In theory, Congress and state legislatures could take an active role in establishing rules and standards that go beyond the constitutional minimums. But mostly they don’t, meaning that for many issues Supreme Court decisions alone set the rules.
This state of affairs isn’t inherently objectionable. Indeed, given the one-sided, “tough on crime” attitudes that often seem to dominate political discussions, the idea that life-tenured judges are positioned to make fairer rules than politicians seems reasonable. The problem, though, relates to the Supreme Court’s rule-making process.
The Court doesn’t issue decisions on important policy questions in the abstract. Instead, it decides cases—specific disputes between individual defendants and government prosecutors. The Miranda warnings, for example, are so named because they come from a case involving a defendant named Ernesto Miranda. This process of case-by-case adjudication favors the prosecution in subtle, but profound, ways.
Attorneys from the solicitor general’s office appear in most criminal cases that come up to the Supreme Court, either as prosecutors themselves, in federal cases, or as an amicus curiae (“friend of the court”) in support of state prosecutors. On the other side are lawyers for individual defendants. Often this results in an experience gap between the two sides.
Attorneys in the solicitor general’s office are seasoned Supreme Court litigators who know how to pitch a case to the justices. Michael Dreeben, who held the criminal-deputy position for more than two decades before stepping down last summer, argued more than 100 cases during his years at the solicitor general’s office, and was regarded as a brilliant advocate who developed deep credibility with the justices.
Sometimes, of course, the defense lawyer in a criminal case has extensive Supreme Court experience. But this is the exception. Frequently, the defendant is represented by a lawyer who knows the case well from handling it through the lower courts, but whose lack of exposure to the Supreme Court and its processes shows.
That’s not just our opinion: In public remarks, Justice Sonia Sotomayor, the Court’s most reliable champion of criminal-defendant rights, described as “malpractice” the attitude of inexperienced lawyers who refuse to cede their cases to experts because “this is my one shot before the Supreme Court and I have to take it.” Justice Elena Kagan agreed, observing at a law school appearance that the “litigants who are underserved in terms of lawyering quality are criminal defendants.”
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The gap in experience is important, but it isn’t the government’s biggest advantage. The real secret to prosecutors’ influence in the Supreme Court is that they can play the long game. This dynamic can be seen most starkly through what Supreme Court experts call “vehicle selection.” The solicitor general’s office tries to shape the Supreme Court’s docket so that when an important legal question comes before the justices, it reaches them in the light most favorable to the government. When prosecutors lose a case that has unfavorable facts in a lower court, the government can choose not to seek further review, sacrificing the particular conviction in service to the rule they hope the Court will eventually make.