Saturday, October 9, 2021

by Elise Spenner

 After a controversial summer, the Supreme Court began its term on Monday with oral arguments in Mississippi v. Tennessee and Wooden v. United States. 

A normal (and abnormal) first day: 

  • For the first time in 19 months, the Supreme Court is back in the building. While attendance was largely limited, Court reporters were excited to return to the gilded halls. Accompanying the reporters in the courtroom were three spouses of the justices, as well as retired Justice Anthony Kennedy and this year’s clerks. 
  • Live audio for both oral arguments was available at the bottom of the Supreme Court website, continuing a well-received aspect of telephonic arguments that serves to improve transparency at the Court. 
  • After testing positive for COVID-19 on Thursday, Justice Kavanaugh participated in First Monday telephonically, and will continue to for the next two days of argument.
  • Justice Clarence Thomas signaled that he will continue to be an active participant on the bench this session, asking the first question in each oral argument. After years of reticence from the 73-year-old justice, Thomas had been quick to question advocates in the more orderly format of telephonic arguments. 
  • On the topic of format, the justices first engaged in a period of traditional “free-for-all” questioning of each advocate, but they also allocated time for each justice to individually grill the advocate with follow-ups and hypotheticals. 

Mississippi v. Tennessee:

  • The Court kicked off the term with a dispute between Mississippi and Tennessee over the use of a large groundwater aquifer. This technical case turns on the doctrine of equitable apportionment, which gives states equal rights to use of interstate water. However, this doctrine has traditionally been applied to surface water, rather than the groundwater at issue in Mississippi v. Tennessee. 
  • Mississippi accuses Tennessee of stealing water from them without permission. According to Mississippi’s advocate, this case is solely about Tennessee “reaching across the border and exercising control” over Mississippi’s water — it doesn’t even bring equitable apportionment into play. But the justices seemed skeptical about drawing a line between groundwater and surface water — doesn’t groundwater also cross state lines and boundaries, and should thus be subject to the same rules?
  • For a thorough and easily digestible overview of the water dispute, read this ScotusBlog post. 

Wooden v. United States: 

  • The Court heard its second oral argument in Wooden v. United States, a case that asks if robbing 10 different storage units in the same facility on the same day constitutes crimes “committed on different occasions from one another.”
  • The petitioner, arguing on behalf of Wooden, advocated for a “totality of the circumstances” test that would categorize the crime as a single burglary or “a continuous stream of criminal activity.” 
  • Both sides attempted to reconcile their proposed test with the Eighth Circuit decision in United States v. Petty, which indicated that the Armed Career Criminals Act refers to “criminal episodes that were distinct in time.” 
  • To the government, Petty was a single crime because the robber committed the unlawful act when he raised a gun at the six robbed restaurant patrons. On the other hand, Wooden committed multiple different crimes because he made 10 active choices to break the drywall and rob the next storage facility.
  • To the petitioner, Petty was a single crime because there was no clean break between the six robberies, and the court should reach the same conclusion in Wooden. The plain, common-sense interpretation — not a hypertechnical test — is that Wooden committed just one, continuous crime. 

Further coverage: 

  • Robert Barnes summarized the justices’ first day back, writing that “little about their oral arguments seemed the same as when the coronavirus pandemic forced their departure.”
  • Devin Dwyer gave an inside look at the Supreme Court’s return to the bench, drawing a fresh picture of the Court. 
  • At Reuters, Lawrence Hurley and Andrew Chung wrote of a Court that seems to have kept, on some level, the politiness and structure that came with telephonic oral arguments. 

In other Supreme Court news:

  • The justices rejected an appeal from D.C. residents over their lack of voting representation in Congress. The move affirmed last year’s D.C. Circuit Court ruling denying voting rights to the residents. Justice Thomas and Justice Gorsuch, two of the Court’s most conservative justices, would have dismissed the appeal based on a lack of jurisdiction.
  • Justice Sotomayor wrote short responses concerning the Court’s decision to deny certiorari in three cases this morning. Notably, she wanted the Court to reverse the Third Circuit’s decision to grant qualified immunity in James v. Bartlett; however, Sotomayor could not find three other justices willing to hear the case. 
  • Vox’s Ian Millhiser wrote an incisive profile of Neil Gorsuch, accusing the justice of setting his sights on an ambitious agenda that reeks of “utter disregard for the norms of an institution he now belongs to.”
  • The Supreme Court starts the term with just 40% of the public on its side, a recent Gallup poll found, the lowest public approval rating since Gallup started recording the data in 2000. The Court’s approval rating has fallen 9% since July, a two-month span marked by their refusal to block Texas’ strict abortion law, their willingness to block the eviction moratorium, and a mutltitude of other controversial “shadow docket” decisions. 

Interview: Mark Joseph Stern

by Elise Spenner

Mark Joseph Stern is a legal analyst and Supreme Court correspondent at Slate. Before writing full-time for Slate, Stern received his B.A. from Georgetown University in History and Art History, and his J.D. from Georgetown University Law Center. He writes frequently on issues of LGBTQ+ equality, reproductive rights, criminal justice, territorial law, and anything to do with the Supreme Court. You can follow him on Twitter @mjs_DC

What were you like in high school?

I was very political. I was nine when Bush v. Gore happened in Tallahassee, and my dad was and is a law professor in Tallahassee. That was consciousness-raising, and that’s the first time that I started to actually pay attention to politics and learned who Jeb Bush and Katherine Harris were. My parents were progressive and also very involved, and so I was an insufferable political junkie in high school — watched a lot of MSNBC, paid close attention to political developments.

Were you already interested in journalism when you were in high school? Did you write a lot?

Writing is pretty much the only thing I’m good at. It was clear to me that I needed to figure out how to do this well, because it’s a skill that I could capitalize on to escape Tallahassee and have a viable career. Whenever we had projects or papers in high school, I would often try to weave politics into it. I remember when we had our George Orwell section of British literature, it was right after the Bush administration had claimed to have expanded the acreage of wetlands in the United States by counting golf course ponds for the first time. That was a fun thing to tie together, but it wasn’t a truly journalistic focus. I came to that later in college.

Any teachers that served as big mentors or role models, either in high school or college?

I had some fantastic English teachers in high school. Mrs. Allman and Dr. Scott were terrific. They were instrumental in telling me, “You’re a good writer – you have a knack for writing, and you should explore this and express yourself and learn how to do this and enjoy it.” They also were very encouraging of me to read broadly, to read all kinds of books, fiction, nonfiction, foreign authors. Their maxim was, “There’s no such thing as bad reading. If you’re reading something, it’s expanding your mind.” And I still read a ton. I spend a huge amount of my time reading, and I definitely credit, to some degree, my English teachers for that. To the extent that I am a decent writer, it’s probably because I consume a lot of good writing and I learn how to do it myself.

Later, in college, you weren’t writing about literature and the arts anymore. What prompted this shift?

I started shifting toward more political and legal writing my sophomore year. I was a history and art history double major and an English minor. By my sophomore year, I realized that I probably was not going to become like an English PhD. That was something I had mused about and thought, “Wouldn’t that be wonderful?” but the job market there is not exactly wide open, so I thought I should consider other avenues. 

During my sophomore year, I started listening to Supreme Court oral arguments when I ran. I don’t really run anymore, but at the time, I would go on runs very frequently and I would listen to oral arguments. I started with the famous ones, but then I just started listening to whatever I was vaguely interested in. And of course, once you listen to arguments, you want to go read the opinions.

And frankly, I could probably reframe this to make it sound much more academic and sophisticated, but I was consuming the Supreme Court for entertainment. I thought it was fun to listen to oral arguments. It was very intellectually stimulating. And these were the twilight years of John Paul Stevens — I think I started getting engaged during his final term, and then thereafter when Kagan joined the court. And I loved Kagan from the very beginning.

That motivated me to vaguely prod my way forward towards some kind of writing about legal affairs and politics, and I started writing periodically for Georgetown publications, I started writing a blog at Daily Kos. It was about all kinds of different things, but often about Supreme Court cases and decisions. That was my pivot towards thinking more: “How am I going to be able to write about this stuff that I’m interested in and passionate about for a public audience from a more journalistic standpoint?”

I love that you listen to oral arguments when you run — I do that, too, although I only remember or understand about 30% of it.

It doesn’t really matter. You’ll inevitably absorb some information. I remember when I was a sophomore, I would listen to arguments twice, a few of them three times, just because I wanted to understand. I would look up things and cross-reference with the opinions, and I think that helps me get a better sense of how the Supreme Court works as an institution, which is something that, as you know, 99% of Americans do not understand.

When you started at Slate in your senior year of college, you wrote short bits about the runup to the 2012 election. Why were you doing that, and did the experience teach you anything about covering the law?

To back up a little bit — I will answer your question, I hate it when lawyers don’t answer a question — if you’re at Georgetown undergrad, you can apply to Georgetown Law your junior year, and that is what I did and I got in. So by the time I applied for the Slate internship, I already knew I was going to law school. It was more of a question of what to do, and basically, I liked Dahlia Lithwick and Emily Bazelon, I liked Slate’s legal coverage. I knew that as a college senior I was not going to be able to write about that with a lot of authority straight off the bat. Also, Dalia was taking book leave the year that I started, so I didn’t really get to work with her at first.

As an intern, you did what was needed of you. And in 2012, it was a different time for the internet. It was still a lot bloggier. One of the projects that I was asked to do for Slate was called Ray of Hope and it was basically to come up with one reason for both Obama and Mitt Romney to have some hope for winning the upcoming election. It was silly, but I enjoyed doing it, and I did a lot of writing that I didn’t care that much about at the time, but was asked to do. I think there’s a lot of utility in being forced to sit down and write something that you don’t really want to write, but you have to do. 

How much of a challenge was it to balance the responsibilities of writing for Slate and working through these notoriously hard years of law school?

Looking back, I’m surprised that I was able to balance those two things. At the time, I rebelled a little bit against the infantilization of law students in 1L year. You come into law school — hopefully these things will change or are changing — but at least in 2013, you come into law school and they give you this whole speech about how you suck, you don’t know anything, you don’t know how to take notes, you don’t know how to study, you don’t know how to be a human, we have to reprogram you and teach you, and we’re going to cold call you to embarrass you in front of everyone. And also, half of you are going to become alcoholics, but we don’t really have any support for you. So good luck with that. They actually said, “turn to your left, turn to your right. One of you will be an alcoholic. Good luck with that.”

I just felt like I was being treated like a child. I had just graduated from college, and felt like I was at least no longer a child. Writing for Slate was a great way to feel like I brought value to the table, to write about something where I had some amount of expertise, and that took me out of this insular world of law school and into a broader world of legal journalism. It was challenging. I worked for most of the day and a big part of the night.

You could churn out 600 words during your lunch break at law school. Has writing always come naturally to you as an outlet, instead of being something hard?

Yeah, pretty much. I’m not someone who agonizes over their writing, I know there are people who agonize over every sentence and every word, but I am not and have never been like that. I think there’s probably lots of reasons why — part of it is just who you are, how your brain works. But when I was in high school, one thing that we had to do in our English classes was write essays — a lot. In one of my English classes, we had a timed essay every week in preparation for the AP exam. You were given a new topic and you had to write an entire essay. That was challenging at first, but I think it did help me get into the groove of like, “Alright, I gotta spit out 800 coherent words on this thing that I’ve never thought about until right now and I have 50 minutes to do it, so let’s go.”

I don’t always approach my assignments with that attitude, but it is helpful to know that having something on the page is better than having nothing. And the more you do it, the easier it gets. Sometimes what I spit out is probably bad, but it’s there and it’s better to have, I think, bad stuff on the page than a completely blank Word document.

Has there been a time when you’ve had to work really hard to produce something or it’s taken you a long time to get anything on the page?

I’m somewhat allergic to big, long-term projects. I think my brain is in that mode of like 800 to 1500 words—go!, and when I’m given an assignment that asks you to sit back, take a while, spend some time, and produce something lengthy, that simply cannot be written in one go.

I can interview 50 people, and not have a word on the page yet, because the task isn’t to write 800 words in the next hour. Instead, it’s to dive into this deeply researched piece, and that’s something that I still struggle with.

Luckily, I’m not asked to do that too much. That’s not Slate’s predominant mode of writing, and I’ve made it clear that it’s not my favorite mode of writing. But that is something that I struggle with. I wouldn’t call it writer’s block. It’s not like I couldn’t write something if I needed to. It’s just that I can have trouble getting my arms around the entire project, figuring out where to start, what my approach is going to be. It feels like there’s so many different paths you could take. It’s like just a garden of forking paths when you’re writing a long story. And all of these paths can lead in different directions and can be a little intimidating at the outset of the project.

When I approach a big project, I’ll spend two weeks researching and interviewing, but it scares me not to have written anything or not to really know where it’s going.

Yeah, and sometimes I’ll feel like a little bit of a fraud, if I’m interviewing someone and I say “I’m writing this piece about X” and I actually haven’t written a single word of it, I’m hoping that they will give me ideas and substance for this piece. Yeah, it does make me anxious. I have some Google Docs that are many transcriptions of interviews and hyperlinks and fragments of ideas that have not come together into an actual piece and I feel somewhat guilty about this.

What originally turned you away from practicing law, and going into that realm as a career?

Georgetown is a fairly corporate law school. Many law schools are — I don’t mean to bash Georgetown above all other schools, because I think that Big Law is a huge part of our world. A lot of people graduate from law school with a lot of debt, and I totally understand that they need to find an avenue to have the money to pay it off. And so I don’t want to sound like I’m just bashing everyone who goes into Big Law. However, at Georgetown Law, a bunch of people go to white shoe firms and immediately start doing stuff that I think is morally objectionable and not good: they’re defending polluting corporations, they’re destroying the Earth, they’re preventing consumers from filing class action lawsuits when they were seriously injured, they’re preventing child slaves in Africa from suing the corporation that helped enslave them. The list goes on. And I felt like the legal world, especially the elite legal world of DC, which, short-term, I was a part of, felt sort of morally bankrupt. 

I have this problem where I can’t say things I don’t believe. I used to be much better at just putting on a face, rolling with it and saying things I didn’t necessarily believe just for the sake of politeness or self interest. And the older I get, the crankier I get about that, and now  I will not say something I don’t believe. If an editor puts a line in a piece that I don’t agree with, I will politely be like, “I just can’t say this. I don’t agree with that.” And I think that is a fatal trait for a lawyer. Lawyers revel in putative moral relativity and neutrality, where the whole game is saying that there’s no moral distinction between helping a corporation destroy the ice caps and helping indigent defendants get representation in court — which I fundamentally reject, but that’s the prevailing attitude, and I didn’t like it, and I still don’t like it. 

That left me with the possibility of advocacy for good causes that I believe in. And I thought about that long and hard, but at the end of the day, what I noticed was that even when I was still in law school, a lot of those folks were coming to me. A lot of people who had great legal advocacy jobs that I envy were coming to me and being like, “Hey, can you help me publicize this lawsuit? Can you help get the word out about this court decision?”

They were asking me to help be their mouthpiece, and I realized or I decided that translating these complicated legal things to the broader world and to lay people who aren’t in the legal worlds, calling their attention to really important stuff that otherwise might get missed or fall into the radar, that felt like my calling. I think it was the right choice. I really do like my job a lot. And I think that even with this Court, which I’m not enamored with, it’s fun.

You’ve talked about your first story that went viral, this piece on a Kansas bill intended to bring about rampant LGBTQ discrimination. How did you convince your editors that this was worth writing about?

At this point, Slate had formed its LGBTQ vertical, which was just a section within Slate called Outward. I was in law school at the time, I was a 1L, it was my second semester, and that was when religious liberty bills were taking off. More and more states had marriage equality, either through democratic means or through federal court orders, and Republicans were looking for the next stage, the next step, and this was very clearly it. I had read a lot of these bills, and a lot of them were modeled after the Federal Religious Freedom Restoration Act. And this one was not. This one was written by some legislative assistant who was a crazy person and who was like, “Let’s make sure we just absolutely cover the waterfront of all the ways that we can screw over LGBTQ people.”

And I thought this would be really helpful for me in explaining to folks what’s actually going on here. There was this weird kind of Janis-faced approach at the time where they were like, “Well, same-sex marriage is coming, so we need to protect religious liberty, but we’re not discriminating against gay people, we’re just making sure that religious people have their rights to.” There wasn’t a lot of willingness among Republicans and conservatives to just say, “We think that religious people should be able to discriminate against LGBTQ folks.” And here was a bill that showed that that’s exactly what they thought. And so I told my editor, I gave her the kind of quick version of this rambling tangent, and she was like, “Absolutely, go for it.”

Are there situations when you do want to tackle some arcane case that hasn’t really broken through into the mainstream, and your editors are hesitant or skeptical?

Yeah, absolutely. They’re like, “I really don’t understand this or why it matters.” And I usually say, “I’m going to accept this challenge.” And sometimes it’s just a matter of explaining it to them and kind of laying out what was actually going on, because it’s so wrapped up in legalese. Other times, it’s a matter of tying the rather arcane dispute to a more prominent news story. Trump was so good for this, because a lot of times, if it’s a federal case, the Department of Justice is involved. The headliner is like, “Trump administration…” and that’s it. You don’t need anything else. You’ve gotten your foot in the door, and people will read the story. Sometimes, it’s a bit more difficult to connect what’s going on in the Eastern District of Virginia to the headlines on MSNBC, but usually there’s some way to connect them. And I think I have a pretty good track record of identifying really important issues that are just beginning to percolate up through the judiciary, and often through politics as well. At this stage my editors generally trust me. I have a good enough hit-to-miss ratio that if I say something is worth covering, it’s probably worth covering and doesn’t hurt anyone to let me spend a day hashing it out.

What allows you to know when an issue is going to be the next big thing that’s going to hit the judiciary?

I can’t know for sure, of course. I definitely miss it sometimes. But I just read a lot of legal filings all day every single day — court decisions and court documents and filings and amicus briefs and reply briefs and everything. And when you do that, you get a pretty decent sense of what direction lawyers and judges are trying to move the law, especially if you pay any kind of attention to politics. A lot of times, judges will start flagging stuff that seems sort of random and arbitrary, or amici will start flagging stuff, and I ask, “What is this? Why is this in this brief?” You have to put the pieces together, and figure out why all of these folks are raising this flag at the exact same time. And connecting those dots is something I’d like to think I’m pretty good at.

What can we do to help make online decisions, both at the lower court and Supreme Court level, more accessible to everyone?

So much of this stuff is only accessible to lawyers, not because anyone ever said we have to hide it, but because no one ever thought we should publicize it. The way that these courts operate, they’re very insular worlds. There is just a bar of judges and lawyers and whatever who all talk to each other and never think that the broader world would want to see what’s going on. And so I think it’s just a matter of telling everyone everywhere all the time, you must put out a public link to this legal filing, or else you are the worst person in the world.

When the court does release an opinion in a high-profile case, what is the first thing you do?

I usually go down to the justice breakdown at the end of the syllabus. If it’s a pretty simple breakdown, I scroll up to the syllabus and I just look for the holding. If it’s a hugely messy breakdown like the census citizenship case or the first Obamacare case where I’m like, “Oh God, this is gonna take forever to figure out what happened,” I scroll up and look for the whole thing but then I go and read through the holding, or skim through the whole syllabus and then often start reading the opinion as well, to get a sense of what happened. With the census citizenship case, it was really helpful to have this approach, because what I saw was, basically, two different majority opinions that were both written by the Chief Justice: one majority opinion joined by the four conservatives at the time, and one majority opinion joined by the four liberals at the time. And so what I basically did was go to that opinion joined by the liberals and be like, “Oh, he blocked it on pretext.” I was able to digest it before anyone. I was one of the first people to correctly tweet the holding in that case.

It’s always a matter of: what’s the breakdown, who’s in the majority, what’s the bottom line holding, get that in your head, tweet it, and then you can digest the rest as you’re going.

Especially for more high profile cases, how much of your story is pre-written before the decision actually comes out?

Almost always 0%. I just don’t really believe in pre-writes. My sense, the few times I’ve done them, is that my pre-writing will push the piece in a direction that I wouldn’t necessarily have gone in if I were writing fresh. I also think that having a pre-write is a little bit too much of a comfortable fallback where you don’t have to worry about figuring everything out because you’ve got all this stuff that’s already written, and you can just come up with a few ideas and quotes and plug it in. And I want my piece to be original, and I want my piece to genuinely react to exactly what’s just happened. 

For a while, Slate really wanted to be first to get our breaking news story out, but now we put more of a premium on being one of the first to have a real take on something, and to have an argument, a few points, and an angle that not everybody else — or nobody else — has. And so Slate has given me permission to relax a little bit, and not worry about doing it so quickly that I’m one of the first people to have like an article up. Ian Millhiser at Vox will always beat me, AP, Reuters, New York Times will beat me and that’s fine. I really don’t feel the need to have the Slate article up immediately, and for that reason, I am not a pre-writer.

What are your best strategies for translating complex legalese into writing that is actually comprehensible for a general audience?

There’s not a silver bullet. I think a good ground rule is, you have to be able to explain it to yourself before you can explain it to other people, and sometimes writing about a case is really the process of explaining it to yourself. But also you need to read a lot about the case. I just don’t think there’s a shortcut.

For every Supreme Court case, I read all of the merits briefs for the parties, and I read probably a majority of the amicus briefs. I just want to get every angle that there is on this case. I want to read different arguments about it, and I want to figure out which one I think is the best, and which argument I agree with. Then, I can be prepared to put forward that argument in my own words. And so I think having read that argument put forth in a bunch of different great ways and also rebutted in a lot of different ways can help your brain sift through all of that extra verbiage and figure out what the core of the argument is.

And on Twitter, I can try to explain stuff and see what the reaction is. Sometimes I’ll tweet something and people will be like, “please translate this” and I’ll think, “Well, I guess I didn’t do a good job translating it because people still don’t understand.” That kind of feedback is important. So is writing multiple articles about the same issue. The first time I wrote about standing, I probably was incoherent, but now, 300 articles later, I feel like I’ve got a pretty good template in my head for explaining standing to lay people. That’s a good thing to have in your back pocket.

I had a little bit of this issue with TransUnion v. Ramirez, the decision from this previous term. I have to admit, I kind of slept on that case. And when it came down that day, I had tweeted something like “no blockbusters today,” and then a bunch of law professors specifically were like, “No, this is a huge case; this is really major,” and I took a step back and spent the next two hours on this docket page because obviously this is important, and I did not really understand why. 

I think another thing is calling up experts and chatting with them about it. I don’t often quote experts in my articles, but I talk to them more often than you might think. And that’s because it’s really helpful to talk through it. And if they’re actual lawyers in the case, they can probably spend a lot of time thinking about how to explain this as well, and they can give you some tips and tricks on how to get it across.

You’ve mentioned your explanation of Home Depot v. Jackson as a time when you worked really hard to make a really complicated case make sense. I love the sentence that you started with: “The story of Home Depot is a story of greed, grift, and civil procedure.” How do you make legal writing a bit more story-like and engaging for readers? And when is it right to do that?

I think that Home Depot v. Jackson is a great example of this for a lot of reasons. But one is that it tells a story. You can get way too wrapped up in the civ pro of it all, in the counter claims and the third party defendants and all of this crazy civ pro stuff.

But at the bottom of Home Depot v. Jackson is this older man who got scammed by a huge corporation and didn’t seem to have any clear recourse. I don’t remember exactly what happened, but basically, he was tricked into thinking that his water was tainted, was overcharged for this machine that didn’t really matter, and was one of the hundreds or thousands who spent a ton of money on the scam. And that was totally cut out of all the coverage of the case. I thought, “I need to tell the story of this guy first and foremost.” So I front-loaded the story in that article and then I took a few steps back, and started walking through the legal side of it.

This is something that my colleague Dahlia Lithwick does very, very well. One example of this is her piece on Wyeth v. Levine, a case about federal preemption of state tort law with regard to pharmaceutical products — if your eyes are glazing over, I understand. But it’s actually the story of a violinist whose arm had to be amputated because she was administered a very dangerous form of this drug that the FDA had cleared. That’s a tragedy! That’s like a Netflix movie — a violinist robbed of her livelihood and her joy in life because of medical negligence. But she was almost entirely cut out of the coverage. And if I remember it , it was Dahlia’s piece that restored her role. And so that’s something I always try to keep in mind: that there are people at the heart of every case. If you can tell their story, that’s often a good entree into the legal side of the conflict. 

Obviously, everyone is different, but in your mind, what are the top three things that make good legal reporters?

A deep and unyielding — and basically nonpartisan — desire to help the country and the world understand the courts. Obviously, I’m a hugely biased “lefty,” but I really, deeply believe, across all the political and legal and ideological issues, that this is a fundamental thing. That Americans deserve complete, unfettered access to the goings on of their courts. They deserve to have legal literacy; they deserve to understand what’s happening and why. And I think you should have a commitment to that if you’re in this job. I’ve worked with conservative journalists and conservative groups, and come together over our shared goal to have the legal filings in a case brought out to the public so everyone can read them and understand them.

I think that you have to love writing. I think you just have to love sitting at your laptop and writing all day, because that’s what this job is. It’s pretty monastic. Other kinds of reporters like to crap on legal reporters sometimes. I think they call it highlight reporting because you’re reading documents that anyone can read, you’re not generally well-sourced, unless you’re Joan Biskupic or maybe Nina [Totenberg], you’re probably not picking up the phone and calling the justices, you don’t have special access to any information. So you have to figure out what your angle is going to be and how you’re going to do this job well. And that means that you have to love writing, and you have to love the style of writing, and you have to love reading, and you have to love the literary side of all of this. You have to love words. I think this is why so much of Appellate Twitter is just obsessing over wording and phrasing. You have to love that kind of stuff to have this job, and luckily I do. 

The third thing would be, I think that you have to have strong morals and a strong sense of justice and injustice. I don’t think you can float through legal conflicts apathetic toward one side or the other. Maybe if you’re a writer for the New York Times, you have to pretend that you don’t, and that’s totally fine. But I do think that you have to have some kind of animating passion. And if you don’t have that animating passion then your prose will grow grey and weak, and you might even lose interest in your writing. Because you have to have a sense that you’re embedded in this world that has meaning, and that you have a role to play. And if you’re just a passer-by or a completely neutral observer, it’s not clear to me what role, if any, you are actually playing.

Saturday, September 4, 2021

by Elise Spenner

The past week was overwhelming at the Supreme Court, with a Texas abortion case shaking the fragile bedrock of Roe v. Wade and Planned Parenthood v. Casey. On Wednesday night, the Court released a shadow docket decision on Texas’s “heartbeat” abortion ban, allowing the law to go into effect without commenting on its constitutionality. 

Texas Senate Bill 8 is, on the surface, not a very complicated bill. It almost universally bans any abortions that occur more than six weeks after conception — once a fetal heartbeat is detected, but before most women know that they are pregnant. Almost everyone agrees that this law is unconstitutional under established Supreme Court precedent and clearly imposes an undue burden on women seeking an abortion. 

However, the real constitutional issue is lurking below the surface. In the law, the Texas government abdicates all responsibility for enforcing or upholding the abortion ban; instead, it gives private citizens and anti-abortion groups the ability to self-enforce, meaning they can sue abortion providers, abortion defenders, or anyone tangentially related to termination. This twist within the law does two things:

  1. First, practically anyone can sue abortion clinics in Texas that continue to provide services. Because the private citizen is likely to win the case, attorney’s fees will fall on the clinic. Rather than deal with costly litigation, clinics are further incentivized to close their doors. 
  2. Second, challenges to the abortion ban will become much harder. If public officials have no role in enforcing the law, then abortion providers cannot sue the state in federal court. Instead, they must identify defendants who have played a role in enforcement and do not have sovereign immunity.

In the case at hand, a group of abortion providers in Texas filed their case against state judges, state clerks, and anti-abortion activists. In mid-July, their suit came before a district court in Texas, and the court refused to dismiss the case. The district judges said that the abortion providers had named the correct defendants and that their suit could be heard on the merits. After reaching this decision, the court then agreed to hold a one-day hearing on Monday, August 30th to evaluate the constitutionality of the law.

Before this could happen, one of the named defendants appealed the first district court decision — the motion to dismiss — to the Fifth Circuit, asking them to reconsider that ruling. They argued that state judges deserved sovereign immunity. The Fifth Circuit agreed, ruling that the district court’s decision to hear the case needed to be reconsidered. In the meantime, the circuit court did not reach a final decision on whether SB 8 was constitutional. Rather than try to navigate the seas of justiciability — who has immunity, who has standing to sue — the court stayed mum. 

At this point, with the district court’s proceedings frozen, SB 8 was set to take effect at midnight on Tuesday. In a last-ditch attempt to rescue abortion rights in Texas, the ACLU filed an emergency application with the Supreme Court on Sunday, asking the justices to enjoin the Fifth Circuit’s stay and allow the district court to continue hearing the challenge. 

The timeline is important here. Justice Alito receives all emergency applications from Texas. After the ACLU and abortion providers filed for a preliminary injunction, Alito gave the defendants (anti-abortion activists, state judges and clerks) until 5 PM ET on Tuesday to respond. Once they responded, the Supreme Court had just eight hours to enjoin the law before it went into effect — and it was clear that the justices planned to do nothing. By midnight on Tuesday, with the Court still silent, the statewide ban went into effect, forcing abortion providers to shut their doors on lines of patients. 

A day later, the Supreme Court released a one-paragraph per curiam opinion arguing that the novel procedural issues in the case must be considered by lower courts before the Supreme Court would block the law. Specifically, although the pro-choice plaintiffs “raised serious questions regarding the constitutionality of the Texas law,” these concerns were outweighed by their failure to properly sue Texas under the new law. The Court cited these unresolved issues:

  1. Whether courts can enjoin individual enforcers rather than the actual laws
  2. Whether the defendants (judges, clerks, private citizens) will enforce the law
  3. Whether the Texas law allows state judges to be blocked from considering lawsuits

Given the above legal uncertainties, five justices were unwilling to provide emergency relief by blocking the law. It goes without saying that the Court has, in the past, gone to extraordinary lengths on the shadow docket when the legal issues are more than uncertain and more than unresolved. Just look to their religious liberty and death penalty rulings over the last year.

Four dissents were written in this case. Justice Roberts wrote the first dissent, joined by both Justices Breyer and Kagan. It is terse— barely one page. While Roberts acknowledges that the law may include a loophole to escape judicial review, using this loophole as an excuse to approve “the state action, both in this particular case and as a model for action in other areas” would be irresponsible. According to Roberts, the abortion ban should be put on hold while district and appeals court are able to fully consider the tangled procedural issues at hand. 

A more lengthy dissent came from Justice Breyer, joined by Justices Sotomayor and Kagan. Breyer directly addresses the substantive issue at hand, citing Casey and Roe in defense of a women’s constitutional right to abortion during the first stage of pregnancy. He argues that the procedural barriers are not barriers, but easily surmountable hurdles, and that any challenges are outweighed by the most important of responsibilities: to ensure that everyone has “the ability to ask the Judiciary to protect an individual from the invasion of a constitutional right.”

Justice Sotomayor’s biting dissent blames the Court for “bury[ing] their heads in the sand” rather than enjoining the patently unconstitutional law. She cuts straight to the chase — SB 8 intentionally aims to sidestep binding precedent and “has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” In a footnote, Sotomayor elaborates on the immediate ramifications of SB 8, citing the waiting rooms full of patients and the providers that have already lost 85% of their patients by denying abortions after 6 weeks. 

Kagan’s short dissent focuses less on the specific circumstances of the Texas case, and addresses the broader ramifications of the Court’s reliance on the “shadow docket.” Today’s ruling, Kagan says, is a case in point. Without guidance, consideration, reasoning, or explanation, the Court reaches a final conclusion —  “that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail” — which clearly conflicts with established precedent.

Recommendations to learn more about the abortion ruling: 

Sunday, August 22, 2021

by Elise Spenner

Summer is almost over, and that means the start of October Term 2021 is just a couple of months away. With that in mind, I will preview three significant cases the Court will hear in the first two months of the term. 

October Session:

United States v. Zubaydah:

Zubaydah is the first of two cases about the “state secrets privilege” that the Supreme Court will hear this term. Abu Zubaydah, a current Guantanamo detainee, was once an associate of Osama Bin Laden, and he was likely the first prisoner that the CIA used “enhanced interrogation techniques” against.

Zubaydah — who, at the time, was thought to be a high-level operative — was held in CIA custody for four years, where he was repeatedly subjected to brutal forms of torture. He was held at a variety of different “black sites,” foreign prisons where detainees have little or no access to legal recourse.

Though his circumstances might remind you of the early 2000s, when many Guantanamo inmates sought their release through the courts, Zubaydah isn’t asking for a trial. Instead, he’s demanding access to specific evidence and information from the U.S. government to help his lawsuit against Poland, where one “black site” was located.

In 2010, his lawyers sued the Polish government for their role in sponsoring his detention and torture. However, little progress has been made in the investigation because the United States refuses to provide crucial information, allegedly for national security reasons. In response, Zubaydah filed for discovery, demanding that two former CIA psychologists be subpoenaed and that documents about the Polish facility and officials be handed over.

But his lawyers hit another wall. According to the United States, the ‘state secrets privilege’ bars it from disclosing any information that’s threatening to national security. For much of the information that Zubaydah sought, the district court agreed — releasing it would be a threat to national security. Then the court completely shut down the case, because it would be impossible to conduct with only non-privileged information. The Ninth Circuit disagreed. Some of the information was privileged, of course. But it ruled that three pieces of information must come to light:

  1. The existence of the Polish facility,
  2. The interrogation techniques used there,
  3. And the specific treatment of Zubaydah.

With this new reasoning, the Ninth Circuit told the district court to reconsider its decision to shut down the case. The U.S. government appealed to the Supreme Court, asking the justices to reconsider whether the information listed above is protected by the state secrets privilege.

For a more in-depth look at United States v. Zubaydah, I highly recommend this piece from Lawfare.

United States v. Tsarnaev

Dzhokhar Tsarnaev, the infamous Boston Marathon bomber responsible for three deaths and hundreds of injuries, was sentenced to death in 2015. Five years later, the First Circuit vacated this monumental ruling on the grounds that the jurors were not adequately informed— and that certain evidence was excluded during sentencing. In particular, the circuit said that the district judge had made three mistakes.

  1. The judge did not move the trial out of the charged Boston environment
  2. The judge did not adequately scrutinize possible jurors about their bias and the influence of media reporting on their perspectives
  3. And the judge did not include essential evidence about Tsarnaev’s brother during the sentencing phase of the trial

There was an uproar following the decision, both from President Trump and from victims of the bombing. Many lamented the extended appeals process that continued to draw out the pain and suffering of those who lost loved ones in the bombing.

In a case that largely divides people along ideological lines, the Biden administration was forcefully criticized for following the lead of the Trump DOJ and advocating for the reinstatement of Tsarnaev’s death sentence. The Court will hear this case on the final day of the October session, Wednesday the 13th. 

If you’re really interested in this case, there is an entire website devoted to breaking down the legal history of United States v. Tsarnaev. Check it out here

November Session

New York State Rifle & Pistol Assn v. Corlett:

New York State Rifle & Pistol Ass. v. Corlett is the largest gun control case that the Court has heard in over 10 years, since the landmark decisions in DC v. Heller and McDonald v. City of Chicago. With a 6-3 conservative majority, it is likely that the justices will rule at least incrementally in favor of expanded Second Amendment rights for individuals.

Similarly to the law challenged in DC v. Heller, the gun control appeal comes out of a progressive state with restrictive rules on gun ownership. The law in this case requires would-be gun-owners to prove a special need for self-protection in order to earn a license for carrying a concealed firearm. This rule stands in contrast to the gun law in DC v. Heller, which involved restrictions on firearms within the home.

The case was brought by Robert Nash and Brandon Koch, two New Yorkers whose concealed-carry applications were denied because they didn’t demonstrate a special need or “proper cause.”

Usually, the Supreme Court decides to hear a case because of disagreement between two lower courts — the district court offered one answer, and the circuit court reached a completely different result. However, in Corlett, both the district court and the Second Circuit ruled against the prospective gun owners. To reach this decision, the circuit court assumed that the law “impinges upon conduct protected by the Second Amendment,” but then established that the law, under intermediate scrutiny, did not violate the Constitution. Its reasoning (and the district court’s) relied heavily on a previous decision by the Second Circuit, also affirming New York’s “proper cause” law.

With two sharp, experienced litigators — Barbara Underwood arguing for New York and Paul Clement for the petitioners — the case is set to be fast-paced, heated, and fascinating.

The Trace, a website that investigates and reports on gun violence in America, had a well-researched piece on Corlett, with thoughtful predictions for the decision. You can find it here.

Sunday, August 15, 2021

by Elise Spenner

It was a dull Thursday this week until the Supreme Court, without warning, released two shadow docket rulings in hot-button issues, addressing both vaccine mandates and eviction moratoriums in the span of two hours. 

Klassen v. Indiana University: 

In the first case on the shadow docket, Klassen v. Indiana University, Justice Barrett summarily rejected a challenge to Indiana University’s vaccine mandate without referring the request to the whole Court. She also didn’t provide reasoning for her decision; in fact, you would only know a decision was made if you checked the case’s docket on the Supreme Court website. This is most likely a sign that Barrett didn’t think the request was at all defensible or worth the Court’s time. 

The case was brought by students from Indiana University represented by James Bopp, the well-known conservative attorney behind Citizens United. After their request for a preliminary injunction was rejected in both a district court and the Court of Appeals for the 7th Circuit, the plaintiffs hoped that the Supreme Court would reverse and find the vaccine mandate unconstitutional under strict scrutiny. 

But not so — the entire Court didn’t even get a chance to consider the appeal. The perfunctory dismissal of the Indiana case doesn’t bode well for future litigation to block vaccine mandates, but the Court could clearly alter their thinking in different circumstances.


Chrysafis v. Marks: 

In Chrysafis v. Marks, the Court granted an injunction to block one part of New York’s pandemic-induced eviction moratorium. It is unclear who supported the emergency request, but Justice Breyer was in dissent, joined by the other two liberal justices. In all likelihood, it was a 6-3 split, with the conservatives agreeing that New York had violated landlords’ due process and first amendment rights by suspending evictions. 

At the outset of the pandemic, New York instated two bills — the COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA) and the Tenant Safe Harbor Act (TSHA) — in the hopes of avoiding a spike in evictions during the economic downturn.

CEEFPA, the law at issue in this case, pauses eviction proceedings if a tenant says they have pandemic-related financial hardship. TSHA is more technical, as it creates a “hardship defense” for tenants during eviction proceedings, allowing them to seek relief due to financial decline. It isn’t a guaranteed way of pausing evictions, which is likely why it wasn’t challenged.

The landlords’ suit against CEEFPA was brought to a federal district court and denied on the grounds that “plaintiffs [could] not establish that the balance of the hardships tip decidedly in their favor, or that granting a preliminary injunction would serve the public’s interest.” The court rejected the suit on all counts: primarily because there were no due process violations, but also because the legislation didn’t impinge on the landlords’ right to petition or compel unwanted speech. The landlords then appealed to the Second Circuit, where emergency relief was denied, and an appeal is pending. In the meantime, the landlords appealed for injunctive relief at the Supreme Court, where the justices were far more receptive to their argument.  

Justice Breyer’s dissent, on the other hand, followed the reasoning of lower courts. Because the landlords’ request challenged “a presumptively constitutional state legislative act,” Justice Breyer evaluated the emergency request based on a standard established in South Bay Penecostal United v. Newsom. This standard only grants injunctive relief when “the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances.” 

First, Breyer argues, it is not “indisputably clear” that CEEFPA is a violation of the landlords’ due process rights. Breyer admits that CEEFPA prevents landlords from making their case for eviction or filing proceedings. However, in line with the reasoning provided by respondents, Breyer asserts that this is a temporary delay of their right rather than a full stop violation. This he deems acceptable under established case law. 

Breyer added that there is no clear violation of their First Amendment right against compelled speech. The speech at issue here is eviction notices that landlords must provide to tenants.

Perhaps most significantly, he argued that there are no “critical or exigent circumstances” in this case. The eviction moratorium is set to expire in less than three weeks, meaning that an injunction will be of very little practical significance to the landlords. But an injunction could have drastic effects on tenants, who could be evicted unnecessarily in the coming weeks. Finally, as the liberal justices have argued in all cases that pit states’ COVID-19 measures against individual rights, the authority of legislatures to make law should not be second-guessed during a public health crisis. 

Friday, August 13, 2021

by Blake Fox

On December 31, 2014, Veronica J. Rutledge entered a Walmart in Hayden, Idaho with her four children. She also brought a gun located inside of her purse, which was allowed given that she had a concealed carry permit. However, a usual shopping trip turned into a tragedy when Rutledge’s 2-year-old soon reached into his mother’s purse, grabbed her handgun and unintentionally shot and killed her. 

One reason gun tragedies continue is that conservative voices have misinterpreted the Second Amendment as protecting individuals’ right to own a firearm. This view was clear in the Supreme Court cases District of Columbia v. Heller (2008) and City of Chicago v. McDonald (2010) where the Court said that the Second Amendment protects an individual’s right to own a firearm. 

This coming term, the Supreme Court may expand upon those decisions in New York State Rifle and Pistol Association v. Corlett. Under the Sullivan Act, passed by the New York legislature in 1911, a person interested in acquiring a concealed carry permit must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Robert Nash and Brandon Koch, who were denied a permit under the Sullivan Act, are now suing New York with the assistance of the NY State Rifle and Pistol Association, arguing that the denial of such a permit violates the Second Amendment. If the Supreme Court sides with Nash and Koch and expands the Second Amendment, they would be taking a woefully incorrect position on the history of the Second Amendment and endangering the safety of the citizens of New York. 

Not only has gun violence led to the tragic deaths of too many, but the original state constitutions show that citizens were not guaranteed the right to a firearm. For example, one state constitution with great influence was Virginia’s. When writing the national Constitution, James Madison based it upon the state constitutions that already existed. When it came to militias, Virginia’s state constitution read, “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed.” It is clear from that text that the Virginia constitution created a collective right for the defense of the state — not an individual right to bear arms.

Madison’s original proposal for the Second Amendment also casts light on his thinking. It read “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” By mentioning religious exemptions from militia service, Madison clearly intended for the Second Amendment to apply to a militia’s right to own firearms. 

Even when referring to militias, the Second Amendment uses the term “well-regulated.” During the time when the Constitution was written, members of militias were often required to appear publicly with their muskets to ensure they know how to properly use it. The government allowed people in a militia to own guns, but the right was not absolute. There were regulations upon it. According to a study by Fordham history professor Saul Cornell, published in Law and Contemporary Problems, “There was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons.” 

For a Supreme Court that has a 6-3 conservative majority, including three originalists, one would imagine that they would treat the Constitution as an enduring document and that the full meaning of the amendment should be taken into context. We can play Justice Scalia’s scrabble game throughout the dictionary, but there is no changing the phrase “a well regulated Militia, being necessary to the security of a free State.” If the Justices only look at the second half of the Second Amendment when interpreting it, then they certainly are not acting in an originalist matter. Instead, they are acting like the activists.

Even setting aside the constitutional arguments, the Supreme Court would create serious public safety risks for Americans by expanding access to concealed carry permits. For example, a 2015 study conducted by Harvard University found that there were 9,000 criminal homicides using a firearm compared to just 265 homicides conducted in self-defense using a firearm. Furthermore, a study by Stanford Law School professor John J. Donohue found that “RTC laws led to increases in violent crime of 13-15 percent after ten years.” Concealed carry permits have even led to tragedies in New York state, which is the site of this contentious issue. In 2009, Jiverley Wong shot and killed 14 people, including himself, at the American Civic Association in Binghamton, New York. He possessed concealed carry permits for the handguns he used to carry out these killings. 

Looking at the Founder’s writings, British tyranny’s influence on the rise of the militia, the history of guns in the 18th century and the actual text of the Second Amendment, it is clear that the Founders did not envision the Constitution to protect concealed carry permits. The Supreme Court should thus uphold New York state’s law. Not just for the sake of the Constitution, but for the safety of the American people.

Thursday, August 12, 2021

by Elise Spenner

President Biden has now nominated 10 candidates to federal appeals judgeships since the beginning of his term. Four have been confirmed, while all others await or have begun the confirmation process. Today I will quickly review each of the nominees. 

Beth Robinson: Second Circuit (awaiting confirmation)

President Biden nominated Beth Robinson to sit on the U.S Court of Appeals for the Second Circuit. She currently serves on the Vermont Supreme Court. Because Robinson has the backing of Sen. Patrick Leahy, who recommended her to the seat, she is likely to pass through the confirmation process with few obstacles. Robinson’s path to the circuit court is both ordinary and utterly historic. Attending Dartmouth College, Yale Law School, and then clerking for the influential Judge David Sentelle of the D.C. Circuit, Robinson’s resume is stellar and quite characteristic of elite nominees. However, she would also be the first openly LGBTQ+ woman on a federal appeals court— a massive achievement. 

Interesting fact: A long-time proponent of gender and marriage equality, Robinson was the leading figure in Vermont’s freedom to marry movement. 

Toby Heytens: Fourth Circuit (pending before the Senate Judiciary Committee)

Heytens has been the solicitor general of Virginia since 2018. He is also a professor at the University of Virginia Law School, where he graduated from in 2000. Heytens clerked for both Edward Becker of the Third Circuit and Justice Ginsburg on the Supreme Court and went on to argue 10 cases before the U.S. Supreme Court. Heytens, who is from a Democratic-leaning state, has already drawn bipartisan support for his confirmation and received commendation from both sides.

Interesting Fact: Heytens was a member of the mock trial team during his time at Macalester College, and he now coaches the trial advocacy team at the University of Virginia. 

Jennifer Sung – Ninth Circuit (pending before the Senate Judiciary Committee)

One of President Biden’s main goals is to nominate judges and justices from diverse legal backgrounds: judges, public defenders, prosecutors, and public servants. Jennifer Sung, a labor organizer and lawyer who represents unions and worker rights, is a case in point. Sung, nominated for a seat on the liberal Ninth Circuit, attended Oberlin College and Yale Law School before clerking for Judge Betty Binns Fletcher of the Ninth Circuit. She was involved in major labor disputes during her time in private practice and now serves on the Oregon Employment Relations Board, where she rules on conflicts in labor relations. 

Interesting Fact: Sung argued before the Fourth Circuit in Virginia Cuccinelli v. Sebelius, the blockbuster ACA case, and asked the court to uphold the individual mandate. The court ruled in her favor, and so did the U.S. Supreme Court when the landmark case made its way to the nine justices.

Myrna Pérez – Second Circuit (awaiting full Senate hearing)

Pérez’s nomination for the Second Circuit was recently advanced by the Senate Judiciary panel in a 12-10 vote almost entirely along ideological lines. Pérez, the director of voting rights and elections at the Brennan Center for Justice, was almost universally opposed by Republicans for her work there. Pérez is well known for her expertise in voting rights, often offering testimony to Congress and contributing to major national media outlets. Pérez, a former clerk of Judge Julio M. Fuentes of the Third Circuit, attended the Harvard Kennedy School and received her law degree from Columbia University. 

Interesting Fact: Peréz will be the first Latina on the Second Circuit since then-judge Sotomayor was confirmed to the Supreme Court. In May 2020, across all appellate courts, just 6% of judges were Latinos. 

Gustavo A. Gelpí Jr. – First Circuit (awaiting full Senate hearing)

Gelpi Jr. currently serves as the Chief Judge of the U.S. District Court in Puerto Rico. President Biden nominated him for a seat on the 1st Circuit during his third round of judicial nominations in May. Gelpi, appointed by President Bush, served on the District Court for the District of Puerto Rico as a judge for 12 years before his promotion to chief judge in 2018. Gelpi, uncommon among judicial nominees, was an Assistant Federal Public Defender, advocating for criminal defendants in circuit court and in Puerto Rico. After receiving his J.D. from Suffolk University in Boston, Gelpí clerked for two years on the District Court for the District of Puerto Rico.

Interesting Fact: Gelpi published a book in 2017 titled The Constitutional Evolution of Puerto Rico and Other U.S. Territories: (1898-Present), a comparison of the legal developments of U.S. territories. 

Eunice C. Lee – Second Circuit (confirmed)

Eunice C. Lee was confirmed to the Second Circuit on Saturday, August 7 by a 50-47 vote. Lee will leave her work as an assistant defender at the Federal Defenders of New York Inc, where she represented those who can’t afford lawyers. Republicans presented Lee’s career as a vulnerability rather than an asset, asking whether she was prepared for the subjects commonly presented to the Second Circuit such as intellectual property, securities, and antitrust cases. However, for President Biden, Lee’s confirmation is another step toward diversifying the federal bench. She will be the only public defender among the active Second Circuit judges, and she will be just the second Black woman to sit on the prestigious appellate court. 

Interesting Fact: Lee’s entire career has been spent as a public defender in the state of New York, following her graduation from Yale Law School and her clerkships for Judge Dlott on the Southern District of Ohio and Judge Clay on the Sixth Circuit. 

Veronica Rossman – Tenth Circuit (awaiting full Senate hearing)

Rossman, another public defender, was nominated by President Biden for a seat on the Tenth Circuit based in Denver. Rossman has spent much of her career as a public defender, working first as an Assistant Federal Defender, then as a staff attorney, before returning as the Appellate Division Chief and now senior legal counsel for Colorado and Wyoming’s Office of the Federal Public Defender. If confirmed, Rossman would be the only judge on the Tenth Circuit with experience as a federal defender. Rossman narrowly passed the Senate Judiciary vote, with Lindsay Graham joining the Democrats in favor of the nominee. During the hearing, Republicans unsuccessfully tried to bait Rossman into disclosing her opinion on flashpoint cultural issues. 

Interesting Fact: Rossman and her family sought refuge in the United States after emigrating from Moscow to escape antisemetic persecution. 

Ketanji Brown Jackson – D.C. Circuit (confirmed)

Should a Supreme Court seat open up during Biden’s term, Ketanji Brown Jackson would be the leading contender for the nomination. This likely explains Biden’s choice to promote Jackson from the D.C. district court to the D.C. Circuit— the second most prestigious and influential court in the country. Despite questions from Republicans about her rulings against the Trump Administration, Jackson was confirmed on June 14 by a 53-44 vote after passing through the Judiciary Committee with a 13-9 vote. Jackson was an Assistant Federal Public Defender in the District of Columbia Office, following a path similar to other Biden nominees. Jackson is extremely qualified for the position on paper, having attended Harvard College and Harvard Law School before clerking at the district, appellate, and Supreme Court levels.

Interesting Fact: Jackson would take the seat of now-attorney general, former Chief Judge of the D.C. Circuit Merrick Garland, who was once nominated for a seat on the Supreme Court. An auspicious replacement, perhaps. 

Tiffany Cunningham – Federal Circuit (confirmed)

Tiffany Cunningham is the first Black judge to be confirmed to the Federal Circuit, a court that focuses heavily on intellectual property. Cunningham passed easily through the judiciary and the full Senate (63-33), winning bipartisan support for her experience and knowledge. Cunningham, a renowned expert in this area of law, was a patent litigator at Perkins and Coie for 8 years before her nomination. With a degree in chemical engineering from MIT, Cunningham is known to deftly maneuver through complex patent litigation across a range of subjects. 

Interesting Fact: 20 years before her nomination and confirmation, Cunningham was a clerk at the Federal Circuit. During that time, she saw the deep-seated homogeneity on the court and set her sights on breaking that barrier.

Candace Jackson-Akiwumi – Seventh Circuit (confirmed)

Jackson-Akiwumi was confirmed to the Seventh Circuit in June, making her the only judge of color currently on the court. At just 42 years old, she will also be the youngest member of the circuit. Prior to her nomination, she spent 10 years at the Federal Defenders Program, advocating on behalf of indigent people in a variety of different criminal cases. Given her background as a criminal lawyer, Republicans pressed Jackson-Akiwumi on her ability to deal with civil cases. However, her wealth of experience and pristine educational background made Jackson-Akiwumi a shoo-in for Democrats. 

Interesting Fact: Seven and half million people of color live within the jurisdiction of the 7th circuit, which encompasses Illinois, Indiana, and Wisconsin. However, Jackson Akiwumi will be just the second woman of color to sit on the circuit court. 

Interview: Rick Hasen

Rick Hasen is Chancellor’s professor of law and political science at University of California, Irvine. He also co-directs their new Fair Elections and Free Speech Center with David Kaye. In 2003, Hasen founded the Election Law Blog, the main source for news and commentary on a host of election law and voting rights issues. Hasen also has written numerous books on election law and the Supreme Court, and often provides analysis for CNN, Slate, and The New York Times. You can follow him on Twitter @rickhasen

What were your interests as a teenager, and where did you grow up?

I grew up in New York. And in the middle of high school, my parents decided it was time to move to California, which was very traumatic for me. I came into a new school in 11th grade, and it took me a while to get adjusted. I did journalism in both places, and working on the school newspaper was what helped get me through. And so I finished high school in Los Angeles and then went to UC Berkeley for college and UCLA for graduate school.

While growing up, did you have any teachers or mentors that you specifically admired?

I always gravitated to the social studies teachers, because that’s where my interest was. In high school, I was probably most drawn to my AP teachers in calculus and in English, because those were subjects that didn’t come as naturally to me as social science stuff. And so I had to work really hard in those classes and got to know the teachers really well, and looked up to them. I remember my calculus teacher would have us come in at seven in the morning for an extra session, so that we would be prepared. And I thought that was tremendous. I don’t think he was paid for that, it was just a tremendous amount of dedication. I’ve always admired teachers who are willing to go the extra mile for their students, and try to do that for my students.

What about writing or journalism teachers?

One of the things I liked about journalism was the peer review that came with it. You were a writer, you had an editor, and eventually you become an editor — you got to teach each other. And I think that editing — especially your own work — is more important than writing. I think the best teacher I had taught me how to edit better. I think it was my AP English teacher in 11th grade, talking about the lard factor, the 30% of fat that you could cut out of every sentence. And so I’m always looking for ways to be more concise and more direct.

One of the things I see in law students is that they expect their writing to sound jargony and professional, and what I try to do is tell them that you should write in a way that people can understand. The Chief Justice of the United States, John Roberts, says that he has in mind his sister, who isn’t a lawyer. He wants her to be able to pick up an opinion of his and understand what’s going on. I have that same kind of idea in mind. I want to write so that someone who doesn’t have legal training and doesn’t know anything specific about the topic I’m writing about, can pick it up, understand what’s going on, and it will be clear. So clarity is the top thing I’m looking for. And after that, it’s making sure that the writing is engaging enough, that you keep the reader interested. Writing about a topic like redistricting can make people’s eyes glaze over. The more you can do to make things relevant to people — people are busy — to help them understand why they should take the time to read what you’re writing.

I was looking at writing advice you’ve given on the Election Law Blog. You were once told by David Pervin to write things that people would actually want to read.

I wrote a book in 2012 that ended up being called The Voting Wars, and the original proposed title for the book was “The Election Administration Wars: Causes, Consequences, and Cures in the Internet Era.” The advice from an editor at the University of Chicago Press, who was looking at my proposal, said, “Why don’t you write something people will actually read?” And The Voting Wars is much more catchy. I should say that the title help came from a colleague of mine who’s a professor at Loyola Law School, Los Angeles named Justin Levitt, among other things he helped to name Sierra Mist soda, so he knows about catchy things, and he helped me come up with The Voting Wars. And that title has proven to have a lot of resonance, and people use it all the time.

Another example: I write about people who make false claims that voter fraud is rife in this country, when in fact it’s quite rare, and I first wrote about this in an article that appeared in Slate, a number of years ago. And my editor then was Slate’s Senior Editor, Dahlia Lithwick, and she came up with the term: the fraudulent fraud squad. And I’ve used that a lot. It’s catchy, people know exactly what you’re talking about. These kinds of things stick in people’s minds, and they serve as a shorthand. And so I’m always looking for something that will catch people’s attention. The title of my upcoming book is going to be Cheap Speech. And that’s a term that Professor Eugene Volokh of UCLA, who is the lead writer of the Volokh Conspiracy blog, came up with in an article he wrote for the Yale Law Journal in 1995. He meant it in a somewhat different way than I do. He meant in a very positive way, and I mean it in a very mixed way, as will become apparent in the book. But Cheap Speech is something that people can get their heads around, and understand what the book might be about.

The other piece of advice that you gave in that post was, as John Wiley told you, “Write, write a lot, but don’t write crap.” How do you do that?

Well, especially as an academic, there’s a lot of pressure to publish a lot, so you can get tenure, so you have job security, and there’s pressure to get things out the door. You have to be productive. I’ve had some colleagues that take years and years to write things, that turn out to not work out, the idea doesn’t flush out — and that happens to all of us. But if you take years and years, then it’s a greater risk that you won’t produce anything. And so, the idea is that you have to balance speed with quality, and you can’t sacrifice your quality just to get something out the door. There’s this line about journalists that — I may get this wrong — they write faster than anyone who can write better, and they write better than anyone who can write faster. You’re looking for that sweet spot. Of course, in journalism, you have to write on deadline, and so you often can’t get into the details that you would if you had more time, but you’re always trying to strike that balance. 

I was speaking to a class at NYU Law School on writing op-eds and I said, “I won’t take more than a day to write an op-ed, because I have other things I need to do. And it’s not going to be an op-ed if I’m going to write something more substantial.” You have to decide how you spend your time, and what you spend your time on. If the ideas are so complex, then you probably don’t want to get them out there in 900 words. Sometimes you’re writing about a topic you don’t know about and you have to do a lot of research, but I’m talking about if you’re writing about something you already know about, and it’s just a question of how you put the ideas together.

I gave an interview a few weeks ago to Jane Mayer of The New Yorker, and she had this very big piece that just came out on the funding behind the Big Lie — the false claim that the 2020 election was stolen. And when I read her piece which, as is always the case for Jane, is a quite impressive piece, and I listened to an interview that former President Trump had given to two Washington Post reporters, an idea gelled in my mind, something I hadn’t really grasped before about the nature of the arguments that could be made to try to argue for overturning election results next time. For three days, I was trying to write this piece, and I kept leaving it and coming back to it. And then I finally realized what it was I wanted to say, and I wrote the whole thing in about an hour — that piece appeared in Slate yesterday. Sometimes things have to gel, they have to roll around in your mind, before you can actually get the idea out.

It’s certainly easy for me to write something, but it’s very difficult for me to write something that’s good. And you want to wait for the opportunity to write something that’s good before you’re going to want to share it with other people.

What is your writing process like? Do you normally have an epiphany where you can push everything onto the page in an hour?

It depends on what you’re writing. If it’s an op-ed, then I’m going to be writing about something in the news, and I’ll be drawing upon my knowledge — I’ve been studying the field of election law for 25 years, so I’ve got a large warehouse of things in my head, ideas that I can bring out. Then, it is just assembling the pieces, and I usually do that in one shot. Contrast that with book writing, where I’ll spend months researching, writing very little, just writing down ideas here and there. But I’m reading lots of books, articles, thinking about ideas, then trying to come up with an outline. The book writing process is extremely long. I finished the first draft of the book that’s going to come out in March of 2022 back in December of 2020. That’s how long the process takes, and then it goes through an editing process. Right now, we are in August of 2021, and I’ve just finished going through the copy edit of my book — the more technical edit after I had a substantive edit and it went through peer review. At the end of this month, I will get page proofs, and then it’s just looking for typos and fixing errors and adding in, to the extent I can, any important developments that have happened since the last round of edits. Then, there’s like a four and a half month gap when the book is totally done and it’s not out, and you can’t really talk about it until it comes out.

I’m also drafting sections for the American Law Institute’s Restatement of Torts, Third Remedies project. And that is a process where I’m collaborating with another professor, Professor Douglas Laycock at the University of Virginia, and it can take weeks and weeks to draft each section with comments and notes. It’s much more like gathering information and writing, almost like a textbook or guidebook. I should point out that what’s so important when you’re an academic writer is having people who can help you. And I have law students and graduate students who’ve helped me over the years. To say I couldn’t do the work without them sounds trite, but I literally couldn’t — there are not enough hours in the day for me to be able to produce everything without the help of those students. It’s a good experience for them, but it’s much more valuable for me to get their assistance.

You often comment on Twitter that you’ll plan a writing day where you won’t talk to anyone, you won’t tweet, you’re just writing. Are you actually able to pull that off and disconnect?

I like to say that when you see me a lot on Twitter, it means I’m having a very unproductive day. I write best in the mornings. I’m an early riser. If I got up and was at my desk by six or 6:30, and worked until 10, writing with Twitter off and email closed, I probably would be more productive than if I started at nine and was going back and forth between emails coming in. But things pile up, people are always competing for your time. Years ago, people used to be upset when they were interrupted by a fax. And now, it’s an instant message, it’s a direct message on social media, it’s email. I remember a very prominent lawyer telling me that, “there’s no such thing as multitasking, there’s only attention dividing.” If you’re going to write, you need to write, and if you’re going to be answering emails, you’re not really in the process of writing. At least for me, you need to really focus.

In the period of September to January 2021, before and after the election, I was doing nothing other than teaching classes and giving lectures I had already promised to give. And just being on Twitter, and reading and writing op eds. You couldn’t do serious writing during that time because if you’re focused on current events, you really need time blocked out. When I really need to work best, I will go to my in-laws’ beach house, and turn off the Internet, and just try to focus and try to get inspired. I always find that taking a walk during the day, either in the morning or in the afternoon, can help to clear your head. Sometimes you get the best ideas when you let your mind wander, as opposed to when you try to sit down. I find that it is completely useless to sit down and say, “Alright, I’m going to try and write something important today, what should I write?” I get more of my ideas when I’m taking a shower in the morning or taking a walk and I let my mind wander, then if I actually try to plan or come up with an idea.

Once I have an idea, then I can say: “I’m going to write today from 6am to 10am.” Once I already have a plan, I can do it. But to come up with the idea of what you’re actually going to say — that’s really hard, if you’re going to try to say something that’s interesting and important.

How do you overcome writer’s block, if you ever get it?

I get it all the time. And I find that the best thing to do is to put it aside. Put whatever it is aside and do something else. I always have work to do — a student needs a letter of recommendation, a journal needs me to review something, or I’ve got a bunch of books that I need to read. So my solution to writer’s block, unless I’m on an imminent deadline where I have to do it, is to put it aside. But usually the writer’s block is about what the idea is. Once I have that, I don’t really have trouble implementing what it is that I want to do. It’s much more about, “Do I want to say something that’s really worthwhile?” And there are lots of times I come up with an idea, and then as I’ve thought about it, I decide I’m just not going to do that. That’s not going to be important or interesting enough that it’s worth taking the time to write it out.

I’m hopping around a lot, but I want to go back in time. Why did you choose law and why did you push aside journalism, at least temporarily?

When I was an undergraduate, I was studying Middle Eastern politics. And I decided to go to graduate school and do political science. I liked the academic life, and so I thought the academic world would be better for me than the journalism world. I wanted to have the time to delve into things in greater depth than most journalists can. So I came to study with a particular person at UCLA, and we didn’t see eye to eye in terms of what my research agenda should be. I took some classes in graduate school on the connections of law, politics and economics, and I thought I’d give law school a try. I also wanted to be able to earn a living, and so I thought maybe I could become a lawyer, and that would be an easier way to do things. I didn’t expect that I would finish both the PhD and the JD. I finished writing my dissertation when I was clerking for a judge after I’d finished the law degree.

I knew I wanted to write. But I wanted to write as an academic. One of the courses I took in law school was a course called election law, which was something that was not very common back in the 1980s. And when I got out of law school, election law was just one of the things that I was focused on. And I decided to do a course on it. I reviewed the case book that I had used, written by my professor in the Journal of Legal Education and after that review, the professor — Daniel Lowenstein — asked me to come on as co-author of the book because he liked the ideas I had for improving it. Then the 2000 election happened a few years later, which was the contested election that led to Bush v. Gore, and that really put election law on the map in the United States. The field really took off. Around the time that I started teaching and came on to the casebook, Professor Lowenstein and I started a Listerv discussion group on election law. And I would update that discussion group with news stories, kind of as an aggregator. And eventually, that became the Election Law Blog — I would just send out my blog posts to people. And then, as blogs really developed, I came back to journalism because it was a way to break news, interview people, and get lots of tips. You’d be surprised at how many people would want to write to someone running a very small and arcane blog to leak information. So I would often have information on there, and it became a place where I could engage in that sort of journalistic-type writing in a context of my particular niche. 

What was your original intention with the blog? Was it to be an aggregator? Was it to provide your own takes and opinions?

The blog has always been a mix of news and commentary. Aggregation is not quite right. One of the things I’ve done to keep myself sane in the last few months is bring on additional bloggers to take turns putting up content. I was talking to one of the people who’s helping me with this, and I was saying, “it’s less about aggregation and more about curation.” You could have a blog that will include 20 or 30 stories a day about election law-related issues, and yet that’s too much for people to read. And so part of what you need to do is exercise judgment and decide: what are the most important things that people want to hear about? 

We recently did a revamp of the website itself, so it looks less like a MySpace site from the early 2000s and more like a functioning website. One of the things that I asked readers about was: Do you want more news or commentary? We did a survey, and people wanted both, and people wanted a larger diversity of voices. So we brought in more people from further to the right and further to the left, with all different kinds of life experiences and backgrounds, so that we can have a conversation that I think more people will find relevant and that people who care about this issue across the political spectrum will find valuable.

I remember that, in one of your books, you proposed implementing both a national voter ID and automatic voter registration. You said that both sides of the political spectrum would hate that. How did you develop and curate your unique viewpoint?

I think everyone has their viewpoints, but I think a lot of people are shy to share those viewpoints. I’m in a very unique position, in that I am willing to speak my mind, I have tenure, I don’t work for a political party. My job doesn’t depend on me taking a particular point of view. So I can say things that other people might think but would rather not say. My politics tend to be pretty progressive, but I’m not shy about criticizing the Democratic Party when I think they’ve done something wrong. I recently got into a spat with Mark Elias, who’s one of the leading Democratic Party lawyers, over Brnovich, which I think was a mistake to have pushed so far. I’m in a position where I can really say what I want to say about different kinds of issues. I think that a lot of it is driven by my extensive study, the fact that I’ve been looking at this stuff for a long period of time. I have ideas about what works and what doesn’t work, and I have, as does everyone, my views as to how to make things better. And so, this is my chance to make my case.

Yesterday, I was interviewed on CNN — it was an early morning, I had to get up before 5am to do this interview, which I usually don’t do — but because I said the word “shitless” on cable television, it got a whole lot of attention. And the anchor was really goading me into saying those words and the reason he was is because that’s what I said to Jane Mayer, when I gave my interview to the New Yorker. But you’d be surprised as to how a curse word just gets a lot of attention, especially coming out of the mouth of an academic. And so, why would I do something like that? Because I’m really concerned about our country and about our ability to have a successful election in 2024. I think our democracy is in a lot of trouble, and so if I have to say “shitless” to sound the alarm and get people’s attention, I’m willing to do that. Hopefully, it will cause more activity to try to prevent these problems in the future.

As the election law blog moved from a brainstorm between two colleagues to the #1 source for election law news, how has your purpose and direction changed?

Well the purpose, initially, was for other specialists in the field. Most of the people who were on the Election Listserv were lawyers who specialize in this area or professors or journalists who care about these issues. But with the advent of social media, and the rise of the Internet as one of the primary sources of information for people, I’ve written more of the blog posts for a general audience. During the run-up to and the aftermath of the 2020 election, I had lots of everyday people who would write to me and say, “I can’t sleep at night. I’m worried about what’s going to happen. Are we going to have a peaceful transition of power. Is there going to be a fair election? What’s going to happen?” And so I look at the Election Law Blog as a way of educating the public. It’s part of my public service mission. All the costs associated with it are paid for by my university. I don’t take any advertising, so it’s not like some other blogs meant to drive clicks for profits. We’re not having to please advertisers.

I do see it as a form of public service, especially now that we’re able to incorporate lots of different legal and political positions on issues. It becomes a forum where people, in real time, can look at these things now. It’s never going to be as popular as a blog on some non-political topic, but for someone who really wants to delve into and understand something arcane, like the independent state legislature doctrine that I wrote about in Slate, I want it to be accessible. And I want it to be something that is part of the conversation.

One of the things that’s happened in the last five years is that more of my traffic has come from Twitter than from anywhere else. When I was starting out, I’d write a blog post that I thought was important, and I would pitch it to someone like Ben Smith, who was then at Politico, now he’s a New York Times media columnist. You wanted a link from one of the other big bloggers — it was like a food chain or a pecking order. And the idea was, get linked by a bigger blog, and that will drive traffic so people see your ideas. Today, I have — for an academic — a fairly large Twitter following. And the blog is now set up so that anytime anyone blogs, that automatically gets tweeted — it’s in my Twitter feed and the election law blog has its own Twitter feed, and then that drives traffic to the blog. So it makes these issues much more accessible to the average person.

While election law is arcane on a regular day, in the lead-up to and aftermath of the 2020 election, it became mainstream. How did your life and what you do change in that period of time?

I think one of the things that’s happened is that voting rights have become a political issue in a way that they never were before. The way that people talk about climate change or immigration or abortion — people are talking about voting rights in this way. And there’s a focus on voting rights in a way that there hasn’t been before, because I think that President Trump challenged norms in all kinds of areas, including norms about democratic governance. There’s just a tremendous amount of attention focused on this area. Our politics are very polarized. Information spreads very quickly on social media. People are agitated. I get a lot of hate mail. I got a lot of fan mail, but I got a lot of hate mail.

People are focused on these issues like I’ve not seen before, except maybe during the 2000 election—but that was a 36-day period after the end of the election before the Supreme Court decided Bush v. Gore, and essentially ended the contest over the election. I don’t think it’s going to let up.

I do need to set limits so I can stay sane. That’s one of the reasons why I brought on more co-bloggers for the Election Law Blog. I turn down a lot of speaking opportunities just because I need to be able to balance, not just this project versus that project, but my life. You need to be able to get enough sleep and have a life outside of work. I used to call the blog my fourth child. I’m trying to take a healthier attitude towards work than I’ve had in the past.

How do you think you became this person that is getting hate and fan mail, getting tips, and being the person that’s breaking news?

In some ways, I got lucky. I’m in a field that people care a lot about. And I’ve been accessible, And I’ve been able to drive people to the website, and to my other work. I’ve been writing a lot of op-eds. I’m trying to write fewer of them and make them more impactful as a way of trying to achieve that balance. But part of it is just the nature of the times that we are in. If we had our current technology, but the politics of the 1950s, I think that I would be in much less demand, because I think that these issues would seem a lot less urgent. When the Democratic Party and the Republican Party are pretty much the same, and when people are not fighting over election rules, my field is less important.

What’s good for me professionally, in terms of my visibility, is bad for the country. Someone just tweeted the other day, “When I see you on CNN, I know we’re in trouble.” And there’s something to that. People don’t really want to talk about redistricting or campaign finance because it sounds really boring, but when it’s about whether we’re going to be able to hold a fair election in 2024, people are justifiably very concerned.

How do you stay positive while writing about something that can be so concerning and despairing?

One of the reasons I left my study of Middle Eastern politics was because I found it so depressing. I didn’t imagine that election law was going to be as existential as it is right now. Certainly not in the United States, as opposed to studying it in other states. It’s sometimes overwhelming. And this is another reason why it is important to have things in your life other than work. Because you can look at our political situation and despair. So the important thing is to find other ways of achieving happiness and balance so that you can be there to educate and activate people for political action.

You write a lot of op-eds, but you break news as well. When the Brnovich opinion came out, you had a breaking news piece in 7 minutes. Do you feel an obligation to compete with major news outlets on election law topics?

The Supreme Court decided Brnovich at the end of a term. But other than Brnovich and AFP v. Bonta, I wasn’t breaking news every time the Supreme Court decided something. I focused on these cases. At the end of the term, I’m always getting up very early because of the time difference to write about these cases. But I’m not competing with The New York Times or CNN — they’re going to get the breaking news story up that’s going to tell people: “The Supreme Court decided today, in a 6-3 vote, that Arizona’s law didn’t violate the Voting Rights Act.” What I bring to the table is analysis. Is this a big deal? Is it not a big deal? What’s the impact of this opinion going to be going forward? And journalists for the major news outlets are generalists — they’re not voting rights specialists. They cover a lot of elections but they’re not in the weeds like I am. They can’t say, “You really need to read footnote 14 because that’s where all the action is.” It takes a specialist to know that. To really follow an opinion and understand it, that takes hours and hours. What I try to do is give an initial overview: Is this a big deal? Is this not a big deal?

Unfortunately, those two opinions came out — Brnovich and Bonta — within 10 minutes of each other on the very last day of term, and I had committed to writing a piece for The New York Times about those pieces. So I put up a very brief blog post which just gave the headlines of what I saw. That allowed journalists to look at that and get some context, and maybe quote from it. And then I provided more insight in that New York Times piece. In the middle of that, I gave some interviews to journalists and I recorded 15 minutes of a podcast with my friend Leah Litman for Strict Scrutiny. Three weeks after that, I was asked to testify before a subcommittee of the Senate Judiciary Committee about Brnovich. And so I spent a lot more time with the opinion, and I wrote out some testimony.

Eventually, we’ll be writing about it in our casebook and I’ll write my law review article about it. So there’s a chance to revisit these things.

Every time you go back to a Supreme Court opinion, you find more things, and of course, other people are writing too, and you read what they write, and it informs how you think about things. What I offer on the breaking news side of things is my first take, which is often not where I end up, but it’s my initial impression, and people find that useful. Everybody knew that the Democrats were going to lose the Brnovich case. The question was how they were going to lose and how significant it was. And that’s the kind of information that only someone who’s in the field can understand, initially.

Lowenstein, who was one of my mentors, would never write about opinions that just came out. He would say, “Maybe you need to wait five years after an opinion comes out to really understand its impact and importance.” And that’s a perfectly valid position to take. But because I see myself as someone who doesn’t want to live in the ivory tower and wants to translate what’s going on in law for a larger American public, I’m someone who wants to have an initial analysis and wants to potentially influence what the courts and Congress and the president and the states might do on this issue. You pick the way we want to do it. But there’s a lot to be said for slow, detailed methodical study, and I do some of that in my book. But there’s also something to be said for the immediate translation and national conversation on these questions.

We’ve talked a lot about advice that you’ve gotten related to your writing. What advice would you have for other writers and journalists?

I could give you the John Wiley line: “Write, write a lot, don’t write crap.” Write stuff that people are going to read. And the advice I already mentioned about editing yourself, which I think is so important. But I think the most important thing is that you need to write about something about which you have a lot of knowledge, or about which you can speak to people who have that knowledge. It is very easy these days to have a “take.” I view a take as an uninformed opinion, a knee jerk reaction. Like, “Oh, the Supreme Court is fascist.” Or, “thank goodness that they’ve saved the day.” You hear what the result is: “same sex marriage is constitutional” or “campaign spending limits for corporations is unconstitutional,” and you can have a visceral reaction to that. But if you’re really going to add something of value to the conversation, the most valuable thing to do is to translate deep knowledge into something people can actually grasp and understand.

It’s not just about being clear, it’s about having something that is compelling to say. I don’t write a lot about areas that I don’t know much about. You want to either write from deep knowledge, or speak to the right people. It’s hard when you’re a young journalist to get people to return your calls and get them to listen to you. You just have to develop a reputation as somebody who’s smart, who can hear what the experts have to say, and explain that in a way that people can understand. But look at Jane Mayer’s work. She’s not an election expert, but yet she knows the right questions to ask. She writes beautifully, she gets people to talk to her, and she’s able to put it together. Few people could have written that article. She was on the ground in Arizona looking at this fake audit that’s going on. She is speaking to the leaders in that area, she’s talking to election experts, and she put together something that’s really compelling. And if I were a journalist, I would aspire to be like that. 

If you’re not a subject matter expert, then you want to speak to the right people. And you want to be able to have something compelling to say. You want to write something that’s going to get people interested because what you’re saying is so important.

At NPR, they talk about these driveway moments where you’re driving and you’ve gotten to your destination, but you don’t want to get out of the car because you have to hear the end of the story. Those are the kinds of stories you want to report. Now, of course, if you’re a starting journalist, you might be reporting about the two-alarm fire at the warehouse that went off at 2 AM. But if you’re talking about what you aspire to, I think it’s the ability to tackle really important questions, gain the knowledge you need in order to say something compelling about that, and write it as clearly and engagingly as possible.

Wednesday, August 4, 2021

Gender disparities linger at all levels of SCOTUS

by Elise Spenner

Last month, I wrote a data breakdown of the 2020 term that highlighted the yawning gender disparities among Supreme Court advocates. With the term now officially over, I wanted to revisit gender in the judicial pipeline— and examine the systemic, structural underrepresentation of women in the legal profession.

In the 2020 term, there were 28 female appearances before the court, accounting for just 18% of total appearances. While a measurable improvement from last term’s 13%, the increase doesn’t prove any substantial progress, given that representation has naturally fluctuated between 12 and 21% over recent terms. Most of these women serve in the office of the solicitor general or are employed at powerhouse private law firms, with the rare appearance every now and then of a state solicitor general or federal defender. And while 37 men got their first appearance before the Court, just 9 women made their debut this term. 

This is no revelation: the underrepresentation of female justices on the Supreme Court bar is clearly linked to gender disparities in the upper echelons of the legal profession: gender imbalances at coveted clerkships, renowned law firms, and influential roles in government. 

In 2021, women made up 47% of law clerks at the Supreme Court. This is a notable improvement from prior years; in 2019, women accounted for just 32% of SCOTUS law clerks. There is natural variation in this number each term based on the available clerk pool and the preferences of the individual justices, but the highest proportion of women clerks between 1967 and 2007 was 40%. In the 2018 term, spurred by an all-female group of clerks hired by Justice Kavanaugh, the Supreme Court hired more female than male clerks for the first time. Unfortunately, this landmark is proving to be more of an anomaly than a trend. In the last 10 years, the average percentage of female law clerks hired each term at the Supreme Court has been just under 39%. 

While many lawyers are dissuaded from clerkships by the financial incentives of Big Law, women face a further disincentive: the appeal of motherhood and starting a family. In recent years, more and more Supreme Court clerks are expected to serve with multiple district and appeals court judges before their time with the justices. Sarah Isgur wrote recently in Politico that over the past seven years, 61% of SCOTUS clerks worked with at least two judges beforehand. This trend held up among the 2021 clerks hired — 75% had clerked at least twice in the past, either for district or appeals court judges. Tellingly, almost half (47%) of this term’s clerks graduated from law school before 2018. If we assume that they graduated at 25, many of these advocates are at least 28 before they begin their clerkship with the justices. To work their way through years of college, law school, and lower clerkships before they even get a chance at a prized Supreme Court clerkship, women must continuously put off raising a family. In a profession that perpetually disfavors women, this expectation only adds an additional barrier to access. 

To tell the truth, the once massive gender gap in clerkships has shrunken in recent years, due to efforts by the justices to be more open-minded and inclusive. But SCOTUS remains far behind our northern counterparts at the Supreme Court of Canada (SCC), where women made up the majority of clerks between 2000 and 2007. Perhaps most tellingly, divisions in hiring along ideological and gender lines exist within our high court that are not present on the SCC. In the United States, Democratic-appointed justices often have a far higher percentage of female clerks than Republican-appointed ones. Historical trends also suggest that female SCOTUS justices hire female clerks in larger numbers than their male counterparts do. For instance, between the 2010 and 2020 terms, 53% of Justice Ginsburg’s law clerks were female. Justice Sotomayor had a similar gender breakdown among her hires; 52% of her clerks are women. In that same time frame, just 33% of Chief Justice Roberts’ law clerks were female. And in the time that Justice Gorsuch has been on the bench, only 20% of his hires have been women. These correlations do not hold true in Canada, where there is little evidence to suggest disparities in the hiring of female clerks based on justices’ ideology or gender. 

Though ephemeral, Supreme Court clerkships are life-long in influence, often guaranteeing a spot in the current political administration or at the clerk’s choice of renowned law firms — and eventually, a chance to argue in front of the highest court in the land. As The New York Times’ Adam Liptak put it, “In a profession obsessed with shiny credentials, a Supreme Court clerkship glitters.” Thus, gender disparities in clerkships naturally lead to underrepresentation throughout the legal profession.

Of the few women litigators before the Court, many arrive out of the Office of the Solicitors General (OSG), where they often work as an assistant solicitor general. While the Solicitor General argues the most prominent cases before the Court, assistants make it to the lectern at least once a year. And because assignments in the OSG are based solely on seniority rather than client interest or corporate discretion, there is no room for corrosive discrimination. 

During the Obama administration, women began to populate the office in greater numbers. At one point, Don Verilli’s office reached gender parity, with eight men and eight women serving as assistants. However, with the transition in administration, many of the all-star government advocates headed into private practice — Ilana Eisenstein, Lisa Blatt, Elizabeth Prelogar, and Nicole Saharsky, to name a few — leaving gaping holes within the office. Some of these holes were filled with outstanding female litigators, but disparities were nonetheless widened. By 2020, only 4 out of 16 assistant solicitors general were women.

With their wealth of experience, graduates from the office of the solicitor general are top picks for prestigious law firms, where litigators will gain further opportunities in front of the Court. Top law firms that employ former solicitors general — all of them men, other than the now-Justice Elena Kagan —  tend to place this star power before the justices, meaning that established names suck up the majority of arguments at their respective firms. 

And because only those with coveted clerkships, experience in government administrations, years at sterling law firms, and a wealth of experience arguing before the justices receive treasured state or federal nominations, startling gender disparities can be found on state supreme courts and courts of appeals, as well. Just a meager 39% of state supreme court seats are held by women, and the federal court of appeals is only 27% female. And since judges and justices exercise outsize influence over the next generation of litigators — the clerks, the court-appointed amicus curiae, the advocates  — female underrepresentation becomes self-perpetuating. 

In the coming years, improvement in gender parity at feeder law schools could lead to progress within the legal profession. At the most prestigious law schools, gender parity is almost a requirement — both Harvard and Yale Law school boast 49% women in the incoming class of 2023, a far cry from Ruth Bader Ginsburg’s experience as one of only 9 women in the Harvard class of 1956. But just as the gender disparities across the legal profession began with exclusive and discriminatory law schools, representation of women could increase as education becomes more equitable and inclusive. The same pipeline that once facilitated only the progression of white men is no longer barred to women. But if anything in the legal system is clear, it is that everything takes an achingly long time — and achieving gender parity beyond the halls of the Ivy League will as well.

Interview: Irv Gornstein

by Elise Spenner

Professor Gornstein is the Executive Director of the Supreme Court Institute and a Professor from Practice at Georgetown Law Center. He previously worked at O’Melveny & Myers in the firm’s appellate practice, specializing in Supreme Court litigation. He was also a Lecturer at the Harvard Law School Appellate Advocacy Clinic. Before that, Professor Gornstein worked in the Department of Justice, first in the Appellate Section of the Civil Rights Division and then at the Solicitor General’s Office. Professor Gornstein has argued 38 cases in the Supreme Court and more than 30 cases in the courts of appeals.

What were you interested in as a high school student?

To the extent that I thought about anything at all, it was being a high school teacher. The people I admired most when I was in high school were a couple of my high school teachers; they made a big impression on me.

I’ve heard you say that your history teacher George Glass taught you to think and Bill Hydie, your English teacher, taught you to write. What made them special?

They have everything that a great teacher should have. They were masters of their subjects, respectively. They had great enthusiasm for their subjects, and they cared about their students, And I think that that’s pretty much the formula for a great teacher.

Does a lawyer need skills other than writing, or thinking, or is that everything?

I think that covers most of it. I think as a lawyer, it helps to have other intangibles. Social skills, which you can develop, are very helpful. I also think the idea that you’re part of a team, and not just a solo act, is helpful in many areas of the law. The core boils down to writing and thinking, but there are definitely other skills that you need to be successful.

Who or what made you want to be a lawyer?

I, like many people who were going to college around that time, didn’t really have a good sense of what you could do if you’re pretty smart and you have no talent except being pretty smart. Teaching was always something I thought about, but the teaching market was both very very tight at the time, and it was very low paying at the time — it hasn’t improved very much. Particularly, when I was having conversations with my wife who I married in the summer of junior year, she was very enthusiastic about the idea of me going to law school. And I didn’t have another career path in mind. So by default, I applied to law schools.

What legal advocates and writers have you looked up to or do you admire?

My mentor, Walter Dellinger, is probably the most important person to me. But there are others. Don Verilli, I admire more than any other lawyer who’s working full time today. Don and I got to know each other pretty well when he became Solicitor General. In terms of people who I admire as advocates, the all-time Hall of Fame for me is probably John Roberts and Maureen Mahoney. There’s a lot of today’s advocates I look forward to listening to, among them: Jeff Fisher, Lisa Blatt, Jeff Wall, Paul Clement. Michael Dreeben is not doing much arguing now, but he was always one of my favorite people to listen to, and he was also somebody who I learned a lot from because he was my supervisor when I was in the Solicitor General’s office.

I want to backtrack a bit. What things did Walter Dellinger teach you as a mentor?

Two things. One is not to be wedded to a particular way of looking at things, because it’s the “progressive” position, or the institutional position, or whatever framework you’re coming from. To try to form independent judgment, and not be blocked out by the fear that somebody is going to say, “You’re a progressive, you shouldn’t think that way.” So I think that’s one thing: independent thinking and not being locked into patterns of thinking. And second of all, just judgment. I watched how he used judgment. My first Solicitor General was Drew Days, a man who I admired very much, and Drew very much believed in the independence of the office, which I did too, although probably not to the same extent as Drew. And because Drew tried to keep things so independent, he actually ended up with less authority than Walter, who took a completely opposite approach to it, which was to tell the political people, like the attorney general, and in some cases the president: “Here’s what the problem is, here’s what I am recommending that we do,” on the most important, sensitive issues, and nine times out of 10, he would be more likely to get his way than if he had tried to tell the attorney general or the president, “This is my call, backoff.” So I think that strategic judgment is something I learned a lot about from him.

You talked about Lisa Blatt, John Roberts, Jeff Fisher, Paul Clement, being advocates you admire. Is there one thing that runs through all of them that you admire?

People can be great advocates in very different ways. There’s no one way to be a great advocate. Maybe there’s only three or four ways, but there’s definitely not just one way. And so if you want to be a great advocate, you have to start out with who you are and try to model the behavior of the people who are closest to that. I could never argue like Paul Clement or Lisa Blatt. They have really debater backgrounds, they score points with great rhetoric, and that’s just not me. On the other hand, somebody like Michael Dreeben argues at an academic level that I can’t duplicate either — a rise above the fray. I’ve got to be part of the fight. In between that, I felt like John Roberts was a model for me. He’s very engaged, he’s very forceful, but he’s very even keeled and didn’t really go for flashes of rhetoric like he does now as a Chief Justice. As an advocate, he played it a lot straighter and there’s great advocates who do that, including Jeff Fisher, for example. My friend Judge Srinivasan was a great advocate along those same lines.

How did you evolve or get better as a lawyer from that first case to the 36th in the solicitors general office?

I was getting edited. And so if you have good editors, you’re definitely going to get better. And the more you do, the better you get. It just is a fact that the first time you do a brief is way harder than the 10th time, which is harder than the 30th time. Your brain just starts to absorb the way to write briefs the more you do it. So just through experience and practice. And then the other way you get better is by the people that surround you. And I always had three people at any one time who I would consult on legal issues, and they had different perspectives, and they could challenge my way of thinking about a problem and make me more amenable to thinking about problems in different ways. The wider exposure you have to people who think about problems in different ways, the better you can get. 

And the more critical you can be of your own work, the better you can get. If you’re somebody who’s just going to say, “I’m done with this,” and let somebody else take it from here, that’s going to limit how much better you can get. But if you’re somebody who’s going to look critically at every single sentence you wrote from the point of view of a reader who doesn’t know that much about the law, and ask yourself, “Are they going to understand that sentence? Is that sentence too long? Can it be phrased in a different way? Do I really need this paragraph? Is it doing any work, or can I get rid of it?” My philosophy was always the less you write, the easier it is to persuade people. For example, I hated footnotes. My drafts would always start with footnotes in them, and I always had an “up or out” policy on footnotes. Figure out some place to put it in the brief or get rid of it because it must not be that important. 

Seth Waxman always explained his arguments to his children to see if they would understand it. Is there anyone that you would test your arguments on? Or read your briefs to?

One thing I would always do is read my briefs out loud, at some point. There’s a real difference between reading briefs, just with your eyes. If you’ve read it a lot of times, you wade from one place to the next. But if you read it out loud, you can hear it. And so I would try to put myself in the position of somebody who doesn’t know that much about the law. Now, there are certain limitations: you have to talk about legal concepts because you’re talking to justices who have a familiarity with the legal concepts, and they don’t want to be talked down to.

In terms of oral argument, I did do that. And maybe I would do it just on the bottom line of my argument. My son probably doesn’t even remember it. But I would always ask him, “Is it fair that…” and then I would describe the position we were taking. “Is it fair that X, Y or Z?” And he would say, “No, it’s not fair,” and I would say, “Why isn’t it fair?”. And sometimes, if I added in another predicate, he would say, “Oh yeah, well that makes it seem more fair.” The things that you would leave out, potentially, were when he’d say, “No, that doesn’t make it more fair at all.” You don’t want to be ruled by that, but the Justices are human beings, and the sense of fairness and unfairness plays some role in their thinking. 

When other people were editing you, what did they point out in your writing?

Michael Dreeben was definitely of a less is more school. If he didn’t think we needed to say something, that was two paragraphs gone. Ed Kneedler, who also edited my briefs quite a lot, was an adder more than a deleter. Ed likes to be very precise. I don’t want to say I’m on the other side of the scale, but the more precise you are, the less clear things can be. The more simple you can be, the easier it is to understand, but simplicity sometimes comes at the expense of precision. And so, where to strike that balance is a really important thing. And Ed is definitely on the “Let’s be as precise as we possibly can” side and probably moved me more in that direction than I was otherwise inclined to be. 

At the beginning, I didn’t really have a great sense of how to structure things, and so when I got to the SG’s office, I had done a lot of brief writing, but not Supreme Court writing, which is a whole different thing, and I think Michael Dreeben is great at structure. He’s also a great writer of summaries of arguments. In fact, I used to leave the summary of arguments blank when I handed in my briefs to him, in the hopes that he would fill it in, which he often did. Sometimes he would say, “Do your own summary.” When I summarize my own brief, I basically just repeat back to you what you’re going to hear, but when someone’s read your brief and wants to give you the takeaway, but has a slightly different way of saying and organizing the thoughts, it can be refreshing. And he was brilliant at that. I wouldn’t say I’ve learned how to do it the way he did it, but I can appreciate it. 

Georgetown’s Supreme Court Institute hears one side of almost every case that comes before the court. How many do you attend each year?

It varies from year to year, but last year, I was trying to be a judge on four per sitting and listen in on another four per setting. So eight a sitting. You count the sittings and you can figure out how many that is. A lot.

What do you think is the main piece of feedback that you give to a lot of the advocates that come to do moot courts?

The advice that you would give to somebody who’s doing their first argument is not what you would tell Paul Clement. I always laugh when, at the end of moot courts, somebody will tell Paul Clement that he needs to not interrupt the Justices. I don’t tell Paul Clement to not interrupt a Justice. But if it’s a first time advocate, that’s one of the main no no’s. If they’re interrupting and they don’t know they’re not supposed to do that, or they’re not aware that they’re doing it, then you would need to tell them. In a similar way, I’m not going to tell Jeff Fisher, “You didn’t really answer any of the questions.” Because he does answer the questions, and when he doesn’t, he knows it. I might say, “I’m not really sure what your answer was to that.” Raise it that way with him, and he’ll just laugh and say, “Yeah, I didn’t have an answer right at that moment, I’m going to have to think more about that.” Whereas that’s the biggest problem for first time advocates: for some reason, they think they don’t have to answer the question.

And for beginning advocates who don’t really have a handle on how you simplify your message for the Supreme Court, they’re all over the place. You want to try to help them boil down their argument into the strongest thing they have to say. Now, for experienced advocates, what I would tend to tell them is, “Of the four things you said, here’s what resonated with me most,” and try to get others to do the same thing. And then try to go over the problem areas. I would do this for anybody at any level: focus on the biggest problem areas and try to come up with the best response for those problem areas.

So the feedback consists, generally speaking, of trying to identify the strongest arguments they have, and trying to figure out the best responses for the soft spots. And for beginner advocates, there’s a lot more of the basic stuff.

In the Supreme Court Institute, everything is supposed to imitate the real court — the carpeting, the distance between the lectern and the bench, the lighting. What do you think a moot court experience fails to capture about real argument before the justices?

Well, you’re never going to be as nervous for a moot court as you are for a Supreme Court argument. You can’t make people as nervous as they’re going to be. On the other hand, some of what happens at a moot court can end up being more intense than what’s going to happen in the Supreme Court. People tend to be a little bit more deeply probing and repetitive and poking at soft spots then will end up happening at the Supreme Court. It’s not replicating the experience that you’re going to have at the Supreme Court, but I feel like it’s probably a good thing to get probed more deeply, so that by the time you get to the Supreme Court, you’re sure you have the right lines to withstand whatever kind of onslaught you’re going to get.

How do you choose the right lineup of moot court judges for each argument?

I have a director who makes the first cut on that, and knows more than I do about the strengths, weaknesses, and backgrounds of many of the people that we use as moot court justices. But over the last couple of years, I’ve tried to make sure we have somebody who can play the role of chief, who’s a very experienced advocate, and then I try to get one or two “anchors” — people who are pretty experienced advocates. And then you’ve got two spots left: one of those I would want to fill with a more junior person who’s really exceptional, and the fifth seat, normally, I would fill with a “newbie,” which would be somebody who’s just come off a Supreme Court clerkship and is now eligible, and so we would want to fill that fifth seat with somebody like that. 

It’s not easy to create ideological diversity because the bar is pretty much ideologically divided, and it’s pretty rare where you get people who are public interest lawyers and they want to help the corporate position or vice versa. Occasionally, you can find people who can wear both of those hats comfortably, but they’re definitely harder to come by. On hot button issues, if you know somebody’s arguing the pro-gun side, you’re not going to get a lot of people on the anti-gun side who want to moot that case. For some cases, it’s not hard at all, particularly for corporate versus corporate. Those cases are easy to get people who could come at it from either perspective. 

We try to do some gender balancing. I don’t want to be too over the top about that, but we’re an academic-oriented institution, and I feel like it’s crucially important to have models for both genders up there. And similarly, to the extent that we can get racial diversity, we attempt to do that. That’s harder because the Supreme Court bar is way more gender diverse than it is racially diverse. The other thing that I have now is a whole cadre of Georgetown law professors who are Supreme Court advocates, and we give them first crack at whatever moots they want to be on. And then beyond that, we try to honor the advocates’ request to some extent. Not fully, because some advocates will say, “I want the top five people in the country to be on my moot court,” and of course, we want to spread those people out on many moot courts and not just have them all used up on one.

Being a moot court judge takes a lot of preparation. Why are these advocates willing to do hours of reading and research for no pay, on some esoteric subject?

That’s a good question. And hopefully, our luck is not going to run out. Because the willingness of people to devote their time and energy for no pay is how we are able to furnish moot courts. So how does that happen? For some people, this is really great work. It may not pay a lot, but being involved in a Supreme Court case where you’re making a contribution to the argument that’s going to be made, you can feel like that’s rewarding and really fun work. And this can be the place where people that are attracted to Supreme Court work devote their pro bono efforts.

There’s also this mentality on the Supreme Court bar of “If I want other people to be on moot courts where I am the advocate, then I want to be willing to be a moot court judge on somebody else’s.” And it wasn’t so much true during the Zoom period last year, but there has also been a social aspect to being part of the Supreme Court bar. They meet in different places, but this is one place where they gather and catch up with other people who they don’t necessarily have that much time to talk to.

How did the moot court experience shift during the pandemic and for the past couple of years?

During the pandemic, when the court went to remote arguments, we went to Zoom moot courts. And we tried to structure our Zoom moot courts to match, to some extent, the experience that they were going to have in the Supreme Court. The Supreme Court was using a three minute timer, so we used a three minute timer per justice. We questioned justice by justice. The second half of the moot, we would go into either untimed justice by justice or the traditional free for all that we’ve always done. The advocate would be remote, in the sense that he or she couldn’t see what was going on, until we did the feedback. The feedback we did every bit the same way as we’ve always done it. The advocate would come online and could be seen for that part of it. We found that the feedback portion of the moot actually worked better when you could see and interact with the advocate. 

What were the advantages of that hybrid combination of free-for-all and justice-by-justice questioning?

In terms of preparing you for what you’re going to get, you need to first get as close to what you’re going to get as possible, so you get a feel for that. How much time you actually have to say what you need to say, in the space that you’ve been given by the adjustments so it works very well for that. In terms of finding weaknesses in a person’s arguments, it’s a very very inefficient way of attempting to do that. Going back to in-person arguments, the justices asked questions for half an hour; at a moot court, we asked questions for an hour. You get more time to probe deeply and expose the weaknesses and strengths of the arguments so that advocates can reshape what they’re going to say in that half hour. And so that they can be as persuasive as possible. And so too here, we found that the free-for-all, untimed methods work better in exposing weakness, and so therefore you need to do that for moot court to be productive. If somebody just waltzes through moot court, it may sound great, but the justices themselves may have a question that exposes a weakness that wasn’t uncovered.

Do you expect the court to return totally to the traditional free for all, or will they keep some elements of the telephonic arguments?

I don’t have any better insight into that than anyone else. But if I were them, I would go back. I thought that telephonic arguments were terrible. I think that lots of advocates like them because they got more time to talk and they got less probing questions. The press hated it because they couldn’t tell who was winning and losing. Neither one of those perspectives seems to me to matter at all. The perspective that matters is what’s the most help for the justices, and it seems to me that going back to the traditional method is going to be the most help for the justices. It gives them the chance to really focus on the problems that are in the case.

If you notice, in a traditional argument, four people are going to ask questions of one side, four people are going to ask questions of the other side. All of that is going to come by way of challenging questions, and to me, that’s how the court benefits. The more challenging questions there are, the more the court benefits. And the fewer challenging questions there are, which is what you get when nine justices are asking, the less. Which is not to say they’re not some countervailing benefits. I really like the idea that sometimes the justice would say, “You didn’t really get a chance to develop your answers to so and so, why don’t you just complete your answer and I’ll just shut up for the next two and a half minutes.” That can be valuable, but justices should be able to do that, and insert themselves in that traditional free-for-all occasionally. I don’t think we need justice-by-justice questioning to accomplish that.

When you serve on the Moot Court bench, what kind of questioner are you, and how do you probe the advocates?

I’m not sure that I’m that much different than anybody else. I go through the briefs a couple of times, and I write down the stuff that’s bothering me. And those are turned into questions. I’ll have a list of seven to 10 questions. I want to make sure that all my questions get asked — they don’t have to get asked by me, somebody else can I ask them. Others do this to varying degrees, but one thing I always try to do is imagine what the answer is going to be to the question before I get to the moot court, and then I think about what the weakness to the answer is, so that I’m going to have a follow up.

But some of that you just have to play by ear. So when somebody answers your question, and you’re still bothered because it’s not fully getting at your concern, you have to figure out a way to frame a follow up question that isn’t repeating your question. And so I try to be very alert to what a person is saying in response to a question to see if that responds to the concern that’s underlying the question. And if it’s not, to try to probe. 

I don’t try to say, “Oh, I wonder what justice so and so would ask.” Generally speaking, I have a sense of what that would be. As I think about what bothers me, I’m thinking about what bothers any justice. I’m hoping to hit all the concerns that they could get from any justice. Other people may come in with a shorter list, they come down with just one or two things that are bothering them, but as a Chief, I try to get a pretty full master list, and then when other people ask them, I can check them off. But I want to make sure that all the things that are bothering me get asked.

What are the additional responsibilities of a chief justice?

I really feel like they should try to make sure that all the important questions get asked, so that if they don’t get asked by somebody else, they get asked by the Chief Justice. I feel like they want to make sure we get the right participation. If you have one person out of five dominating the moot court, that’s not a good moot court. The Chief Justice ought to be alert to that. Some people are very good at knowing how to get in their questions. Others try to get in and are blocked out. And so as the Chief Justice, if you see that happening, you want to direct traffic to make sure that whoever has questions gets their questions asked. And then you want to do that at the end. At the end period, you give everybody a chance to ask whatever they want to ask. When I’m done with the moot, when I’ve had all my questions asked, I still want to make sure that there aren’t questions still out there that people want to ask.

And then the last part of the Chief Justice is guiding the feedback. The traditional feedback method is just to go down the line. And that’s fine. I tend more to try to put one issue or concern on the table at a time, so the advocates hear everything there is to hear about that one thing at the same time. Because then you can get varying perspectives on particular issues.

And, more than most people, I try to get people to help the advocate in the two ways that are most helpful: did this argument resonate for you or not? I may just intercede with something I heard, and say “Here’s something from the argument. Did this work for you or not?” That’s a very valuable thing, and if that isn’t being done as a chief justice, I think you need to step in. 

And then the second thing is to re-frame. People are very good at identifying concerns — ”I’m really bothered, I’m really worried, it doesn’t seem like you have a good answer.” When people say that, I will say, “What do you think the best answer is? There’s no perfect answer. But, that question is going to come up, and the advocate is going to need to answer. So what do you think is the best thing that the advocate has to say in response to that question?” So, I try to push people out of their comfort zone. Many people are in their comfort zone when they’re identifying problems. They’re not in their comfort zones in trying to solve the problems.

How has serving as a moot court judge really complimented your own advocacy, and how do you approach that?

When I took on this job, I was pretty much done with my own advocacy. When I became head of the Supreme Court Institute, I had argued 36 cases; I pretty much thought that I wasn’t going to argue anymore, I wasn’t going to look to argue anymore, I wasn’t really anxious to argue anymore. And the reality is the most fun part of advocacy for me has always been helping other people advocate, not seeing my own advocacy. Not that I didn’t enjoy advocating myself, but it was always more fun for me, and more rewarding for me to help others.

When I went back to the SG’s office during the tail end of the Obama administration, I did do two more arguments and, after not arguing for a long time, it was rewarding to go back and argue. And also I think it was helpful for me to have gone through that again, so that I could be a little bit more current and more confident in the advice I was giving to advocates who were coming back through the institute. When you’re away from it for a long time, you do worry that your thinking about it may be a little stale. I’ve always tried to stay up and stay current by listening to arguments and reading the transcripts. I probably do a lot more of that than a lot of other human beings do. Because it’s my job. Other people usually don’t have time for that.

I have kept current, but it was really valuable to go back and argue once again. And also, to be in court all the time. I listen and I read the transcripts, but there’s no substitute for actually being there, for getting a sense of the justices and being confident that you know what the justices are thinking. You can get that from listening; you get that from transcripts, but when you’re there, it’s different. And I was. I went back and I went off to all the arguments. And so by being there every day, I was able to get a more refreshed sense of what they’re up to and what they’re thinking about.

So, I wouldn’t say that the moot court helps my advocacy, I will say that my having done the advocacy once again has helped my moot court judging and given me more confidence that I’m not just relying on things I thought 15 years ago when I was arguing all the time.

I’ve heard that more serious advocates are sometimes more willing to drastically change their arguments in that week between the Georgetown moot court and the actual Supreme Court arguments. Why do you think that is?

Well, they have a lot more confidence, and the confidence is built on their experience. If you’ve never done that before, I wouldn’t recommend it. I don’t usually recommend radical changes and arguments to people who aren’t… I don’t really recommend them to anybody, unless you are really desperate. I’m a real believer in trying to have as much continuity with your briefing as possible. Now, your emphasis can change, you can come up with a new way of articulating a point that makes it a lot more powerful than anything you’ve said in your brief. And sometimes, you do have to change your line from the line that is in your brief, just because it didn’t hold up in a moot court, and so you’ve got to change your line and give away stuff that you weren’t giving away in your brief, or not give away stuff that you were giving away in your brief. But radical changes are born of desperation, and I don’t think it’s done very often. But if it is going to be done, probably better to be done by an experienced advocate than somebody who isn’t experienced. 

One of the things that I try to convey to less experienced Supreme Court advocates is: don’t follow somebody’s advice unless you have internalized it and believe it. When you get advice in moot courts, first of all, you’re going to get one person who says “X” and one person who says “opposite X.” So who do you go with in that situation? And if everybody is saying the same thing, you ought to pay very close attention to that, and try to get yourself to internalize and believe that. Because when everybody on the panel is saying something, the odds that what you’re saying is going to be better are pretty low.

But at the end of the day, if you don’t believe it, and don’t internalize it, at the first sign of trouble in an argument, you’re going to revert to what you think. One of the old expressions around the SG’s office — sometimes wrongly attributed to me — is that oral argument is truth serum. And when you’re put under pressure, you say what you think. Chief Justice Rehnquist, at least to me, was famous for always asking, “Are you really saying X?” And X would be exactly what the person’s argument was. “Are you really saying x?” And if it was something that they didn’t believe in, they would toss the argument in the second. “No, I’m not saying that, I’m saying something else which isn’t going to upset you quite as much.”

At Georgetown, I heard that you would listen to recordings of your arguments and tell students what you did right and wrong. What do you tend to point out?

I try to be as honest and candid as I can be. I try to tell people what was going on in my mind in response to the question. I always had some reason for what I did, when I made a mess of things, or when I could have answered it a lot better. Sometimes the cause of that is you’re worried about giving ground. And so therefore, you end up saying something that is not necessary for you to say, and it just becomes very provocative. Whereas you could have smoothed the way out by just figuring out some way to give that ground. So some of the problems are just that: when to just not bother quibbling about things that don’t matter at all in the case. Sometimes I had a tendency to dig in if somebody was wanting me to say something I didn’t agree with. And then you get into an argument that is not really germane to the case and you waste time.

Sometimes it’s just that somebody was coming at the problem in a way that I hadn’t thought about. That doesn’t happen that often, but it happened every once in a while. And so my answer was more synced to the way I was expecting the question to come, and less synced to the way the question was actually being asked. And that can be a problem. In part, it’s a preparation problem; in part it’s an adaptability problem. The inability to adapt to a different way of thinking about things. I was way better at advocacy that didn’t require spontaneity then advocacy that required spontaneity, I could be spontaneous, but within the limits of something I already was going to say. But if it was just something that came up that was new and different, then, like anybody else, I was probably my weakest. 

Did that tendency to avoid spontaneity make you extra adamant about preparation?

Yeah, that’s what I’m good at. I like preparing. I didn’t memorize, but I got what I would say is past the point of memorization, where if I got a question, I could answer it 25 different ways, but they’d all be exactly the same. As long as the substance was there, I didn’t really care exactly how I said it. But the substance needed to stay the same every time. Every once in a while, if it was a key phrase, I would need to make sure that the key phrase was coming out every time. There could be four or five words that were critical, and you needed to make sure that you got out. I would definitely memorize those four or five words. But other than that, I’m a big believer in the idea that there are somewhere between 5 to 10 questions in every case. And by the endpoint, your preparation should just be around those five to 10 questions.

You’ve talked a lot about mentoring younger advocates wherever you go. What do you think is the most common piece of advice that you give?

Like I said, preparation for me is the number one thing that I feel is the most important. Answering questions is hugely important. 75% of your preparation should be figuring out what the questions are going to be, and figuring out your answer is going to be. 25% ought to be figuring out what the three best things you have to say are. And then the other thing is, you have to figure out where your line is. Because when you get questions and hypotheticals, even if you haven’t heard them before, you should know what your answer is because you have worked out your line. You know this is on that side of the line, so my answer has to be no. And you know why, because you know why your line is where it is. And you know why your answer has to be yes, because it’s on the side of your line that is a “yes” answer.