Supreme Court Oral Arguments: Whose Ego Is The Real Problem?
August 19, 2016 (Fault Lines) – Earlier this week, Noel Erinjeri pointed out the disadvantage criminal defendants suffer in front of the United States Supreme Court. He concentrated on the quality of the lawyering, which is getting some attention these days.
But the real problem for criminal law may not be the lawyers arguing in front of the Supreme Court. There is no question the opinions coming out of the Supreme Court seem to be getting less and less helpful to the criminal defendant. But that is a result of who is writing those opinions, not who is arguing about them. The Court’s eight justices are utterly disconnected from the daily practice of law. And that disconnect is the problem.
The New York Times investigated the issue last week, asking why criminal defendants are getting the short end of the stick at the highest court in the land. Among several reasons, Justice Kagan said a repeat problem at the Court is that criminal defendants are not getting the best representation.
“We have an extraordinary group of lawyers who appear very regularly before us,” Justice Elena Kagan said in 2014 at a Justice Department event.
But there was, she said, one exception. “Case in and case out,” she said, “the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.”
You can be damn sure they aren’t getting great results at the Supreme Court. But is the representation really that bad? Yes, according to Justice Sotamayor. The blame lies not just with the criminal defense lawyers, but their egos.
Why are there so few expert lawyers arguing on behalf of criminal defendants? Justice Sonia Sotomayor has said that the main factor is vanity: Many criminal defense lawyers are too reluctant to cede the glamour of Supreme Court arguments to specialists.
“I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it,’” Justice Sotomayor told Reuters in 2014.
What the hell, man? We have a bunch of vain idiots arguing criminal cases up there? Is that why all the criminal opinions are so bad these days? A Reuters report from 2014 sheds light on the problem.
Turns out the Supreme Court is not happy with common trench lawyers coming up to D.C. and sucking up the rarified air of the Court. The Reuters report described what the justices have come to expect at oral arguments.
In this ever more intimate circle, lawyers say, chemistry with the court is key. The October case was a milestone for the 48-year-old [Paul] Clement: It marked the 75th time he had appeared before the high court, second most among active lawyers in private practice. The following week, at a party celebrating the feat, veteran attorney Lisa Blatt toasted Clement’s success.
“The justices love Paul,” Blatt declared. “They visibly relax when Paul stands up and they are smiling when he sits down.”
“Chemistry with the court” is key. And you probably thought something like “knowing what the hell the Fourth Amendment means” was key. Nope. Its chemistry. Which is a whole lot more important than you think.
How does one build chemistry with the justices of the Supreme Court? It’s not like they are on an app and you can swipe right to become the next apple of the Court’s eye. Building chemistry with a Supreme Court justice takes more than just flirtation; you have to build a relationship. The easiest way is to work for them. Or with them. Or around them. Or maybe some combination.
No matter; the club is only growing tighter. In the last term alone, 53 percent of the cases the court heard featured at least one lawyer – in government service or private practice – who had clerked for a sitting justice. That’s three times more often than 20 years earlier, Reuters found.
The eight lawyers who have appeared most often before the court have especially deep connections to justices past and present. All but one have worked in the powerful U.S. Solicitor General’s office (whose lawyers are constantly at the court representing the federal government), or for a justice as a law clerk, or both.
According to Professor Andrew Crespo, the Court wants to hear from “experts.” An expert is a lawyer who has argued five cases before the Supreme Court. A handful of lawyers qualify. It is those lawyers the Court wants to read petitions and briefs from and hear arguments from. Because they are smarter than the street lawyers. For example, check out how this St. Louis lawyer, Bob Marcus, was wowed by the brilliance from one of the experts:
But what also impressed Marcus is what happened in the minutes before the oral argument.
Waiting in a lounge outside the Supreme Court chamber, Marcus watched [David] Frederick chat amicably with a casually dressed woman he did not recognize. Shifting nervously as he anticipated the biggest case of his life, Marcus asked Frederick about the hallway encounter.
“Who was that woman?” he wondered.
“Oh,” Frederick answered matter-of-factly, “that was Justice Alito’s wife.”
Neat. On one hand, it’s nice to know the Supreme Court is as petty and cliquey as any old regular court. On the other hand, give me a break. If you regularly read Supreme Court opinions, you may wonder if any of these judges have ever actually represented a person, or stood in front of a hostile jury, or explained to a crying wife she wasn’t going to see her husband again, or watched a child lose a parent, or any of the myriad other things that keep a real lawyer awake at night. Or maybe just read the damn Constitution once?
It has taken the Court almost 25 years to figure out the Armed Career Criminal Act is bad law. The Supreme Court has winked at mistakes of law, mistakes of fact, whatever. No big deal. Mistakes happen. No reason to let the criminal go because the constable blundered. Prosecutors regularly hide evidence? Who cares. No relief here. Execute an innocent man? No worries. Not unconstitutional.
So all of these crappy opinions stem from vain, egotistical criminal lawyers who refuse to step aside and let a friend of Alito’s wife real expert handle the case? Wrong. The Supreme Court may want its echo chamber, but actual defendants need the opposite. They need real lawyers. People who have represented real clients. Someone who has gotten up in the middle of the night and gone to the jail. Lawyers who have stomped around crime scenes and yelled at prosecutors and argued with trial judges and just lawyered.
Not Supreme Court argument experts. The same 20 or so ex-clerks are arguing all of these cases? That makes perfect sense if you need an explanation for why the opinions are dense, and unnecessarily complex, and just damn nonsensical sometimes. Everybody is patting everybody else on the back about how great it is to be in the club.
And while all the back-patting is going on, the criminal defense world is going to shit. And maybe no one cares, because that world is about criminals, right? Not quite. It is about the Constitution. So when the cocktail party breaks up, maybe you justices could go back to actually protecting it?