Barton’s study explains a lot, actually. As I wrote here, the Court has rendered itself nearly obsolete by the nature of its decisions, and as I wrote here, there is no underlying consistency with regard to any individual justice, let alone with regard to the Court as a whole. Instead, we’re seeing a lot of long, winding, inconsistent, and nonsensical decisions, often (or nearly always) with dissenting opinions—just what we’d expect from a group of law school graduates that hasn’t seen the inside of a trial courtroom, let alone litigated an actual case. (The justices can, however, make us numb with clumsy sentences and Latin: “Thus, as far as the reasons for my dissent are concerned, this is an a fortiori case.”)
And we’re also seeing a lot of unjustified complaining. Justice Scalia, for example, just wrote that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable . . .” True; but how did it get that way? I guarantee him, as a practicing criminal defense lawyer for the past 10-plus years, that it got that way largely from his decisions. The best example is in 2004 when he limited Confrontation Clause protection to “testimonial” hearsay, which he defined as . . . wait: he never did define it. Instead he wrote: “We leave for another day any effort to spell out a comprehensive definition of testimonial.” Well, it’s now 2012, and we still don’t have a definition of “testimonial.” (This, Justice Scalia, leads to a "long," "expensive," and "unpredictable" criminal process.) I criticized him here and here, and credited him here for finally realizing what practicing lawyers knew several years earlier. But I guess he doesn’t read my work.
Interestingly -- and not to take on too many topics in one post -- this trend away from legal practice is also common among our law schools. Law schools (particularly the elite ones) purposely hire as professors the candidates with little or no experience in the practice of law. And there is even a more recent (and more amazing) trend among the elite law schools: hiring candidates that have Ph.D.s but no law degree at all. Seriously, "there are now several dozen law professors at top ten schools who don't hold law degrees." C’mon, law schools! You’re training licensed professionals here. By way of comparison, I hope that medical school professors are medical doctors, and I hope that law school professors . . . you can finish the analogy.
How to fix these problems with law schools, lawyers, and even Supreme Court justices? The main solution is probably obvious, but this is a blog, not a book, so I'm stopping here. But don’t fret: The Legal Watchdog doesn’t leave its readers hanging. If you want more you can read Brent Newton’s ninety-five suggested reforms for legal education and licensure.
Ninety-five? That's all?