The subject of professional civility has been widely discussed and promoted in the past few years. Some states have incorporated the requirement in their oath of attorneys. All of the states have emphasized it in recent years. The United States Supreme Court, the ABA and even The National Judicial College promote the principles of civility. Here, for example, is part of the language of the core principles from the Judicial College written for judges nationally:
“Civility encompasses a form of courtesy and behavior and speech that is essential to the role of courts in a democratic society. It is therefore, important that all involved with the court – judges, attorneys, jurors, witnesses, court staff, parties – act with civility to ensure the fair administration of justice and resolution of disputes… Civility in action and words is fundamental to the effective and efficient functioning of our system of justice and public confidence in that system.”
With this in mind let us consider the appropriateness of language of lawyers who disagree with opinions of appellate courts. Here is a collection of lawyer’s written comments about holdings of appellate courts with which they disagree. What do you think? Is this language in compliance with the promotion of professional civility in language? Would this language merit a reprimand for professional lack of civility in your view?
- “But, the court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining to be memorable passages of the opinion is a candid and startling assertion…”
- “But, what really astounds is the hubris reflected in today’s judicial Putsch is…”
- The opinion is couched in a style that is as pretentious as its content is egotistical. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so.”
- “Of course the opinions showy profundity’s are often profoundly incoherent.”
- “The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this court’s reputation for clear thinking and sober analysis.”
- “Today’s interpretation is not merely unnatural; it is unheard of.”
- “…The court comes up with argument after feeble argument to support its contrary interpretation. None of this tries to come close to establishing the implausible conclusion that…”
- “The courts next bit of interpretive jittery – pokery involves other parts of the act…”
- “For its next defense of the indefensible, the court turns to…”
- “Some might conclude that this loaf could have been used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the courts nonspecific handwaving is that this law is invalid…”
- “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement… is not at issue here – when what has preceded that assurance is a lecture on how superior the majority’s moral judgment is…”
- “The only thing that will confine the court’s holding is that sense of what it can get away with.”
- “But, the court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes with a fair defeat.”
- “The court tries to palm off the pertinent statutory phrase as in artful drafting.”
- “The court is eager – hungry – to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against the judge’s intrusion into their life’s.”
- “That is jaw-dropping. It is an assertion of judicial supremacy…”
- “There are many remarkable things about the majorities merits holding. The first is how rootless and shifting its justifications are.”
Well, what do you think? In your state, if you wrote these statements in a motion for reconsideration or a blog or a letter to the editor do you think there would be repercussions? Or do you think that at a minimum you would be regarded by fellow lawyers and the judiciary as an ill mannered radical who needs to have retraining in professional conduct and words?
These are all statements of Justice Scalia in two recent dissents as a Justice of the United States Supreme Court. He is a member of this nation’s highest court standing for principles of rational discussion and civility so how can he justify language like this from his marriage equality dissent:
“I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph story to the mystical aphorisms of a fortune cookie.”
Justice Scalia has proven himself to be nothing more than a rude and arrogant bully. He has shown that he takes pleasure in his lack of professional manners in how he treats lawyers who appear before the Court. He has never seen a conflict of interest in his relationships and judicial role. He has repeatedly demonstrated his unrestrained bias in his judicial rulings and he has continuously attacked his fellow Justices in his unprofessional ridicule contained in his writing.
What he did correctly report in his dissent of the ruling in the marriage equality opinion was how unrepresentative some members of the court are to the people of the United States:
“…and to allow the policy question of same sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principal even more fundamental than no taxation without representation: no social transformation without representation.”
This court, as it is presently constituted, is not representative of the people because of biased and opinion members like Justice Scalia, Justice Alito and Justice Thomas. That I do agree with him about.