Insular justices


FOR DECADES, liberal and conservative students of the Supreme Court have criticized its remoteness from the day-to-day realities of how the law is practiced. They are right. Examples of the court's insularity are not hard to find.

On June 24, in Coleman vs. Thompson, the court held that a prisoner sentenced to death was barred from presenting his federal habeas corpus claim because his lawyer was three days late in filing a notice of appeal. The court had no trouble concluding that a client should be held accountable for his lawyer's failings. It reasoned that "the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error."

The idea of the lawyer as agent for the client is based on a model of the lawyer-client relationship derived from the comfortable setting of law firms used by corporations. When corporations hire lawyers, they expect them to be responsive to their legal needs. But the lawyers representing clients in capital cases are often inexperienced, overworked and underpaid, and do not serve their clients with the solicitude of a corporation lawyer. To hold an inmate facing a death sentence accountable for his lawyer's lapses is to substitute an empty legal formula for a penetrating analysis of the facts.

Why is the court insular? One reason is that the justices see very little law practiced. Of the present court, only Justices Sandra Day O'Connor and David Souter have served as trial judges -- and their combined experience is only nine years. Clarence Thomas has never been a trial judge.

This means that seven of the nine justices have never been required to impose a prison sentence. Most trial judges consider this their single most difficult task. In the line of duty, none has ever read a pre-sentence report, conferred with a probation officer, seen the impact of a sentence on the innocent members of a defendant's family or the impact of a crime on victims and their families.

This lack of trial experience means justices tend to see cases as conflicts between abstract principles, devoid of human dimension and consequence. The Coleman decision's opening line says, "This is a case about federalism." In fact, it was about whether a defendant should die for his lawyer's mistake.

Although the court has an incessant flow of death penalty cases, at least seven of the nine justices have never imposed a death sentence or conducted a hearing in a habeas corpus proceeding brought by a defendant sentenced to death.

A solution to the insularity problem is rooted in the court's history. The justices should be required, as they were from 1789 to 1875, to sit regularly as federal trial judges in civil and criminal cases. The justices have ample free time. The court recesses every year about July 1 and does not resume until the first Monday in October. Although the justices spend some of that interval reading petitions for judicial review, that is not a three-month task. In the summer, justices teach at law schools, attend seminars abroad and speak before groups of lawyers.

Existing legislation permits federal appellate judges and retired Supreme Court justices to be designated as federal trial judges. Several justices, including Tom Clark and Lewis Powell, have sat extensively in lower federal courts after retirement. Many federal appellate judges appointed directly to courts of appeals, aware of their lack of federal trial experience, sit from time to time as trial judges because it gives them a better perspective on their duties.

Why can't sitting justices follow the practice adopted by their retired colleagues and by judges of the courts of appeals? If justices sat regularly in trial courts, they would acquire a broader understanding of the litigation process and the consequences of their decisions.


Jeremy G. Epstein is a lawyer.

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