The Supreme Court Ghetto
Ron Nussle was beaten in prison one day by guards who retaliated against him when he threatened to alert a friend of his, then Gov. John Rowland, about abuse in the prisons. So he sued in federal court to recover money damages. He did so just after the Prison Litigation Reform Act (PLRA) was enacted. He never filed an internal complaint about his beating with prison officials. As a result his case was dismissed. His case landed us in the United States Supreme Court. It was an eye-opening experience for all sorts of reasons.
Perhaps the most surprising was the number of lawyers who called offering their services. Opportunities to argue at the Supreme Court don't come often. It turns out plenty of folks were willing to work for free, so long as they got to argue the case. This morning's New York Times carries a front-page piece about what I call the Supreme Court Ghetto: Those lawyers who fancy themselves good only for the main event, and are eager to take on loss leaders so that they can cash in later when clients have big money to spend for litigation to the bitter, and glorious, end.
Nussle's case was mine. At the time, the PLRA was new legislation. It required a prisoner to exhaust such administrative remedies as were available in his state before turning to the courts for relief. In Connecticut, that meant that he had 30 days from the date of his beating to file an administrative compaint in prison. But the act required prisoners to file administrative claims only if they were complaining about "prison conditions." Since when was getting beaten to the point of defecation a condition of confintement? Only in the gulag, he reasoned.
For the non-lawyers among you, exhaustion means that you must first take your complaint to a forum other than a court and see that process through, or you cannot go to court later. In Mr. Nussle's case, which came to us long after the 30-day period for filing a prison complaint had expired, we went directly to court, reasoning that a beating was not the sort of thing Congress had in mind when it created the PLRA. We appealed the Disctrict Court dismissal of the action, and the appellate court, the United States Court of Appeals for the Second Circuit, agreed with us. The state then asked the Supreme Court to hear the case, and the Court did.
We rejected all the efforts of others to argue the case for us. My sense was, and it remains, that an interloper will never really know the record as well as the lawyer who handled the case below. I am wary of lawyers and law professors who never really meet a client and get to know his or her case. The law is not philosophy; legal doctrine in a void remains contextless. At oral argument a lawyer must be prepared for all sorts of questions: Sending someone whose primary interest is obtaining at-bats in the Supreme Court simply doesn't make sense.
My partner at the time, John Williams, was, and remains, a legend in the world of official misconduct legislation arising under the Ku Klux Klan Act, the vehicle under which we brought Mr. Nussle's claim. Williams had taken me in out of law school and was unfailingly generous to me early in my career. Not quite old enough to be my father, he nonetheless played a nurturing role. Yet for all his years at the bar he had never had a chance to argue before the Supreme Court. I offered him the chance to do so, feeling it was the only thing I could give a man who had accomplished almost everything else one could do in the law amd had given me so much. He declined at first; it was my case. I was secretly pleased. But when I offered him the chance again after the brief was completed, thinking it was the gallant thing to do, he accepted. That provoked ambivalence on my part: On the one hand, I was relieved to be spared the rigors of the high court, perhaps the only time in my legal career I recall blinking at a fast ball. But I also figured I'd get the chance to return. How hard was it to get a case to the Supremes?, I reasoned.
That was almost a decade ago, and I now realize I might not make it back to the law's big house. I wish I had argued Mr. Nussle's case.
The Times piece troubled me this morning because it suggests that there is a caste of lawyers sitting out there hoping to cherry pick from cases others brought. These folks are adept lawyers. They know legal doctrine. Many have clerked for Justices on the Court. They regard themselves as a separate and elite class. But for all that, they are interlopers, often scouring dockets for opportunities for self-advancement, regardless of whether their interests coincide with those of the folks they nominally represent. Nancy Morawetz of New York University's law school, quoted in this morning's paper, refers to what she calls "distorted incentinves in Supreme Court pro bono practice."
We lost the Nussle decision, reported as Porter v. Nussle, in 2002, by a vote of 9-0. It was one in a series of decisions that helped close courthouse doors to prisoners. I doubt that one of the stars of the Supreme Court bar could have won the case or done any better than my former partner did.
If I get the chance to go again, I am taking it. It was one of the high points of my legal career sitting feet away from the Justices and listening to arguments about a case that reflected the real drama of an actual cleint hoping for justice. I had the sense sitting with my back turned to the packed gallery that the entire nation watched the case, waiting to see what new rule would govern the courts for decades to come. I knew Mr. Nussle depended on the court for vindication of his right to be treated decently even while confined to prison.
That's the drama that should be at the center of a case reaching the high court, not the excited pleading of some stranger to the case hoping to see his name printed on the Supreme Court docket. There is no reason for a specialized Supreme Court bar. If anything, it will reflect the depressing tendency already evident in the fact that the current Court is composed of a bench with almost no trial experience. The Court needs more, not less, exposure to the reality of what goes on in a courtroom and in the disputes that bring a person to court in the first place. Members of the Supreme Court ghetto, lawyers whose hands have never been sullied by contact with a client, can't offer perspective needed by a Court seemingly out of touch with the reality of human conflict.