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August 2, 2005

SCOTUS is out of touch

So says Stuart Taylor, Jr. in this interesting piece from The Atlantic Monthly (hat tip Howard).  The main theme of Taylor's piece is captured by its subtitle: "The Supreme Court's greatest failing is not ideological bias — it's the justices' increasingly tenuous grasp of how the real world works."  The piece's opening paragraph spotlights that the current members of the Supreme Court lack experience in many legal and political arenas, and Taylor rights notes, as I have in prior posts, the limited trial court experience and criminal law experience among the current Justices.  Also, Taylor's essay includes this effective paragraph summarizing the mess that SCOTUS has made through its Apprendi-Blakely-Booker sentencing jurisprudence:

In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We'll be hearing more about this confusion — it's a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.

UPDATE: A helpful reader pointed me to this interesting column picking up the same themes about the Supreme Court being too cloistered.  The author suggests that Justices be brought "home to the towns where they grew up or worked or raised their families. Let's keep them in our midst so they can live the lives of average Americans and stay close to our hopes and fears and daily struggles."

August 2, 2005 at 11:09 AM | Permalink


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It's true. A big part of the problem is hiring clerks straight out of law school. I don't care how intelligent they are, they're inexperienced legally and in life, and too often it shows. I'll never forget my former law professor (ex-SCOTUS clerk) who, in discussing a tort case about cigarette lighters, revealed she did not know how a disposable cigarette lighter (e.g., a Bic) worked--she'd never seen one. You'd think justices would rather take clerks who'd practiced civil and criminal litigation for a couple of years, worked on a couple of actual contracts, witnessed a few administrative hearings... Booker is a shining example of ivory tower thinking with no rational application to the real world, but other examples are legion.

Posted by: bob jenkins | Aug 2, 2005 1:03:46 PM

More experienced clerks would help. But how about this--which also wouldn't require a constitutional amendment. Have 10 justices, working year-round, with one on sabbitical each year. You'd get more productivity plus the sabbaticant can do some interesting work in the real-world, presumably unpaid and conflict-free.

Posted by: Robert Little | Aug 2, 2005 4:27:26 PM

As a prosecutor who is dealing with Booker - it is interesting to note that the defense bar really does not want what they profess is depriving their client of - to introduce and prove up the defendant's history (toss out Almendarez-Torres). Every prosecutor would love to tell a jury (to quote Paul Harvey), "now you know the rest of the story."

Secondly - what they are asking is also what they object to - present the evidence, but please don't because it would violate Shepherd and Taylor in going to the facts and story of the underlying convictions - which by the way would meet the goals of 3553(a).

The defense bar wishes to have their cake and eat it too.

Posted by: Deuce | Aug 2, 2005 4:57:06 PM

In response to Deuce's comment, my perception is that the criminal defense bar would prefer bifurcated sentencing. After all, just because the 6th Amend. requires sentencing facts to be found by a jury, that doesn't obviate the 5th Amend.'s requirement of a fair trial. Interestingly, pre-Booker, the defense bar seemed split -- some wanted the guidelines to be unconstitutional and a return to the old parole system, others wanted them to be constitutional but wanted upward adjustments to be found by a jury BRD. They both lost -- "advisory" guidelines, no parole, and upward adjustments found by a judge. Everyone scratches their head at Booker, but not many in that community were dancing in the streets.

Posted by: samuel bringuez | Aug 3, 2005 1:59:01 PM

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