UJ Justice considers difficulties of RMS trial

By: Judah Marans

Posted: 5/19/09

It is with hesitation and a degree of uncertainty that I write this piece. In the judicial branch there should be no need to be politically defensive; all justification is intellectual in the form of written court decisions. However, in this particular situation, I feel compelled to explain in a medium other than our published opinions my perspective as an associate justice of the Union Judiciary that oversaw the case Klionsky and McElhaney v. Student Union.

Let me be clear: I am not writing to espouse any particular view on reverse discrimination or even to reinforce my legal understanding of this case. That would be unprofessional and unnecessarily defensive. Our opinions, which are accessible to all and which I encourage every student involved in the trial to read, do so in a by-and-large academic manner. I am writing instead as someone with a passion for critical thinking and fair analysis committed to giving all sides, no matter how unpopular, a shot at explaining their points of view in an established, professional and procedural way-in a courtroom setting-without letting political leanings obstruct an unprejudiced examination of a claim's merits. It is in that capacity that I reflect on experiences from the case.

From the outset, when we granted certiorari to hear the case, we knew it was going to be a personal and impassioned issue for many. The respondents soon filed a motion to dismiss the case, which echoed a broad public sentiment that the UJ should not hear a case on the legality of Student Union racial minority positions, positions regarded by some as too crucial to the experience of minority students for a handful of elected students to abruptly dismantle.

We met to analyze and evaluate new issues arising from the motion, taking very seriously and carefully considering all arguments. At the same time, two rooms down the hall of the Shapiro Campus Center, the Senate happened to hold an emergency meeting in response to the somewhat heated reaction to the news of the upcoming trial. During its meeting, the Senate passed an emergency resolution urging us to dismiss the case. And as the five of us privately deliberated, deeply focused and passionately engrossed in an intellectual exchange regarding the communal legal issues involved, a Student Union official walked into our room and personally hand-delivered a copy, printed just for us, of the Senate resolution, which he had signed.

I can cite potent sayings from political philosophers regarding the utmost importance of judicial integrity and separation of powers in any democracy. But no need. Res ipsa loquitur-the matter speaks for itself. We were being nothing short of pressured from another political branch for nonlegal reasons to change our minds. Perhaps, from a social point of view, it indeed is best to leave this issue for town hall meetings or the constitutional review process, as was in fact the court's final verdict. And let there be no misunderstanding: I concurred with this ruling. But it is not up to the UJ to summarily and without trial make this decision. A mechanism must exist by which students can challenge something allegedly illegal other than subjecting the validity of their claims to a popular student review. And as then-Chief Justice Rachel Graham Kagan '09 wrote in her opinion, "No mechanism other than the UJ currently exists within this university by which students may challenge a portion of the Constitution." Even if we disagree about how the petitioners exercise their rights to challenge, surely we shouldn't be asked to deny them those rights.

Most, if not all, of those who signed the resolution urging dismissal of the case wanted the racial minority positions to remain intact. They did not sign on to the resolution purely to inform us of their understanding of appropriate jurisdictional foundations as per their views of jurisprudential theory and philosophy of the legal system in general. In reality, they didn't want us to hear the case for fear of an outcome they didn't want. They might as well have signed a resolution urging us to hold a trial but to then vote for the respondents without paying attention to any of the trial's arguments or proceedings. I believe that even in the face of pressure from an emergency Senate resolution, influential Student Union officials, community leaders and others alike to dismiss the case, the petitioner's voice deserves the chance to be heard in our adversarial system of justice regardless of the opinion it espouses.

We made real efforts, especially given the sensitive nature of the case, to be as judicially professional and sincere as possible during the events leading up to the trial, during the trial itself, after it. But while most of the trial made me proud, I found certain parts somewhat disheartening. There were times during the petitioners' speeches when members of the audience booed and even yelled, telling them that they were wrong. Should just one side have to deal with such distracting social pressure? The last thing we wanted was to turn the trial into a public spectacle. I personally ran for the UJ so that I could be a leader exercising the skill of separating the political from the intellectual, the social drama from an idea's true merits. Many involved with the case both directly and indirectly made it hard to do so.

The Justice's last editorial "UJ unfit for RMS?discussion" (April 28 issue) seemed to condone the above-discussed kind of political behavior. It stated that we "should have dismissed [the case] on an ideological basis." The idea that we "should dismiss a case abdicating [the court's] role and denying the litigants their day in court for ideological reasons," as one reader commented on the editorial online, "runs contrary to every tenet of republican governance and judicial impartiality that we profess to believe in."

It seems that a school so bent on social justice surely can disregard the integrity of our justice system.

Everyone involved in this trial is, in my eyes, a model of one engaged in the pursuit of truth, everyone except those who haven't seen the value in being able to hold it. I have been moved by the honesty, expressiveness and courage of both sides of this case. In that sense we-both those who are and are not racial minorities-can learn something from the petitioners. They courageously exercised the constitutional prerogative to express their legal hurt and seek relief through a system created by Brandeis students and for Brandeis students.

Judah Marans '11 is currently the chief justice of the Union Judiciary.