Nov
21

New Wine, Old Skins: Sarah Palin and the Supreme Court

Two pieces in this week's New York Times sent me scurrying to the New Testament. First, Adam Liptak's piece about the tendency of the Supreme Court to decide fewer decisions each year with increasingly long, and opaque, decisions. Then this morning's essay by Frank Rich about Sarah Palin's excellent prospects should she elect to run for president in 2012. Are we pouring new wine into old skins? Surely, something seems about to burst.

Jesus had a tendency to hang out with outcasts. He drew critical fire for this. Religious leaders criticized him for eating with tax collectors and for failing to observe the ritual fasts important to Jews. He responded with the parable of the wine skins: No one puts new wine into old skins, he said. The skins may burst and the new wine will be lost. Old forms, he was saying, can't contain new life. (Old wine skins had already expanded and begun to lose their resiliency; a new wine was still fermenting, and would release gas as it settled. Hence, a new wine could burst the brittle bonds of a tight old wine skin,)

Has our law become ossified and too brittle? Are Supreme Court justices straining too hard to compress the facts and circumstances presenting themselves in our courts into yesteryear's forms? And what of Sarah Palin? She is a populist outsider with great appeal to many, but she is scorned by the political elite. Are the old-school politicos trying to pack today's passions into yesterday's programs?

The current Supreme Court seems uniquely out of touch with the human reality of those conflicts on which it is asked to rule. That is in part due to the fact that the court is packed with a bunch of starry-eyed legal theoreticians: Not a one of the justices has experience as a trial lawyer representing ordinary people in disputes with the government, corporations or other common folks. Only one justice, Sonya Sotomayor, has trial experience; but hers was many years ago and as a prosecutor. The court's decisions often read like parlor games for precocious misfits. Who, in a nation of immigrants, really gives a rat's rump about the intentions of men who drafted our Constitution centuries ago? The effort to draw the metes and bounds of government authority using such ancient devices is bound to result in Supreme Court decisions that are long, tedious, circuitous and largely bereft of much current content. A law that drifts too far from the felt necessity invites scorn and risks irrelevance.

In the 1950s, when justices weren't afraid of casting their own doctrinal shadows, the median length of a Supreme Court opinion was 2,000 words. Today's decisions, replete with concurring and quiblling qualifications, are more than four times as long. The court's decisions are getting longer even as the court decides fewer cases each term: the number of cases decided annually has fallen to about 75; in the mid-1950s, the court decided about 150 cases per year. The trouble with the current court is that it is packed with former judges, academics and legal theoreticians without substantive experience in the trial courts, where conflicts take shape and are infused with an original meaning present and alive to the litigants. If our current court lacks focus and coherence that is because we have packed it with brilliant non-entities who have succumbed to the fiction that the law can be transformed into some sort of Platonic theory. That is dangeous nonsense.

Is Sarah Palin's appeal that she knows nothing, and is therefore more like the rank and file American with little time to debate the finer points of the Federalist Papers? I confess she leaves me cold. I tried to read the book written for her, Going Rogue. I wanted to understand how she came seemingly out of nowhere to find herself a vice presidential candidate. I found the book impenetrable, sort of like a perpetual bake sale at a middle school in some depressed region of the nation. But never mind, while my book sat neglected, she wrote another. And now she is on television, appears at rallies, and finds herself in the thick of American politics: I am the one who remains largely irrelevant. I suspect her appeal is her sense of immediacy. You won't find her debating the fine points of Supreme Court decisions. "In an angry time when America's experts and elites all seem to have failed, her amateurism and liabilities are badges of honor," Rich writes. Perhaps. Perhaps she is the new wine -- yes, I almost wrote whine -- of discontent.

I suspect that are far more Sarah Palin's serving on the nation's juries than there are Samuel Alitos or John Roberts. Folks angry and dispossessed want laws and legal doctrines that speak to them and to their need. An elite with little to say, or lacking the decency to put their preferences and policies directly, hides behind lengthy chatter and equivocation. It may be no mystery that the law's elite writes long and windy opinions signifying little, while a woman who appears unable to read a Supreme Court opinion from begnning to end takes the nation by storm. Can it be that the law insists on pouring the new wine into old skins, and that these old skins are about to burst?  

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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