by In describing the purpose of this blog, Bob Cochran cites Tom Shaffer’s classic reference to the need for “prophetic witness” in the law. More recently, Shaffer published a series of articles describing lawyers as prophets. Others have depicted judges as prophets. For example, this past week, Sandy Levinson delivered the annual Brandeis Lecture at Pepperdine Law School, on the topic of constitutional compromises. Levinson noted that Brandeis, who earned the nickname “Isaiah,” often spoke in a prophetic voice through his forceful and compelling dissents. Indeed, Levinson observed that prophets are typically uncompromising in their commitment to truth and principle. Though Levinson cited instances in which even Brandeis resorted to compromise with other justices, the picture of Brandeis as Isaiah remains an inspiring image.
The metaphor of a lawyer or judge as prophet draws on the prophetic role of speaking truth to power. Lawyers and judges fulfill this role when they remain faithful to their vision of truth and justice, in the face of powerful and popular opposition. Shaffer and Cochran are two of the pioneers in the religious lawyering movement, and their references to biblical prophets consciously rely on religion. Though speaking truth to power need not include a religious component, religion and religious identity are often part of the image of lawyers as prophets.
It may be interesting to consider the lawyer-prophet metaphor in light of another distinguishing characteristic of the biblical prophets: their ability to foretell the future. Although, of course, the prophets had the unparalleled advantage of divine inspiration, perhaps we admire prophetic lawyers and judges not only for their ability to see the present in a different way, but because they have an ability to envision the future—at least an aspirational future—in a way that is not available to the rest of us. As history has shown, their dissenting opinions and their commitment to unpopular causes may be an expression and illustration of their vision for—or of– the future.
The image of judges as prophets is no doubt gratifying to some jurists, and lawyers and legal academics can gain a bit of derived glory from the idea. There’s the small problem that judges generally have no qualifications whatsoever to serve in this role, and the additional small problem that the Marbury account of judicial review has no need or use for prophets– just officials exercising the basic lawyerly skills and function. Nor have I ever noticed any Article in the Constitution laying out the qualifications or functions of prophets. My own view is that the self-indulgent cultivation of this image has been almost wholly pernicious. Interpreting and applying the law is a task that is more than sufficiently important and challenging for our judges and those who advise them.