Chinn: Checking Our Institutions

Every time I travel alone, say for an out-of-town deposition, I am conscious of those blocks of time in which you get to be alone in your thoughts. As much as the travel itself is rarely fun, I almost always find great value in those periods of “travel reflection,” especially when things prior to leaving home have been so busy.

Most recently, during an episode of travel reflection, I thought about the importance of the three cousins of dissent, acting against self-interest, and candidness in the face of power. All are essential components of checking powerful interests and institutions. And the first thing I noticed is that I haven’t spent much time thinking or talking about those things lately. True, we’re trying to do lots of things at the IndyBar to be inclusive and pluralistic, not the least of which is our engagement in a several year, multi-phase communications plan initiated under Mike Hebenstreit’s leadership last year that we are confident will add many avenues of receiving and distributing bar-related content. But that’s not the same thing as critically observing the need to review and, where appropriate, reform our leading institutions.

To take a half-step back (actually, maybe 23 years back), I once thought a lot more about these things. I am the stereotypical former college student that was “destined” to be a civil rights lawyer. I vividly recall sitting in a high-backed chair in the Indiana University Memorial Union reading the opinion in Texas v. Johnson (the U.S. Supreme Court’s 1989 flag burning case) for an undergraduate communications law course. Justice William Brennan’s majority opinion spoke to me: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” By contrast, I found Chief Justice Rehnquist’s dissent nearly laughable. It focused on undeniably profound historical reasons for revering the American flag, but chided Justice Brennan for his “civics lesson” on the importance of dissent.

Time traveling forward to 2012, it turns out that my résumé doesn’t read like that of a civil rights lawyer. For most of my 18 years in practice, I have represented institutions – state governments, every kind of local government body, elected officials, public schools, corporations and others. It was in representing one of those governments that I argued before the U.S. Supreme Court in a case in which I got exactly three votes for my position – those of Chief Justice Rehnquist, and Justices Scalia and Thomas (Who’s laughing now?!). And I’m speaking to you as the President of one of the important institutions in our legal community. As a liberal college professor friend of mine observed not that long ago, “Chinn, you’ve become the man.” To be clear, he meant that in the 1960s Yippies sense, not in the sense of the modern superlative compliment, “bro, you da man!

Much like the aging, paunchy former athlete that still sees himself as the youngster who chased down so many fly balls that should have been hits, I still see myself as a fighter for the underdog. But I know that moniker rightfully goes to others – like my good friend Jane Henegar, who recently took over the reins of the American Civil Liberties Union of Indiana. She now gets to work with lawyers and staff dedicated to making sure that our institutions don’t transgress the individual liberties of those without comparable power. Among those lawyers is Ken Falk, the legal director of the ACLU of Indiana, and my favorite adversary over the years (Ken racked up the other six votes against me in the Supreme Court, by the way.).

For my part, I don’t feel content to live vicariously through Jane and Ken. There is a role for those of us representing the institutions of power to consider reform from within. And we don’t have to wait for a crisis. We in the major institutions of the legal community should reserve part of our time for reflection on the need and opportunity for beneficial change. In Marion County, the delivery of pro bono legal services and judicial selection are two such matters that warrant review. If you think there are others, please speak up. You don’t even have to wait until returning from your next solitary trip.

Best wishes.