329. Law in aspic

Imagine a history professor who built his career on the study of presidential press releases, viewing them not as eruptions of public mendacity or even as examples of public relations technique but as the true measure of each administrations achievements. 

To evaluate Richard Nixons time in office, this scholar would diligently read every word that ever emanated from Ron Zieglers office – and nothing else.  To understand the achievements of George W. Bush, our professor would carefully parse the words of Tony Snow and Dana Perino. 

If an academic rival were to publish an article questioning President Bushs sincerity, our historian could write a letter to the editor of a highbrow magazine couched in the barbed politesse of academic infighting, crushing his rival with the unanswerable riposte: a quotation from Ari Fleischer conclusively proving the contrary.

It shouldnt be hard to imagine such a professor, because thats how our legal academy operates.  When our law professors study the United States Supreme Court, they read the Courts press releases and treat them as full and entirely satisfactory explanations for the Courts exercises of power. 

When law professors conduct what they consider debates about the Supreme Court, they bandy back and forth various phrases and linguistic formulations crafted by the diligent drones of the Courts PR shop – that pool of aides known in the jargon as "law clerks," the recent law school graduates who actually draft the opinions the justices sign (and who themselves frequently become law professors, completing the circle). 

If you picture the President personally signing off on every White House press release and passing it off as his (or, perhaps, her) own work, youll have a pretty clear idea of how the Supreme Court works.  In the world of the press release, of course, every motive is pure, every goal noble, and every policy successful.  Press releases, including judicial opinions, endlessly invite us to accept the word as the deed. 

Princeton University Press was nice enough to send me a review copy of a book devoted to the painstaking perusal of Supreme Court press releases, and I feel guilty that I havent devoted a post to it yet.  Theres such a spirit of naive yearning in the book that I find myself drawn to its author, who as provost and Laurance S. Rockefeller Professor of Public Affairs at Princeton University would doubtless find my solicitude icky.

I know what youre asking: Who, exactly, was Laurance S. Rockefeller and why did he spell his first name like that?  Well, as a young man Laurance "attended Harvard Law School for two years until he came to the conclusion that he did not want to be a lawyer", which tells you everything you need to know about him: he didnt have to worry about paying off student loans.  After that his career was the usual round of venture capitalism, crop circles, philanthropy, the Roswell incident and alternative education.

The current occupant of the Ivy-entwined Rockefeller chair, Christopher Eisgruber, has written The Next Justice: Repairing the Supreme Court Appointments Process.  Before that he was a clerk for Justice Stevens, and Im glad to say hes appropriately grateful to his fairy godfather – although calling him a "valued mentor" on the dedication page might strike some as providing a little too much information about the value Stevens added to Eisgrubers career.

Ive written about Supreme Court clerks before (see post 204), but Karen Arnold did so with far greater detail in her  Lives Of Promise: What Becomes of High School Valedictorians.   Supreme Court clerks are the valedictorians among valedictorians, the highest-achieving of the high achievers, and I dont doubt that the personality characteristics Arnold found in her Midwest valedictorians are only amped up in the 36 (or so) smartest persons in the room who get to clerk at the Supreme Court.

What Arnold found, above all, was contentment with the status quo.  The people who graduate at the top of the class are those who spend the least mental time outside the box.  The closer your brain waves resemble the pattern of windows on the school facade, the higher your GPA will levitate over 4.0.

Or, as Arnold put it (sans the piquancy of sour grapes): "Over and over again, star students told us they rose to the top partly because they were intelligent, partly because they were schoolwise, and mostly because they worked hard, persisted, and drove to achieve."  "The top students readily identified themselves as school smart.  Academic talent, to them, meant the ability to excel at academic learning and school tasks like note taking, memorization, and testing."

Eisgruber – the established face of the Establishments premier establishment – has made school-smarts a career.  And a brilliant career it is, too.  Link after link in an amazing chain of achievements, all ending up as the university presidents representative at budget meetings …   Prestigious budget meetings, mind you.   But still.  I think the apple carts of central New Jersey are safe as long as Eisgruber is around.

(Incidentally, if you were the editor-in-chief of Princeton University Press, how would you feel about receiving an unsolicited manuscript from the "chief budgetary officer of the University"?  Mad at yourself for not having solicited it?)

Eisgrubers basic take on the Supreme Court is that its press releases tell you everything you need to know.  You can judge a judge by the polished productions he chooses to send to the publisher.   So his book is filled with quotations from the justices opinions that are presented as true-to-life, pantingly-intimate, Sylvia Plath-like confessions of what the justices were thinking – in short, as the decisions themselves, rather than as public relations justifications for them. 

(The different meanings of "decision" contribute to fuzzy thinking in the legal academy, I think: the justices decide a case, then order their clerks to write a "report of [their] conclusion", and the latter is called … the decision.)

If you start with the conviction that everything John Paul Stevens has ever done is good – no, make that Good – and devote your massive brain power to thinking about the Supreme Court while resisting any idea that challenges that core conviction, you would come up with policy prescriptions – well, thats a bit strong – policy vague suggestions similar to Eisgrubers.

Ill talk in more detail about the book in a later post.  But in the meantime I do recommend it without reservation as a fly-in-amber keepsake of well-spoken, well-intentioned conventional legal wisdom, circa 2007. 

Read more detail on Legal News Directory – Judiciary

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