Another First Monday

The First Monday in October brings chills to some in the blawgosphere.  Title 28 of the United States Code, §2, commands us to care:

The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.

And so it starts. There will be stories and posts today about the important cases on the docket, and how the decisions of five people will change the course of our law.  Adam Liptak at the New York Times calls it a “weighty docket,” while Cato has video of a panel of deep thinkers.  It’s a big day in the law.

So what does this mean for us?  For our clients?

Not much.

Last week, I argued for a suppression hearing, where the prosecution challenged the defendant’s standing.  The prosecutor was absolutely right about the defendant’s lack of standing under Katz, as he had no reasonable expectation of privacy under existing law.  But I pay attention to the Supreme Court. I read some of its opinions, despite the agony it sometimes causes me.  I do it for me. I do it for you. I do it for my clients. But I do it.

So, realizing that my client’s standing argument was dead under Katz, I raised Florida v. Jardines, where the court held that police violated the 4th Amendment by “appl[ying] the trespass/physical intrusion test that is the alternative test for a “search.”  You remember that one, right?  Me neither, but the Court said so, and so it is.  More importantly, it gave my defendant standing to suppress.

The judge, a good guy, patiently listened to my pitch, with his face only partially contorting as the words “supreme court held” came out of my mouth.  When I was done, he look into my eyes with that look that says, “why are you doing this to me? What have I ever done to you?”

The judge softly shook his head and muttered, he doesn’t see any basis for standing here, and denied the suppression hearing.  I didn’t expect otherwise.  I didn’t blame him for the ruling.  That I may spend my time thinking too hard about such irrelevant nonsense as Supreme Court opinions doesn’t mean anyone else does.

People send me decisions of interest all the time, and I very much appreciate it.  Some are short. Some are hundreds of pages of turgid prose. On very rare occasion, some are well-written, funny and/or interesting. Most tell a very important piece of the law puzzle in someone’s life, but very rarely does the message filter down to the trenches.

Another of our dirty little secrets is that few judges, and even fewer lawyers, have or choose to spend the time staying ahead of the law.  People learn it when they’re forced to do research because a particular issue needs to be addressed, but just staying up to date is a killer. It’s time-consuming. It’s boring. Most importantly, it doesn’t matter.

The law in the trenches is quick and dirty.  The parsing of words done by lawprofs who pore over Supreme Court opinions, which may be read by generations of law students to come but will rarely be seen by the eyes of anyone actually engaged in the making of sausage dispensing of justice making the wheels of the system grind, is meaningless in the trenches.

While academics and legal pundits (and jerks like me) will pull our hair out over the rulings of the Supreme Court of the United States of America, it’s really just a terrible waste of hair.  But today is the first Monday of October, and so we will engage in another round of pretending that the Court will decide something relevant, will render a sufficiently comprehensive opinion that it can be applied without another ten opinions over the next forty years, and that anyone in the trenches cares enough to read it and apply it.



8 thoughts on “Another First Monday

  1. Jim March

    Heh. Well I can tell you that us gun nuts are eagerly awaiting word on whether Woolard or another of the “Carry Cases” will be heard and decided around mid-2014. Rumor I heard says Woolard might be discussed on the 11th.

    As I’m sure you know the 2nd Amendment was established as a personal right in mid-2008 (Heller) in a case involving owning guns in the home. Mid-2010 the right was incorporated against the states. We now have a circuit split on whether the right to “bear arms” means “outside the home”. There’s a circuit split – the 7th Circuit threw out the total ban on firearms carry in Illinois and carry permits will be issued soon on a non-discriminatory basis. The Supreme Court of Puerto Rico also sided in favor of a carry right. Other circuits have disagreed; Woolard is a case from Maryland in which an upright guy with a specific threat couldn’t get a permit because the State In It’s Glory decided he wasn’t special enough or something. There are similar rulings out of New York, New Jersey and we’re waiting on two or three out of the 9th Circuit (California and Hawaii).

    Unless Scalia, Kennedy, Thomas, Alito or Roberts get run over by a truck an outcome in our favor looks good. For a while we thought we might have Ginsburg but no, she has signaled otherwise recently :(.

    1. SHG Post author

      I’ve forwarded your comment to my pal, Alan Gura, who will be similarly happy to learn of this as I am.

  2. Dan

    When’s the SCOTUS going to take up the for what its worth exception? You know, you object, argue that something is inadmissible, and the judge says, well, I’ll take it for what its worth, or the jury can consider it for what its worth. Now that one might be of interest in the trenches.

  3. Passing through

    I enjoyed the post but it fails to answer a lingering question: why does it not matter in the trenches what SCOTUS does? Do their rulings get lost in the flood of legal cases? Are judges just assholes who know they odds are low of their bad decisions being overturned? It would have been helpful to have explained this aspect of your post better.

    1. SHG Post author

      Lawyers understand. SCOTUS opinions are “modest,” so they fail to address the hundred permutations, collateral questions, lingering issues, that remain open. They are too nuanced to give clear direction. They deal with such limited subjects that they leave the dirty work to courts below to figure out, and judges aren’t inclined to make guesses about the law that is different from what they’ve always done unless they have clear direction. And yes, nobody has time to spend hundreds of hours pondering the intricacies of 200 page decisions that leave one more confused afterward than when they started.

      If you really want to understand, sit in a district court for a while and listen to a judge rule from the bench. Hear words strung together that make no sense, are replete with wiggle words with the occasional black letter case name thrown in and a catch phrase or two, then ultimately make a utterly subjective determination that fails to comport with any cognizable law or decision, ending with the word denied. Watch the lawyers shake their heads, trying to figure out what was just said, because they know they lost but none of it makes any sense at all. And that’s life in the trenches.

    1. SHG Post author

      Read SS’s 2d Circuit opinions and tell me when she got the lobotomy. The odd thing is that they care a whole lot more about circuit decisions than SCOTUS. Of course, the chances of reversal, while still tiny, are infinitely higher.

    2. Marc R

      Tons of clients who can barely afford an attorney just love forking over extra cash to run to the appellate court, especially after the district court judge clearly showed a lack of respect for precedent and case law. And as you know, professor, if you think dist court is stacked against the defendant, good luck in appeals.

      I feel like an asshole in state court citing recent SCOTUS or 11th Circuit opinions. The prosecutors aren’t keeping up with the case law and the judge is upset you aren’t relying on the steady 7-8 cases each local DCA has set forth that all the ASAs/PDs routinely use. Fancy private lawyer expecting everyone to study your nuanced position? LOL

Comments are closed.