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Wednesday, May 21, 2014

Supreme Court Justices Just ‘Junior Varsity Politicians’? Breyer Talks State of Legal Profession at ALI Dinner

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When Justice Stephen G. Breyer talks to a room full of law students, he knows exactly what they're thinking. They think we're just "junior varsity politicians," he told audience members Tuesday night, and he warned that politicization of the legal profession could have serious consequences.

Breyer's freewheeling remarks—somewhere between a Q&A and a conversation between colleagues—came during the American Law Institute's annual meeting, where he joined outgoing Director Lance Liebman to discuss the state of the legal profession and share some laughs and Restatement war stories. 

Breyer's view of the legal profession is organic, with the judiciary, academia and practitioners all playing their individual parts, but ultimately working together to keep the law moving forward.

First, there are the judges, who—in his words—aren't experts on much of anything. They make decisions and issue opinions.

Those opinions are read and interpreted by law professors and academics who analyze them and decide which ones have value and which ones should be reexamined and challenged.

Practitioners then take that scholarly work into the courtroom and incorporate it into legal briefs. Judges read the briefs, and the cycle starts all over again, Breyer said.

But he also spoke of an undercurrent of politicization creeping into the system and gumming up the works.

While law schools have changed for the better in one respect—"you find good teachers everywhere," Breyer noted, not just the top 20 law schools—the biggest problem for "our court," and for plenty of state courts is that today's students see judges as wannabe or minor-league politicians, he said.

Fading is the vision of law articulated by Potter Stewart that the mark of a top notch legal opinion is that you can't tell if it was written by a Democrat or a Republican, a man or a woman, Breyer said.

He pointed to the controversy surrounding the incorporation of foreign law into domestic legal opinions.

It's a "false" problem, Breyer said. Ostensibly, people are concerned about retaining American values and therefore reject attempts to rely on foreign law.

But a quick look at the problems modern courts face reveals how universal those problems are, Breyer said.

For example, balancing national security interests against civil liberties is not a uniquely American problem, he said. In this and many other areas, Breyer pointed out, we have much to learn from other countries, and they have a lot they can learn from us. Politically driven isolation does nothing to further the law.

The implication is that the co-opting of the legal profession by "junior league politicians," or even the appearance of it, risks alienating the most important group of all—the public at large.

Breyer relayed the story of a conversation he had with the Chief Justice of Ghana, who asked him, "Why do people do what you say?"

It's not because the Supreme Court is always popular. We've had our share of unpopular decisions, Breyer said.

And it's not because the court is always right. When it comes down to four versus five votes, someone is always wrong, he said.

As is his style, Breyer didn't tie things up in a neat little package, choosing to leave a number of thoughts strung together and hanging over the audience. But the message seemed to be that people listen to courts because they have confidence that the legal profession is greater than the sum of its parts; that is strives to solve big problems and promote justice.

Politics erodes that system from the inside out. And the cost may be peoples' faith in the judiciary and in the legal profession as a whole.

Here are my tweets from last night's dinner:


The description of the ALI provided on its website may put some of Breyer's remarks in context: 

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The Institute (made up of 4000 lawyers, judges, and law professors of the highest qualifications) drafts, discusses, revises, and publishes Restatements of the Law, model statutes, and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. ALI has long been influential internationally and, in recent years, more of its work has become international in scope. 

By participating in the Institute's work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good. 

The official guest list for the vent was littered with notable names, including:

  • Judges: Jennifer Walker Elrod, CA5; Patrick E. Higginbotham, CA5; Pierre N. Leval, CA2; Goodwin Liu, Cal.; Gerard E. Lynch, CA2; Patricia Ann Millett, CADC; Marjorie O. Rendell, CA3; Anthony J. Scirica, CA3
  • Attorneys: Chuck Cooper, Cooper & Kirk, Washington; Allyson N. Ho, Morgan Lewis, Dallas; Deputy Solicitor General Edwin S. Kneedler, Washington; Evan M. Tager, Mayer Brown, Washington
  • Academics/Journalists: Garrett Epps, Baltimore, Linda Greenhouse, New Haven, Conn.; Douglas Laycock, Charlottesville, Va.; Adam N. Steinman, Tuscaloosa, Ala.

 

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