On the utility of making Supreme Court Justices uncomfortable

The extraordinarily talented Tony Mauro has a piece well worth reading entitled, Sotomayor Sees Return to Trial Courts After Retirement, Supreme Court Brief (November 17, 2014) (h/t How Appealing).  In the article, Mr. Mauro quotes the fascinating Justice Sonia Sotomayor:

“Out of my mouth came, ‘When and if I retire, I’m going to go back to the district court,” Sotomayor said, recalling her six years in the 1990s as a judge on the U.S. District Court for the Southern District of New York. “Why would I want to go do what I’ve been doing for however many years it’s been on the appellate court and the Supreme Court?”

She continued, “I want to go back to my first love. And the district court is a very different and exciting place. At least for me, it was the formative experience for preparing me for the [Supreme] court.” (Her remarks are at the 1:13 mark of the conversation, available on YouTube.)

Good for the Justice. I hope she means it.

But, let’s go the Justice one better. Instead of going off to Salzburg or wherever over the summers to teach (and engage in all manner of other pleasant things), why don’t the Justices resolve to try cases to juries in the United States District Courts. And I mean every Justice, even the ones who think they are too smart to set forth in a trial courtroom.

Go to the sticks or some place where the Justice doesn’t know the local legal culture and take a case to a jury trial–a place and a case that would make the esteemed feel uncomfortable and require him or her to rub shoulders with real trial lawyers. Try a criminal case with several defendants involving a drug conspiracy and a bunch of statements raising Federal Rule of Evidence 801(d)(2)(E) problems, or a patent case involving a magic new manure spreader and requiring jury instructions that don’t read like Supreme Court opinions, or a contract case for the production of complex software where no one has yet to figure out what the judge is supposed to do during trial regarding the terms of the contract as contrasted with what the jury is supposed to do with those same terms during deliberations. Draft a verdict form, prepare jury instructions, make rulings on evidence, do a jury orientation, hold bench conferences, decide whether you want a court reporter or digital audio, determine whether to allow recross, decide if lawyers may move freely about the courtroom without your permission, conduct a voir dire and rule on whether the lawyers get to ask questions too, and so forth. Oh, and over the noon hour, conduct two or three sentencing hearings in criminal cases.

Such a practice–trying real cases to real juries with real lawyers in real places–would expand exponentially the horizons of all the Justice (even Sotomayor who spent only six years as trial judge–a mere blink of time for most of us). It would also give the hard-working and long-suffering judges of the Courts of Appeal an opportunity to reverse a Supreme Court Justice for making perfectly idiotic rookie mistakes–and that would be very good for the souls of the rest of us and the Justices too.




17 responses

  1. I think the Justices should be required to preside over some District Court cases to get some real world experience. I seem to remember a story of Justice Rehnquist sitting as a District Judge on a trial and I think he was reversed on appeal by the Circuit! However, I cannot actually find any links to the story so perhaps my memory is wrong. If anyone else can find the case information, please post a link (particularly to the opinion from the circuit reversing the trial court).

  2. Judge, Hard to arrange, but if its the real world you want why not have USDCJs sit in Douglas County Court on the criminal side or someplace comparable you real world is a shade to upscale to be truly real.

  3. Repentinglawyer,

    ‘Cause it would be illegal, but I’m game if you can figure out a way! All the best.


    PS I’d rather sit in Dawson County.

  4. So judge, would it be fun or terrifying to sit on the first appellate panel to consider reversing the recently retired supreme court justice?

  5. Dawson County is not the real world, though old Muni Ct in Omaha was more colorful than current County Court. One NE DJ from your part of the world use to refer to the pool room courtrooms of Omaha and he was not far off.

  6. I was under the impression it was hard to guess what cases would actually proceed to a jury, protestations of the parties notwithstanding. Am I wrong?

    I guess a Justice could take a trial away from a USDJ after the point at which it has become clear…maybe?

  7. Great idea. At least for those justices who have actually had trial court experience. I don’t know about the rest of you out there, but I wouldn’t want a judge who’d never been in a trial court (or not for a couple of decades), and never presided over a trial, hearing one of my cases. And, as a plaintiff’s employment lawyer, there are certain of the justices whom I would hate to have presiding over one of my cases (of course, that’s true of some Court of Appeals judges and District Court judges as well, but the views of the justices are better known).

    As an aside–or maybe not–if this suggestion were to be considered seriously, I suspect that there would be at least an implication that the justices would hear “routine” cases. But it’s important to realize that there is no such thing–to the parties (except for large corporations and similar institutions), that case is the be-all and end-all of the justice system.

  8. Would it be too much to ask if they did their jobs? They issue eight opinions a year per justice. If only 70-80 cases truly demand Their Eminences’ full attention, they should have plenty of time to attend to their constitutionally-assigned duty of error-correction.

    Judicial Watch archives financial disclosure reports for every federal judge, and Scalia is so busy with his for-profit and outside activities that it is a wonder that he has any time left for his day job: http://www.judicialwatch.org/wp-content/uploads/2014/05/Antonin_Scalia-2012.pdf Almost $100K in outside income from books, lectures, and speeches, including those given while the Court is in session.

    If I had my druthers, I’d have it work the other way. Let federal trial and appellate judges sit by designation on the High Court. You’d probably get better opinions if the judges knew that they had to live with the opinions they handed down, and you wouldn’t have conflicted judges like a Scalia or Thomas deciding cases for their friends and patrons.

    I would insist that the Justices handle pro se cases. It would force them to come face-to-face with those people whose lives they have so arrogantly and casually ruined because corporations are people with rights under law … but the average man is not.

  9. Reblogged this on Wrestling with the Law and commented:
    Judge Richard Kopf of Nebraska has one of my favorite blogs, Hercules and the Umpire. It is rare to get a Federal Judge blogging his or her thoughts on the law, so it is a treat. Here, he points out why it might help our Appellate Court judges to spend more time in trial courts. A position that carries a great deal of value since too many Appellate Court judges second-guess what happens in the trial court level.

  10. Eric,

    Thanks very much for your kind words, and your republishing the drivel that I write. I appreciate it.

    All the best.


  11. Jon,

    I am very serious about the proposal. Your concerns are not unjustified but being the utilitarian that I am the “greater good” is worth the risk and potential cost to the litigants who are impacted. I would particularly like each of the Justices to handle a criminal case and the resulting sentence if there is a conviction.

    All the best.


  12. John,

    Most of the time you can predict with fair accuracy if criminal cases are going to go. In any event, we “stack ’em” for the same day (sometimes 7 or 8 deep) so there is a good chance the justice would have something to try. All the best.


  13. Have the exact opposite reasoning of Absinthe. I would like the esteemed Justices to see how much time prosecutors, appointed counsel, and trial judges have to spend weeding through the new piles of chafe filed by pro se petitioners every time that the Supreme Court creates an exception that “will not impact too many cases.” Maybe they would discover that the cost for some of these decisions outweigh the meager benefits rather than assuming that there is no cost.

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