When at Times the Mob Is Swayed by Burt Neuborne

Author:Burt Neuborne [Neuborne, Burt]
Language: eng
Format: epub
ISBN: 9781620973592
Publisher: The New Press
Published: 2019-09-15T04:00:00+00:00

6

What’s Law Got to Do with It?

Please Don’t Kill All the Lawyers—Yet

If the outcome of so many constitutional cases is predetermined by the partisan makeup of the Supreme Court, what exactly do high-powered lawyers add to judicial review? Maybe nothing. Maybe constitutional lawyers are just decorative. They strut and preen in pinstripes and pantsuits, charge large fees, use big words, and communicate in codes largely designed to keep nonlawyers in the dark about what is really going on. I know. I’ve been one of those constitutional lawyers for more than fifty years.

Maybe fancy constitutional lawyers are just glorified travel agents. When I maneuver to file a case before a friendly judge, I’m really just reserving a table at a fashionable restaurant. If the dinner ultimately tastes good, I’m entitled to credit for excellent taste in judges, but not necessarily for cooking the meal. I can suggest a recipe, but it’s the judge who does the cooking.

So, apart from decoration, pontification, and judge-shopping, can good lawyers really affect the outcome of a constitutional case? My highly self-interested answer is a resounding “sometimes,” “maybe,” and “I think so.” But not in the way lawyers often claim. While high-powered lawyers like to tell themselves—and their clients—that skill in crafting an imaginative legal argument can play a crucial role in virtually every case, in the many intensely contested constitutional cases that lack clear textual direction, persuasive binding precedent, and/or a tidy package of values pulling in the same direction, competent constitutional lawyers are likely to fight to a legal tie that will be broken by a judge’s values. In such value-driven cases, lawyers are like the oarsmen in Tolstoy’s rowboat trying to tow a legal ocean liner on a sea of judicial values.

But don’t kill all the lawyers, at least not yet. In the many important constitutional cases where the raw material for value-free persuasive lawyering exists—cases with clear text, persuasive precedents, and consensus values—excellent lawyers can and do play a crucial role in shaping the case’s outcome. The important contribution of lawyers to the process of judicial review occurs when a well-crafted legal argument based on a combination of clear text, well-reasoned precedents, and/or the tug of shared values is sufficiently persuasive to guide a thoughtful, principled judge to a single, preferable legal result, regardless of the judge’s values.

It is in those cases—the true “rule of law” cases—that the value-driven red and blue Constitutions often merge to form an apolitical, relatively value-free purple Constitution. Given the vast array of rights-affirming precedents decided by both Republican and Democratic Supreme Courts over the years, the prospect of apolitical, lawyer-driven enforcement of fundamental rights embedded by precedent in the purple Constitution’s text, provides real hope for a genuine bulwark against a Trumpist drift toward authoritarianism and scapegoating.

But just how strong is the purple Constitution? Can it provide enduring protection in the time of Trump? I wish I could assure you that the core of our constitutional heritage is safely nestled in the purple Constitution, just waiting for apolitical enforcement at the hands of excellent lawyers and principled judges.

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