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The Rule of Lawyers II: The Lawyering
Quick quiz question: How many current Supreme Court judges can you name?
I’ll give you a moment to consider, but don’t take too long. It’s a trick question; the proper answer ought to be zero. Lady Justice is blind. Traditionally that means justice ought not care about the skin color of the defendant, or their wealth or poverty or anything else. Justice is concerned with the fundamental equality of all men, not accidents of nature or position. However, we ought to be able to run that backward; truly just judges ought to be indistinguishable. So why is it that you not only know the Justices’ names but can lay a wager as to how they’d rule on any given controversy?
The truth of the matter is that the judicial branch is also the legislature. Whatever John Roberts does has quite a bit more influence on the law of the land than your Senator. Rather than make law your Senator spends all his time posturing for good YouTube clips and composing sick Twitter burns. Perhaps we should give up the illusion that they are the ones ultimately writing the law. There are a number of advantages to the de facto rule by the court:
- When a Supreme Court justice makes a law you get both the principle and some pages of reasoning behind the ultimate decision. It follows that some actual reasoning was done, if only to fill up space.
- When the Supreme Court rules on a Constitutional issue you can be reasonably certain that they’ve read the Constitution at some point in the past.
- Effectively this acts as a repeal of the 17th amendment. Instead of voting for state representatives who will give you the senators you want, you vote for senators who will confirm the justices you want.
You might object that the process of making the laws is all different, but I find this problem to be neutral at worst. I don’t much like the way the Court treats issues of standing and precedence, but I don’t find them any more opaque and unreasonable than cloture votes in the Senate.
You might also object that running the country this way leads to things like the Kavanaugh nomination debacle. Actually, I don’t mind that. When the lines were drawn on Kavanaugh then you could clearly see where your Senator stood. No voting both ways on a bill so you can have supported and opposed it when it comes time to reelect. Dirty tricks aplenty, but at least we the people could see them and know what’s going on.
In fact, there’s only one problem I have with this system. It enshrines the lawyer as a type of aristocrat. Only lawyers write briefs and argue in front of the court. Anyone else has to pay a lawyer to do it for them. These days only lawyers get nominated and approved for the bench, lawyers who much like presidential candidates have bent their whole energy to get to that position. I’d argue that you also need a lawyer to interpret the oracular pronouncements from the bench, but that isn’t substantially different than the normal system. Nevertheless, we’re left with a clerisy of the courts, a nobility of the bar.
I, for one, will not stand for an aristocracy.
Published in Law
Here’s a reform idea then:
We should amend the Constitution as follows:
I like to think this might straighten things out a bit.
I’d like to argue with this, but I really can’t.
If it turns into an all-purpose lawyer-bashing thread, I’ll be baaaack.
Where do you stand on technocrats? It strikes me that we could eliminate many issues with automation. Call it the Scalia-tron. You give it a bill and it returns the result ‘unconstitutional’ or ‘stupid but constitutional’. You can’t put the bill up for vote without the latter.
We’d probably need to keep the human judges around for the arguments later, because otherwise the robots’ heads would explode like in Star Trek. Unless we build in paradox-proof crumple zones.
While serving, they should be required to shop at WalMart at least once a month. In person.
Don’t worry, we know that lawyers put up with a lot.
On the 10th year, we randomly select 9 individuals from the citizenry to serve a 1 year term but their decisions are only in force as long as they are in office (gives incentive to make as many decisions as quickly as possible). Keep things fresh and interesting. Oh, and they get live in and to redecorate the housing to their liking, and it has to be maintained until the next decadal. Meanwhile, the 9 judges have to go live in those peoples’ places of residence for that year. And they get to redecorate those. But they can be changed back after the year.
I was going to say something insightful here, but the silly part of my brain just took over.
I got it right!
I can’t name any because I’m not POTUS!
And I just shut down my exploratory committee on account of disco.
Well played.
I have my doubts about judicial elections. I heard one lawyer arguing that you ought to switch the way you select judges every so often, much like how it’s impossible to keep coyotes out with static defenses.
Thunderdome!
Man, just imagine those judicial robes streaming behind ’em as they jump with those elastic straps.
Quick answer to the opening question, without reading the rest. All of them. Probably in order of seniority. And all of them since the 1960s.
That makes me really, really weird.
I’m not sure if any of these are serious, due to #5.
I agree with the idea of setting the number of SCOTUS Justices at 9 by Constitutional amendment.
I like the idea of limited terms for federal judges, though I’d pick something longer than 10 years. Maybe 18 years for SCOTUS, staggered to that one SCOTUS Justice has a term ending every 2 years. If a Justice dies or resigns before the end of his term, he can be replaced, but only to serve out the remainder of the prior term. We could pick a shorter term for other federal judges, if desired.
I don’t like the idea of electing judges.
I don’t think that SCOTUS Justices should have duties with the Courts of Appeals, as they have enough to do. I don’t think that there’s an effective way to require them to take more cases, and frankly, they do seem to have plenty of work to do.
See? You’ve talked about your weirdness. Doesn’t that make you feel better?
Back in the day I was regularly reading SCOTUS opinions. My daughter got picked to go to some high school lawyer experience in DC. They did a moot SCOTUS case, and she got picked for counsel, can’t remember which side. I asked her about the case, she told me a few things, and I said, “They just decided that; I’ll fax the opinion to your hotel.” I did. She read it.
The next day they argued the case.
She left opposing counsel in tears, and saying, “IT”S NOT FAIR!” Somebody pulled her aside and told her if she wanted to go into law, she’d get a good word.
Ironically, I wouldn’t be surprised if opposing counsel went on to study and practice law. My daughter did not.
So, @arizonapatriot, you’re not weird at all. To me, anyway.
Plus, they need some time to make real lawyer money.
I had a dream a couple weeks back that Gorsuch had been caught smokin’ the reefer in chambers. I have no defense as to why that particular tidbit boiled up out of my subconscious. From there I went on to speculate as to which of the other justices would have puffed and which would have passed. To quote @GaryMcVey “This is the kind of solid conservative analysis that you just don’t get at Focus on the Family.”
Point is, I can go nine for nine on current justices, and I bet most of Ricochet can too. It’s just part of being an informed individual in this day and age. Per my argument about blind justice up above that fact ought to tell you something is wrong with the way we handle the judiciary.
Better Call Saul is the best lawyer show ever.
I do not think that this is true. Justice is principally concerned with punishing misbehavior and compensating people who are wronged.
I do agree that the same law should apply to everyone. If this is what you mean by “fundamental equality,” then I am on your side. If you mean that people are all the same, or that life outcome should be the same for everyone, then I am not on your side.
If you don’t think that I’m weird, then you’re probably weird, too. :)
I don’t feel bad about being weird. I am concerned that it makes it difficult for me to understand other people.
That would be a good mix! I’ve thought that one level should be elected, the next level appointed, the next elected, etc., so they can play good cop, bad cop as cases make their way through appeals.
But I never thought of this idea. Where did you put the lawyer who came up with it, and why isn’t he on Ricochet?
We’re not in disagreement here. Given the stupid the culture has gotten itself into recently I can see why I ought to have specified.
I don’t equate “weird” with different, in the sense of being relatively atypical in the way one approaches issues. You are not weird.
She, actually. I got it from the Drift Compatible podcast, and they ain’t on Ricochet because of the foul language restrictions. The coyote illustration is my own.
I was being a bit silly on #5, but with purpose. My concern is to make it very difficult for judges to have too many worldly temptations on the job – if once you serve, you are on permanent retirement, or even exile, then you not only have a forced detachment from the world, but cannot later profit once you are off the court.
I guess that I should object to this part, too.
Who else do you expect to run the legal system, if not the people who study the law and then practice for years? A plumber? A doctor?
Guess what? If you need medical care, you go to a doctor. If you need plumbing fixed or installed, you get a plumber. (And man, don’t sell plumbers short – good plumbing may be the biggest difference between civilization and misery, and the cleanliness that they enable probably saves far more lives than the medical profession.)
If you need the Constitution or a statute interpreted, you turn to the people with specialty in the field. Lawyers, by definition.
It’s not an aristocracy, by the way. It’s a meritocracy. You don’t get to be a lawyer by having a dad who was a lawyer.
Education is too important to be left to educators. Law is too important to be left to lawyers. That doesn’t mean we don’t need them, though.
That’s odd.
And celibacy. Judicial celibacy. That’s the ticket.
Right. I should note that in this pandemic that we ought to listen to doctors, but by no means only take their advice. Lawyers tend to have a lawyers-eye view of the world.
Well, that would end the decisions that make me feel like I got screwed at least.