How many times have you heard someone who feels wronged swear he or she will see justice done “even if I have to take this case all the way to the Supreme Court”?
Not so fast, my indignant friend. The odds of any ordinary citizen having his or her grievance heard by the highest Court in the land may not be much higher than the chance of winning the Powerball lottery. The business of getting an appeal heard by the Supreme Court (in legal terms, having the Court grant a petition for writ of certiorari, or “cert petition”) is big business. Virtually all the seventy-five to eighty petitions the Court grants each year, out of the ten thousand or so filed, bear the signatures of a small number of elite lawyers who practice in large law firms with offices in Washington.
What is more, a Reuters study (referenced in a Christmas Day New York Times editorial), concluded that the single most important issue determining whether the Court granted a cert petition was not the type of issue or whether the circuit courts were split on the issue presented or whether a significant federal statute or constitutional principle was at stake. No, the best predictor of whether the Court would grant a cert petition was the presence or absence of the signature of one of the fewer-than-seventy members of this informal Supreme Court bar club on the document.
The firms in which the members of this clubby group of lawyers hold partnerships represent almost exclusively, except for pro bono work, large corporate clients — the S&P 500 corporations and their largest privately-held counterparts. And because of conflicts of interest, most of these firms disqualify themselves from representing plaintiffs in, say, environmental or employment disputes.
According to the New York Times article cited above, one former federal appeals judge, J. Micheal Luttig, has complained that the members of the Court and the elite advocates who appear before them have become “detached and isolated from the real world, ultimately at the price of the healthy and proper development of the law.”
Stunted development of the law isn’t the only price of the Court’s detachment. At Gettysburg, Abraham Lincoln spoke eloquently of his “resolve that these dead shall not have died in vain . . . and that government of the people, by the people, for the people, shall not perish from the earth.” The dearest price of the Court’s isolation from the rest of us must surely be that government “of the people, by the people, for the people” has indeed perished from the United States. Even at the highest level in the federal courts, which should serve as the people’s final place to have their say, and indeed most evidently there among the three branches of government, the United States has become an oligarchy where only the richest and most powerful corporations may have their voices heard.