Lawyers Agree: They Know What’s Best

Ann Coulter made a good point in her column about lawyers who claim to take on on ‘unpopular’ clients

A rule I have is: You’re not defending an unpopular client if you’re getting awards from the ABA, particularly if the award mentions ‘courage.’

I’d take it in a different direction, though.   It’s not that lawyers are not being courageous when they take on ‘unpopular clients’ like the Guantanamo prisoners.  Rather, they are acting boldly in their own self-interest by extending their influence ever further.  This begs the question; where does the law — not the natural law, the law of nations, but the judicial branch of the United States that is served by our law firms — end?

To put it starkly, the American frontier, as described in JFK’s 1960 convention speech, never closed.  The idea that America must continually bring not just order, but righteousness to every place on the map, continued under the guise of “the law” by continually bringing more and more of human activity under its jurisdiction.

To pick one example, this is why I can’t see Ted Olson and David Boies as the “odd couple” that the press says they are, just because they squared off in Bush v. Gore and now are working together to overturn Proposition 8 in Perry v. Schwarzenegger.  After all, they agreed on the most important aspect of Bush v. Gore: that ultimately the Supreme Court was the authority on which Bush won the Election of 2000, under the continually amorphous frontier known as the “Equal Protection Clause”, which means whatever the majority wants it to mean that day.

Either way, Bush v. Gore was going to be judicial activism, because both sides wanted the Supreme Court to act as an ultimate arbiter in a matter that by all rights belonged to the Florida Legislature. Both sides were on the same side; God forbid that an election be decided by elected officials!

Thus, we have judicial and legal activism of the left and of the right.  Now both sides (which are the same side) are attempting to shut up a private organization, Keep America Safe, for its perfectly in-bounds anti-legal establishment point-scoring.  Both sides (which are the same side) are attempting to define for all time, in Perry v. Schwarzenegger, marriage as a mere government service that must be brought into line with all other mere government services, and damn for all time as bigots those (like the Catholic Church) that disagree.  Both sides (which are the same side) appeal to the Court to do this or that or the other thing when it comes to the Executive’s historical authority to make war.