ACLU critics call the organization pro-terrorist, pro-pedophile, anti-Christian, etc. Volokh takes exception, particularly in calling the lawsuits frivolous. For that, he has a point. Frivolous is ALWAYS the term that lawyers use to describe their opponents arguments and it has become largely devoid of value. I also don’t think that suing New York to stop random searches is driven by a pro-terrorist agenda. I think it is largely parsing words and playing on fears. We can be searched going into airports, government buildings, and for that matter, public schools. But the ACLU thinks the Republic is collapsing searching people going on trains. It is a silly argument but in the end, it is also a silly policy. Quite often our counterterrorist policies are designed to prevent the LAST attack, not the next one. However, I digress.
The fundamental issue people have with the ACLU and that Eugene Volokh doesn’t get (nor do lawyers) is that we recognize that the ACLU shapes the law and lawyers insist they are not involved with lawmaking or shaping the law. On this count, Volokh is wrong. Lawyers are most certainly involved in lawmaking, law shaping, and imposing social change via the law. We’ll overlook that all judges are lawyers and that the bulk of legislators are lawyers as well.
The way our judicial system works is that largely you can do anything you want until you are challenged on it (either criminally or in civil court). Then a judge decides between which two sets of legal arguments he buys and that becomes case law. When the Supreme Court does this, it becomes the de facto law of the land. Lawyers may insist that they don’t shape or make the law, but I think this is largely an attempt to exonerate them from any social responsibility for their actions.
Remember the Twinkie defense? That was invented by a lawyer who managed to convince 12 people that it was legitimate to slide his client who had apparently killed someone into an insanity defense. How about Roe v Wade? That wouldn’t be the law of the land because of Norma McCorvey (Roe). It became the law of the land because two lawyers found her, took her situation, and argued in front of the Supreme Court that things should be different. One could say that the Court decided, so they bear the responsibility but if it weren’t for the lawyer’s arguments and initiative the case wouldn’t ever be heard. The lawyers do play a part in shaping and creating law.
Also, a common tactic of lawyers is to price the other side out of the game. If the other side doesn’t have the money to defend themselves, they lose. This happens frequently with cash strapped school districts. The ACLU shows up and to prevent a lawsuit they school caves, even if they could successfully defend the suit. The ACLU can shape policy simply because it is too costly to fight them.
Lawyers are officers of the court and they serve a particular purpose in our society. They do, I would argue, have higher responsibilities than simply advocating and fighting for their clients. Lawyers have created a litigation climate where there is no such thing as an accident; only a right to collect money from whomever has the deepest pockets. The vigorous defense of rapists has led to women not coming forward and pressing charges because the lawyer will simply keep calling the woman a whore and put her sex life on trial. Our criminal system is less a measurement of guilt and innocence than a measurement of whether the police follow every single mundane procedure (some legitimate, some outright dumb) and if the police slip up, criminal walks.
Volokh argues that if cases are decided in favor of the ACLU then the law is at fault, and people should change the law. Thinking like this has given us a tax code that is incomprehensible to many lawyers, much less normal citizens. People can’t figure out what they owe without paying someone to figure it out for them. In order to sign up for a Hotmail account, I have to agree to 15 pages of contracts (assuming I found all the ones that are on the website).
Lawyers hide behind their clients saying they are simply vigorously defending their client’s interest. Society would be better off if lawyers realize that they have an obligation to society to create a fair and just system. It is time lawyers stop hiding and absolving themselves of responsibility and acknowledge that they have ethical responsibilities beyond lining their pockets with 40% of multi-million dollar judgments.