Mark Joseph Stern is an a**hole

Lawyers and the media have an uneasy relationship.  Each uses the other, and, when they do, the results are frequently not pretty.  Case in point, the recent United States Supreme Court argument in the case of Birchfield v. North Dakota.

Birchfield examined just how far police can go in a warrantless search of drunk drivers.  The arguments themselves are far beyond my areas of expertise, delving into criminal law and the Fourth Amendment, but the basics of appellate advocacy are right up in my wheelhouse.  And at least one of the accounts of the argument of this case really made my hair stand on end.

Mark Joseph Stern is a writer for Slate.com, and he is an asshole.  Because Mark Joseph Stern is a writer about law who, apparently, hates lawyers.  Or, at least, he hates lawyers who advocate positions he doesn’t like.  He doesn’t write news; he writes opinion pieces that are dressed up as news.  Just peruse his article about the oral argument in Birchfield and observe the smug, self-righteous tone of one who has never appeared in front of a court of any kind but feels free to belittle the performance of lawyers appearing before the highest court in the land.  I don’t excuse lawyers for being unprepared, especially when arguing issues of Constitutional importance, but Mr. Stern’s smirking article would make you think that the lawyers in this case were no more than the Keystone Cops in wingtips.

Let me tell you, folks, unless you’ve had a whole bunch of judges firing questions at you on technical legal issues when you’ve got a scant twenty minutes or so to make your client’s entire case, you’re not in any position to judge anyone else’s performance under the same circumstances.  As Mr. Stern reports them, the reactions of the Supreme Court justices were shameful.  But, given that the report comes from Mr. Stern, I’m pretty skeptical.  It appears the lawyers in this case may have been less than prepared for the full battery of Supreme Court questioning, but I doubt their performance was as bad as what Mr. Stern suggests. (I haven’t seen anyone else take them to task as fully as Mr. Stern, even though his quotes from the argument are accurate. It’s his sidebar comments that are disturbing.  Laughter in the course of argument does not indicate derision.)  More likely, Mr. Stern is just after the click-bait.  (And, yes, I realize I’m playing into his hands by posting links to his work, but charlatans like Mr. Stern can be exposed only by the honest review of their work.  News is news.  Opinion is opinion.)

Recordings of the oral argument are available online. and I’d encourage anyone with an interest to check them out. The questioning from the court is sharp, but it simply does not reflect the sort of bumbling presentation Stern suggests.  (Interestingly, the summarizing of Ms. Keena’s autobiography to which Stern mockingly refers is less than 20 seconds long.) Any lawyer who has argued in front of a high court will recognize it. Issues do not reach the highest court in the land if they are clean cut. That’s the whole point.  Advocates are expected to advocate a position, and it does not mean that the position is always a winner.  Moreover, it does not mean they deserve to be insulted for advocating a losing position.