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?
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.