Law clerks make justice happen, sometimes

We lawyers are sure that we win cases because of our great lawyering and lose them because of someone else’s bad facts or law. That’s often delusion, and proof of that came again yesterday in a soon-to-be-forgotten Establishment Clause case.

Here was how I summarized the case:

A neighbor sued under 1983, and the district court held that her Establishment Clause claim was barred because the statute of limitations began to run when the sign was posted. CA3 reversed, and for a reason not argued by the litigants: state statutes limitations do not apply to Establishment Clause claims challenging a still-existing display.

That holding won’t change the world, but what made the case interesting to me was this: the court rejected the appellant’s argument, but it reversed anyway based on an argument the appellant didn’t make. But if the lawyers didn’t come up with it, who did?

Maybe it was one of the judges, but my guess is that it was one of their clerks. Maybe it was a circuit staff attorney. Whoever it was, s/he has my respect. There are a lot of cases, a lot of meritless arguments, and a lot of lousy briefs to slog through. For clerks, it’s easier to just analyze the lawyer’s arguments, accept or reject them, and keep on moving. Going beyond the briefs — to get it right, even if the lawyers didn’t — is effort. It’s essentially invisible effort, justice for justice’s sake alone.

Just last week I was critical of what I see as a bad mistake in a published CA3 case. “Buck-naked wrong,” said I. It’s a mistake that reflects badly on the court in general, in my view, but the clerks who missed it are the ones who are going to squirm. I was a clerk myself, and, well, I know of what I speak.

Circuit court clerks aren’t perfect, any more than judges or lawyers or nerdy bloggers. When they go the extra mile to get it right, it’s a reminder of the critical role they play.