Foreword

The Practice

Getting Off the Ground

Structure and Staffing

Profit Requirements

Further Existential Risks

Redesigning My Practice

Goals of the Practice

Structuring and Staffing

Breaking Even and Future Profits

Existential Risks

In the process of cutting, another approach might have been to separate the past from the future, recognizing the forward-looking purpose of the effort and reweighting accordingly. Cutting down to exactly 1,000 words rather than building up from 500 was the crucial decision.

In imagining a future practice, you are envisioning an expensive and carefully-constructed array of people and moving parts in which as a new lawyer you could hold a position, tentatively. In what sense is this your practice? Assuming it wasn't merely assumed into existence, how did you plan its creation?

Making such a thing is a vastly complicated and risky undertaking when all it has to do is make a living, long before one gets to the enmity of the government and its national security laws. Imagining in the big leagues is not just a wave of the wand: your magic brush must actually produce architectural drawings that can be built by mere mortals, such as you.

Let's try at least to be explicit about the issues. That makes some of our thinking reusable in the event that the particular magic refuses to put itself at our disposal.

However, following the 2019 protests and subsequent passing of the 2020 National Security Law (NSL), my envisioned role is dead. The independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. Furthermore, given the national security threat accusations lodged against those seen as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest or the loss of my permanent residency either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.

This draft is more than 1250 words, 25% over the limit. We can't work on it at all together until you've cut it down.

Acceptance of Exile

Should the Hong Kong government or the CCP perceive the practice's actions or goals as critical, the publication of educational materials could be accused of conspiracy to publish seditious materials.

The risk of potential charges of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. Additionally, the practice could emphasized that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and avenue of explicit political intervention would result in likely conviction.

Pressure to dissolve due to political and media pressure.

Rethinking My Practice

Risks

Rethinking the Viability of My Practice

Foreword

Redesigning My Practice

Renewed Goals

What My Practice Could Look Like

The Role of Law School

Risks

Charge of Collusion with Foreign Forces

To avoid being charged with collusion with foreign governments, I would likely have to institute the following rules: (1) No association with individuals who have been or accused of violations or charged under the NSL, including those who have relocated abroad; (2) No receipt of funding from individuals or organizations with ties to foreign governments (3) No association with so-called Western organizations such as Amnesty International and Human Rights Watch, whom the CCP has accused of making "irresponsible remarks... according to rumors and hearsay"

However, it may be difficult to

Charge of National Security Threat

Charge of Conspiracy (Absence of Freedom of Association)

No Protection from Judicially Independent Courts

Conclusion

I'm not sure how we know this. That "standards of transparency" are actually determinative of whether people behave with integrity seems to me, as philosophers say, unestablished. And there are "standards of transparency" that I think have historically affected Justices' conduct in my experience—like what will the Washington Post publish a critical column about—that apply to Supreme Court Justices quite strictly. Or did.

"Pitch of frenzy" might not be the moment in which to expect sound policy to be made in the negotiation between co-equal branches of federal constitutional government. Whatever legislation Congress makes and the President signs, its effect on the Supreme Court depends on the Court itself. Because the Court always exists in political context, because the division between "politics" and "law" (let alone "constitutional law") is mere fiction, we should expect the reality of politics (in large and small senses) in the Supreme Court building just as it is in Congress, the White House, the Departments of Justice and Defense, and the CIA. None, for different reasons, is at all transparent. What the press can't, won't, or doesn't get remains obscure from the democracy's citizens.

It seems to me that the best routes to improvement lie in different directions. If the theme is whether the Supreme Court's Justices are presently corruptly involved in politics, before or after appointment, some reference to the historical record would be helpful in providing context rather than frenzy. But the present draft takes up the issue as though it were related to Dobbs. This apparent connection needs clarification. Talking about impeachment or the ills of life tenure or the murky Presidential politics of nominations in response to a controversial decision we don't like is not analytically sound. Thirty-one years ago, Pam Karlan and I filed an amicus brief in Planned Parenthood v. Casey on behalf of 178 organizations comprising a significant sliver of US civil society. There is nothing in Justice Alito's opinion in Dobbs that we didn't anticipate and (in my view) answer fully. Dobbs is to me the same abhorrent mistake Pam and I were hoping to avoid half a lifetime ago. But how do we get from wrong decisions to denunciations of corruption?

Does the leaking of a draft opinion or the whispering around of a result somehow get this connection in place? We would need to establish historical context, again, to know. It's not the maneuvering with the White House or the familial and political pressure on Justice Greer that makes Dred Scott repugnant, after all, however important Don Fehrenbacher showed those elements are to the words in the US Reports, or the bodies of the dead at Antietam.

But I think it might be that Dobbs is actually the central issue of the next draft after all. In which case it is not that the Justices have engaged in subterfuge, but rather that they have not. Justice Alito says that the unpopularity of the decision, which he takes for granted, should not weigh in its making. It is in taking that proposition seriously, considering what it means and into what it grows, rather than in arguing ad hominem against the integrity of the Justices who voted for it that the profounder critique is to be discovered.

"Out of Line" Justices

In the wake of Dobbs, public support of the Supreme Court waned. A September 2022 Gallup poll asked about trust and confidence in the judicial branch — over 53% fell into the “not very much” and “not at all” categories. Only 6 months after the leak of the Dobbs decision to the Associated Press, the Supreme Court was rocked by a whistleblower letter that revealed an individual had been made privy to the outcome of Burwell v Hobby Lobby before it was announced from a donor who had dined with Justice Alito and his wife.

As a result, calls for the Supreme Court to adopt a code of conduct have intensified. The House Judiciary Committee had advanced the Supreme Court Ethics, Recusal, and Transparency Act of 2022 requiring the adoption of an ethics code and to disclose gifts and conflicts of interest. The American Bar Association echoed these sentiments, passing a resolution that urges the court to put in place a binding ethics code akin to that adopted by the Judicial Conference. Shortly after, Senator Chris Murphy and Representative Hank Johnson reintroduced the Supreme Court Ethics Act.

Although Americans are entitled to demand accountability and transparency in their officials, I have always been confused by the outrage towards revelations of Supreme Court justices acting outside of the public's circumscribed expectations. As Senators Whitehouse and Graham, in a rare act of bipartisanship, noted to Chief Justice Roberts, the justices of “[the] highest court are subject to the lowest standards of transparency of any senior officials across the federal government.” It should therefore come as no surprise that the Supreme Court justices, in the absence of any real rules or consequences, would act outside of the conventions we expect of them.

Key Areas of Concern

Internal Constraints

Difficulty of Impeachment

Life Tenure

Faulty Investigations

External Influences: Dark Money and Donors

While the nomination and appointment of Supreme Court justices are inherently political processes, the rise of political groups such as the Federalist Society and the dark money groups have led to the appointment of justices who maintain overly close, and sometimes conflicted contact with the benefactors who placed them to achieve their own agenda. While it is customary for presidents to solicit recommendations from regulatory agencies and the American Bar Association, the Federalist Society has played an outsized role in providing consultation and a narrow pipeline of nominees to Republican presidents. Six of the current justices are affiliated with the Federalist Society, three of whom were nominated by President Trump. The Federalist Society itself had been tasked with the job of vetting candidates for President Trump’s shortlist and its vice president Leonard Leo was reported to have worked closely with White House counsel Don McGahn during the nomination process.

Furthermore, influential donor groups such as the Judicial Crisis Network have played an active role in obstructing or promoting candidates from nomination to appointment, thus shaping the policy goals on the bench. JCN spent $7 million opposing the appointment of Merrick Garland and more than $30 million in lobbying efforts to support President Trump’s appointments. Such efforts engender close relationships and potential obligations which justices may owe to these groups, hence creating opportunities for conflicted relationships to intervene in judicial decisions or even the leaking of confidential information. In the absence of deterrence mechanisms in the internal structure of the Supreme Court, these groups can tug on the justices' robes and demand for favors without consequences of any of the parties involved.

Conclusion

William H. Taft once remarked that the justices" [have a] constant consciousness that [they are] high-priest[s] in the temple of justice and is surrounded with obligations of a sacred character." However, this consciousness is eroded by the internal structure of and external influences on the Supreme Court. Without constraints on lobbying and donations involved in the appointment process, nor the creation of a code of conduct or reformed rules that would restrain unchecked discretion inside the judiciary, one must accept these as risks of the judicial structure we have received. I am just surprised that it has taken so long for such calls of reform to reach their current pitch of frenzy.