WOE UNTO YOU, LAWYERS!

people like Supreme Court justices and Wall Street law partners treat The Law as
seriously and deferentially as they treat the Scriptures. They discover, too, that all
non-lawyers seem terribly impressed by this language which sounds so unfamiliar
and so important. So why ask questions? Why doubt that the world is flat when
everyone else takes it as a matter of course? And especially, why doubt it if it is to
your own personal advantage to accept and believe it? Why not, instead, try to
become a Supreme Court justice or a Wall Street law partner yourself?
Every once in a while, however, a lawyer comes along who has the stubborn
skepticism necessary to see through the whole solemn sleight-of-mind that is The
Law and who has the temerity to say so. The greatest of these was the late Justice
Holmes, especially where Constitutional Law was concerned. Time and time again
he would demolish a fifty-page Court opinion – written in sonorous legal sentences
that piled abstract principle upon abstract principle – with a few words of dissent,
spoken in plain English. “The Law as you lay it down,” he would say in effect,
“sounds impressive and impeccable. But of course it really has nothing to do with
the facts of the case.” And the lawyers, though they had come to regard Holmes as
the grand old man of their profession and though they respected the Legal writing he
had done in his youth, were always bothered and bewildered when he dismissed a
finespun skein of legal logic with a snap of his fingers.
Strange as it may seem, it is his similar unwillingness to swallow the
sacredness of The Law that has turned the lawyers, in a body, viciously against
Justice Black today. They do not hate him because he is a New Dealer; so is Justice
Reed whom they respect. They do not hate him because he was a Ku Kluxer; Justice
McReynolds’ notorious and continuing racial intolerance has brought no squawks
from the legal clan. The lawyers hate Black because he, too, without the age or the
legal reputation of a Holmes to serve him as armor, has dared to doubt in print that
there is universal truth behind accepted legal principles or solid substance behind
legal language. “Why,” they say of him, “that Black doesn’t even know The Law.”
Which only means that he knows The Law too well – for what it really is.
What the lawyers care about in a judge or a fellow lawyer is that he play the
legal game with the rest of them – that he talk their talk and respect their rules and
not go around sticking pins in their pretty principles. He can be a New Dealer or a
Ku Kluxer or a Single Taxer or an advocate of free love, just so long as he stays
within the familiar framework of legal phraseology in expressing his ideas and
prejudices wherever they happen to impinge on The Law. A lawyer who argues that
sit-down strikes are perfectly legal, basing his argument entirely on legal principles
and phrasing it in legal language (and it can, of course, be done) will be accorded far
more respect by his brethren than a lawyer who argues that men ought to be made to
keep their business promises but neglects to drag in the Law of Contracts to prove it.
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