On the Supreme Court, no one for the defense

Half a century has passed since the last Supreme Court justice who had experience as a defense attorney was named to the court in 1967. Justice Marshall remained on the court until 1991. He had tried numerous cases as a criminal defense attorney and had experienced the harshest aspects of last century’s justice system as it played out on his clients.

The court currently has two former prosecutors and the lack of a perspective from the defense side during the last 25 years has had consequences.

It does not come from “active” bias, but instead from the subtle shift of seeing yourself working for law enforcement, as prosecutors may. This is opposed to the defense perspective of law enforcement as a sometimes indifferent and occasionally malevolent force.

Given the number of cases involving criminal issues that arrive at the Court and the Court’s work interpreting the Fourth, Fifth, Sixth and Eighth Amendments, that perspective would be helpful. It could ensure that the defense perspective is not ignored or drowned out in the more esoteric academic arguments of justices for whom criminal cases present an abstract question.

People naturally bring their experience to the bench, and this remains true of Supreme Court justices. Some argue that Justice Alioto is more sympathetic to law enforcement because he worked in a very professional police environment, with the FBI as his police force, and inputs this professionalism to all of law enforcement, whether or not it is justified.

Chief Justice Warren, during whose the court authored many of the leading decisions that are seen as protecting the rights of the accused, was informed by his experience working with county sheriffs in the 1920s in California and that led him to be aware of the strong potential for misconduct that was often employed to obtain convictions.



Source: vox.com, “There hasn’t been a criminal defense lawyer on the Supreme Court in 25 years. That’s a problem.” Dara Lind, March 28, 2016