Thursday, November 18, 2010

Why Does the Supreme Court Have “Fuzzy, Unweildy Rulings?” A Comment to the New York Times Article on this Subject.

Interesting article in the New York Times on the Supreme Court. The important point: "In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts."

The article offers various explanations for this situation. The use of law clerks, for example is discussed, but the focus seems to be on a desire for greater majorities on the Court:

Critics of the court's work are not primarily focused on the quality of the justices' writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.

The article misses one very important reason this is happening: the Court is packed with very smart lawyers who have never been committed trial lawyers or judges and, as a result, have little appreciation for what trial judges and attorneys need. While some have served on jobs that would expose them to trials, that is the exception, not the rule, and there is little to think that they spent a significant amount of time in jobs that required them to try cases and/or appear in trial court on a regular basis. Here is a summary of Supreme Court experiences (detailed biographies here):

  • Chief Justice Roberts: Clerked for Court of Appeals and Supreme Court, Worked for Justice Dept. and White House, practiced law focusing on Supreme Court practice, and served on Court of Appeals.
  • Justice Scalia: Law professor, General Counsel of the Office of Telecommunications Policy and Chairman of the Administrative Conference of the United States. Served on Court of Appeals.
  • Justice Kennedy: Law professor, served for Judicial Conference of the United States. Served on Court of Appeals.
  • Justice Thomas: Served as an Assistant AG, in-house counsel, and Legislative Assistant to Senator John Danforth before serving as Assistant Secretary for Civil Rights in Department of Education and as Chairman of the U.S. Equal Employment Opportunity Commission. Served on Court of Appeals.
  • Justice Ginsburg: Law clerk on District Court, worked numerous jobs, including for the American Civil Liberties Union. Served on Court of Appeals.
  • Justice Breyer: Law clerk on Supreme Court, Special Assistant to the Assistant U.S. Attorney General for Antitrust and Assistant Special Prosecutor of the Watergate Special Prosecution Force, Counsel to Senate Judiciary Committee. Law professor. Served on Court of Appeals.
  • Justice Alito: law clerk for Court of Appeals. Assistant U.S. Attorney, U.S. Attorney, and Assistant to the Solicitor General. Served on Court of Appeals.
  • Justice Sotomayor: Assistant District Attorney and private practice. Served on District Court and Court of Appeals.
  • Justice Kagan: Law clerk on Court of Appeals and Supreme Court. Private practice, law professor and dean. Counsel to President Clinton. Served as Solicitor General.

The result is that you have a Supreme Court filled with justices who have read about trial, seen them on movies, and perhaps watch Law & Order. I don't intend to diminish the experience of any Justice, or suggest that they are not qualified. The focus of lawyers who practice on the Courts of Appeals and in more policy making positions is different than the focus of trial lawyers. In the policy-oriented position, there is a greater premium on getting the "right" answer and on intellectual consistency. This leads to decisions with less specific bright-line rules, and more cases without any real guidance, or simply an instruction to balance of host of factors.

An example is the Gant case. There, the Court over-turned a 28 year old precedent that permitted the search of a vehicle after the arrest of an occupant. As Justice Alito noted in dissent, even if the old rule was not 100 % correct intellectually, it had proven to be "eminently workable," and had "engendered substantial law enforcement reliance." And this is not a liberal-conservative thing. In the Montejo case, the Court overturned 23 year old precedent that prohibited police from initiating contact with defendants after arraignment. As Justice Stevens noted in his dissent, the "simple, bright-line rule [from the prior decision] has done more to advance effective law enforcement than to undermine it."

Trial lawyers, I believe, place a greater value on having a rule that is straight-forward and easy to apply. Rigid rules, trial lawyers believe, have the benefit of informing police, judges, defense lawyers and prosecutors with specificity as to what they may do and what evidence is admissible. This specificity benefits all parties, and outweighs the loss of "intellectual rigor" in any particular case because fact intensive analyses are burdensome, unpredictable and lead to timid law enforcement and lawyering.






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