme Court.  Obama made the following comments on his Supreme Court criteria

I would not appoint somebody who doesn’t believe in the right to privacy. But you’re right, Wolf, I taught constitutional law for 10 years, and I — when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the court. And part of the role of the court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.

Here’s how that line was interpreted by a friend in a series of emails

Of a more note worth concern is the very real subjective interpretation that the liberal candidate sees for the application of the rule of law!  How in the world will it come down to subjectively doling out justice based on how a person’s “standing” is in society?  … This has potential of effecting each and every one of us.  We are all from more upper end of the spectrum, and hence would be judged in that regard, where a person of less advantage would be judged differently.  What will become of the “rule of law?”

I read this and I worry that if my well educated, libertarian minded friend thinks like this, then many others do as well.

First, Obama’s statement doesn’t mean judging differently because of social strata, it means judging the same regardless of social strata and preventing the majority (or those with excessive clout) from imposing its will unfairly on the minority. It means having enough empathy with Americans of all stripes to recognize injustice and be willing to correct it.  Legislatures routinely pass laws in this country that favor the rich or reflect the morality of the majority.  We would all like to think that minority rights are regularly respected, but the reality is all too often, the powerful arbitrarily pass laws to advance their agendas or beliefs.  These laws can range from the truly silly like laws against baggy pants to more insidious laws limiting access to courts through things like mandatory arbitration.  The last line of defense against laws like these is the Supreme Court.  Obama wants justices that understand and sympathize with the little guy when evaluating laws.  McCain has stated that he has a different philosophy.

“My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power.”

This is in line with the belief in some places that the majority rules and what the majority puts forth as the law should not be overturned by the court, because that would be “legislating from the bench”.  But when businesses place a six month statute of limitations on pay discrimination, even when the person did not find out about the discrimination until later, the court should be able to see that this is exactly the kind of case where the strong have used their clout to pass laws protecting them from facing penalties for their actions.

The second part of my concern is my friend’s belief that we’re not the little guy.  Everyone is the little guy in the right circumstance.  Maybe it’s when you find your access to national historic monuments blocked by religious organizations.  Perhaps it’s when your wife dies due to your HMO refusing to authorize the required procedure.  The belief that this issue doesn’t apply to all of us is a fiction.  Give me those understanding justices every time.