In a country this vast, diverse and dynamic, any judicial conception of the little guy is bound to confuse more than it clarifies.As a lawyer, I have sympathy for the little guy, but just because he is a little guy doesn't necessarily make him right in the legal arena. If a little guy breaches a contract or committs a tort or otherwise runs afoul of the law, does it matter if he is black or latino or white? Does it matter if he is gay, straight, bisexual or asexual? The answer is no because that is not what courts are about.
For instance, liberals who like Stevens' rulings insist he understands the plight of the downtrodden, despite the fact that the nearly 90-year-old justice was born rich and has served on the court for almost 35 years, becoming more liberal as he has become more distant from life as lived by the little guys.
Meanwhile, Clarence Thomas was born dirt poor and black in rural Georgia and spends his vacations exploring America in an RV. But those same liberals insist he doesn't understand poverty and race the way Stevens does. How do they know? Because they don't like his rulings.
In other words, the empathy-for-the-little-guy standard is simply a Trojan horse for an approach just as abstract as any endorsed by the right. In fact, I would say it's more abstract because at least there's a text conservatives invoke -- the Constitution -- rather than the indefinable feeling of "empathy."
Unless the plight of every gay, black, poor, old or disabled American is the same, then coming into court favoring a specific category of human being is nothing more than state-sanctioned prejudice.
The benefit of the ideal of impartial justice is that it provides a standard by which judges aren't asked to rule by prejudice. We'll never fully get there, but I don't think we should stop trying.
I recently saw a movie called Flash of Genius, starring Greg Kinnear as Dr. Robert Kearns, Ph.D., the inventor of the intermittent windshield wiper. Kearns, representing himself, sued Ford, GM and Chrysler and won for patent infringement. That is what the courts are about, the ability for the little guy to take on the biggest corporations in America and win. Most cases are nowhere near that big, but the courts are the great leveler where everyone who comes to the court is on the same plane, the same level. We as a society should no more elevate certain classes of citizens in the eyes of the law or a judge just because they are a minority as we would not elevate one company over another.
When we start handing out advantages in the courts to certain litigants because of their race, class, ethnicity, sexual orientation, we open the courts to the very kinds of political meddling the Framers sought to isolate the courts from.