by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef’s latest column for Forbes critiques an idea from U.S. Supreme Court Justice Sonia Sotomayor.
On May 16 at an American Law Institute meeting, Supreme Court Justice Sonia Sotomayor declared that she was in favor of forced labor – at least to the extent of compelling lawyers to do enough pro bono work so that poor people in America can have legal representation when they need it.
Many lower income Americans are unable to afford legal assistance when they need it. The legal establishment has known that for a long time, and often indulges in hand-wringing over it. Some law firms require their attorneys to engage in pro bono work, donating their time to help poor people. No doubt that has marginally reduced our “access” problem, but it remains so serious that Justice Sotomayor thinks we should ratchet up the level of coercion in America another notch to solve it.
“If I had my way,” she declared, “I would make pro bono service a requirement.”
Fortunately, we have not reached the point where one or even all the members of the Supreme Court can impose such a mandate on the legal (or any other) profession. For one thing, there is the considerable obstacle of the Thirteenth Amendment, prohibiting involuntary servitude. That amendment should be read to prohibit all kinds of forced labor, including that done under the governmental threat here: Perform enough free work or you will lose your license to work at all.
Writing on the always interesting Volokh Conspiracy blog, professor Ilya Somin argues that while there is a century old Supreme Court precedent against treating the Thirteenth Amendment as a bar to compulsory pro bono work for lawyers, that decision is flawed and should not be treated as controlling. But in any case, he says, “forced labor is a deeply unjust violation of individual liberty. If we can impose it on lawyers in order to provide legal services to underserved populations, why not on members of other professions anytime we think forcing them to do additional work might benefit some underserved group or promote some other societal interest?”