Tuesday, March 9, 2010
Law professors are not exactly popular. In the oral argument of McDonald v. City of Chicago, the incorporation of the Second Amendment case previously discussed here, Justice Scalia implicitly dismissed the privileges or immunities claim by characterizing it as "the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence," (Tr at 7). This low opinion of law professors seems to be shared by Chief Justice Roberts, as Professor Robert Batey has wittily demonstrated in his essay in The Crit. Batey argues that Roberts has chosen law professors as his "scapegoat," setting them [us?] as "objects of scorn and ridicule," both in his public statements and in Rumsfeld v. FAIR. And then, of course, who could forget former Vice-Presidential candidate Sarah Palin deriding President Obama because he had once taught constitutional law: "we need a commander in chief, not a professor of law."
Perhaps law professors are unpopular because we are (usually) lawyers and teach other people to become lawyers. And lawyers have seemingly never been popular. Two Editorials from the NYT may not be as direct as the well-known Shakespearean bit of dialogue ("The first thing we do, let's kill all the lawyers"), but are nevertheless illustrative. On March 7, the Editorial was entitled "Are You or Have You Ever Been a Lawyer?" and began:
In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within.
On February 24, 2010, the Editorial was entitled "The Torture Lawyers" and began:
Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar?
Nevertheless, unpopularity - - - even if on the right and on the left - - - does not a suspect class make. As the famous footnote four of Carolene Products implies, this prejudice must be accompanied by status as a discrete and insular minority, and the underlying rationale is some lack of access to the political processes which would repeal the challenged legislation.
Certainly law professors and lawyers would fail to satisfy those requirements. But how about judges?
Some judges in New York have recently argued that judges indeed constitute a suspect class, at least for purposes of the ongoing dispute regarding judicial compensation. As one brief argues:
It is also clear that, by refusing to adjust Judicial compensation, the Respondents are depriving the Judges in New York State of the Equal Protection of the Law. . . . The Respondents have argued that the Judicial Branch is powerless to review the constitutional functioning of the other branches in regard to Judicial compensation. Thus, although the Courts, and its constituent Judges, are allegedly a co-equal branch of the Government, they are entirely dependent upon the other branches. Federalist No. 78 [citation omitted].
As has been pointed out in the Appellant's main brief, the other branches of the Government have the power to increase their compensation, and have made sure that there have been increases to their benefits, if not to their salary. Indeed, Legislators are free to obtain outside income. Beyond teaching and writing, Judges are not. It ill-behooves the Respondents to point to the recent increase in expense allowances for Judges, which has done nothing to alleviate the inflationary effect on their salaries since 1999. This allowance constitutes a belated and hollow attempt to address the Legislature's and Executive's abject abdication of their Constitutional duties. It does not restore the rightful constitutional place of the Judiciary. Their treatment by the Legislature and Governor has deprived the Judiciary of equal protection.
Because the Judiciary is a Suspect Class, the Court should review the actions of the Legislature and Governor under the strict scrutiny standard.
Brief of Appellant, Maron v. Silver, 14-15, 2009 WL 5852305 (N.Y.).
New York's highest court, the Court of Appeals, was not impressed:
Nor can it be said that the Judiciary bears any of the traditional indicia of a suspect class-as constitutional officers granted unique salary protection, judges are not “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” (San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16  ).
Maron v. Silver, --- N.E.2d ----, 2010 WL 605279 (N.Y., February 23, 2010).
San Antonio Ind. School District is the most frequent citation for the legal conclusion that "the poor" are not a suspect class, but Henry Rose (a law professor, as it happens) argues it is not so simple. His essay, available on ssrn here, is entitled "The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question."
Rose's brief essay is definitely worth a read before teaching (or using) San Antonio Ind. School District. And perhaps a hypothetical about law professors, lawyers, judges - - - or law students - - - could be used to enliven the discussion about suspect class analysis.