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The Real Poop

Judges don gavels and robes, and are hailed “Your Honor” in droves. They’re opinionators, appointed or elected, endowed by their Framers with certain inalienable powers. Among which is the power to believe that a good icebreaker is to tell jurors to look under their seats for tickets for two to see The Book of Mormon, only for them to find a pencil and a small green Mead spiral notebook on which to take notes, and afterwards inform the same jurors that she was only kidding.

Judges come in all sizes and varieties, which is why they have historically preferred shapeless black robes into which they may conveniently withdraw like a turtle and zip up the fly to preside headless over the courtroom on Halloween. Or to add symbolic gravitas as the Ghost of Christmas Future when admonishing a defendant that the life he was leading was surely to result in ruin.

This is clearly what the defendant is headed toward.

But there’s one thing that they all share: they’re always right, and it’s not just because they’re grown-ups. They’re right because they have the power to be right, until they’re overruled. If Chief Justice Roberts were to publish an opinion which four other Justices joined, stating that the unexpressed intent of the Framers in crafting the Privileges and Immunities Clause of the Constitution was to guarantee that schoolchildren learned that if one were to pull on a duck’s beak hard enough, the duck would safely disengage his beak to reveal a slightly smaller beak underneath and angrily quack at a slightly higher pitch than before, the Privileges and Immunities Clause would mean just that. And henceforth, all over America, lawyers would have to incorporate into their briefs arguments ad quackum to prove to the court that the State had wrested from their clients the fundamental right of a duck to choose its beak size.

Sure, all judges judge, but not all with the same power. Lower court judges always have to deal with disappointed parties tattling on them to the principal appellate court’s office, sniffling about how this or that judge abused his discretion, then called them names, and made faces during closing argument, and acted like he didn’t mean it when he said “decedent” instead of “defendant.” Most likely, though, the appellate court will defer to the lower court’s findings of fact, as opposed to law. Appellate courts like to consider themselves further up the steps of Sinai than lower courts, and therefore are better equipped to read the tables of law. They know how busy lower court judges can be with just establishing the factual record–all those objections, witnesses, jurors, and the noise, noise, noise of lawyers falling in love with their own voices. With none of the facts to worry about, appellate judges can just concentrate on developing and applying legal doctrines.

Normally, appellate judges read the briefs of the parties before tearing them apart during oral argument in open court. They love to interrupt and catch lawyers off guard with absurd hypotheticals to test their positions, like “Would a sixteen-year-old Alexander Hamilton prefer Street Fighter to Mortal Kombat?”, “Is this font midnight gray or battleship gray?”, “Does this robe make me look fat?”, and “Are you shook up, are you nervous?”

One thing all judges have in common are law clerks, the unsung Racer Xs of the legal world. While judges are dedicating a monument, exhorting college graduates at commemoration that the job market will pick up, or golfing with senators fishing for advisory opinions, law clerks are researching cases and drafting legal orders and opinions for the judge to sign off on. Judges rely extensively on law clerks for legal counsel and ghost writing so that judges can focus on what they do best: acting judicial.