Clinical Law Prof Blog

Editor: Jeffrey R. Baker
Pepperdine University
School of Law

Tuesday, July 3, 2018

A July 4 reflection: Do Judges and Legislators Feel? How Can I Matter?

In one of my first years in legal aid the late 80’s, I sat in my office with a client who was wondering how he was going to feed his family.  His union had gone on strike.  He supported the union’s position—he felt his employer was walking all over its workers and convinced me and himself that the strike was necessary due to cuts his employer wanted to make—he wouldn’t be able to feed his family on his full-time salary.  But now, he was in my office with no salary due to the strike and when he had gone to the welfare office seeking help, he was told he was entitled to nothing.  My job was to explain to him why he was entitled to nothing:  a conservative Supreme Court had decided Lyng v. Auto Workers in 1988, upholding a law passed by a conservative Congress and President denying Food Stamps to striking workers.  The local office applied that law to his union’s strike and denied his and his co-worker’s claims.  All I could do was send him and his wife and kids to a food pantry.  He would have to find another way.

It hurt to watch.  The Congress, the President, and the Supreme Justices did not have to talk to this man—I did.  I saw this was not an abstract problem but a starving worker and family.  I was new to lawyering for the poor and my new lawyer idealism was being toppled.  How was I going to do anything with such conservative laws being interpreted so conservatively?  It could not be my job to just watch and explain to poor people that they were powerless in a heartless world.  I needed to figure out how I could matter.

Fast-forward to the mid 1990’s and I am sitting in a different office, now a private attorney trying to help low-income people by taking contingent fee cases like disability cases and court appointments.  Another man is in my office.  Just a few months before, I had helped him get Social Security Disability benefits after he had worked for 30 years and his COPD compounded by an alcohol addiction had finally caught up with him.  In his hand was his cutoff notice, as Congress had decided that his and anyone else’s alcoholism was no longer an illness but a self-inflicted lifestyle.  A computer code that noted he drank had generated his notice and the cutoff procedures.  He asked me how he was going to live.  I again had to face my client.  My congressman didn’t.  The President didn’t.  I had to explain to my client that his government did not believe him worthy of help.  It did not matter the struggles that I had seen him live through influencing how he had become an alcoholic, the lack of effective alcoholism treatment perhaps for anyone but certainly for low income people, and that he would starve.  I again needed to decide how I could matter.  I couldn’t stand it.  The purpose of my job could not just be to reflect helplessness and pain.

I came up with a plan.  People who write laws may not feel or care.  Supreme Court Justices may not either.  And clients definitely know without my reflecting back to them that poverty stinks.  However, I could do two things.  First, I could put clients in front of decisions makers and force them to see my clients—perhaps those decision makers would bend laws or interpret them as humanely as possible for my clients’ benefits, even when the law is not humane.  Second, I could find people working in the system who cared and seek their help for my clients.

So fast forward again to two weeks ago, when for three days this worked.  On the Thursday, I found myself representing an abused woman who struggles horribly with depression and also has an addiction problem. It was the same issue still rearing its head that faced my client in the 1990’s of the law refusing to help people with addiction illnesses with income benefits.  However, my client was lucky—we found the right judge administering the law.  The judge chose to explain her symptoms not as some willing attempt to hurt herself through alcoholism but as stemming from abuse, ptsd, and depression, even if she sometimes relies on alcohol for relief and ruled she was eligible. 

On the Friday, in front of a different judge, a woman struggling with colon cancer that metastasized to her lung was given help.  The law has been tightened to deny even cancer patients benefits in most cases unless they can demonstrate they have terminal illnesses through fortunate medical testing describing unfortunate likely outcomes.  However, after a hearing we did, a judge leaned toward accepting that this woman who cannot even go to the bathroom comfortably might need some help.   

And on Saturday, I received an email from a client that we had convinced an administrator in a state disability office to help award benefits after her breast cancer had metastasized to her brain and who was displaced by the Puerto Rican hurricane.  Her records had been bureaucratically scattered between Puerto Rico, New York, and Pennsylvania while she traveled between Pennsylvania and Puerto Rico so her family could tend to her during her treatment.  The case was decided in her favor but just as easily could have been passed on between other disability agencies until a person in our disability office decided the client mattered, and the case had to be decided now.  What mattered more was making decision makers feel the suffering of the people in front of them and getting them to help.

I hate this.  I do not want to tell my clients they have to appear pathetic or desperate to get help, and sometimes it feels more like forcing them to share their stories than helping them do so when they want to.  But these decision makers and legislators need to feel what these people feel and maybe they will help them and others like them.

And then came the recent Supreme Court news.  There is no doubt—my clients will hurt.  Again, unions will struggle to protect workers’ rights against government employers after the Court in Janus v. AFSCME, Council 31 ruled that public employees who do not want to join a union can also refuse to pay their share of what it costs the union to negotiate their wages and benefits.  My 1988 client could not strike to feed his family and my 2018 clients will have no union stand up for them.  Rights of people of all religions and nationalities are likely to be more curtailed than they were already curtailed in what have been called “Muslim bans” after the Court in Trump v. Hawaii described the broad leeway a president has to limit immigration on what seems to be very light review.  This will sadly not be my problem, as these people will not even make it into my office to have me reflect that I cannot help them—they will not be in the country at all and will have to fend for themselves in sometimes horrible situations.  More is likely to come—the Court in Janus seemed quite ready to overrule precedent without giving it much weight at all.  Many of the public programs and protections that we have taken for granted, from the establishment of graduated income taxes and Social Security and health benefits to discrimination protections since the XIV amendment come into question. 

So today, like many, I am struggling to make sense of what is happening in Congress, in the executive branch, and in the Supreme Court and with what is likely to happen with a new Supreme Court justice nomination.  I don’t know that my helping individuals to try to find caring decision makers can work much longer.  I remain thankful for those I have found, those that are helping that I have not found, and consider other ways I can maybe help. 

http://lawprofessors.typepad.com/clinic_prof/2018/07/a-july-4-reflection-do-judges-and-legislators-feel-how-can-i-matter-.html

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Comments

Thank you for posting. I am reading Barkskins, keeping in mind how, through much of history, human life was harsh and unfair, and our own little window of living in a time when we actually had some expectations of fairness and empathy, with hope for improvement, will come to an end unless we find ways to stay focused and keep our energy and hope up.

Posted by: Liz Ryan Cole | Jul 6, 2018 5:50:49 AM

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