Seeing the Supremes

Every so often I spend a morning at the U.S. Supreme Court watching oral arguments--I go every few years when there's a case that may have some relevance for me and my work, or when it just seems too interesting to resist the pull. This past Tuesday, I went there to see a case dealing with whether a prisoner at the Lewisburg penitentiary in Pennsylvania could sue the U.S. Government when he was allegedly assaulted by some correctional officers, which is what you call guards if you want to sound like you know something about the prison biz.

Briefly, when you sue the government you in effect have to get the government's permission--it waives a defense called "sovereign immunity" which derives from old legal rules that make it impossible to sue the king, or the sovereign. The U.S. Government allows you to sue it by complying with the Federal Tort Claims Act, which says when you can sue the government. There's an exemption--meaning you can't sue--when a law enforcement officer is performing law enforcement functions.  This was what the case I heard was all about.

The most interesting development came after the intermediate appellate court had upheld a trial court ruling that said the prisoner couldn't sue the government because of the exemption. Apparently, all the other regional appeals courts that had ruled on this point had decided the other way, saying the prisoner could sue. Differences among the circuit courts are often the best way to get the Supreme Court to take the case so it can decide which intermediate court decision to uphold.

And the whole picture became even more interesting because the U.S. Government, acting through the person who handles all of its cases in the Supreme Court--the Solicitor General, or the SG--decided to change the government's position after it had won in the intermediate court. The SG filed a brief in the Supreme Court saying that the government had changed its mind, and now said that the other appeals courts were right and that the prisoner could sue the government.

As you might expect, this doesn't happen all that often. The Solicitor General has the authority to tell most other government agencies whether they can appeal to the Supreme Court or not.  He claims to act in the interest of justice as well as the interest of the government. This was one time when he clearly was deciding that the government agency--the Bureau of Prisons--was wrong and the prisoner whom the government had defeated in two courts previously was really right. 

That's all well and good but the Supreme Court may or may not agree. When the SG changed his mind, the Supreme Court appointed a lawyer to argue the side that otherwise would not have been heard--that the intermediate appellate court that had ruled for the prison was correct. Both lawyers were pretty good--the lawyer for the prisoner, who was from New York, and the appointed lawyer representing the point of view of the intermediate court (and the prison) who was from D.C. The Solicitor General's lawyer, who wears a morning coat to court, also argued--he was given ten minutes of the prisoner's lawyer's half hour.  Usually the side with which the SG agrees gives his lawyer that 10 minutes because the SG's office has a lot of credibility with the Supreme Court and often does a better job in its 10 minutes than other lawyers do in a half hour.

There were a lot of questions from the justices--most trying to get to the issue of whether the correctional officers (COs) were law enforcement officers under the relevant legal provision and whether what they were doing was properly defined as a law enforcement function. After the argument was over, I had the feeling that none of the lawyers or the justices really had a very clear idea of what goes on in real-life prisons.

This was the same feeling I had after the second case--which had attracted a lot more attention and dealt with Monsanto, the chemical company, suing a farmer whom the company said had violated its contract with him as to the use of the hybrid, genetically-modified seeds he had bought from the company. This is a big deal case because it conceivably concerns large amounts of money especially if the farmer managed to win. I don't think he will, possibly because he doesn't deserve to win, but also because I didn't think his lawyer was all that effective, and in this situation, he needed to be if the farmer was to have a chance.

The company had one of the small number of real pros who argue cases in the Supreme Court: a former Solicitor General. He did a great job. But I was left with a similar feeling to what I felt after the first case: these lawyers, despite trying hard, didn't really understand the way farms and farmers operate. The lawyers are very sharp but as litigators they learn about lots of businesses or operations in a short period and then go on to the next case. Even these top-drawer legal eagles seemed to lack really solid knowledge and familiarity with the nuts and bolts of how things work, in this case, in the real fields.

I often feel that way about the justices, too. They try to show that they have read the briefs and other documents but sometimes they display the limitations of the process. You just can't know all that you need to through this process. It is clearly a shortcoming of the adversary legal system. And this week, I felt that both cases showed that it makes a big difference at times.