IT'S MY EXPERIENCE THAT LABOR DAY WEEKEND is second only to Thanksgiving Weekend in having things you post online not being read because who isn't doing something more important, like being with your family and friends.
In an earlier attack I made on the Supreme Court I dealt with the excuses for the Supreme Court usurping the powers given to the Congress and president in several posts, two of which I am going to repost with some new commentary this week.
I have been criticized for being hard on lawyers, judges and most of all "justices" in these posts but I'm not going to pretend for a second that they don't deserve it.
The profession, itself, has one of its foundational practices in looking for opportunities for their clients and themselves to do things that are either objectionable to others or, more importantly, harm others, many of which lie in the impossibility of writing laws to cover every single nuance in which they can regulate in life.
And that is what a law does. The objections of conservatives, right wingers to the government "regulating" things is, itself, an objection to why governments exist and why laws have any legitimacy at all because they want to do things that hurt others. That's the nature of conservatism as that word has developed in the modern period.
I suspect that for most Americans, Brits, Canadians and others among the generally English speaking peoples, that last sentence will be read as me criticizing the legal racketeers for getting real criminals who seriously injure, rape, etc. others off in a dramatic fashion in a court trial. For most of us our conception of the law and its personnel are formed by some of the worst of TV, movies, stage plays, pulp fiction and the blathering of those on TV, radio and, worse than those once were, online. Which is entirely unrealistic. And generally melodramatic and badly written.
While sometimes, in the rarest of instances that kind of crusading for something called "justice" actually happens, it is not the real character of the legal profession or the results of its activities. It's not even typical of defense lawyers who, as they proudly announce, represent the guilty as easily as they do the innocent, especially those who can pay their fees. It is undeniable that that the business of lawyers is to twist evidence and lie and exploit prejudices* and emotions or even the uncertainty of jurors (reasonable or unreasonable, it doesn't seem to matter much which one) to allow bad People to escape legal punishments for doing some really terrible things. Generally that is done in line with two traits of criminals, belonging to a privileged class of People or, more destructive of justice, have great wealth.
Lawyers are in the business of billing far, far, far, more than they are in the business of crusading for something called "justice."
But the foremost and likely most destructive activity of lawyers and many judges and, I'd argue the majority of "justices" in the history of our Supreme Court is to allow those with wealth to do what they want to do unhampered by laws passed by legislatures and signed by presidents and governors. I would say that the overwhelming presence of those in the legal profession in legislatures and among governors and presidents have, like those they appoint to judgeships and especially to supreme courts, is to extend the habits and practices of their profession into the actual, written laws so as to profit those who have or they hope in the future to profit from. I say without any fear that I"m being unjust to say that service to those with the most money is probably the most certain route to a judgeship or a seat on the Supreme Court.
There is a reason why the only U.S. Supreme Court "justice" in history has worked as a low-paid Public Defender, the most recently confirmed of them, is Ketanji Brown Jackson. The number who have worked as corporate lawyers is so numerous that almost all of the other members of just the present court have been corporate lawyers. And that really makes A COMPLETE DIFFERENCE in the "justice" that the U.S. Supreme Court issues.
Here, from a 2014 analysis:
A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.
The lawyers are the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court. None of these lawyers is a household name. But many are familiar to the nine justices. That’s because about half worked for justices past or present, and some socialize with them.
They are the elite of the elite: Although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide from 2004 through 2012.
Of the 66 lawyers mentioned above, 51 worked for law firms that primarily represent business interests. This means that over time corporate America cultivates a small pool of lawyers who are better able to get cases before the Supreme Court than any other attorneys in the country. And they acknowledge that they avoid taking cases from individuals seeking to challenge their high-paying corporate clients, whose activities and concerns are generally entangled and embedded throughout society.
Individuals seeking to challenge large businesses are left to choose from a smaller pool of less experienced and less successful lawyers.
Reuters continues:
An elite firm might refuse to represent an individual suing a corporation on a labor issue, for example, because it fears that winning the case could create a precedent that might hurt top clients in other industries. Large firms do take cases pro bono on behalf of the indigent. But those appeals are generally related to criminal law or social causes such as gay marriage – topics unlikely to affect U.S. business interests.
For many top firms, the conflicts mean declining to represent environmental organizations, labor unions, employees suing employers, or consumers filing class actions.
Joseph Sellers, a lawyer for the midsized firm Cohen Milstein who argued a Supreme Court case against Wal-Mart and for a class of more than 1.5 million female employees who alleged gender discrimination, said, “It’s not that there aren’t lawyers at these large firms who aren’t public-spirit minded and don’t want to do these cases. It’s that their business model won’t allow it.
. . . Michael Luttig, general counsel for aerospace giant Boeing Co., said of the new class of lawyers who are intimate with the Supreme Court, “It has become a guild, a narrow group of elite justices and elite counsel talking to each other.” The court and its elite bar have grown “detached and isolated from the real world, ultimately at the price of the healthy and proper development of the law.”
I think that all of this is one of the biggest reasons that leaving the ultimate decision making in our law, in our government, in the interpretation of the Constitution - WHICH IS FAR MORE THAN JUST A BUNCH OF LAWS - in the hands of those enculturated in the law and the lore, habits and dubious scruples and what is laughably called "ethics" of the legal profession is supremely dangerous. Even many of the most moral of them, and I hold they are not typical of those who are in that profession, anymore than those in any other line of work, are blind to some of the most outrageous practices of their fellow lawyers. You hear it all the time from the likes of those who are regularly tapped for commentary on the outrageous decisions and actions of those on the Roberts Court. As I've pointed out a number of times here, it was hearing one such lawyer whose career and commentary I have enormous respect for declare that there is "a right to lie" that broke my conception of that profession, one built up in the regular way, by imbibing the tripe of Atticus Finch and Horace Rumpole and following the heroic careers of real lawyers - often on the basis of my own prejudices and what I was persuaded to believe by advocacy journalism.
Journalists, now there's another profession just about all of this applies to. Even many of the real ones, reporters.
I have been thinking more and more about Thomas Jefferson's statement in his 1819 letter rejecting the Marbury power in which he said his "construction" of the Constitution gave all three branches of the government the power that the Supreme Court declared it alone had, of defining the meaning of the Constitution. Our history would have, certainly, been far different if that had been the case. Just for a start, the 1870 Voting Rights Act and the 1875 Civil Right Act that went far in enforcing the equality of Black People and other People of Color would have stood for the rest of our history instead of being abolished, along with the even earlier anti-lynching law by the Supreme Court in 1883. Imagine if that had been the law of the land, including in the states of the Confederacy and all the others. The Congress, which everyone slams all the time, came up with law after law to protect disfavored minorities, workers, etc. State legislatures came up with such laws AS WELL AS LAWS DISCRIMINATING AGAINST BLACK PEOPLE, WORKERS, ETC. Only it's generally been the laws that favored oppressed minorities, workers, etc. that the lawyers on the Supreme Court have found "unconstitutional." The Warren Court was an outlier for a reason, and even then a lot of their landmark "civil liberties" rulings proved to be foolish, giving the Rehnquist and Roberts Courts tools and words to twist to their ends.
I don't trust the thinking of the lawyers among their fellow lawyers, not when they can make their ideas into law. Not as compared to those who have to persuade non-lawyers in legislatures to get bills passed or those who, usually after having served long in the Congress, in the presidency. I'd rather put my future in the hands of the elected Congress than in the unelected, generally corporate lawyers of the Supreme Court.
* There is little to keep a judge's prejudices out of it and absolutely nothing to keep a Supreme Court "justices'" prejudices out of the law.
