A Letter To Hon. Earl Warren, Chief Justice Of The United States (retired And Deceased)


For better or worse, lawyers are no longer as magisterial as they once were. We advertise openly for business, we hustle clients. We don’t use as many Latin phrases as we did. We have been debunked. We negotiate our fees, even quote them in advance. We actually compete on the basis of price every now and then, fearful that inside lawyers in corporate legal departments will take more and more business away from us as our costs escalate. Some of these changes are, of course, long overdue. The clubby atmosphere of the law business in the past masked significant waste. We deliver our services more efficiently today.

But something important has been lost. Driven by the imperative of raking in giant amounts of fee income each year just to offset increasing costs, we have less time for many of the things that made law an honorable profession. The amateur in the law business, like the amateur Olympic athlete, is a member of a dying breed. By amateur, of course, I mean “lover,” as the Latin derivation of the word requires: the man (and it was always a man in the old days) who loved the law as an institution, who loved it to the point that, like any good lover, he gave back as much as he took out. I think of role models—of whom you are my paradigm—who spent a staggering amount of time in one form of public service or another, not because of a desire for fame or even through a sense of duty, but just because they wanted to. Being president of a state or city Bar Association gave the honorée a chance to get intimately involved in the legal issues of the day—merit selection of judges, representation of indigents, law reform in the best sense. We don’t have as much time for those pursuits these days.

Like so much else in modern life, the law is becoming less personal, more mechanized; and as the pace of the process speeds up, the time for reflection is truncated. It has been some time since I’ve been able to savor a legal issue, to walk around it intellectually and to research the ambiguous points.

On the other hand, the profession is more open. You would be proud of the way the law has adapted to currents in the civil rights movement. My 1960 law school class at Stanford was lily white and 98 percent male. When I returned for a semester at the law school to teach some eighteen years later, minorities were represented significantly and women were out in force—over 30 percent of the class. Those breakthroughs happened very quietly and relatively quickly. The curriculum open to law students has enlarged: a lot of hands-on instruction, learning by doing, is now available. The old standbys of contracts, torts, and constitutional law are still required, but the mandatory curriculum has shrunk and the options have widened. A good idea? I hope so, although 1 sometimes suspect the curriculum changes are more cosmetic than real.

There is intense pressure to get into the good schools now. My test scores wouldn’t qualify me for Stanford today, but there are a lot of new law schools, some quite good. With them comes a notable overproliferation of lawyers, a tribe that never was in short supply. What happens, the Cassandras ask, when all the farmers and engineers are in law school?

The principal concern, however, the one that dwarfs all others, is whether, given all the new lawyers, all the new courses in law school, our society has become more just. This is perhaps a political, not a legal, question, but the two have been inextricably intertwined in the life of this Republic since its foundation. Justice is a lawyer’s business, and the issue is therefore not an abstraction to the legal community. If we don’t ask the question, who will?

One of the late jurist’s clerks asks what has happened to lawyers in the past quarter-century.

Certainly the courts are trying to distribute justice as never before. This activism, which you got rolling in your years on the Court, has picked up steam, and judges, particularly federal-district judges, are busy trying to curb brutish instincts and horrid neglect in our society. Prisoners’ rights, tenants’ rights, mental patients’ rights, children’s rights—judges are out in the public arena trying to lift up the less fortunate, with somewhat less than enthusiastic support from the Supreme Court. But I’m not sure that the times are friendly today to the conceptions of justice and fairness—indeed, of charity—that you drilled into me twenty-five years ago.

We seem to live in a meaner society today than we did when Jack Kennedy was President. The so-called “me generation” appears genuinely uninterested in the casualties of the modern, postindustrial age. These are generalizations, to be sure, but I doubt I’m far off the mark. We seem to be less tolerant, more eager to find a scapegoat for our frustrations. The death penalty is back, and executions are proceeding at a rate I find truly appalling—not a lot of people, other than a concordat of Catholic bishops, seem to care any more.

This atmosphere of relentless selfishness is depressing for me as a citizen, to be sure, but it is particularly saddening to me as a lawyer. Justice is the heart of the law, law as the mediating force amongst social animals in a condition of scarce resources. If society is becoming less just, it must be in part the fault of the lawyers in their various epiphanies—judges, legislators, rule makers, teachers. This is the stuff of which professional malaise is made.