Wednesday, June 29, 2011

Thinking Historically about a "Supreme Court Pro Bono Bar"

The rise of a Supreme Court pro bono bar and Supreme Court clinics is of journalistic and scholarly interest. Critics of Supreme Court clinics worry that competition to litigate cases in the Court might have an adverse impact on outcomes for individual clients or causes.

Compare this worry to scholarly concern about a distinct but related matter: the advent of an elite Supreme Court bar for private interests--corporate lawyers who work at top-notch private law firms. In recent years, Richard Lazarus has argued, the corporate bar influenced both the types of cases that the Supreme Court has heard and the merits of disputes. See Lazarus, "Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar," 96 Georgetown L. J. 1487 (2008).

I've followed both strands of recent discussions of the Supreme Court bar with great interest, mostly because of my prior work on the legal history of the public interest bar. Against the backdrop of that work, one feature of the present conversation about the pro bono Supreme Court bar has seemed odd to me: its ahistoricism.

The ways in which the private sector has advanced its interest at the Court through an elite Supreme Court bar strike me as entrepreneurial, opportunistic, and historically unique in many respects, as Professor Lazarus argues.

But competition within the Supreme Court pro bono bar in ways that both transformed the Court's docket and the legal and social worlds of clients and society probably should not be understood as an entirely new historical phenomenon. Some of the most interesting legal history and constitutional scholarship of late explores the strategic and even competitive contexts in which twentieth-century public interest lawyers crafted strategies and tactics as they sought to form socioeconomic problems into legal claims heard in the U.S. Supreme Court. Melvin Urofsky's biography, Louis D. Brandeis: A Life, describes the tremendous influence that the lawyer wielded as he sought to transform the law in ways consistent with the objectives of Progressive Era reformers. Risa Goluboff's book, The Lost Promise of Civil Rights, on the relationship between the labor and civil rights movement during the 1930s, argues that lawyers did not pursue certain types of labor and civil rights claims at the Court because of might be understood as competitive pressures, internal and external to the bar. Sophia Lee's work on the national NAACP and its "workplace constitutionalism" uncovers the lawyers' complex strategic choices as well. See Lee, Hot Spots in the Cold War. Speaking of the NAACP, I can hardly leave out my own argument. A critical examination of interaction between the national NAACP and local groups over time can tell us much about how national NAACP lawyers shaped the Supreme Court's docket, even as these mainstream lawyers contended with the competing perspectives of grassroots lawyers and social movement activists.  We see lawyers and activists skeptical of certain types of civil rights litigation and deeply concerned about economic inequality when we look at the civil rights movement from the bottom up, I've argued. Serena Meyeri's book on feminist legal theory and practice during the 1970s, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, explores how one form of liberal feminist legal advocacy won out at the Supreme Court over other possibilities as feminists contested notions of equality. Steven Teles's book, The Rise of the Conservative Legal Movement, which chronicles how lawyers for political conservatives and corporations shaped legal agendas during the late 1960s and 1970s, also is germane to the question of how a specialized and politicized bar transformed the Court and society.

In these examples and others, scholars have shown that competition among members of the bar, along with internal dynamics on the Court and external political, social and economic forces, shaped legal outcomes and marked the boundaries of opportunity for citizens over the course of the twentieth century.  In addition to providing scholars with more nuanced understandings of the Court, lawyers, and the legal process, I suspect that historical works such as these could add depth to discussions of present Supreme Court litigators who intend to work in the public interest.

No comments: