About This Blog

Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

Judging Crimes took a long hiatus for some of the reasons explained here.

Entries beginning with Book 'em! are book reviews and commentaries. No attention is paid to the imperatives of book marketing. As Calvin Trillin once pointed out, the average shelf life of a book in a bookstore falls somewhere between milk and yogurt, but in these days of long-tail online marketing that matters less to everyone, and I don't see why it should matter at all to reviewers. Most posts will be about books that have been around long past the time when yogurt would have solidified.

Other entries will be... well, I'm curious to find out what the others will be.

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Test Drive the Book!
« 330. Dead professor driving | Main | 328. A great judge, except for that »

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 administration's achievements. 

To evaluate Richard Nixon's time in office, this scholar would diligently read every word that ever emanated from Ron Ziegler's 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 Bush's 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 shouldn't be hard to imagine such a professor, because that's how our legal academy operates.  When our law professors study the United States Supreme Court, they read the Court's press releases and treat them as full and entirely satisfactory explanations for the Court's 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 Court's 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, you'll 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 haven't devoted a post to it yet.  There's 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 you're 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 didn't 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 I'm glad to say he's 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 Eisgruber's career.

I've 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 don't 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 Establishment's 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 president's 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?)

Eisgruber's 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, that's a bit strong - policy vague suggestions similar to Eisgruber's.

I'll 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. 

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