With so much discussion amongst the blawgs about the relative merits of Supreme Court clerkships, Supreme Court Justices, and now the Supreme Court mafia, it seemed appropriate to consider Supreme Court mechanics. Lawyers are obsessed with the Supreme Court for somewhat obvious reasons. It’s the big time. Our chance at immortality. Our chance to win the big decision that will change the law for decades, maybe even centuries, to come.
The miserable truth is that few will ever sit in that well. While most don’t belong there, given the damage they could cause society, even those who do will never have cause to put on a clean white shirt and listen for their name to be called.
Many who read the opening will jump to the assumption that few lawyers have cases worthy of Supreme attention, and that is why I write this. While somewhat true, they are wrong about the bottom line. The problem about which I write is not case-worthiness, but mechanics. For the ivory tower and a handful of Biglaw guys, this doesn’t present an issue. The reason is that the ivory tower guys don’t actually do a lot of law, and the handful of Biglaw guys have the real deep pockets that allows them to do whatever they please.
In the low world of lawyering in the trenches, clients hope to prevail at the lowest possible level. To this end, they are willing to pay (if at all) for the best chance at trial. By the time a first level appeal is over, the client is usually tapped out and/or too tired to keep up the fight. The lawyer frequently has burned out on the case as well by then. It’s hard to keep up the level of intensity and interest needed to mount the fight over and over.
When we find ourselves with the right client and the right cause, and want to pursue the big issue to the top of the legal food chain, we still have to deal with reality. We work for a living. Office rent has to get paid, and the telephone company is funny about its bills. Few people have the wherewithal to make it to the fourth court, if in state court. It’s only third if the case is federal, but those cases cost far more to begin with, with the same ultimate result.
There are plenty of cases that present issues that may be SCOTUS worthy. They may, in fact, be cases where the facts are right, the law is right. The stars are aligned. Except for one little star twinkling until it burns itself out. That’s the client’s star. It burned so hot and bright in the beginning, and then it was gone.
For those lawyers (and former Supreme Court law clerks) who focus so hard on “the word” out of D.C., most “real law” happens in the little courts. These courts don’t pay particularly close attention to the big pronouncements. These courts rarely make it onto anyone’s radar. They are dirty, ugly courts where dirty, ugly clients and their dirty, ugly lawyers spend their days doing dirty, ugly law.
Few lawyers will ever become a member of the Supreme Court mafia, a group of elite lawyers who apparently not only get to appear and argue before the Supreme Court on a regular basis, but also affect the ever-decreasing docket of the court. What are these lawyers invited to the party, when others are not? Money. They have the corporate sponsorship behind them to put on a full Court press. While I have no doubt these lawyers possess the appropriate skill level to justify their membership in this group, without the financial fuel to drive their efforts forward, they would be sitting with the rest of us in the visitors section.
Unlike the big show in Washington, many people pass through the hallways of local courts. They may well be people like your parents or siblings, or their friends and neighbors, but this isn’t the law you teach about in law school or you aspire to practice. Ah, the glory of being the hero in Gideon or Miranda. But that’s the lawyer equivalent of winning the lottery. If you want interesting people with interesting cases, go down to your local courthouse and sit in a courtroom for a while. Maybe then you’ll understand why these cases never make it to the Supreme Court.
The miserable truth is that few will ever sit in that well. While most don’t belong there, given the damage they could cause society, even those who do will never have cause to put on a clean white shirt and listen for their name to be called.
Many who read the opening will jump to the assumption that few lawyers have cases worthy of Supreme attention, and that is why I write this. While somewhat true, they are wrong about the bottom line. The problem about which I write is not case-worthiness, but mechanics. For the ivory tower and a handful of Biglaw guys, this doesn’t present an issue. The reason is that the ivory tower guys don’t actually do a lot of law, and the handful of Biglaw guys have the real deep pockets that allows them to do whatever they please.
In the low world of lawyering in the trenches, clients hope to prevail at the lowest possible level. To this end, they are willing to pay (if at all) for the best chance at trial. By the time a first level appeal is over, the client is usually tapped out and/or too tired to keep up the fight. The lawyer frequently has burned out on the case as well by then. It’s hard to keep up the level of intensity and interest needed to mount the fight over and over.
When we find ourselves with the right client and the right cause, and want to pursue the big issue to the top of the legal food chain, we still have to deal with reality. We work for a living. Office rent has to get paid, and the telephone company is funny about its bills. Few people have the wherewithal to make it to the fourth court, if in state court. It’s only third if the case is federal, but those cases cost far more to begin with, with the same ultimate result.
There are plenty of cases that present issues that may be SCOTUS worthy. They may, in fact, be cases where the facts are right, the law is right. The stars are aligned. Except for one little star twinkling until it burns itself out. That’s the client’s star. It burned so hot and bright in the beginning, and then it was gone.
For those lawyers (and former Supreme Court law clerks) who focus so hard on “the word” out of D.C., most “real law” happens in the little courts. These courts don’t pay particularly close attention to the big pronouncements. These courts rarely make it onto anyone’s radar. They are dirty, ugly courts where dirty, ugly clients and their dirty, ugly lawyers spend their days doing dirty, ugly law.
Few lawyers will ever become a member of the Supreme Court mafia, a group of elite lawyers who apparently not only get to appear and argue before the Supreme Court on a regular basis, but also affect the ever-decreasing docket of the court. What are these lawyers invited to the party, when others are not? Money. They have the corporate sponsorship behind them to put on a full Court press. While I have no doubt these lawyers possess the appropriate skill level to justify their membership in this group, without the financial fuel to drive their efforts forward, they would be sitting with the rest of us in the visitors section.
Unlike the big show in Washington, many people pass through the hallways of local courts. They may well be people like your parents or siblings, or their friends and neighbors, but this isn’t the law you teach about in law school or you aspire to practice. Ah, the glory of being the hero in Gideon or Miranda. But that’s the lawyer equivalent of winning the lottery. If you want interesting people with interesting cases, go down to your local courthouse and sit in a courtroom for a while. Maybe then you’ll understand why these cases never make it to the Supreme Court.
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