As a lawyer, I have been trained to think a certain way. This is not always helpful or useful. I've had enough thoughts about this subject and how lawyers and non-lawyers interact and perceive each other that I think some of my observations would be helpful or at least interesting. I hope to narrow the gap between lawyers and non-lawyers and speak plainly about some areas of law I practice and/or know something about.
Sometimes thinking like a lawyer helps when analyzing an issue in a way that truly clarifies and enlightens a subject. Sometimes it doesn't. Many times what lawyers say just sounds insane and makes no sense. Today I came across just such an example. In this case, it is a Supreme Court Justice, because judges are really just lawyers - lawyers who must be obeyed. Chief Justice Roberts of the U.S. Supreme Court, wrote the majority opinion for the court in Hollingsworth v. Perry, the case about Proposition 8 in California (which barred same-sex couples from marriage). I am happy with the effect of the court's ruling of lack of standing for the intervenor's and the result that Prop. 8 will be overturned. But I was struck by the following portion of the opinion:
"Petitioners argue that, by virtue of the California Supreme Court’s decision, they are authorized to act 'as agents of the people of California.' But that Court never described petitioners as 'agents of the people,' or of anyone else. Nor did the Ninth Circuit. The Ninth Circuit asked—and the California Supreme Court answered—only whether petitioners had 'the authority to assert the State’s interest in the initiative’s validity.' All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This 'does not mean that the proponents become de facto public officials'; the authority they enjoy is 'simply the authority to participate as parties in a court action and to
assert legal arguments in defense of the state’s interest in the validity of the initiative measure.'"
I think to most non-lawyers (and probably a majority of lawyers) would read "authority to assert the State's interest" as synonymous with "authorized to act as agents of the people of" the State, at least with respect to the particular issue - representing the State in this litigation. Sometimes terms of art have precise meanings for a good reason. The Chief Justice does go on to discuss the importance and precise nature of the "agency" relationship. But splitting hairs based on slight differences in language often makes for bad precedents that are difficult to follow and confirms lay persons worst fears about lawyers - that they have no principals and twist words to suit their own ends. Like I indicated earlier, I am happy with the result in this case, but I am not sure this kind of distinction really makes a difference, nor was it necessary to reach the right result.
