Tracing legal careers that led to a bombshell
The opening of the new term of the United States Supreme Court and the controversial cases it faces has again drawn keen attention to that branch of government. The cataclysmic decision of the previous term in Dobbs v. Jackson Women’s Health Organization, which overturned the federal constitutional right to an abortion established in Roe v. Wade, has set off a legal and political conflagration of massive proportions.
The decision appears to have had considerable influence in the recent election. In debating the merits of that decision, scrutiny should be given to the legal backgrounds of the five justices in the majority and how their lack of legal achievement in representing individual clients may have impacted the holding in the case.
None of these five justices have anything remotely resembling the historic legal accomplishments in representing individual clients in the practice of law that some prior, notable members of the Supreme Court had in their professional careers. For example, Louis Brandeis vigorously litigated on behalf of working people, including children, in both the trial and appellate courts of this country, creating new laws to protect them. Ruth Bader Ginsberg fought tirelessly as an appellate lawyer for the rights of women, creating significant historical precedent in that area of the law. Finally, Thurgood Marshall displayed unimaginable courage in traveling throughout the country, often in the Deep South, to defend African-Americans in major criminal cases at great risk to his own personal safety. All of these attorneys firmly secured their stature in the legal profession in representing individual clients in challenging cases long before they rose to the Supreme Court.
In vivid contrast, none of the majority justices in Dobbs — whose professional careers consist of Supreme Court clerkships, various government jobs, academic positions, and political entanglements — have these types of legal credentials. These are honorable legal positions, but they lack the dynamics of representing individual clients in courtroom battles. As a group, these justices have been political opportunists cultivating powerful connections, espousing legal theories, such as the constitutional fragility of Roe, that are attractive to those in power, and carefully plotting their upward career moves, rather than engaging in demanding courtroom battles on behalf of citizens.
In sum, none of these justices have any signature professional accomplishment on behalf of individual clients in their pre-judicial careers. Their major accomplishment was to navigate the treacherous political waters to a federal judgeship and then to seek further advancement once appointed. Incredibly, none of these five justices have ever conducted a trial as a judge.
What is the significance of this lack of legal accomplishment by these justices? It appears to have created a substantial desire in this group to be part of a groundbreaking decision that will long live in the legal history of this country. There is no better evidence in support of this theory than the concurring decision of Justice Clarence Thomas who, not content to simply overturn Roe, sought further notoriety by suggesting that Supreme Court precedent which addressed the right to birth control, same sex marriage, and private consensual sexual activity, should also be reconsidered and overruled given the court’s demonstrably erroneous interpretation of the Due Process Clause of the Fourteenth Amendment, even though these issues were not before the court in Dobbs.
In doing so, he violated a cardinal rule of judicial restraint that courts should only decide the issues before them and should not offer advisory opinions. Even his conservative majority colleagues refused to endorse those radical ideas. Perhaps Justice Thomas who, along with Justice Amy Coney Barrett are the least professionally accomplished justices in the area of individual representation, feels an even stronger need to burnish his judicial legacy with more controversial landmark decisions. At long last, these five justices will now have what their legal careers have heretofore substantially lacked — a significant, legal achievement for which they will be forever known.
In fairness, the liberal bloc of the Supreme Court which dissented in Dobbs as a group, likewise does not have extensive experience in representing individual clients, albeit not to the degree of the Dobbs majority. The recent appointment of Justice Ketanji Brown Jackson, who has a background in representing individuals in private practice and as a federal public defender, adds a member to the court who has experience standing next to a client in court.
Representing someone who is going through a contentious divorce, suing for personal injuries sustained in a motor vehicle accident, or being accused of a crime provides a unique perspective on the nature of law. It is not merely an academic exercise. Its application has real consequences for people. Judges on the highest court in the land should have at least some measure of it.
Perhaps the time has come to nominate justices to the Supreme Court who have accomplished legal backgrounds representing individual clients so that they will not view their judgeship as a vehicle to create a desired legal legacy. Whatever the merits or lack thereof of the Roe/Dobbs decisions, these terribly difficult issues should be decided by judges who, at least to some degree, have the sobering professional experience of litigating on behalf of individuals in the cauldron of the courtroom.
Representing someone who is going through a contentious divorce, suing for personal injuries sustained in a motor vehicle accident, or being accused of a crime provides a unique perspective on the nature of law. It is not merely an academic exercise.
Eugene J. Riccio and Nicolle M. Lipkin are criminal defense lawyers with offices in Fairfield and Greenwich.