I Think I've Been Insulted

I’m pretty sure I have. Maybe not, though, it’s always so hard to tell, especially with Supreme Court Justices. The other day, Justice Scalia told a C-SPAN interviewer, in response to a comment from Chief Justice Burger about the poor quality of advocacy before the Court (via Volokh):

'I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

'I mean there’d be a ... public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

Speaking as a public defender from Podunk, to me Scalia seems to be saying that the poor charged with crimes aren’t entitled to a rigorous defense, at least not the kind that would be the product of a brilliant mind. It’s insulting to think so, both to the people who do the work and the folks they represent. Standing up for those folks in court, often the only people in their lives who ever had, is not “doing something productive for this society?” Seems to me it does something quite productive for society, allowing it to function by ensuring that it has a criminal justice system that ensures fairness and even-handed treatment. In theory, anyway. On a more cynical level, it also creates a cadre of professionals who actually care about the folks who too often are cast off from society as dangerous, crazy, or inferior in some way. If we do the heavy lifting, the rest of you don’t have to.

But what Scalia’s after here is a more generalized rip on lawyers (of which he is one, ironically):

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table, and there have to be other people who are doing that.

Scalia worries that we’re wasting “too many of our very best minds” in the field. This makes little sense to me, for several reasons.

First, practicing law puts food on my table with great regularity. It also puts a roof over my head, a car in my garage, books on my shelves, etc. all of which I bought from someone else, allowing them to put food on their table. The idea that some vocation is valuable only if it produces a physical good at the end of the day made some sense in the days of Locke, but not in modern 21st Century America. We thrive on service industries, after all. Those, by definition, thrive on enabling other folks to do things, not producing durable goods.

Second, as Scalia admits, we do provide some value, in providing a peaceful means to settle disputes and resolve issues. We could go back to trial by combat, I guess, or private enforcement, but I doubt most people would want to. You'd need your own gang to back you up and, given Heller, it will probably be well armed. Wild West, ho!

Third, if I may be so bold as to put myself in the class of “our very best minds,” I’ll be honest and say I can’t think of anything “productive” I could do as well as I practice law. I have the mechanical aptitude of a fruit fly, honestly, and I disappointed my elder brother by not going to engineering school. I couldn’t “invent[] the automobile” if my life depended on it (aside from the fact that it’s already been done, of course). Aside from writing non-law stuff for a living, I can’t think of anything else I really have the skill set to do.

Having said all that, are there too many lawyers around? Maybe. Do too many people go to law school because of a false impression of what the profession is really like or out of some kind of academic inertia? Almost certainly.

My advice - don't go to law school unless you want to practice law, to get down and dirty in the day to day operations of the law. Don't do it for money and don't do it because it's the option of least resistance. You'll wind up deep in debt and toiling away at a job you hate. Hell, you might even wind up in Podunk.