Monthly Archives: August 2016

SCOTUS Group-Think

So there’s the New York Times and Adam Liptak, and then there’s the National Law Journal and Tony Mauro, within two days of each other publishing articles with the same message:  criminal defense advocacy at the Supreme Court sucks because criminal defense lawyers suck at arguing in the SCOTUS.

The chattering classes have been chattering.  Basically the same article in two different “respected” publications within two days of each other can’t mean anything else.

Anyway, what about it?

Well, you’ve got to largely heed the preferences of the Justices themselves, whether they’re right or wrong, because even if they’re wrong they make the decision and you don’t.  If they like one side and not the other that’s a problem for the other side.  A big one.

Then again, you have the insularity problem, the echo chamber.  We’ve talked about that before.

So, you largely heed the preferences of the Justices (we choose our words carefully here at LoS, at least sometimes), but perhaps with some exceptions.  Because sometimes the Justice’s own insularity – and that of their preferred SCOTUS ‘bar’ – is the problem, not the ‘quality’ of the advocacy, and what the Justices really need, being by definition too insulated to perceive the difference, is exactly the opposite of what they prefer.  That is, not more comfortable banter with their preferred advocates, who not coincidentally for the most part share their Ivy League pedigree; but an uncomfortable exchange – a wake up call, if you will – with people they normally don’t give the slightest thought to.

Because maybe the problem is exactly that:  they don’t give the slightest thought to, and are completely ignorant of, the professional perspective of the criminal defense bar.  Not one of the Justices has ever done criminal defense – not at the trial level, not at the appellate level, not at the Supreme Court level.  And while their preferred advocates – like Jeff Fisher, who is mentioned in the NYT article – may have appeared before the Supreme Court on behalf of criminal defendants, they have never tried a case and never had a client at the trial level and have pretty much spent their entire professional lives in academia.

Put another way, they’re all – SCOTUS Justice and their preferred advocates – like “doctors” who have never actually worked on a patient.

We have chronicled in these pages what seems to us to be a remarkable regression in appreciation for and understanding of some very basic principles of criminal law and criminal procedure that has taken place in the last 25-30 years in the SCOTUS.  And as between the “low quality of advocacy” on behalf of criminal defendants at the SCOTUS, on the one hand; and the increasing – and increasingly Dickensian*- insularity of the SCOTUS Justices and the SCOTUS bar, on the other, we rather think it’s obvious that only the latter, and not the former, could be responsible for such a  peculiar turn of events.

*We recall this part of a report from the SCOTUS oral argument of Connick v. Thompson some years ago:

“To read the transcript of the argument in this case, is to confront the indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. A man’s life was stolen because of the unconstitutional conduct of state actors. And still Justice Scalia’s most biting and obnoxious remarks disparaging Thompson’s arguments were greeted by the assembled spectators with laughter.”


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