Monday, April 9, 2012

What’s going on with the Supreme Court?

SCOTUS
Benjamin Barton’s recent empirical study explores the pre-appointment legal experience of our Supreme Court justices.  One of the things Barton looks at is the justices’ actual years of private practice experience, which is defined as the number of years a justice actually served clients, including not just real people, but also corporations and not-for-profits.  It turns out that the current Court has the lowest number of years ever of private practice experience per justice (six years), and two of the justices have never served any client in the practice of law.  And just because a justice may have some experience working in private practice, the experience is typically at a large law firm or corporation, where the justice probably never actually handled a real case (of any kind) from start to finish.  

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?   

1 comment:

  1. This goes slightly off topic, but I wrote in direct response to one statement: 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, which took me to the question of interpreting the law, vs. legislating.

    And then this:

    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.

    I am admittedly ignorant of many things and I base most of my commentary on opinion; but it seems that much of the Court's recent inconsistency has to do with the fact that the face of the Court changed, roughly between 2005 - 2007. It is easy for Scalia to condemn judicial activism when there is no chance that he can affect our culture using it.

    O'Connor is gone; Souter is gone; Stephens is gone. Roberts is with us; Alito is with us; and Kennedy noticed a conservative wind and turned back to his roots.

    For the first time in a very long time, Conservatives have the reins. So more recently we see Breyer and Ginsberg lamenting a loss of respect for precedent and condemning change, and longing for the O'Connor days, a time when change was openly embraced by both.

    To paraphrase Ginsberg, nothing has changed in the fundamentals of the law. It is the Court itself that changed. Conservatives are now making the decisions, and they don't agree with those made in last half century, so they are unraveling them.

    Despite the rhetoric, justices are ideologically-minded people, not legal robots.

    I am not a Conservative by any measure. I don’t respect their false concept of equality. I don’t believe that the choice of a “right” society is reason vs. compassion. I do not believe that in order for capitalism to exist, capitalist must be allowed to rule in oligarchical fashion. I do not accept that regulations to ensure democratic elections are a Constitutional violation of free speech; moreover, I don’t care if they are. Democracy (rule by the people, not by a small de facto minority) must come first, or the whole point of the Constitution is irrelevant (Baker vs. Carr would be a supporting precedent for this opinion). I reject outright, the assumption that the Founding Fathers were an entity who had a Conservative vision. In fact, The Founding Fathers Entity is a mythology of modern politics. I do, begrudging acknowledge, that most of them were not liberals.

    But I do get it. I understand why the Conservatives would now start rejecting precedent and embracing change, and why the Liberals would reverse in kind. It seems all about who has the power and who seeks it. The only way the Supreme Court composition would have no effect on one’s legal philosophy, would be if judges merely interpreted the law. Starting with the notion of Judicial Review, this has really never been the case. Judges do not usually initiate law, but they routinely rework the law into something that better suits their personal visions. Their specific legal philosophies have to adapt to work best with the Supreme Court composition as any given time. This is a new day, with a new Conservative court, and everyone’s legal philosophy must evolve to meet the needs.

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