Jul
20

"Uncertain Justice" and the Roberts Court

Among the many defining errors I've made along life's way is my public and open scorn for law professors. Those who can't do, teach, and those who can't teach in a traditional discipline such as history, philosophy or even economics, teach law, I've said. I've been willfully blind to what scholars can contribute to a practitioner's understanding of the law.

So I confess to having read Laurence Tribe's most recent book on the Supreme Court, "Uncertain Justice," with profit. Tribe, a Harvard law professor and long-time liberal favorite for appointment to the high court, writes about the Court's recent decisions under Chief Justice John Roberts, and does what great lawyers do best - spots issues, trends and tendencies in the cases the Court hears, and the decisions it has rendered.

Tribe manages to write a book about the Court that will inform both laypeople and practitioners, no easy feat. Even so, there's a certain breathless quality to the prose - a better editor might have trimmed the sentences somewhat. What the Court does yields a sense of wonder, but that does not make the Court wonderful or majestic.

That the Roberts Court has shown a distinct tendency to favor big business is no surprise. I did learn just how active the United States Chamber of Commerce has become, filing multiple amici briefs per term. And to his credit, Tribe discussed the virtual death of civil rights litigation in the courts as a result of high court decisions involving the grant of qualified immunity, a topic rarely discussed.

My respect for Sonya Sotomayor, whom I miss seeing on the United States Court of Appeals for the Second Circuit, soared. She has emerged as a frequent dissenter in the areas of privacy and the rights of accused. She alone among the nine has criminal trial experience, even if that is limited to her brief work years ago as a prosecutor in the Manhattan County District Attorney's Office. Even so, reading her opinions and dissents shows why street sense ought to be a prerequisite for serving as a judge.

Clarence Thomas looks like an anachronistic crank, taking Antonin Scalia's eccentric theory of originalism to its extreme and writing opinions as though from within a time machine: try as he might, Thomas never will be able to render the 21st century in 18th century terms. It is a stupid effort. Perhaps Thomas sits silently through every argument because he knows he has so little to say.
I had not realized the extent to which the Court has in recent years dismantled class action litigation. Once again, the Court seems to be hell-bent on making it difficult for little people to challenge big business and big government.

As with all books on the Supreme Court, Tribe's was dated upon publication. That's because the Court's work is ongoing. Recent decisions, such as that granting corporations religious belief, an obscene extension of the Court's tendency to attribute the rights of actual people to legal fictions, are unaddressed because undecided at the time of publication.

The book is an impressive piece of scholarship - the footnotes are a gold mine of information and a ready resource of citations to the latest law review articles on recent developments in the law. I've already listed a couple dozen must reads.

Tribe may be a law professor, but I will forgive him that shortcoming. His latest book is a must read for any lawyer actively litigating cases raising potential constitutional issues. Some times you need a law professor to help you determine which way justice's wind blows.

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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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