Two U. S. Supreme Court decisions of this past week have generated some of the most hysterical rhetorical hyperbole ever heard and seen. It almost makes one long for the halcyon late 1960s and early ‘70s. Some of the milder descriptions of the Court’s opinions were to the effect of them producing political, legal, and a social earthquake. The Dobbs opinion that declared the issue of whether abortion is to be legal, regulated, or banned was for each state to decide and overruled the 49 year old Roe v. Wade case. Abortion, being one of, if not the most, divisive issues of the last half century, Dobbs set the wires, airwaves, and cyberspace on the most fire.
Justice Clarence Thomas’s opinion in New York State Rifle & Pistol Association, Inc. v. Bruen took up the issue of the New York law that prohibited individuals from carrying a handgun outside their home also had serious Constitutional significance. The New York law made licensing individuals to carry a handgun outside their home to be at the discretion of a public official and only if the individual could demonstrate a “special need” to the official’s satisfaction. The Court said the Constitutional right protected by the Second Amendment could not be subject to the whim of the government.
Subordinate in the public consciousness but not entirely ignored was what happened to the lawyers who prevailed in Bruen.
Paul Clement and Erin Murphy were told by their law firm Kirkland & Ellis that they could not represent any more clients in gun rights cases or would have to leave the firm to do so. Apparently, Kirkland, a “white shoe” Wall Street and D.C. firm was afraid of offending their “progressive” big business clients. Clement and Murphy did not hesitate; they left, and reportedly intend to form their own independent practice. It is worth quoting their stated reasons:
“There was only one choice: We couldn’t abandon our clients simply because their positions are unpopular in some circles.
“Some may find this notion strange or quaint. Many businesses drop clients or change suppliers as convenience dictates. To others, the firm’s decision will seem like one more instance of acceding to the demands of the woke. But law firms aren’t supposed to operate like ordinary businesses. Lawyers owe a duty of loyalty to their clients.
“A lawyer can withdraw from a representation for good reason, like a newly discovered conflict of interest [or not getting paid, if that was a condition of representation from the start]. But defending unpopular clients is what we do. The rare individuals and companies lucky enough to be universally popular (for the time being) have less need for lawyers. And the least popular clients are most in need of representation, from the British soldiers after the Boston Massacre to the defendant in the Boston Marathon bombing.”
The primary duty of a lawyer is to zealously represent the client within the bounds of the law. That is not to say that lawyers must represent or advocate a position they find repugnant or frivolous, and they may not suborn perjury, whether by the client or another witness. There are rules promulgated by the judiciaries of the several states and the federal courts as to how lawyers must conduct themselves. It’s also been said that a lawyer should be careful in choosing his clients. But once chosen, a duty of loyalty attaches, and to some degree, like keeping client confidentiality, remains even after the representation ends.
A one-time client, who was also a lawyer and had been an appellate judge, expressed to me his ideal that lawyers should strive to knights, not lackeys. That ideal is why the wannabe socialist dictator Jack Cade’s henchman Dick the Butcher proposed to first kill all of the lawyers. Henry VI, part 2; Act 4, Scene 2.
Paul Clement represented the National Rife Association in McDonald v. City of Chicago, 561 U.S. 742 (2010), where the Supreme Court ruled that the right of an individual to “keep and bear arms”, as protected under the Second Amendment, is incorporated by the Due Process Clause of the Fourteenth Amendment and is thereby enforceable against the states.
Historically, the term “white-shoe” conveyed class envy and a ridicule of the Ivy League educated effete. The wealthy could afford special shoes for boating, tennis, and other genteel pursuits, and in the summer they wore white bucks—perhaps with a bow tie and a seersucker suit—to the exclusive Wall Street firms where they worked. School connections played a central role in maintaining the boundaries of the white-shoe class. In 1962, more than 70 percent of the lawyers in Wall Street law firms had graduated from Harvard, Columbia, or Yale. See Elizabeth Chambliss, The Shoe Still Fits, Legal Affairs September/ October 2005 . See httphttps://www.legalaffairs.org/issues/September-October-2005/toa_sepoct05.msps://www.legalaffairs.org/issues/September-October-2005/toa_sepoct05.msp
Clement successfully argued Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013). This was a decision of the Supreme Court of the United States that righted a terrible wrong visited upon a child and adoptive family. In Baby Girl, the Court ruled that several sections of the Indian Child Welfare Act (ICWA) do not apply to Amerindian biological fathers who are not custodians of an Amerindian child. The court held that the procedures required by the ICWA to end parental rights do not apply when the child has never lived with the father. Additionally, the requirement to make extra efforts to preserve the Amerindian family also does not apply, nor is the preferred placement of the child in another Amerindian family required when no other party has formally sought to adopt the child.
Given the number of women who have entered the legal profession, perhaps the “knight” appellation is not strictly appropriate. In Great Britain and many Commonwealth nations, the title “Dame” is the female equivalent for Knight. Numerous prominent and accomplished women have been so recognized by the Queen. Here in the U.S., unfortunately, that word has served, in some parts of the country, as generic slang, not exactly offensive but not complementary, for any female.
For the lawyers and judges, as well as informed layperson, who may be reading, I wonder if the Dobbs opinion to the extent it overruled Roe v. Wade was an obiter dictum, legal speak for a court’s statement that is not necessary to decide the case, and thus not binding precedent. Chief Justice Roberts’ concurring opinion deems to indicate it might be. Perhaps more grist for the judicial mill.