Federalist Society weighs in.

I just received via email from the Federalist Society a link to a paper titled “The Predictable Unpredictability of the Georgia Supreme Court.”

The paper was prepared by Robert Barker of Powell Goldstien, Holly A. Pierson of Nelson Mullins Riley & Scarborough, and W. Ryan Teague of McKenna, Long and Aldridge.

I have not finished reading it, but here’s a tidbit for you:

However, the Georgia Supreme Court’s recent decisions in strategic areas of the law – i.e., tort and strict liability, criminal law, and constitutional protections – provide at least some insight into the majority’s judicial philosophy. This paper examines several of those decisions in order to foster greater dialogue about the proper role of the judiciary and whether the Georgia Supreme Court has respected its limited constitutional role.

Hopefully Erick and/or some of you other barristers will give us your opinion of this document.


  1. Fiddes says:

    As a Federalist Society member, myself, I must say that the paper was very balanced. It makes good points in a sly fashion and shows how the Court, with a little more strict interpretation from one or two of the Justices, could very well begin to see a radical difference from the decisions it makes now.

  2. politicalanimal says:

    Go here: http://www.fed-soc.org/Publications/White%20Papers/georgia.pdf.

    It’s a very good, balanced, and academic paper. Hopefully it will serve as a guide for the Court on how it might increase the consistency and quality of its future opinions.

    Also, the Federalist Society in Atlanta hosted a fantastic debate today between Alabama Supreme Court Justice, Harold See, and State Bar of Georgia President, Jay Cook. The debate will be on the Federalist Society’s website http://www.fed-soc.org tomorrow. Very good discussions — both agreed that judicial elections were important and did not want to go to appointed judges.

  3. As an attorney who handled one of the cases cited in the paper, Fortner v Town of Register, I can say that the analysis offered in the paper is shallow. Attorneys and judges can argue about the correctness of just about any decision. After all, one party always loses and another wins. The deception promoted by the article is that these disagreements involve basic choices between liberal and conservative principles. An attorney who believes that either has never actually practiced “real law” (representing real people slugging it out in a trial court) or is intentionally promoting a point of view, kind of like a negative ad.

    The cases cited may (I have not read them all) have a common thread: the loser was a doctor or a business interest or the winner was a criminal. To pick out a dozen or so cases from the hundreds decided by the Supreme Court and argue that they establish a bias is faulty logic. I can guarantee you that for this dozen there are many times that number where plaintiff’s lost, business and doctors won and criminals stayed in jail. If the kind of bias that the article condemns actually existed, then it should be revealed in a statistical analysis of all decisions over a period of time, not in a selective focus on opinions an author just does not like.

    I have practiced law in this state for 30 years and have handled hundreds of appeals. Everytime I essentially thought I was right and when I lost I did not attribute it to a bias, liberal or conservative. Frankly, most of the time I attributed it to stupidity. Stupid court decisions are essentially the ones where you might say the court just made a mistake. That will occur regardless of who is judge because judges aren’t perfect and sometimes they make the wrong decision.

    All that a paper like this proves is that the federalist society does not want fair and impartial judges, but judges that they can count to make the stupid decisions for a reason other than stupidity ie., an agenda.

  4. Robert Barker says:

    I am sorry that W R Smith did not like the report, and thought it shallow. It does not represent the viewpoint of the Federalist Society, only the consensus views of its authors. And we did not always agree.

    We bent over backward to try to be fair in our selection of cases, but wanted to pick cases that reflected the “boundary” of court decisions. I can’t speak for my fellow authors, but I am constantly amazed at some of the out-of-the-mainstream decisions in Georgia.

    We simply could not be comprehensive. I would like someone in the state to tackle the issue of why the philosphy behind the Federal Arbitration Act of 1919 has not worked its way into the Georgia courts; judges seem to take offense at arbitration clauses and do everything they can to retain jurisdiction in their courts. I would also like someone to explain why the courts felt it necessary to strike down the General Assembly’s effort to permit blue-pencilling of covenants not to compete — how could the Supreme Court have possibly thought that was a constitutional issue? The expansion of liability was noted, but there are too many inconsistent opinions to be logically explained.

    I will take the point that some of these decisions may simply look “stupid,” although it is not a conclusion I am comfortable sharing. The highest court of a sovereign state does not have the luxury of simply claiming stupidity.

    Georgia cases are shorter than cases in other state courts, and it is not always clear why a case is being decided the way it is, so maybe the inconsistency is obfuscated. Another explanation for the unpredictability could be that the court finds itself beholden to the trial bar, and tries to pass out winning cases to all the lawyers. That is also not a comfortable conclusion. Finally, it may simply be that there are too many judges — by one report, Georgia has 1,800, which is more than any state other than NY, CA and TX.

    In the end, all we could do was pick a few cases that demonstrated the inconsistency that makes it harder and harder to advise clients in the state — unless the advice is for them to move out of state. Florida has no income tax, and a more consistent judiciary. But that is also not comforting to those of us who want to raise our families here.

  5. redneck30342 says:

    I am a member of the Federalist Society and share much of its philosophy. I even handled one case in which we included in the record an affidavit from a Federalist Society policy specialist on the rational basis for a Georgia statute, Justice Hunstein wrote for a unanimous court in holding the statute unconstitutional on its face, and when we applied for certiorari to the U.S. Supreme Court, Justices Thomas, Scalia and Rehnquist signed a dissent from the denial of cert.

    However, I am deeply troubled by the assault on Georgia’s Supreme Court by an “independent” committee funded largely of out of anonymous state corporations and billionaires. That is nothing but a cynical political hit job using empty rhetoric and a handful of cases taken out of context to deceive and mislead the Georgia electorate.

    Any candidate who accepts that support has to have made big promises of what he would do on the bench in return for those millions, and has made a corrupt bargain that utterly disqualifies himself from service as a judge.

  6. This is in response to Robert Barker. I do not understand your assertion about an attempt to be fair. I did not gather that the purpose of the report was to be fair. I thought it quite obviously was for the purpose of creating a particular perception of the Supreme Court. While you are certainly free to write anything you want and attempt to create any impression you want, I don’t think you can defend the report as “fair.”

    It would seem to me that any attempt to be fair in the selection of cases would necessarily include cases that are mainstream. It would at least point out the minute percentage of the Court’s decisions that are reviewed in the report.

    What the report does is take complex cases and legal issues and present them in a manner than only allows the reader to agree with the conclusions presented by the author. It is neither instructive, nor accurate. If that is representative of the quality of papers generated by the Federalist Society, I would encourage the Society to submit its papers to the law students who edit the law review articles at one of the Georgia law schools before publication.

    For example, the case that I handled, Fortner, was not out on the edge of anything. Neither was it in conflict with any Supreme Court decision. In fact, since it reaffirmed the supremacy of the “common law”, which is the oldest judicial heritage we have in Georgia, it migh be characterized as the epitomy of conservatism, if you define conservatism as sticking to what has worked. And yet, I can discern no reason the case was included other than to create the falst impression that the decision was wrong solely because it ruled against business or it interpreted a statute.

    I wil not comment on the other cases since I was not involved, but as to Fortner, the paper was misleading, superficial, biased and anything but scholarly.

    I do agree with you in a sense about the unpredictability of the outcome in a particular case. However, as long as judges remain human, and decide cases without a predetermined formula, I doubt it can be avoided.

    As for the number of judges, I suspect you are not comparing apples with apples. Are you including Magistrate Judges, because many of them are the result of the fact that Georgia has more counties (159) than most states and each one of them has at least one Magistrate. I gathered from your comment that the number alone suggests to you that we have too many judges. That really seems a stretch. You should know that if you are going to comment on the number of judges, you need to mention factors like the number of counties, population, case loads etc.

    As for you request for an explanation about the arbitration issue, let me know when you have a couple of hours and I will get you up to date on that.

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