Old joke: What do you call a guy who had a "C" average in law school...?

>> Friday, October 02, 2009

The ABA Journal points me to this bit from the Wall Street Journal's law blog: in a recent interview, Justice Antonin Scalia was asked by C-SPAN about the quality of the lawyers appearing before the United States Supreme Court. Scalia's response? A bit of a backhanded compliment:

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn't she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn't put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I'm usually impressed with how good they are. Sometimes you get one who's not so good. But, no, by and large I don't have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

First reaction: I guess this is Justice Scalia's confession that he isn't one of the world's best minds. If he was, he'd be out inventing the automobile or something. (Although, as one commentator at the ABA's blog points out, the automobile has kinda-sorta already been invented, something Justice Scalia might be aware of if he could pull his head out of the eighteenth century.)

Second reaction, of course, is to notice the pretty explicit insult, one that's pretty typical of the Justice's attitude towards the poor and to criminal defendants in general: defending people from Podunk isn't productive for society? Really?

I have to admit a certain small level of conflict where Scalia is concerned: on Fourth Amendment issues, and pretty much only on Fourth Amendment issues, Scalia's actually a surprisingly defense-friendly judge. His originalist posture leads to a pretty strict reading of when the government ought to be able to break into your home or rifle your pockets, a reading that tends to run against innovations like "knock and announce" warrants and such. That said, on every other issue imaginable, Justice Scalia is pretty awful, a man ruled by petty bigotries and a constipated sense of what the law is.

I find "originalist" or "strict constructionist" models of Constitutional interpretation to be a bit ludicrous, you know. It's not just a matter of liberalism or whatever; it strikes me as simply retarded to base a whole edifice of Constitutional interpretation on trying to posit what dead men might say about issues that weren't merely nonexistent but inconceivable when they were alive. The framers of the Constitution not only didn't have an opinion one way or another about whether radio airwaves could be regulated or software could be patented, but they weren't even familiar with the premises of the questions: "Well, you see, audio vibrations are converted by a diaphragm connected to a lodestone into... er... pulses of... uh... electrical fluid... which are then sent via a sort of copper rope into a device which scatters the... uhm... mesmeric waves through the air, and... uh... actually, it's magic. Can I try explaining this to Mr. Franklin first and then maybe he can try to translate it into Colonial English? It's sort of like the time he tried to electrocute himself with a kite, only completely different." Sure, you can try to reason by analogy--"The electromagnetic spectrum is like a common cow pasture that only has room for oh-so-many cows of a certain type..."--but that only gets you oh-so-far. And anyway, do you really want to imagine trying to explain "sexting" to your dead great-great-great-grandfather?

A third reaction to the Justice's comments is a sort of generalized version of the second: if you don't want your best minds practicing law, or if you think the best minds are being wasted, or that such activities are generally unproductive--well, isn't there a sort of contempt for your whole profession there? I don't mean a contempt for lawyers, because, to be honest with you, we probably deserve much of it. Maybe most of it. We can be horrible people even when we're fully engaged in noble pursuits like truth and justice; we nitpick and argue and can be arrogant in only the way that direct-power-over-human-lives can make you arrogant (I'm sure surgeons and generals can get to be the same way), I don't take much offense over jokes like the one about dumping all the lawyers in the ocean being a good start because frequently I wonder if I should be at the bottom of the bottom anchored directly to a weight myself. No, I mean a contempt for the law itself in what Scalia is saying. Justice Scalia sort of concedes that lawyers "enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom," and that this is "important," but he completely undercuts it with everything else he says in that passage. It's "important, but it doesn't put food on the table"? I dunno, I sort of think of the law as being something that allows somebody to put food on the table in the first place, as being a precursor to the food being there as much as someone growing it or milling it or cooking it. Maybe that sounds arrogant, but when you start talking about a society, about more than a few people living anywhere near each other, it becomes important to be able to truthfully say that people can't just come in and take food off of someone else's table, or that the person who turns the grain into flour can't cheat the person who turns the flour into bread. And that's what the law does, without people having to shoot each other to make the point.

And if you can't see that, maybe there's a problem with you being a United States Supreme Court Justice.


Janiece Friday, October 2, 2009 at 4:28:00 PM EDT  

And if you can't see that, maybe there's a problem with you being a United States Supreme Court Justice.

Too true.

Leanright,  Saturday, October 3, 2009 at 1:45:00 PM EDT  

Before you criticize someone, you should walk a mile in their shoes.

That way, when you DO criticize them, you'll be a mile away and you'll have their shoes.

Eric Saturday, October 3, 2009 at 11:29:00 PM EDT  

Y'know, Dave, I was about to get all umbrage-ey, but that one's actually pretty funny. My hat is off.

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