The "Cocooning" Effect on Federal Judges

I've often wondered whether federal judges are sometimes treated with too much deference.

Obviously by virtue of their position and authority, and sometimes even their achievement (I kid, I kid!), federal judges deserve significant respect from practitioners and the public at large.

But a few recent examples call to mind whether there can be negative institutional effects when respect crosses the line into outright obsequiousness.

I was struck by Chief Justice Roberts and Justice Scalia's shock and dismay over actually having a question thrown to them during oral argument by Solicitor General Elena Kagan:

Two weeks ago, Solicitor General Elena Kagan, a leading contender for appointment to the Supreme Court, presented her sixth argument there. She bantered easily with the justices, and she seemed to have a special rapport with Justice Antonin Scalia, at one point responding to a question from him with one of her own.

Justice Scalia’s reply suggested she had crossed a line. “Well, I’m not making the argument,” he said, declining to answer her question.

Chief Justice John G. Roberts Jr., who has had some testy exchanges with Ms. Kagan over the last seven months, made the point more sharply.

“Usually we have the questions the other way,” he said.

“I apologize,” Ms. Kagan replied.

Is this healthy?

The American tradition -- unlike that in Europe or Japan or India, for example -- does not elevate people to position of kings or monarchs by their birth or fix them to classes by their social strata. We live in a fluid merits-based society where all are supposed to be equal and respect is typically earned, not awarded.

I wonder what effect there can be on cognitive thinking skills if you are never questioned or challenged on your viewpoints. I really can't think of another example where a public figure (in this case, a public servant) can expect never to be questioned or challenged publicly on their views. Certainly the President gets plenty of public pushback, hail he was even criticized for daring to condemn a Supreme Court decision in their presence.

The cocooning effect also seems to leave some judges out of touch with the real world or the lawyers who practice in it.

Recently we saw Supreme Court judges flummoxed by "texting" technology:

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Oy.

And I love this footnote by Justice Alito in yesterday's decision overturning the 11th Circuit in a Section 1988 fee-shifting case:

Justice Samuel Alito Jr., writing for the majority, said fee enhancements for superior attorney performance are permissible in exceptional cases. But in this case, he said, the judge did not provide "proper justification" for the enhancement under a series of factors he listed, aimed at proving that the lodestar fee alone would not have been adequate to attract competent counsel.

The federal fee-shifting law, Justice Alito wrote, "serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute's aim."

In a footnote, Justice Alito added that if the $4.5 million fee enhancement had remained in place, the lawyers for the foster care plaintiffs "would earn as much as the attorneys at some of the richest law firms in the country."

How does the Judge know this (and why does it matter anyway)?

Also, if you only compensate civil rights attorneys their lodestar when successful, how do you incentivize them to take cases and front all the costs and expenses when they may not, you know, win every time? How does that further the statute's aim?

(Lawyers who do this work, feel free to chime in.)

Then we have a recent incident that shows how contracts sometime operate in the real world:

A computer game retailer revealed that it legally owns the souls of thousands of online shoppers, thanks to a clause in the terms and conditions agreed to by online shoppers.

The retailer, British firm GameStation, added the "immortal soul clause" to the contract signed before making any online purchases earlier this month. It states that customers grant the company the right to claim their soul.

"By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions."

GameStation's form also points out that "we reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction."

The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents.

Gee, I know of some precedent that would indicate this contract is valid and enforceable right here in the SD FL!