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Who is the last (wo)man standing in the defense of your rights as a citizen?  It's not Justice Ginsburg. It's not Justice Souter.  It's not even Justice Thomas.  It's a fresh-faced 25-year-old kid straight out of Harvard with a newly-minted law degree who has never even tried a case on his own -- and is highly motivated to avoid helping you.

As a practical matter, the Supreme Court no longer exists.  And we have Justice Clarence Thomas to thank.

In his best-selling tome, Justice Thomas waxed eloquent about his grandfather, who raised him after his father abruptly abandoned his parental responsibilities when he was two.  And to hear the Justice pontificate, you might be led to believe that he was imbued with his role model's pervasive sense of honor, responsibility, and duty.  But in this analysis of the decrepit state of our Nation's highest court, it will become clear that the apple didn't fall far from the tree, and that he is more his FATHER'S son.

For most of the past century -- and especially, during the more liberal Warren and Burger Courts -- the United States Supreme Court was open to everyone.  Most lawyers with Supreme Court cases were newcomers, arguing there for the first time.  It was not unusual for the Supremes' magical bell to toll for country lawyers like Sarah Weddington (Roe v. Wade), and even a handwritten plea (in Gideon v. Wainwright) could shake the justice system to its foundation.  By stark contrast, the Roberts Court is only, as Business Week recently put it, "open for business."

In the heyday of the Court, individual Justices had their own law clerks, who individually briefed every petition for relief coming in the door.  Court rules required that you submit 40 copies of your petition, because they actually needed them.  If your petition was "cert-worthy" (iow, deserving of the Court's attention), at least one or two of the Justices would know about it, and they could usually be counted on to bring it to the attention of the Brethren.

When you file a petition for certiorari review in the Roberts Court, it is shunted to the so-called "cert pool": a pond populated by legal guppies, most of whom have yet to try their first case. What's more, the system gives them a powerful incentive to deny grants of certiorari, turning them into veritable towers of timidity.  In his review of two recent exposes of the inner workings of the Court, Professor David Stras writes:

Justice Blackmun initially thought that participation in the cert pool would make law clerks more likely to recommend granting certiorari in the cases that they reviewed. But according to Sorcerers’ Apprentices, the pressure of writing for five or more Justices has made law clerks more cautious in their recommendations, creating what has become a "hydraulic pressure to say no." As Kenneth Starr has explained, when a clerk is unsure about a recommendation the "prevailing ethos is that no harm can flow from ‘just saying no.’" First, it is less risky to recommend a denial because, as stated above, that recommendation tends to be subject to far less scrutiny than a recommendation to grant a case. Second, a recommendation of deny permits pool authors to avoid the dreaded dismissal of a case as improvidently granted, otherwise referred to as a DIG. The desire to maintain credibility within the pool by avoiding a DIG weighs in favor of recommending a denial when there is the possibility of a vehicle problem or the case just presents a close call. Third, the behavior of law clerks is partly a product of the prevailing norms of the institution to which they belong, and the Court’s declining docket surely sends a signal that the fewer grants the better. [cite]

For the most part, Supreme Court law clerks are merely marking time on their way to enjoying lucrative partnerships in large corporate law firms, and are only there for to pad their resumes.  Accordingly, the one thing they fear the most is making a mistake.  Worse yet, most clerks probably wouldn't know shit from Shinola if you hit them in the face with it, and they do most of their work when the "adults" aren't around to mind the store.  Stras continues:

A related reason for the hesitancy of law clerks to recommend granting a case may be due to relative inexperience. Incoming law clerks, often fresh off of a clerkship with a judge on the United States Courts of Appeals, have little training and even less exper- ience screening petitions for certiorari.  While it is true that outgoing clerks attempt to stagger their departures to serve as sounding boards for the new crop of clerks, much of the screening work is done during the summer months, when the Justices are not regularly inside the building. Fourth Circuit Judge J. Harvie Wilkinson, himself a former law clerk to Justice Powell, has referred to the certiorari review process as a "baptism by fire" for new law clerks. [cite]


How the Cert Pool Pollutes Justice

Under the old system, every Justice had his own law clerks prepare memos recommending whether a given case was cert-worthy.  With nine sets of eyes reading each petition (and three recommendations usually triggering a grant of cert), it was rare that a truly cert-worthy one slipped through the cracks. But with only two sets of eyes on each petition, the chance that a cert-worthy petition will not granted one increases exponentially.  Indeed, Justice Brennan refused to join the cert pool because "[h]e said that he would find three to four cases a year that the clerks had missed," and Justice Stevens has staunchly resisted membership in the pool because he acknowledges the much higher likelihood of "potential mistakes." Stras, at 974.  Even Chief Justice Roberts -- himself a former clerk -- has voiced serious misgivings about the process.  Veteran Supreme Court reporter Tony Mauro observes:

Since only about one percent of the incoming petitions are accepted for review, the net result of the pool arrangement is that virtually all of the cases that come to the Supreme Court are denied review and disposed of with only one or two law clerks -- and no jus- tices -- actually reading the briefs.  At the same time, for the cases the Court does grant, how the single pool clerk chooses to write about the petition can have a signifi- cant impact.

The cert pool's power is "a little disquieting," said nominee Roberts in 1997, because it makes the clerks "a bit too significant" in the certiorari process. Roberts offered those cautionary words in a talk at Georgetown University Law Center that aired last weekend on C-SPAN.

Roberts, then in private practice at Hogan & Hartson, recalled that when he was a law clerk for then-associate justice William Rehnquist, only five of the nine justices were in the pool. That effectively guaranteed that errors in how a case was summarized would be caught by other clerks in other chambers. With only one justice outside the pool, Roberts said, that check was diminished. [cite]

As Transparency International observes in critiquing Cambodia's legal system, "[c]ourt clerks wield considerable power over cases, since they act as the gatekeepers to judges and write court records." [Transparency Int'l, Global Corruption Report 2007: Corruption in Judicial Systems at 184; download PDF]  All a dishonest clerk would have to do is subtly misrepresent a key fact, and an otherwise cert-worthy case is shunted to the round file.  As Supreme Court justices cannot possibly perform a competent review of over 7,500 petitions a year, they find themselves utterly dependent upon clerks as their sole source of information about an individual petition.

These days, there are about twenty firms that specialize in representation before the Supreme Court: Sidley Austin, Mayer Brown & Platt, Jenner & Block, Kirkland & Ellis, Hogan & Hartson (John Roberts), Covington & Burling, Jones Day, Gibson, Dunn & Crutcher (Ted Olson), Morrison & Foerster, O'Melveny & Myers, Latham Watkins, Quinn Emmanuel, Baker & Botts, Akin Gump (Lawrence Tribe), Fulbright & Jaworski, and a few spin-offs.  And not coincidentally, as Georgetown professor Richard Lazarus points out, these firms are the primary market for former Supreme Court clerks. Richard Lazarus, Advocacy Matters Before and Within the Surpeme Court (Draft, Oct. 19, 2007), 96 Geo. L. J. (forthcoming 2008) at 1-20 [Download draft article from SSN] If a clerk has a choice of recommending one of two equally cert-worthy cases, and one of them just happens to have been submitted by what he hopes to be his future employer, you don't need to be a genius to figure out which one is going to be recommended.  


The Modern Supreme Court: A Part-Time Job?

    The problems with the Court are exacerbated by the fact that being a Justice has almost become a part-time job, as the Justices are just too busy writing paeans to themselves, officiating moot court competitions, attending secret junkets offered by the Federalist Society, or duck hunting with Dick Cheney (which takes on a different meaning when you go with Cheney) to attend to their day jobs.  In the past 20 years, their work output has declined by roughly 50% (from an average of 155 signed opinions for 1984-85 to less than 80 in 2004-06), despite the fact that petitions for certiorari have nearly doubled during that time.  Stras at 979, 982, 987.

The modern Court has abandoned wide swaths of the law, as anywhere from 60-80% of its meager docket is dedicated to resolving conflicts between various courts of appeals.  What's more, the Court has abandoned any and all pretense of policing irregular, censurable, and otherwise outright corrupt decisions of lower appellate courts, with instances of pure error correction occurring so rarely as to be remarkable. About the only time it ever happens is when both parties confess that the lower court got something obviously wrong.

This, in turn, leads to a patently bizarre state of affairs: While the Court pores over the language of its decisions in minute detail to ensure that they are coherent and unequivocal, lower courts are free to disregard these literary masterpieces at their leisure, as the Court can be counted on to overlook the intransigence of these inferior courts.  Above the marble columns of the U.S. Supreme Court building it says "Equal Justice Under Law" -- which obviously isn't true when there is absolutely no chance that the Court will review a case involving a significant error.

At the end of the day, if your basic human rights have been sodomized by a state or federal appellate court, the U.S. Supreme Court is no refuge to you.  Your chances are enhanced if you are a billionaire who can afford the services of Baker and Botts of have the star power of an Anna Nicole Smith, but if you are just an average Joe or Joan, the chances of your securing justice are considerably worse than of winning a Powerball jackpot (assuming an average of $20,000 spent on a cert petition).

                                    Markthshark put it succinctly: Our courts are dead to us.


Clarence Thomas: His FATHER'S Son?

      It is somehow strangely fitting that Clarence "Long Dong Silver" Thomas -- the Supreme Court's affirmative action candidate (the American Bar Association rating for Judge Thomas was split between "qualified" and "not qualified"; no one thought he was "well qualified," and he certainly was not the best candidate for the job) -- should unwittingly write the Court's epitaph during his recent paroxysm of pontification.  In an interview with students of ultra right-wing Hillsdale College, he said:

My job is to apply the Constitution. And here’s a useful lesson: You hear people talk all the time about the Bill of Rights. But you should always keep in mind that the Bill of Rights was an afterthought. That’s why it’s made up of what are called amendments. It was not in the original Constitution. The rights in the Bill of Rights were originally assumed as natural rights, and some people at the time thought that writing them into the Constitution was redundant. Read the Declaration of Independence.  We should always start, when we read the Constitution, by reading the Declaration, because it gives us the reasons why the structure of the Constitution was designed the way it was.  And with the Constitution, it was the structure of the government that was supposed to protect our liberty. And what has happened through the years is that the protections afforded by that structure have been dissipated. So my opinions are often about the undermining of those structural protections. [cite]

The "structural protections" which once made the Supreme Court a venerable institution are all but obliterated, for perhaps the most important of those protections is the Court's obligation to correct egregious errors in the lower courts.  After all, if the Court has been given the ultimate right to "say what the law is," it has a concomitant responsibility to ensure that its authoritative decrees are followed to the letter.

Justice Thomas unabashedly sings the praises of his grandfather -- and his truly noble teachings about timeless values like honesty, frugality, and a sense of duty.  He asserts in the Hillsdale interview that

[t]here may be a disconnect between my world and yours, because when my grandfather was raising me, people didn’t talk about their rights so much. They talked about civil rights, yes, but they didn’t simply talk about rights and freedom. They talked more about the responsibilities that came with freedom—about the fact that if you were to have freedom, you had to be responsible for it. What my grandfather believed was that people have their responsibilities, and that if they are left alone to fulfill their responsibilities, that is freedom. Honesty and responsibility, those are the things he taught.

It’s the same thing in civil society. We’re too focused on the benefits of a civil society and we think too little about the obligations we have—the obligations to be civil, to learn about our history and our government, to conduct ourselves in a disciplined way, to help others, to take care of our homes. Too many conversations today have to do with rights and wants. There is not enough talk about responsibilities and duties. [cite]

As Justice Thomas is also a former seminarian, it is appropriate to mention the Biblical admonition that anyone "who knows the good he ought to do and doesn't do it, sins."  Jas. 4:17.  The august Justice would almost have to be brain-dead to not notice the "structural" problems with his Court -- problems his colleagues have noted on numerous occasions.  And though he is certainly no Thurgood Marshall, neither is he a George W. Bush.  He knows the problems with the Court, and has failed to exercise his power to do good.

It was Justice Thomas' responsibility and duty to ensure equal justice for all -- a responsibility he has abruptly abandoned by failing to attend to the duty of error correction and ensuring that every petition for certiorari receive fair and serious consideration.  As such, some of the blood from the murder of the Bill of Rights is on Justice Thomas' hands.  He had a moral obligation to do better.  To do right.  And in his cavalier refusal to do so, he has truly become his FATHER'S son.  

Originally posted to Bouldergeist on Sat Nov 03, 2007 at 05:55 AM PDT.

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