Over the past few years, the U.S. Supreme Court has variously told American high school students they’re not allowed to pray before a football game, denied states the right to outlaw homosexual sex, prohibited the display of the Ten Commandments on public property if it is for the purpose of acknowledging God, and permitted governments to confiscate private lands and give them to a more favored private entity.
Perhaps this is why U.S. Supreme Court Justice Antonin Scalia recently disdained the foolish and dangerous rulings by federal judges, including his own colleagues on the Supreme Court. Scalia warns, “Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check.” He proclaimed that “Joe sixpack” is just as qualified as the average judge to make rulings in regard to abortion or gay marriage."
Bravo, Judge Scalia!
I fully agree that most Americans are more likely to render just and moral decisions than many a contemporary judge. After all, in most cases (so to speak), what is a judge other than a lawyer in a black robe?
Before you think I’m about to do nothing but bash lawyers, I’ll acknowledge there are some outstanding attorneys in America. A few of the best, I know quite well: Steve Crampton, lead attorney for the American Center for Law and Policy and David Limbaugh, nationally syndicated columnist, best-selling author and regular Worldview Weekend speaker. But for the rest of this article, I’m going leave the bashing to several respectable attorneys. I hope you’re shaken by the disaster we face as a nation because of the presence of too many lawyers in high places.
Lino Graglia, professor of constitutional law at the University of Texas School of Law, asks:
[quote] Do the proponents of judicial review truly understand that under those judicial robes there are only lawyers, not persons selected for the job because of unusual depth or breadth of learning, or exceptional ethical, political, or historical insight? [end quote] [footnote #1]
Graglia provides some expert insight into what goes into the making of a lawyer:
[quote] The study and practice of law has many advantages, including the acquisition of great skill in the manipulation of words, but few would recommend it as a means of inculcating habits of ethical fastidiousness or devotion to candor. No person knowledgeable as to the making of lawyers or the practice of law can possibly believe that it is from among lawyers that we should select our ethical leaders or that to the lawyers selected we may safely grant governmental authority. [end quote]
Countless surveys have made it axiomatic that most Americans believe lawyers are among the most unethical people in America. And lawyers’ malignant behavior shows up in sad statistics about how they view themselves. C. Patrick Schiltz in Notre Dame Magazine points out:
[quote] Lawyers suffer from depression, anxiety, hostility, paranoia, social alienation and isolation, obsessive-compulsiveness, and interpersonal sensitivity at alarming rates. For example, research affiliated with Johns Hopkins University found statistically significant elevations of major depressive disorder (AMDD) in only three of 104 occupations: lawyers, pre-kindergarten and special education teachers, and secretaries. Lawyers topped the list…Lawyers also suffer from alcoholism and use illegal drugs at rates far higher than non-lawyers… Not surprisingly, a preliminary study indicates that lawyers commit suicide and think about committing suicide more than non-lawyers.” [end quote] [footnote #2]
I believe the source of this dysfunction stems from chronic unethical behavior that starts in law school. From there, it only gets worse. A culture of greed, materialism, and unethical attitudes permeate many law firms. Again, Patrick Schiltz explains: “I tell my students that particularly if they go to work for a big law firm, they will probably begin to practice law unethically in at least some respects within their first year or two in practice.” [footnote #3] He alleges that these are not just isolated instances but that the problem is built into the very fabric of modern-day law practice:
[quote] A young person who begins practicing law today will find herself immersed in a culture that is hostile to the values with which she was raised (unless she was raised to be rapaciously greedy), for the defining features of the legal profession today is obsession with money…Young lawyers absorb the big firm culture, a culture of long hours of toil inside the office and short hours of conspicuous consumption outside the office. …As the values of an attorney change, so, too does her ability to practice law ethically. For the typical young attorney, acting unethically starts with her time sheets. One day, not too long after she starts practicing law, she will sit down at the end of a long day, and she just won’t have much to show for her efforts in terms of billable hours. It will be near the end of the month. She will know that all of the partners will be looking at her monthly time reports in a few days, so what she’ll do is pad her time sheet just a bit. And then she will pad more and more…. And, before long, it won’t take her much more than three or four years, she will be stealing from her clients almost every day…The young lawyer’s entire frame of reference will change. She will still be making dozens of quick instinctive decisions every day, but those decisions…will instead reflect…a set of values that embodies not what’s right or wrong, but what is profitable, and what she can get away with.. [end quote] [footnote #4]
Add to that the soul-consuming notion of legal positivism. This philosophy encourages attorneys-turned-judges to expand their egos by basing decisions not on the restrictions of the Constitution and founding documents but upon their self-perceived “wisdom” and I-know-better-than-the-masses (i.e., you and I), elitist worldview.
Remember the infamous attitude of one such lawyer-become-judge, Supreme Court Justice Benjamin Cardozo: “If there is any law which is back of the sovereignty of the state, and superior thereto, it is NOT law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralists.” And then there’s U.S. Supreme Court Chief Justice Charles Evans Hughes who said, “We are under a Constitution, but the Constitution is what the judges say it is.”
Whatever the judges may think it says or doesn’t say, the Constitution says nothing about requiring that a member of the U.S. Supreme Court be an attorney. So I advocate it’s time the judges’ underclothing be changed.
We’d all be better off if the next few Supreme Court nominees have under their black robes the duds of a rancher, shirtsleeves of an entrepreneur, the uniform of a retired military officer, fireman, or policeman, the sweat suit of a high school football coach, or whatever your favorite conservative talk-show host is wearing behind the microphone. Anything’s better than a lawyer’s thousand-dollar suit!
1. Lino A. Graglia, “Judicial Review on the Basis of ‘Regime Principles’: A Prescription for Government by Judges,” South Texas Law Journal, Vol. 26, No. 3 (Fall 1985), pp. 435-52, at 446.
5. Benjamin Cardozo, The Growth of the Law (New Haven; Yale University Press, 1924), p.49.
6. Charles Evans Hughes; quoted by Ducat and Chase, Constitutional Interpretation., p.3.