Asking high school students about affirmative action

New High School SCOTUS contributor alert! Hugo Rosen is currently a junior at School Without Walls High School in Washington, D.C. He enjoys running and is an avid sci-fi reader. Hugo is especially interested in government and public policy-related law. Below is his first piece for the blog, an overview of affirmative action and an analysis of student perspectives on the controversial issue.

by Hugo Rosen

On Oct. 31, 2022, the Supreme Court heard arguments from the anti-affirmative action organization Students for Fair Admissions (SFFA) about the use of race in the admissions processes of Harvard University (SFFA has also brought a second case against the University of North Carolina, a public institution). SFFA, which states on its website that “racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional,” hopes to overturn the current affirmative action precedent, established in Grutter v. Bollinger (2003), that race can be considered as one of many factors in admissions because schools have a compelling interest in maintaining a diverse student body. The court’s decision, expected in late spring or early summer, has the potential to upset the entire college admissions process and the demographic makeup of universities around the country. In this context, many high schoolers are rethinking their approach to college admissions and considering how the court’s decision could change their future. Below, I’ll provide a brief legal background of affirmative action and highlight high schooler’s perspectives on the issue.


Background 

Regents of the University of California v. Bakke (1978) was the first Supreme Court Case to directly address affirmative action in education. Allan Bakke, a white man, sued the University of California over its race-conscious admissions program, which set aside sixteen out of one hundred seats in every incoming class for minority students. According to Bakke, this quota system violated his Fourteenth Amendment rights by putting him in a separate category of consideration based on his race, even though his grades and test scores were higher than the sixteen minority applicants. The court agreed with Bakke that UC’s quota system was unconstitutional but maintained that schools may consider race as one factor among many because “creating a diverse classroom environment is a compelling state interest under the Fourteenth Amendment.” Bakke also established the precedent of evaluating affirmative action under strict scrutiny — the highest standard of review, applied only to policies that violate fundamental rights. As a result, all affirmative action policies must further a “compelling interest” and be narrowly tailored to suit that interest. 

Almost 25 years later, two students challenged Bakke in Gratz v. Bollinger and Grutter v. Bollinger (2003). In Gratz, Jennifer Gratz alleged that the University of Michigan’s use of a point system awarding extra points to minority applicants violated her Fourteenth Amendment rights. The court agreed, finding the university’s system unconstitutional and stating in the majority opinion that “the means that [the University of Michigan] has chosen is not sufficiently narrowly tailored to survive strict scrutiny.” 

In Grutter, Barbara Grutter sued the University of Michigan Law School for its use of racial preferences as one factor in the admissions process, claiming the school violated her Fourteenth Amendment rights. Unlike Gratz, the court concluded that because the Law School’s admissions process was narrowly tailored and considered race as one factor among many, it was, in fact, constitutional. This solidified the long-standing precedent that race can be considered “as one factor in an admissions policy” so long as it is narrowly tailored. Importantly, however, Justice Sandra O’Connor penciled in a 25-year sunset for affirmative action, claiming that by 2029, “the use of racial preferences [would] no longer be necessary to further” the diversity interest.

On Oct. 31, 2022, the Supreme Court heard arguments for an upcoming case: Students for Fair Admissions v. Harvard. Students for Fair Admissions, an anti-affirmative action group, sued Harvard, claiming its affirmative action policies discriminate against Asian American applicants, violating their Fourteenth Amendment rights. Harvard maintains the program is consistent with the precedent established in Grutter and does not discriminate. So far, the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals for the First Circuit have both ruled in favor of Harvard. The Supreme Court decision is expected in late spring/early summer. A victory for SFFA would likely overturn Grutter, making racial preferences in college admissions illegal, while a victory for Havard would cement affirmative action’s legality and place in college admissions. 


High School Students’ Opinions 

Affirmative action has been a part of the college admissions process since before most high school students were born. A Supreme Court decision overturning this long-standing precedent would have massive implications for the future of both individual applicants and the college admissions landscape. While the effects of such a decision would be wide-ranging, high schoolers who will apply to college in the coming years are most directly impacted. 

In an effort to gauge student perspectives, I spoke to five students from School Without Walls (SWW), a selective Washington, D.C. public high school, and Jackson-Reed, a non-selective D.C. public high school, had heard about affirmative action: Josie, Niya, Tyler, Zoe, and Conner. Josie, a junior and editor of the SWW student newspaper, The Rookery, described it as “a practice used in schools or education to help certain groups get ahead,” while Niyah, a junior and a member of SWW’s Black Student Union classified it as “a solution to a problem.” Tyler, a sophomore who has long been interested in the topic of affirmative action, described it as “programs in colleges where you check a box for your race, and they use that as a factor to determine whether you get into the school.” 

SFFA’s case against Harvard centers around their claim that the school skews “personality trait” scores in admissions to deliberately exclude Asian American applicants, while Harvard claims that race is only one factor among many that they consider — in accordance with the Court’s decision in Grutter. Under Grutter, pursuing a diverse student body qualifies as a “compelling interest” because of its educational benefits. According to Students for Fair Admissions, however, Harvard University’s affirmative action policies invalidate this interest by violating Asian applicants’ Fourteenth Amendment rights. 

The student’s interviewed often cited their personal circumstances when asked whether or not they agreed with SFFA’s argument. Josie, an Asian-American, said that “ending affirmative action would give me more clarity about how I’ll be treated or considered in the admissions process.” Niyah, an African-American student, thinks that colleges should consider race explicitly, stating, “College is already selective and as an African-American, my chance of admission would look significantly slimmer.” Zoe, who is Jewish, recognized that “there are a lot of other white Jewish girls who do the same stuff as me,” but supports the continuation of affirmative action because “focusing on the dozens of other factors involved in a college application is going to be more important than fixating on this one thing.” Tyler, who has done extensive research on the issue, believes “the actual white population isn’t affected much by admissions plans with or without affirmative action,” suggesting that the removal of affirmative action “would make a school’s admissions more based on academics and less on an ideal class environment.” 

Notably, everyone interviewed agreed that a Supreme Court ban on affirmative action was likely. Tyler, who has “read most of the [SFFA v. Harvard] oral arguments,” predicted that “the Court seems poised to overturn affirmative action and end race-based admissions in college.” Although Tyler was the only student who had read the SFFA v Harvard oral arguments, his peers shared his assumption that the Supreme Court would overturn affirmative action. Zoe, a freshman and writer for The Rookery, commented, “[Affirmative action] will probably be overturned because racial diversity doesn’t really flow with the Court right now.” Conner, a junior at Jackson-Reed, framed the issue differently, stating, “The court will rule on the side of SFFA because they will find discrimination against Asian applicants.” 

According to Niyah, this would have a largely negative impact because “the whole college experience is different for those of color,” and “taking away affirmative action would add to the various challenges we have to face.” Zoe agreed, stating that “there would be more stress for students from less advantaged backgrounds” and “less diversity on campus.” Josie took a more neutral view, saying, “It probably will change campuses’ culture because their racial makeups would be different, but I’m not sure how.” The court’s decision in SFFA v Harvard undoubtedly will affect the college considerations of the current class of 2024 and all subsequent classes. Although opinions on the issue differ and the future is far from certain, the careful thought and considerable deliberation displayed by high schoolers at School Without Walls and Jackson-Reed offers hope that there will eventually be a satisfactory resolution to this long-standing controversial issue.

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Interview: Josh Gerstein

by Elise Spenner

Josh Gerstein is a senior legal affairs reporter for Politico, covering the intersection of law and politics. He reports on the Justice Department, takes readers inside political trials, covers legal controversies, and writes daily about the Supreme Court. In May of 2022, he and his colleague Alex Ward obtained and published a draft of the majority opinion in Dobbs v. Jackson Women’s Health. Before joining Politico, Gerstein worked for CNN’s investigative unit, covered the White House for ABC, and wrote for the New York Sun. Gerstein graduated from Harvard University, where he covered the crime beat for the Crimson.

What were you like as a high school student? Describe your teenage years.

Well, I was always interested in journalism, certainly by the time I was in high school. And so I was eager to find things to do on that front, but there wasn’t that much you could do at my high school. I went to a public high school outside of Boston, and I don’t think we really even had a school newspaper, although I tried to start something a couple times. 

So I looked for things I could do of the journalism variety outside of school, and one of those was internships. I did some writing for the local paper — which is not a newspaper anymore, but I think it still exists in an online form — covering school board meetings and planning board meetings, and maybe a couple of sporting events as well. And then I got a couple of good internships. If we’re talking about high school years strictly, I was able to get an internship at WBUR, which is one of the NPR stations in Boston, so I worked for a couple summers in the morning for their Morning Edition shift. If I remember correctly, I had to be at that studio at 4:30 in the morning, so that was kind of an adventure. Especially as a new driver at 17, driving at 4 a.m. — I guess you’re not likely to hit anybody because there’s nobody on the road. 

And then I did a bunch more internships as I went through college, and I went to Harvard where, of course, they had a newspaper. So most of my waking hours — and probably hours I shouldn’t have been awake — were spent at the Crimson. And there I covered courts and crime stuff, and that probably started me on a path that I haven’t really deviated a whole lot from. I found it really interesting because I thought it was more practical, for students, than some of the other stuff that the paper covered. There were a lot of, as there are at almost any university, fascinating faculty disputes and questions about which departments were going to be opened and closed and things that came under the heading of central administration and faculty. But I thought that the crime beat and the courts beat were actually things that were of more practical use to students than some of those more arcane debates that stretched over the lifetime of many students’ tenure at school. 

That’s how I spent my high school and college years. And there was one legal thing kind of mixed into that: I was part of a group of students who sued our school committee when I was a senior in high school for allegedly violating the Open Meeting law in Massachusetts during their hiring of a new superintendent. So that was probably my first foray into the legal arena.

Tell me more about that. How did you become a plaintiff in a case that reached the Massachusetts Supreme Court?

I guess I was interested in what was going on in terms of the process for hiring a new superintendent for our school system. And the town or the school committee had set it up in such a way that they were going to handle part of the process confidentially. And only bring the public in after there were maybe a handful, or a smaller than a handful, of finalists. I can’t quite recall all the details, but it seemed to me at the time that they were obligated to let the public in more broadly to the process — questions like how many people were applying or had been asked to apply and why they had winnowed the field to a handful of contenders. 

I think there was a back and forth with the school committee, and they said they didn’t have to do it, and I thought they did. The Open Meeting law in Massachusetts can be enforced either by the citizens — I think you have to get three registered voters or something — or the district attorneys. So I went to the district attorney’s office to talk to them about it. And basically, they said, “Well, if we’re going to get involved, we have to investigate it. But based on what you have written down here, we think you have a pretty good case, and you should just go file this yourself.” And maybe they didn’t tell me I should do it, but they told me I could do it. And they said they would investigate it. 

So I filed it. And the district attorney ended up coming in later to join me on the same side of the case saying that this was a violation. And long story short, it ended up going all the way to the Massachusetts Supreme Court fairly quickly, in a matter of a year or so. The bad news is they ended up ruling against us. The district attorney thought that we had the correct legal argument, but the Massachusetts Supreme Court disagreed, and since it was a matter of state law, that’s sort of the end of the line — whatever they say goes, at least until the legislature changes the law. But it was an interesting experience for me to be able to see what it’s like when you actually have a case that, as opposed to covering, you’re actually invested in from the inside. You get a perspective on how people can take things personally that maybe aren’t or shouldn’t be taken that way sometimes. And so I think it’s something I keep in mind when I’m covering these fights that people are often very personally invested in.

Were you always proactive in that if something instinctively felt wrong or unfair, you knew you could literally file a case about it? How did you discover that avenue of resolving injustice?

Maybe I’d frame it sort of in a reverse way, which is that I was never too concerned about what anybody would think if I did something like that. So maybe I’m missing a filter about caring that much if people are pissed off at me, for lack of a better term. My town is a fairly small town, like 10,000 people, and so the school committee people know each other and know a lot of the families, and so forth. So it’s a little disruptive when you sue them or whatever — although I think a lot of the teachers and a lot of the principals found it amusing and vaguely exciting that somebody was taking the whole thing that seriously. But I’ve just never been that concerned about it. 

And maybe it’s similar to being a reporter, right? Being a reporter means, at least in my case, having the door slammed in your face 95% of the time, or people not calling you back, or people not being willing to tell you what you were hoping they will tell you. And so if being treated that way really gnaws at you, then you should probably do something else. And probably the same way in terms of trying to crusade to get things fixed that you think deserve to be fixed. If people telling you no is going to depress you, you probably should find a different line of work.

Good advice. You spent a lot of your time at Harvard working on the Crimson. What was the value of that training ground?

I thought it was very good practical training. And I would certainly encourage anybody who’s interested in journalism to do that. Unlike some other schools, Harvard doesn’t offer a journalism major. So you can’t do that. I guess you could major in English, which would be close, but that’s part of journalism; it’s not the whole thing. I happened to major in government. Other people who worked on the newspaper had a wide variety of different majors. I think probably there were more humanities types than math and science types, but there were definitely those as well. So I think it was just good practical training for me to go out and cover arrests and court cases and other serious crimes — we had a couple of murders that were peripherally connected to the school, or things around the area — that had happened. Or to cover disputes, like I said earlier, involving the faculty or selection of a new president for the university. It’s just very good hands-on training, and I think sometimes more valuable than classroom instruction of actually having to write things and actually having to confront what you do in various situations depending on what you know. And how to form a story and what will work and what won’t work and to make some mistakes, and so forth, I think is just invaluable training. 

You don’t necessarily have to get it at a college newspaper. As I said, I did a little bit of freelancing for my local weekly paper, and then also when I was at school, I did some freelancing for a local news service that covered the courts in that area. I’m not sure it exists anymore; I think it met its demise as a number of the local daily newspapers in recent years have met their demise, so this kind of service wasn’t needed. But this was a service that covered trials and such that were happening in the county seat or in a couple of the big cities and sent the results back to places that were somewhat more remote, where these crimes had taken place. And so all that I think is good practical experience that may be better than classroom training to get the gist of journalism.

While you were still in college, you wrote a law that required college police departments to keep a public log of arrests in reported crimes. What made you finally act on this issue — that there wasn’t a public database of crimes committed at Harvard?

This is a problem not just I encountered, but other people had encountered at Harvard, and then gradually, we found out at other universities and across the country. The campus police in most states operate in a gray area between being real police and being private security guards. Obviously, almost everywhere their salary would be paid by the university, but somehow they have guns and uniforms, and they can arrest people. So they have some official powers. And one of the results of that ambiguity was that the records of why people were arrested and when and so forth were not always public. So the Harvard police had a log of crimes that were reported and so forth, which is normal. Anyone who covers the police in Massachusetts knows you can go to the police station and see a printout — maybe some of them put it online now — describing all the major incidents that were reported to them, and specifically if anybody’s arrested, who was arrested and where, and what they were charged with. Which I happen to think is a good transparency measure, because people shouldn’t be being arrested without people knowing why and where they were taken. Seems like a basic democratic principle to me.

Anyway, it turned out that, in many cases, Harvard was not putting that information on the log. Like sometimes they put it on, sometimes they wouldn’t. Shockingly, sometimes they wouldn’t put it on when it was a student that was arrested as opposed to somebody else. And it was just generally kind of inconsistent. 

Being from there, I knew Massachusetts had an unusual thing called the initiative petition process where basically you can force your legislator to file a bill on your behalf. It may be the only state that has that, or one of a couple. So I looked into what would be the easiest way to fix this, and I wrote something up, I sent it to my legislator, and he introduced it. There was a group that had started up a couple years before this called Security on Campus, which was a national group founded by the parents of a young woman who had been murdered in a dorm in Lehigh University in Pennsylvania. And so they took an interest in it, and one of their lobbyists actually took the bill and began campaigning for it around the statehouse, and helped usher it along. I think we had some kind of hearing. And it seemed to be something that most legislators thought was a common sense thing for the reasons I’ve described earlier — if they have the power to arrest you, why wouldn’t the disclosure requirements be the same? 

It ended up passing; it was signed by Bill Weld, who was the governor of Massachusetts at the time, and it remains on the books today. And I think Security on Campus later used it as a model, in a sense, for some national legislation they got passed, which requires universities to make a public report of crimes that are reported to them. I think that stuff is more statistical than incident-focused like mine was. And then I think the Crimson, a decade or two later, had a legal battle that also went to the Massachusetts Supreme Court trying to get incident reports from the College Police Department, which would be another level of detail beyond what I was able to require them to make public. And I think that that was unsuccessful, but it remains a point of contention, I think, at a lot of, especially private, universities around the country. Usually you can use the public records laws of that state to get their police records at public universities, at least to the level you can have any other police department, but it’s a trickier business with private universities.

I intern for my local paper and part of my job is to scour the police reports every week and make a list of all the noteworthy things. It just seems really strange that the same information wouldn’t be available at a university.

Yeah, and I think a lot of schools did make it public; they figured, “We have this obligation.” Others didn’t make anything public, and many sort of selectively released information, which was what I found to be the case at Harvard. And since then, I’m not sure, I think most of them have followed at least that part of the rule. It’s generally something that the police themselves favor. I think that it’s usually the university administrators or the PR people who are more nervous about putting that out. Usually the police, I’ve found, want public scrutiny of at least the basic work that they’re doing, and think it’s beneficial for the community to be aware of what’s being reported. Obviously, sometimes there are incidents that the police don’t look very good in, and that might make them uncomfortable, but by and large, they want people to know what they’re doing on a day in, day out basis as opposed to it being unreported.

Reading about your college years felt like déjå vu. When you were at Harvard, the Department of Education was investigating the admissions process there — and the Court is currently deciding a case about the school’s affirmative action practices. Tell me about what we learned from that first investigation.

I don’t think it’s “kind of like,” I think it’s exactly the same thing that happened 30 or 31 years ago. It’s kind of amazing that the issue has come forward again, and it’s come forward in almost exactly the same way. While I was there, there had been some complaints that were filed by Asian Americans against a number of universities. I know that Harvard was one; I know that Berkeley was another; I can’t remember all the other ones off the top of my head. And this was during the George H.W. Bush administration. So it was in the ‘89 to ‘93 timeframe. The Department of Education has an office called the Office of Civil Rights, which does enforcement through the federal spending process. So, in other words, schools have to be on an approved list in order to get certain types of federal grants, and things like that. As part of the conditions for those programs, there are anti-discrimination provisions that they have to abide by. And if you think that they’re not abiding by them, you can complain to the office at the Department of Education, which will look at your complaint and decide either they think it makes sense, or they don’t think it makes sense, or they think it makes some sense, and they’re going to look into it.

And a group, if I remember correctly, of Asian Americans complained that the admissions process at these schools was discriminating against them. Under the Bush administration, they opened an investigation of these universities that stretched on for a couple of years, and I can’t remember that much detail about what happened with the other universities — I think they did find a violation at Berkeley at the end of this investigation. 

However, at Harvard, they found no violation, but they did say that they had determined why it was that Asian Americans were being admitted at a lower rate than other applicants: athletes and legacies. In this context, legacy means people whose parents or maybe grandparents or siblings had attended the university, and some schools will give a benefit in the process for people that have that background. That the benefits that Harvard was giving in the admissions process to those two groups had led to Asians doing more poorly than you might have otherwise expected based on other factors. So that was an interesting finding, and the Education Department concluded that both those preferences were — I don’t remember what their exact words were — both legitimate or at least there was nothing illegal about Harvard making a decision that it wanted to advantage athletes and legacies. And obviously, minorities, including Asian Americans, at least up to this point, are less likely to have that kind of a background than white Americans. So while it’s controversial, in this case, the Education Department said it wasn’t per se illegal — although there were some calls at that time to do away with legacy preference. 

As a news story, what I thought was fascinating was we were able to eventually get not only the report from the Department of Education, but the actual admissions files. Not the whole file, but there’s something called a summary sheet that the readers of each application — sorry if this is giving nightmares to anybody who’s going through the process right now — would hand write comments onto that went on the folder basically. And the Education Department, as part of its review, copied a bunch of these sheets, and then also made a log of what they thought were disturbing or potentially disturbing comments that had been made about applicants. 

And I guess, given the statistics, it wasn’t surprising the Education Department found some comments that they felt indicated stereotypes of Asians and perhaps in some cases, stereotypes of others. But to me, the most interesting fact was I felt that these documents really proved that what Harvard had said about the advantage that it gives to athletes and to legacies was not true. They had portrayed it in a bunch of public appearances as a tiebreaker in the admissions process. That if there were people that were roughly comparably-qualified based on other factors, in that case, they might admit the person who had unusual athletic talent, or they might admit the person who had a parent who had gone to the school. And the individual case-by-case studies really showed that that was not true. There were a large number of people who were being admitted with either the athletic or legacy preference who were grossly less qualified than other applicants. 

I mean, there were hockey prospects who were admitted, I think, that had SATs that I think were down around 1050 combined in the way they calculated them at that time, which was just not very normal. And the comments said it wasn’t normal like, “This is a hard sell” or something along those lines. So the admissions officers themselves were quite aware that they were making a significant exception. And that was true on the legacy side as well. It would say something like, “This would normally be a very tough case. But if Dad is really on the whatever committee, I guess we may have to do it.” And then it would say, “admitted” or something. So it was just pretty clear that these preferences in individual cases sometimes made all the difference, and were not truly a tiebreaker. 

So we did a lot of reporting at the time about the ability to get behind the scenes in that process. And when I went up to cover a few days of the most recent admissions trial a couple years ago, when the current case that’s at the Supreme Court was in trial in Boston, many of these same issues were being talked about. And the discovery in that case had surfaced many of the same papers, documents, comments, and practices that were originally exposed during this investigation 30 years ago, which really pulled the curtain back on how the process worked in a way that to that point, neither any reporter or author or government agency or the university itself had ever really publicly acknowledged or grappled with.

I remember you writing that in the 1990s, the school and the government made a deal where the government could have access to a ton of admissions data, but they would deny FOIA requests to get that information out. How did you figure that out?

You did some pretty good background research. So this is the FOIA part of this fight. Like all government investigations, it ended up taking much longer than they said it was going to take at the beginning. I think they said it would take six months or a year. So after a year, we were like “What’s going on?” and we couldn’t really get any answer about what was going on. They’d just say, “Well, we’re still working on it.” So I ended up submitting a FOIA request for the materials that they had gotten from Harvard. And I was told by the person who ran the OCR office in Boston at the time, “Look, if we process this now, we’re just going to deny it and say there’s an ongoing investigation, but” — I remember the gentleman’s words very clearly — ”we’ll tack it up on the wall here and when the investigation is over, we’ll process it.” And I said okay, because if people have dealt with FOIA, they know that when there’s an ongoing investigation, it’s very difficult to force anything out under FOIA. So the investigation went on for another number of months or a year, and then finally closed. And I think I then re-inquired with them like, “How can we get the material?” and they said, “We’ll process it.” 

It later came out in the processing of this, or maybe in the report, that Harvard had reached an agreement with the Department of Education. Harvard was very reluctant to give the computer data. I mentioned that the investigators had gone through the paper files, but Harvard had computer data on tapes that would allow you to do quantitative comparisons, like you’d be able to select for any variable and figure out what the reader scores or the recommendation scores or the SATs scores or any other standardized scores were for any group or subgroup, however you wanted to slice and dice it. The Education Department demanded that; Harvard didn’t want to give it. There was a big fight about it, and then eventually, Harvard said, “Well, we’ll give it to you on the condition that you won’t share it with anybody. You won’t release it under FOIA. And you will return it to us at the end of the investigation.” Which is a very unusual request to agree to because usually, when you’re talking about data, the government doesn’t agree to return the data to the person they obtain it from because it’s the only way of verifying whether the investigation was done properly. 

That doesn’t seem to me like a proper thing for the Education Department to have agreed to, but to get the stuff without going to court or whatever, they agreed to this. And then, even though in my view we had a pending request, they gave the data back to Harvard when they closed this investigation. We actually went to court that day or the next day to try to stop them, but they had already returned the stuff. So it seemed futile to us to try to get it back. So that was a mini access dispute that happened in the midst of this investigation, but it shows you how if you have well-represented litigants that are very determined in their position, they can sometimes get something that amounts to special treatment for their data, even in the context of a very contentious investigation. 

I think this is the kind of data, though, that when Harvard faced this civil suit from the Students for Fair Admissions, as part of their current litigation, Harvard had to hand over, and that was ultimately discussed publicly at the trial. I don’t know if you can get the tape yourself. But I think all the slicing and dicing I was talking about, SFFA’s lawyers and experts were able to do that in the context of this litigation, albeit about 30 years later.

It’s been interesting to see both Harvard and UNC’s admissions processes broken down to a very minute level, especially when some schools now say, “We’re not even going to release our admissions rate because that’ll deter people from applying,” which seems a bit ridiculous. What do you think about this growing push to obscure the entire college admissions process?

I think it’s very hard to justify. I think if the schools want to follow whatever practices they want to follow, they should justify them, and they should explain what their impact is statistically. I don’t think hiding the ball is the correct way for them to deal with the questions that are raised about it. I do think that there’s an argument to be made that some schools are trying to remove every kind of data point they can, because either they don’t want it released publicly, or they just remove all requirements. And they prevent any type of quantitative assessment so that it becomes very difficult for an outsider to figure out how their process works. And these don’t all have to be standardized tests — there’s even the sort of subjective data points. For example, Harvard uses a system where the readers rank things, like they give a one to four score or something. So it’s sort of subjective in that that’s just a human being reading this and giving it a number. 

But it has a quantitative element, because when you look at 10,000 applications, only so many get a rank of four. One of the things, I think, that came out in the recent Harvard litigation was that in some cases, Asians were being denied admission, even though the numbers by Harvard’s own raters were higher in some areas. And then there were also areas where Harvard’s own raters were consistently scoring Asian Americans lower than others. So there’s some kind of subjective but quantitative data that I think ought to be out there, and if the schools want to justify it, or think they can justify it, let them do that. But I don’t think hiding the ball is the correct answer about how to proceed.

What turned you away from law school. Have you ever felt unequipped to cover legal cases because you don’t have a law degree? Do you think that’s necessary?

I don’t think it’s necessary. I think there’s a lot of things that are covered in law school that journalists very rarely have the need to cover. And, frankly, that a lot of lawyers very rarely use. You often hear them talking about things like estates and trusts and stuff like that, which they learn in law school, but a lot of lawyers don’t use very much. I think the same is true for journalists. I think you can definitely learn it on the job. It’s worth keeping in mind that that used to be a way that people could get to be a lawyer, you could do an apprenticeship. I think, technically, California still allows it, that if you did an apprenticeship for five years with a lawyer, you could pass the bar and become a lawyer that way. So the system used to accept that as a way to learn about the law. Sometimes people will dismiss my analysis of something and say “You’re not even a lawyer, you don’t have the magic code that we got in law school” — whatever that was.

On the other hand, I would say if you turn on cable TV, you can see a lot of people who have law degrees who are opining about things that they know nothing about. I remember seeing some lawyers on TV saying that, “This person is going to be charged with election law violations because of this set of facts,” or whatever. And I thought to myself, “That’s not going to happen. That person is not going to be charged.” But that lawyer is somebody that’s brought into opine on the subject because they’re a lawyer. Had they ever handled the election law case? I don’t think so, as far as I can determine. So, I’m not sure that the credential itself means that you’re qualified to opine on these issues, or certainly to write about them. Most of what I write is not giving my opinion about anything but just trying to cover it. But sometimes people will bring it up as an issue. 

When I was younger, I thought about going to law school, but I’ve been very lucky in being able to cover a wide variety of things. Not always covering legal things. I covered the White House for a long time and covered a lot of stuff that didn’t have a particular legal aspect to it. But I think the diversity of stuff you get to cover as a reporter is generally a lot broader; most lawyers have to focus on one area and then on one case within one area for a really long period of time. And you get to dabble in a bunch of different areas as a reporter in different cases day in and day out, so I found that to be pretty rewarding.

You seem like a natural reporter — someone who wants to dive into things and investigate them. But who or what played the biggest role in helping you develop as a writer?

That’s a good question. I think you have different editors over the years that help you boil down things to the way a reader can appreciate. I think one of the tricky things about legal writing is that a lot of the time you need to write for basically a lay audience and for the legal audience at the same time.

I think SCOTUS blog tries to do this a lot, too. It’s obviously keenly read by people that are really the ones who devour the footnotes, the Supreme Court opinions. But also, it’s a place that people from the general public that don’t know much about the Court and don’t know much about cases turn to. So that’s one of the challenges, I think, of uncovering legal stuff. I mean, there are some issues that are pretty arcane, that a certain subset of people in Washington, especially, are interested in. And Politico is aimed primarily at folks that are interested in Washington and cover Washington. 

I’ve had a bunch of editors that try to help navigate this challenge. First, you want to have everything right in the story because you don’t want the expert types to say, “Well, you described it this way, but that’s not exactly right.” And that still happens occasionally. But also to try to make it, to the degree you can, accessible to people who aren’t following the courts, day in, day out. So that’s a daily challenge. 

I don’t know that I can point to any one particular person, but obviously, I’ve been edited by many, many people at different outlets over the years. It probably helped me a little bit to have worked in television for a while and then to have worked in print because in TV, just by the nature of how it is, you have to boil a lot of stuff down to the essence. And so, when I’m writing, some of my articles are pretty long, but I try to, near the top, handle them in more of a TV broadcast style where you cut to the chase pretty quickly before you dive into the details. And there have been a bunch of editors who’ve helped me work on that.

What is your process for finding stories? You’ve talked about looking through the Federal Registrar for the 3% of stories that are actually newsworthy, which seems very dry. 

I do some of that. Sometimes people will bring things to my attention. I get a lot of alerts. There’s a lot of cases that I follow at the lower levels of the court system, where the individual developments sort of ping into my inbox every day, and I just try to go through them and figure out which things are newsworthy and which are not. Sometimes people will email me about certain things or DM me on Twitter or whatever and say, “You should look at this. You should look at that.” But I’d say most of it comes from wading through that sea of paper and filings that comes across every day. 

I also, unlike probably some of the other people that you interview, am not focused solely on the Supreme Court. So I spend a lot of time covering stuff at the Justice Department and covering stuff at the district court and the circuit court level in the federal system. We do a little bit of stuff with state courts, but not as not as much because of the focus of Politico.

Personally, I find the broader view to be more rewarding, because I feel like there’s a lot of coverage at the Supreme Court level already by the time the cases get there, and there are a lot of other legal fights that play out at the lower levels of the court system that don’t get as much coverage as they should. And maybe because of the stuff I did at the local level earlier in my career, I’m saddened by the fact that there are not as many people covering local courts and covering state courts or even federal courts in a lot of places around the country. And there are a lot of good stories in those places that again, because of the demise of a lot of local newspapers, just don’t get the level of coverage. 

When I filed my suit against the school committee 30 some odd years ago, at that time, the Boston Globe had a reporter in each of the county courthouses around Boston. A separate reporter. And then over time, it came down. Now, I think they have one or two people maximum that cover all courts, federal and state, for their whole area. And there are a lot of places where the paper either went out of business or doesn’t have anybody that covers courts anymore or has someone that covers crime, but they don’t follow up on anything once it goes into court. 

There’s a lot of material out there that you can cover if you take a little bit of a broader lens than just “Here are the 70 cases that have arrived at the Supreme Court.” Because there’s a lot of stuff that isn’t arriving there that’s pretty important about the court system.

I talked to Zoe Tillman at BuzzFeed News, and she sometimes felt conflicted about over-politicizing a case by saying that a judge was appointed by a certain President. As a writer at Politico, do you ever feel pressured to make your legal stories tied to political stories or political angles? 

We’re pretty unapologetic about it. So if cases have a political element to them, by which I mean Democrats and Republicans are keenly interested in the outcome of them because they’re going to be debated in Congress, or they’re the subject of political back and forth, those are definitely the cases that we’re most interested in. And I don’t think that we try to hide that fact. That’s the nature of Politico. We’re not pretending to be the National Law Journal, or even the New York Times. So in terms of what Zoe was talking about, in identifying judges, I have far fewer qualms about it because again, I think it’s something that our readers would want to know. I think you can justify it on a lot of other levels as well, but the simplest one for us is that a lot of readers of Politico are interested in legal issues from a political perspective, in terms of: Is this going to be politically beneficial to one group or to another group or politically harmful to one group or another group? How are the judicial appointees of one president acting on a certain set of disputes as opposed to political appointees of another president? So that’s all clearly in our wheelhouse, and so that is what we do. 

We don’t say things like “the Republican justices did X” or “the Democratic justices did Y.” But in most of our stories on legal stuff, we will at some point mention whether the judges or justices involved were Republican appointees or Democratic appointees. I know some judges don’t like that. But my view, beyond the issue of what Politico covers, is that the lawyers involved in these cases are always eager to know which exact judges or justices they’ve been assigned, or are involved in their cases, and this is exactly why they want to know, because they feel that some justices and judges have certain predispositions, and others have different ones. 

It reminds me of covering a Fourth Circuit case down in Richmond that involved the Maryland and D.C. Attorney Generals. I think it had to do with issues related to the Trump Hotel. And I was in the courtroom, and Brian Frosh, who was then the Attorney General of Maryland, walked in and about 45 seconds after, a bunch of us saw him smack his forehead before he sat down in his seat. And we were wondering like “Why was he doing that?” And we later determined that, at least at that time in the Fourth Circuit, they don’t tell you who the judges hearing your appeal aer until you walk into the courtroom, or at least until you arrive in the building for that day.

And they had happened to draw at least two of the three most conservative judges on the Fourth Circuit. And he was like, “That’s a disaster for us” or “This is a real setback.” And so I don’t understand the argument for why we would hide information that litigants and lawyers consider so salient to what they’re doing from the public in our reporting on those cases. I just can’t understand even why someone would advocate that, it just seems bizarre to me. 

So that’s why we generally do that. And the Chief Justice is free to continue to say there are no Trump judges or Obama judges. But I think that’s something that our readers want to know, just like the lawyers involved wanted to know.

How has working at Politico changed as its viewership and staff has grown, and how has that impacted your area of coverage?

It’s changed in that I think our mandate has broadened. When we started it really was pretty strictly focused on the White House and Congress. And over the years, especially with the advent of what we call our “pro” sections of Politico, which are different coverage areas, we call them verticals, like health care, education, financial services, technology, and cybersecurity. Over time, we’ve added these teams, they produce morning newsletters, and they also produce daily coverage of those topic areas. So that’s become a big part of Politico’s overall enterprise. 

Part of my job is to try to make sure that what’s happening in the court system is integrated into their coverage. I don’t usually write a lot of solo stories for those coverage areas, but I am involved in making sure they know that the Supreme Court has acted on this technology case, or this education-related case. And so we have to process that. Sometimes it means it becomes a story that people see on the homepage of Politico; sometimes these are just stories that the people that are most keenly interested in that kind of litigation want to know about, and then they get alerts on a subscription basis from Politico. But when I started in 2009 — two years after politico started — we weren’t yet doing that. And now we do a lot of that. And so that is part of my remit now. 

The other part that’s changed is I do think that we’re trying to cover the judiciary now more aggressively, in the way that we’ve traditionally covered Congress and the White House. Especially some of our recent coverage around the Supreme Court, I think, reflects the conclusion that in the past, various news organizations have covered the Supreme Court and the court system in a maybe too stilted kind of way, like “Here are the arguments, and here’s the decision that came out.” And “here are the briefs and here’s the decision.” And that’s it.

There’s a lot of other stuff that goes on around the outskirts of that in terms of people trying to influence the justices and judges through educational seminars and all kinds of other activities. There’s the broader campaigns that take place in academia and so forth against areas that aren’t even really a specific case. Like people being angry about the shadow docket, or things along those lines. There are these broader themes that do involve the substance of what the court is doing, but if you look at it literally around specific cases, sometimes you miss it. And as in Congress and in the White House, there are interpersonal things about people getting along. Maybe these aren’t Republican and Democratic legislators, but they are people that come from different ideological perspectives. And in our polarized era, how are these people managing to work together or not managing to work together? That’s the kind of coverage that I think people have long expected Politico and other albums to provide of Congress and the White House. And I think, especially over the past year, a lot of news organizations have been asking, “Why don’t we cover the Supreme Court more that way?” And so that’s something that we’re trying to do as well.

After you published the story about the leaked Dobbs draft, Rachel Maddow said that you would “Always, in your entire life, be the reporter that broke this story.” Is it weird or frustrating that this is your legacy? And what was it like to be the topic of news as the person who broke the story?

I mean, it’s a little uncomfortable to have people trying to report on how we did this story, because it’s just not normally something that happens. When other people get big stories, reporters often talk amongst themselves, like, “Where did that come from?” “How did they manage to do that?,” or “That’s really impressive,” or “I worked on that for a year, and I couldn’t come up with anything. I don’t know how so and so got that, it must have been this way.” So it’s a little weird to be at the focus of that kind of speculation. 

But beyond that, I don’t know. It is what it is. It’s a big story. I should also give a shout out to my co-author on that story, Alex Ward. It was a big scoop, and we’re lucky in some respects to get it and happy to have it, and we tried to handle it as responsibly as we could. And if people are going to interpret it as the biggest story ever, it’s a little weird because you’d like to continue to work on other things, and you hope that something else you do might also be noteworthy, right? But it’s not something that comes along very often, and therefore, I wasn’t surprised that people would say, “Oh, this is a very big deal and interpret it that way.” But hopefully, both Alex and I can go on to do other things for some years to come that people will also value.

Groff v. DeJoy and religious liberty in the workplace

by Elise Spenner

It started, as so many things have, with the rise of Amazon. 

In 2013, as “order with one click” and same-day delivery supplanted small businesses and local artisans, one long-standing employer became an unlikely benefactor of Amazon’s dominance: the United States Postal Service (USPS).

Amazon wanted to get its packages to its customers as quickly as possible. The Postal Service, bleeding billions of dollars each year, needed to restructure and modernize its business. A win-win deal emerged: USPS, unlike the United Parcel Service and Fed-Ex, would now deliver Amazon packages on Sundays. 

Amazon and USPS won, but Gerald Groff lost. Groff, who joined USPS as a Rural Carrier Associate in 2012, observes Sabbath on Sundays. The Quarryville Post Office, where Groff worked, did their best to avoid scheduling him on Sundays as long as he picked up other shifts during the week. This wasn’t very difficult because the office was part of a regional hub that could outsource workers and deliveries on Sunday. But a 2016 union agreement decided that each station would have to schedule its own carriers and deliver its own packages during the peak holiday season. 

When Groff learned that the new policy required him to deliver packages on Sunday, he transferred to Holtwood station — at the time, the small post office wasn’t participating in Amazon Sunday deliveries. But Holtwood couldn’t avoid the inevitable: in 2017, they started delivering on Sunday, too. 

Holtwood started with three Rural Carrier Associates. One (Groff) refused to work on Sundays. Another, who initially agreed to cover Groff’s shifts, got injured. This left just one RCA to deliver all mail on Sundays; sometimes, the postmaster would even have to step in. 

The Holtwood postmaster tried multiple times to meet Groff’s needs. He told Groff that he could come to work after service on Sunday. Then, he said that Groff could observe Sabbath on a different day. He tried to find a lateral position that would give Groff Sundays off — none were available. Out of options, Groff was disciplined repeatedly. 

In 2019, he resigned, and then sued the postal service for violating Title VII by refusing to “reasonably accommodate his religion.” The result was Groff v. DeJoy, a blockbuster case with the potential to rewrite religious protections in the workplace. On Friday, the Court granted certiorari, and will likely schedule oral argument for a date in April. 

Importantly, no one denies that Groff suffered religious discrimination under Title VII: 

  1. He has a sincere religious belief that conflicts with his Sunday work obligations
  2. He told USPS about the conflict
  3. He was disciplined for not working his Sunday shifts

USPS is also not challenging the Third Circuit’s finding that none of the accommodations offered by the USPS were reasonable. The Supreme Court’s ruling in Ansonia Board of Education v. Philbrook (1986) found that a reasonable accommodation would have to eliminate “the conflict between employment requirements and religious practices.” Even though USPS may have attempted to find a solution that would eliminate such conflict, they didn’t succeed in doing so — no volunteers were available, no lateral position were found, and coming to work after service would still clash with his religious requirement to “totally abstain from Sunday work.”

However, Title VII also gives employers the chance to prove that the religious accommodation inflicts “undue hardship on the conduct of the employer’s business.” 

Undue burden is not the easiest standard to interpret. So the Court stepped in to clear it up in Trans World Airlines, Inc. v. Hardison (1977), a case practically analogous to Groff. In Hardison, the Court held that Trans World Airlines did not violate Title VII when none of its offered alternatives satisfied respondent’s religious needs — and, importantly, when other alternatives would have created an undue burden. To rule on the latter, the Court implemented the more-than-de-minimis-cost test. The latin “de minimis” translates to “from the smallest,” and that’s basically what the Court decided: The employer cannot be required to bear more than a small or trivial cost to meet an employee’s religious accommodations.

With Hardison governing their decision, the hands of both the district court and the Third Circuit were tied. According to the Third Circuit, Groff’s Sunday absence had an impact on the workplace that “far surpasse[d] a de minimis burden”: it imposed on his coworkers, lowered employee morale, and made delivery difficult. 

This is when you wonder why the Supreme Court agreed to hear the case. There is no major disagreement between the district and circuit court, and precedent is pretty unambiguous on the issue. However, the current Court has a history of tearing down its own precedent on religious liberty issues. Last term, they declared that Lemon v. Katzmann was obsolete, and continued to wear away at establishment clause precedent like Locke v. Davey. In fact, both Justice Alito and Justice Gorsuch have expressed their eagerness to reconsider Hardison. So it wasn’t totally shocking when the current Court elected to hear Groff.

Notably, the Court will focus their oral argument on two questions:

  1. Whether Hardison’s more-than-de-minimis-cost test should be reconsidered
  2. Whether impact on the employee’s co-workers counts as an undue hardship

We’ve discussed the significance of the first question, but the second question is also worth considering. Because much of the Third Circuit’s undue burden analysis rested on how Groff’s absence harmed his colleagues, if the Court invalidates that reasoning, it could completely alter the outcome of the case. 

Given that Groff was granted on Friday and likely won’t be heard until April, neither petitioners nor respondents have filed their briefs in the cases. Once they do, I’ll break down the claims presented on each side. 

The Supreme Court and Slavery

I am so excited to welcome High School SCOTUS’s newest contributor, Anthony Nguyen! Anthony is currently a junior at Cathedral Catholic High School. He loves going on spontaneous trips with friends and watching random Dance Moms edits. He is specifically interested in law as it applies to sociology! Below is his first piece for the blog, a historical research paper on the Supreme Court’s decisions perpetuating the institution of slavery.

by Anthony Nguyen

Introduction

Since its founding, the United States has claimed to embody the ideals and principles of equality for all, freedom, and liberty. When the U.S. Constitution was ratified, however, the vast majority of white residents in the United States practiced slavery. The United States was built upon radical egalitarian ideals, but it was built with brutal tactics, inhuman treatment, and absurd discrimination.

Pictured is an illustration of the Dred Scott Decision from the New Yorker

During the early 1800s, it was very rare for an enslaved person to bring complaints up to courts, and the majority of areas banned enslaved people from doing so. Dred Scott v. Sandford, an infamous 1856 decision, sparked historical controversy and deepened slavery as an institution. In the decision, the court determined that the rights afforded to all citizens of the United States would not extend to those of African American descent.

The Court’s judgment would exacerbate political and social tension, furthering the divide between the North and the South and catalyzing the Civil War. The decision not only defended the rights of slave owners in the United States, but most detrimentally, refused to consider the citizenship of enslaved people. The decision, amongst numerous others, is a testimony to the fatal errors of judicial practice in the Supreme Court prior to the civil war. 

Literature References

The Supreme Court’s jurisprudence played a central role in condoning slavery prior to the Civil War. In his annual lecture to the Supreme Court Historical Society, Former Justice Stephen Breyer explained that the contents and decision of both Dred Scott v. Sandford and analogous cases are morally incorrect. He asserted the necessity for future decisions to look to the Dred Scott decision as an example of an incorrect interpretation and assessment of the situation at hand (Breyer 1). Breyer also elaborated on the tragic influence of cases prior to Dred Scott. One case, Strader v. Graham, would come to establish a dominating legal precedent that justified the contents of the Dred Scott decision. As the University of Kentucky describes, “The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent a few years later when the Court considered the freedom claim of another slave, Dred Scott.” (Schwemm 1).

Furthermore, the Supreme Court’s decision in Dred Scott made a political statement on behalf of the government and in turn shifted the political climate in the nation. As Breyer wrote, “Dred Scott was a legal and practical mistake. And for that very reason, it can tell us something about the more general question, namely, it can tell us what courts cannot and should not do when politics and law overlap.” (Breyer 1). Similarly, historian James Oliver Horton explains that “the Dred Scott decision was a landmark case in that it drew a clear line of how the government stood on the issue of slavery, and further inflamed passions surrounding an already divisive topic within American politics” (Horton 1). The literature affirms the dangers of political and social dominion held by the Supreme Court on matters of slavery. 

Discussion and Opinion

The sentiments and ideas of historians speak for themselves. The conservative nature of the Supreme Court’s jurisprudence before the Civil War was disheartening, to say the least. From making hasty decisions to the consideration of American citizens as property, the Supreme Court failed to interpret the law in a moral and adequate manner. As mentioned previously, the Dred Scott case shocked the political and social climate of the United States before the Civil War. In protecting the interests and rights of white slave owners and neglecting the lives of black slaves, the court left a stain on American history that would echo far past the Civil War. As time progressed, racism and discrimination prevailed. Even after the liberation of slaves and the elimination of slavery under the Thirteenth Amendment, white supremacy, mob violence, and government-sanctioned segregation continued to impinge on the rights of Black Americans. The South was steadfast in its white supremacist beliefs. Despite the emancipation of slaves, African Americans were not free; they were shackled by the sorrows and absurdities of racism and bigotry. 

However, the court’s decision-making did more than deny legal protections and citizenship to black citizens. As discussed, decisions adjacent to Dred Scott shifted the political and social climate of the United States. By ruling that the Missouri Compromise violated the Constitution, the Supreme Court allowed slavery to extend, pitting the North and South against each other. Breyer, in his lecture, further highlighted that Dred Scott energized the “anti-slavery North. It became the Republican Party’s rallying cry; it helped bring about Lincoln’s nomination and election as President, and these circumstances together led to that most fierce War between the States.” (Breyer 1). The court’s jurisdiction — with specific regard to slave processes — intensified loyalties on both sides of the slavery conflict, cultivating the passion that would eventually lead to the Civil War. 

Conclusion

The Supreme Court lit the fire of the Civil War, supported the institution of slavery, and ushered in modern discrimination. The Supreme Court was an institution that fueled hatred and detest for a minority on the basis of their skin color. In the Dred Scott v. Sandford case, the Court undermined the very principles that the country has been built upon for centuries. From the emancipation efforts of Harriet Tubman to the fight against racial discrimination by Martin Luther King Jr., African-American people have worked for centuries to reverse the resonance of these Supreme Court decisions. In the modern era, it can still feel as if the Supreme Court is working against, rather than in tandem with, the activists who hope to guide America toward its founding ideals. 

Works Cited

https://www.thirteen.org/wnet/supremecourt/antebellum/landmark_dred.html

https://www.supremecourt.gov/publicinfo/speeches/sp_06-01-09.html

https://www.britannica.com/question/How-did-the-Dred-Scott-decision-affect-the-election-of-1860

https://www.oyez.org/cases/1789-1850/5us137

https://supreme.justia.com/cases/federal/us/41/539/

https://www.oyez.org/cases/1789-1850/None

https://supreme.justia.com/cases/federal/us/51/82/

https://www.learningforjustice.org/podcasts/teaching-hard-history/american-slavery/slavery-in-the-supreme-court

https://supreme.findlaw.com/supreme-court-insights/dred-scott-v–sandford–history–decision–and-impact.html

https://constitutioncenter.org/blog/dred-scott-decision-still-resonates-today-2

https://historyengine.richmond.edu/episodes/view/2611

Who is an American? The Lasting Legacy of the Dred Scott Decision

Interview: Hannah Mullen

by Elise Spenner

Hannah Mullen is a staff attorney at the Council on American-Islamic Relations Legal Defense Fund (CAIR-LDF) working on public-interest litigation. Prior to joining CAIR-LDF, Mullen clerked for Judge Merrick Garland on the Court of Appeals for the District of Columbia Circuit and spent two years as a fellow at the Georgetown Appellate Courts Immersion Clinic. Mullen graduated from Harvard Law School and Harvard University, where she was a four-year varsity lacrosse player. Our conversation focused on her decision to pursue public interest work, her understanding of “doing good” as a lawyer, her preparation strategies for oral argument, and her voracious reading hobby.

What were you like as a high school student?

I was very focused. I was very motivated. A lot of what took up my time was lacrosse. I was a very serious lacrosse player. I ended up playing Division 1 lacrosse in college, and I went through the recruiting process in high school. So my life was sort of divided into hours spent playing sports and thinking about sports, and then what I could dedicate to school and extracurriculars. So I don’t think I’ve ever been as busy in my life as I was in high school. Maybe in college. But since retiring from year-round athletics, I think things have gotten pretty relaxed, even as a law student and now as a litigator. So I was a very busy high schooler. 

I play soccer — probably not at the level that you played lacrosse — but it’s definitely a big time commitment. What did it feel like once you started law school, and you didn’t have to play a competitive, year-round sport?

It felt like I had a lot of free time. There’s sort of this culture in 1L that it’s the hardest thing you’ve ever done, and you’re so busy, and there’s hours and hours of reading every week. And I felt like the odd one out because I felt like I had a ton of extra time. You spend a couple hours in class. You can do your reading whenever you’re not in class. And then I wasn’t spending three, four hours a day chasing a ball around a field. I wasn’t going to the training room before and after to get my injuries worked on. I wasn’t on a bus every weekend driving around to different games. So I thought 1L was downright luxurious from a scheduling perspective. 

You said you play soccer seriously, and I actually think jocks get a little bit shortchanged in culture in some ways, defined in opposition to people who are academically serious. I actually think my background as an athlete was a lesson in time management and having to look ahead days to weeks to see when I would have time to study for tests, and I’d have to start my papers early, that sort of thing. Because all nighters are not an option when you have a big game — or even just practice is hard. And so I think that skill set has really served me well throughout college, throughout law school, and now as a litigator. So justice for the jocks! I think you’re learning a lot of really important skills that will serve you well in the future.

I totally agree. In high school, a lot of people quit their sports to focus on academics, and that’s upsetting to me. I’ve tried to retain some semblance of balance by playing soccer, and it really helps.

And it’s good to be a well-rounded person. I try to be a well-rounded person, now. It’s healthy to not let yourself become totally consumed by one thing. I wouldn’t want to work 100 hours a week. I value other things in my life, and I think excelling in multiple things at once can sometimes be helpful. Because, maybe you didn’t do as well as I wanted on a test, or you’re really struggling with something academically; you can go and have a great workout in the morning and feel really good. Or vice versa: practice did not go the way you wanted, you dropped the ball in a drill, and coach yelled at you — but you can go hit this paper out of the park. You know what I mean? That kind of balance can be really healthy.

I’ve read that you didn’t know you were going to be a lawyer until after high school. What were your early career motivations, and then what pushed you towards the law?

I was very interested in history and English and politics. I’m a very verbal person and sort of politically inclined in terms of caring about the world and wanting to help people, but I wasn’t 100% sure that I wanted to be a lawyer. It was somewhat like I was trying to rule out being a lawyer or test it against other hypotheses. Both my parents are lawyers; my grandfather was a judge; I have lawyers all throughout my family tree. So I didn’t want to just default to something that seemed obvious, or modeled for me over and over. 

I was interested in politics, so in college, I worked on a Senate campaign in Virginia over the summer. I worked at a nonprofit over the summer; I wrote a senior thesis and spent a whole summer researching and writing that, sort of dipping my toe into the possibility of getting a PhD. But ultimately, throughout that trial and error period, nothing totally spoke to me the way that I thought law school and being a lawyer might. I kept circling around the conclusion that now seems inevitable in hindsight, that it made the most sense to go to law school. I didn’t want to just default to something because my parents did it, and I thought I’d be good at it. I really wanted to make sure that there wasn’t something else out there that might be a good fit.

Obviously, your grandfather was a judge and your parents were lawyers. How did you deal with the fear that you were going to be in their shadow, or that you had to live up to certain expectations?

That’s such an insightful question. I think for my parents, once I figured out I wanted to go to law school. I knew pretty early on I didn’t want to practice in the same fields that they practice in. Just didn’t seem interesting to me. They’re very good at what they do, but that’s not for me. So I didn’t have as much of that concern with my parents. I think with my grandfather — and just so your listeners have the context, my grandfather’s Justice John Paul Stevens — it’s kind of like deciding that you want to be an astronaut, and your grandfather being Neil Armstrong. He was such an extraordinary man that it almost takes the pressure off a little bit. There’s no universe where I am going to be — and of course, I’m biased — one of the greatest legal minds of my generation. I’m just a lady trying to litigate cases. It’s such a high level that it would be absurd to aspire to it, so it almost frees me up. If he was a really celebrated civil rights litigator in the federal courts of appeals, maybe that would be a closer analogue, but he really just is on this whole other plane. 

And It helps that we don’t share a last name, for example. I kept that relationship fairly locked down in law school. And then actually, when he passed away, I eulogized him, and that was the first time that my name and his name were Google-able, if you will, in the grandfather and granddaughter sense. And since then, it’s become a little more out in the open. 

But yeah, It’s just: He’s an inspiration, and he’s amazing. Sometimes I get to cite his opinions when I’m advocating for my clients, which is like a very emotional thing, because he was saying that defendants’ rights should be protected, and then I get to cite that or whatever it is. That’s very meaningful, but I hope it would be absurd for people to hold me to the standard, to be as extraordinary as my grandfather. And so I try to release myself from that kind of pressure.

That’s nice. He can be an inspiration but not the expectation, like you have to be this or you fail.

Listen, if people have that expectation for me — sorry, guys, not gonna happen. You’re going to get what you’re going to get.

I talked to Brian Wolfman about what constitutes doing good as a lawyer and whether you can find a place where you don’t just feel like you’re reinforcing the system. How did you convince yourself that you could be a lawyer and do good at the same time?

My understanding of what doing good as a lawyer would be changed really radically in law school, actually. So I came in with one understanding, and I left with a very different one. I entered law school in the fall of 2016, around Labor Day weekend. And in the Obama years, I saw the Obama Solicitor General, Don Verrilli, stand up and defend Obamacare. Those were the years of Obergefell and these big, from my perspective, wins at the Court, where the model for the gladiators at the Court was you work at DOJ, you work at white shoe law firms, and you do that cycle back and forth and really polish your resume to be perfect. And then you get to go fight and win that huge battle that affects millions of people’s lives for the better. 

So that’s what I was thinking. That was my holy grail: If everything works out perfectly, maybe I can be up there in 40 years arguing some amazing case to defend a government policy I really believe in. And I think that was substantially challenged in the fall of my 1L year when somebody was elected who did not share my values and ended up over the next couple of years really doing violence to the institution of DOJ, really challenging the idea of an apolitical bureaucracy in the federal government where, for good or for ill, you stay throughout administrations. 

And I think I got more sophisticated as a legal thinker and just became more educated in taking classes like administrative law and federal courts and civil procedure. And even absent my sort of top level concerns about what the political policies I would be defending as a government lawyer might be depending on the administration, I think I got much more uncomfortable with the day-to-day litigation that I would be asked to conduct: think about immigration policy, tort cases against the federal government. For example, a federal employee runs over someone in their Park Ranger truck, right? I think the victim should get paid. I’m a plaintiff-side girl. That’s how I relate to the world. I think I realized that I was more out of step than I thought with the workaday litigation that I might be doing if I got the job I thought I really wanted at DOJ. 

And I didn’t work through all that until my clerkship year, until after I graduated. It really took a couple years to turn that ship pretty slowly and realize that maybe suing the government was a better fit. That’s what I do now, and I like it a lot.

I’ve talked to a lot of lawyers, and immediately after clerkships, the two options seem to be government work or a law firm. Do you feel like there is a lack of awareness around the public interest option — that you can sue the government instead of working for them or working at a white shoe law firm?

I think so. And I think it’s a combination of different things. Government and big law firms are always going to be there. They hire in classes of graduates every year. They have summer programs; they’re big organizations with big, systematized hiring. So it’s very easy for the law school career office to hold an info session and say, “Hey, if you’re interested in summering at DOJ, or at a state AG’s office, here are the things you need to do. Here’s the career fair they’re going to come to.” Same thing with big law, obviously — very systematized hiring. So both for the infrastructure of the law school career offices, and just for risk-averse law students who like to know when to put on a suit and show up to something, it’s pretty accessible. 

It’s no one’s “fault.” Public interest is just a lot more catch as catch can. The organizations are small. Hiring happens when the funding comes through or when somebody who’s in a position leaves. You’re not farming in these big classes of civil rights lawyers at any given organization. And so that just makes finding those job openings and interviewing with them trickier from a scheduling perspective. It’s also a really hard way to start a career because generally, public interest lawyers are expected to do one, two, three, four — goodness I hope not — fellowships before securing the staff attorney job. That’s financially precarious — those fellowships do not tend to pay well — and it can be geographically challenging; you’re jumping all over trying to find different jobs. If you have a family, or if you’re just like, “I’m a grown up, and I can’t keep packing up my stuff and moving every year,” that can be really hard. 

I think there’s sometimes the temptation to blame law schools for not facilitating public interest hiring, and I think it’s right that they could put more resources into it. But it’s also just a much slippier, more heterogeneous thing that’s harder to help people get into.

You clerked for Judge Garland on the DC Circuit, which seems like preparation for government work. What convinced you during that time that this wasn’t what you wanted to do?

You’re right, I got hired into my DC circuit clerkship when I still thought that I wanted to be a government litigator. And it was like a perfect fit for this job that I ended up not pursuing. Still a fantastic year. Loved my judge. Learned a ton. 

But I think really, it was the process of literally submitting applications and picturing myself in the role of a particular job. I went through several rounds of interviews for a DOJ office before I withdrew my application. And so sitting in the office, speaking with the attorneys, thinking about the kind of work that would be on my desk as a lawyer in that position and realizing: “That doesn’t make me happy. I’m not excited about that.”

I went to a happy hour with somebody who was a government attorney at the office I was interested in. He had previously clerked for my judge, and I was like “Hey, I have an interview, can we talk about it?” And he asked me, “Are there categories of cases that you wouldn’t be excited to work on as a government lawyer?” And I think he was expecting me to have one or two, and I listed like five. And he said, “Hannah, I don’t think you want to work there. You can’t have a laundry list. Of course, you can have a couple where you say to your boss, ‘I’d rather not work on a death penalty case.’ But you really can’t show up with pages and pages of different categories and only work on defending regulations you think are good.” And I was like, “That’s a really good point. Thank you for highlighting that for me.” So I had to get pretty far down the road of imagining myself in those roles before it broke through that it wasn’t going to be right for me.

Even if the clerkship wasn’t exactly the perfect fit for what you ended up doing, how did Judge Garland influence your writing and your general methodologies as a young lawyer?

Sure. Judge was so great. I think the first thing about my clerkship that’s true about every clerkship — and then I’ll get more specific — is just being in court. You read dozens and dozens and dozens of briefs throughout the year. You listen to all the oral arguments, and you really get in touch with how your judge thinks. And the briefs and the oral arguments expose you to just what good and bad advocacy looks like. You see a ton of advocacy. Most of it is fine. Even in the DC circuit, people love to say it’s such a fancy court, there are such high-quality litigants. There are some high-quality litigants. There are some serviceable litigants, and there are some litigants who aren’t particularly sophisticated. 

And so I think it was actually very powerful as a young lawyer to look around and go, “I could do this. Yeah. I could do as well as that guy. That guy’s been doing this for 20 years. I could stand up and speak in complete sentences that are at least as articulate as that guy. I could write a brief at least as convincing as this brief.” It really made the whole exercise even more accessible. The appellate bar is like a little self congratulatory in communicating that “Oh, only people with the biggest brains can possibly write in these paragraphs.” Like, you’re just reading and writing. It’s okay. And actually getting to see the exercise in action, I think was powerful in reducing imposter syndrome. 

And then, in terms of Judge Garland, he’s just a very focused thinker. Some judges will have their clerks write bench memos that are dozens and dozens and dozens of pages and really cover every possible issue within 100 yards of the case. Judge would have us write three page memos. We had to ask permission to go over three pages. And they were to focus on the most important aspects of the case and what we thought was going to be dispositive. And then he would come and just talk to us about it. And we would go through different things and, in that process, I might run down certain other less top-line issues that he thought were going to be important, or that he wasn’t sure about, but I think it really helped me focus on what was going to dispose of a case. 

That’s really helpful as a litigator. There might be 12 issues in the case, but if you lose this first one, you’re toast. Also, he helped me think about how to allocate word count and how to allocate resources. He was very sophisticated in understanding that not all issues are created the same. When you’re in law school, you write as many words as you can about every issue if the exam isn’t word limited, and he helped, I think, bring a level of focus to that popcorn-style of analysis that you sometimes come out of law school with.

It almost seems like having those conversations prepared you for oral argument, or made you comfortable going back and forth with a judge. 

Not necessarily in the sort of rhetorical style or the form — the conversations with Judge Garland were conversational and you’re sort of batting things around — but it definitely helped in that you’re talking to a judge right, and you want to be as articulate as possible and show that you know the record, that you know the cases, and that you’ve paid attention. 

It also is a window into how he’s thinking about the case. This is such a mortifying memory, but in my first memo ever, I very confidently recommended throwing a case out on standing. And then I realized after he had read the memo and been like, “Yeah, this sounds right to me based on the materials you put in front of me,” that I’d read the wrong affidavit. I literally relied on the wrong part of the record. And the plaintiffs obviously had standing; it wasn’t even close when you looked at the correct affidavit that they actually submitted. I was mortified. It was the first thing I turned into him. I was like, “It was a mistake to hire me; he’s going to think I can’t do this job,” and I slunk in tail between my legs to tell him. And he just said, “Okay, thanks so much. Good to know, just send me an updated memo when you’re ready.” And went back to work.

I think that was also helpful. Judges, they’re just trying to get it right. They want to know what they need to know so they can move forward and get to the right outcome in the case and these things that can sometimes seem catastrophic — as a law student when you’re cold called, or as a clerk, if you whiff a little bit on something with your judge, or even in an oral argument, if you misspeak and you have to go back and correct yourself — it’s okay. Not every half second of an interaction with a court or a judge is a referendum on whether you’re going to win or lose or whether you’re a good lawyer. And I think just as a clerkship demystifies the briefing and oral argument, it also demystifies judges. They’re people, they’re trying their best, and they’re going to extend grace to you as long as you are upfront with them, generally speaking. So that was also helpful.

In talking about oral argument, you’ve said that you put together an outline binder and then you argue the case outloud to yourself. Tell me more about your process to prepare for oral argument. How do you think your processes differ from other lawyers?

Yeah, so they definitely differ from other lawyers. Every lawyer, through trial and error, and what feels right to them, comes up with their own oral argument process. I’m a maximalist. In high school and college and law school, when I was outlining for exams, my outlines would be 100+ pages long. The process of making a very long document is really helpful to me in preparing, and then I pare it down over time and make shorter versions and that sort of thing. Some people find that totally overwhelming, and it freaks them out to even think of doing something like that, which is a good sign that they shouldn’t do it that way. 

But something that gives me confidence, and I think can be very beneficial to the judges when they’re asking me questions, is that I just want to know everything. I want to know all this stuff. I want to know all the key parts of the record, including citations, so that I can point to the judge and say, “Judge, you really want to look at page 51 of the JA,” because that level of specificity can be really helpful, both in giving you as an advocate credibility and just making sure they actually read it. Their clerk scribbles down page 51, and they print it out for the judge, and it’s waiting for them on their chair when they get back from oral argument. So the record. The key cases. I’ve had oral arguments where I have my binder open to a key case, and the judge clearly has printed out that same case, and we’re going through line by line of a particular key paragraph. So I really want to have that ready to go. And then, of course, I want to know the substance of the briefs and the arguments. 

Once I’m relatively happy with the material that I’ve reviewed and where I am in terms of my understanding, I just start talking. Just talking and talking and talking constantly. I’ll put headphones in when I’m walking the dog and talk, so I look maybe like I’m talking on the phone and not talking to myself. I walk around the house just constantly because I don’t ever want the first time I say a thought to be the first time I say it out loud. I’m not trying to memorize. You don’t want to sound like you’re giving a speech or sound canned; you’re just testing it out. I’ll say a sentence, and if I don’t like it, I’ll say out loud, “Oh, no, that doesn’t work.” And go back to the drawing board and try to answer another way. And then as I’m doing that, I’m changing the substance of the written outline to better reflect what I think works. 

Many advocates — I think most high level advocates — record themselves, and play it back. I don’t do that. That would give me the craziest anxiety attacks. I would freeze up. I hate listening to myself back. So I don’t do that. Because I know that it would ultimately be detrimental, but many people do that, for example. But it’s fun. You just walk around talking to imaginary judges in your head for a couple of weeks. It’s great.

You mentioned being able to pick out specific parts in a brief or in an opinion, down to the page number. Does that require memorization? How do you retain information to that level of granular detail?

That’s where the outline comes in. What I actually carry up to the podium with me after a couple weeks of preparation is a small binder. And when you open it up like a book, those two sheets of paper are all that I have for one issue. And then I turn the page, and the next two pages are for the next issue. So once I’m on an issue, I don’t have to be flipping around. And within those two sheets, for any given issue, I’ll have a couple full sentences if I’m transitioning to a new subpoint, and I just want to have that there in case my mind goes completely haywire. But other than that, it’s mostly relative shorthand, including those specific page and opinion cites. 

I don’t hold myself to memorizing those exact numbers. I usually do, just by dint of how much I’m repeating them, but I’m talking to the judge, making eye contact, and I allow myself to look down. So if I’m saying, “Well, judge, as we discuss in our motion for summary judgment, you’ll see on JA 52,” and I check down and I check back up, and I’ve got that there waiting for me. And I’ll typically have, as insurance, in case I get asked about them and want to be really precise, the most important passages from cases and the most important parts of the record also in that slim little binder. So that if they really want to go back and forth about an affidavit in the record or something like that, I can actually open to it and be as precise as I can with them.

You seem okay with not being perfect, with looking down, or stumbling, or just asking the judge for a second. Do you think there is an overemphasis on having this perfect style with flashy rhetoric? 

I absolutely agree with the premise of your question. I think I came to that realization as a clerk when I was in the court of appeals, as opposed to at the Supreme Court. I think the Supreme Court is sort of a different animal. It’s related, but it’s a different exercise than litigating in a court of appeals or certainly in the district courts. And as consumers of high-level appellate advocacy, we generally think of Supreme Court arguments. And there, advocates bring up maybe one sheet of paper. You would never be flipping through a binder to get to the text of a previous opinion. There’s so much emphasis on being as smooth as possible, having this amazing, smooth rhetorical style.

And that’s how the Supreme Court has evolved. But the courts of appeals are bound by precedent. They’re bound by their past precedent or bound by the Supreme Court. They’re often very cognizant of their sister circuits and wanting to stay in step. And so there tends to be a lot more emphasis in the federal courts of appeals on the record. The Supreme Court is not sometimes quite as interested in the specific contours of the record in that particular case. And also on precedent. The Supreme Court, sometimes, decides they’re interested in precedent, but they don’t have to be. Because they’re the Supreme Court, and they can make whatever rule they want. Whereas in the federal courts of appeals, they’re actually constrained and so that level of precision, of “Your honor, I actually think this case turns on page 71 of your opinion in Smith v. Jones, and if you’d like me to turn to that, I will,” or “I’d like to quote very precisely” can be really, really helpful. And it’s very common. You don’t look amateurish if you’ve got your notes up there, and what I try to convey when I do things like that is precision. Your Honor, I’m not just up here shpeeling about what I think the law should say. I’m pointing you very specifically to why I think my client wins, and I’m trying to be helpful to you. And so I think that can be pretty effective, and I certainly feel more comfortable as an advocate and more confident as an advocate being as precise as I can just so that they know I know what I’m talking about.

How nervous or stressed were you before your first oral argument? And do you think there’s anything you did that helped you feel less stressed or, on the other hand, was unnecessary?

I mean, this is such a teacher’s pet kind of answer, but seriously, the most helpful thing you can do is prepare. All of my oral arguments so far — I’ve had four oral arguments in the courts of appeals — have been as a fellow at the Georgetown Appellate Courts Immersion Clinic. And so I was immensely well prepared. I had three moots before each oral argument, moots with incredible advocates, with the students who helped write the brief, and Brian, and my co fellow Maddy. And I felt, and it ultimately ended up I think being reflected in the oral argument, that I thought about all the hard issues. I wasn’t afraid that there were landmines out there that I hadn’t thought of that I was going to stumble into during the course of the oral argument. So that feeling of, “Maybe there’s something I haven’t thought of, maybe there’s something out there, but I’ve done everything I reasonably can to prevent that. I haven’t left anything on the field in terms of preparation” helped soothe me. 

And then I’ve developed a very specific routine, and I know every advocate has their sort of pregame. This is another athlete thing. It’s game day. You want to get a very good night’s sleep, both the night before and the night before the night before — the 48 hours before sleep is very important. And then for dinner the night before, I have pasta, a small glass of white wine, and I go to bed early because that’s very unlikely to upset any part of my system. I am carbo-loading for a very stressful day ahead.

And I try not to cram in the morning. I try not to psych myself out, which is something I would do with exams, just let myself off the hook that morning. I’m generally nauseous because I’m so nervous, but I pick at a Greek yogurt so I’m not in danger of passing out at the podium.

And then I just trust myself. I say my intro a couple of times, so I get my rhythm. Really, in my experience, the most similar thing I can compare it to is a big game, because I didn’t do debate or Model UN or anything like that. You’ve done your practice, you know your plays, and you just warm up and then you go out there. It’s emotionally very similar in that when I was an athlete before a big game, I would be terrified. I would hope a blizzard would come out of nowhere, and the game would get canceled. Like, terrified. But once you walk on the field and the ref blows the whistle, you’re fine. You’ve got the muscle memory, you’re in it. You’re having fun, the adrenaline kicks in. And oral argument is the same way. I’m very nervous during the morning, and in the hours leading up to it, but then, once you say your intro, and the judge asks you your first question, you’re in it. It’s the muscle memory from all the moots and all the practice. So my biggest hurdle is just literally getting to the podium. And then I’m fine.

In some ways, that’s nice to hear. I run cross country, and I get so nervous for the meets, in a similar way. But I don’t always feel that way about tests or big projects. It’s scary, but I almost want to find a career where I care so much that I am terrified before I go and do it.

I do sometimes have this sensation of like, “There are people who don’t feel this way, emotionally at work. I don’t have to put myself in this crazy emotional situation.” But the feeling afterwards, hopefully just like athletics, when things went roughly according to plan and your preparation shone through, is amazing. It’s the best feeling in the world. The celebratory lunch afterwards where you did everything you could do. So the nerves on the front end are, hopefully, balanced out by a feeling of accomplishment on the back end.

I’m not sure if I’m understanding this perfectly, but you’ve mentioned that your preparation changes a little bit depending on the court that you’re arguing before or the judges. Could you explain that?

The core of the preparation remains the same, but there are a couple nuances in different courts of appeals that affect my preparation on the margins. The biggest one is the court’s philosophy toward timekeeping. So universally, in every court of appeals, you’ll get a notice before oral argument that tells you how much time the court has allotted you for oral argument. Typically, it’s 15 minutes for your standard case. If the court perceives the issues to be a little more straightforward, you might get 10; particularly complex, you might get 20. That’s sort of the average, although courts vary. And in some courts, in the Seventh Circuit, for example, where I’ve argued, 15 minutes means 15 minutes. You will get “thank you, counsel” at 15:30. You can finish your thought, but you really have to be done. 

In a court that’s pretty sensitive to timekeeping, I still want to know all the issues, the breadth of my preparation doesn’t change, but when I’m doing the speaking part and when I’m in the moot, I’m thinking about how to get to the issues I want to talk about as quickly as possible. I’m practicing more aggressive pivots to get out of places that I don’t want to be or that aren’t helpful to me, and to get to my points that I want to make and my strong ground. So I’ll try to take the reins a little bit more — to the extent I can. I mean, if a judge wants to talk about an issue and is firm about it, I will be talking about it. But in my preparation, I’m thinking more about how to steer. 

Whereas, in a court like the Third Circuit, or in the DC Circuit, where I haven’t argued but I clerked, the judges are much more lenient with time. 15 minutes can mean 15 minutes if the judges have gone through all the issues that they’re interested in, and they’re kind of done with you, or it can mean an hour, if they’re just going with you and they’re interested. That happened in my third circuit argument. I think I talked for an hour or so. So 15 minutes doesn’t mean very much at all. In preparing for an argument like that, I can be a little more relaxed in the pivot. My answers can be a little longer. I can throw in an extra detail or two without feeling stressed that I’m eating up too much time. 

It’s very marginal. I don’t want to exaggerate how much of a difference it makes, but if I’m mooting somebody else, for example, and I’m not familiar with the circuit court, the first question I ask is often “Do you know how strict they are on time?” Because it often affects the feedback I give as a moot court judge. If somebody is giving relatively long answers, and they’re in a court like the Seventh Circuit or the Ninth Circuit, I’ll tell them: “I think you want to tighten those up. You’ve made your point, you’ve said the most important argument. I’m not sure you need to go into those three sub arguments. The judges already understand why you went on that point. And if they don’t, they’ll ask you a question.” 

That’s the other stylistic thing. In a court that keeps shorter time, I try to give a relatively short answer that I think covers it and then check up with them and see if they have questions. And if they’re convinced, then I just move on to the next thing. 

And to jump off this a little bit and answer a question you haven’t asked, one of the hardest things to do in oral advocacy, but I think can make a difference in how effective your argument is, is how you think about questions. I think folks who aren’t as confident in oral advocacy don’t want to get questions. They just want to say what they prepared and sit down whereas I think there’s data in the questions. They’re telling you what they care about. They’re telling you if they’re convinced or not by your arguments. Questions are incredibly valuable to you as an advocate, assuming you’re prepared and nimble enough to deal with them effectively. I want to know what the judges think of my case. If they’re totally sold on argument one, but they have a lot of questions for me on argument two, I want to know that so I don’t spin my wheels on argument one selling them something they’ve already bought. And so that’s also something I tried to think about.

To do that, it seems like you have to be really flexible. And you have to be okay with abandoning your game plan mid-argument, tossing something out because it’s not going to help you.

Yeah, I think you just have to relate to it as a conversation rather than a speech. I think one of the hardest things to do as an advocate, that I’m definitely still working on, is knowing when to give up on something. For example, I’m certain I’m right that the reason we win on issue one is Argument A. Argument A is binding precedent; it’s dispositive; we’re right about that. But if the judges aren’t buying that for whatever reason, and I can get what I need for my clients from Argument B — even if I don’t think is as good a read of precedent, I think it’s kind of a weird way to think about the law — embrace it, just go with it. Forget about Argument A, who cares about Argument A, we’re all about Argument B now!

You have to take yourself out of the mindset of, “I want to be right,” and just go for “I want to win for my clients.” It’s whatever those three people find convincing on that day, and if they’re telling you that they prefer Argument B? Okay. Fine. We’ll go with it. So you’re right, you have to be really flexible. And the northstar, the thing that you’re focused on, is: How do I get my clients the relief they want? And if it’s kind of an odd outcome that’s parceled together from different reasoning but the judges like it? Cool.

Gosh, that’s hard. I feel like I’ve internalized not just having the perfect answer but also needing the perfect reasoning. But your explanation doesn’t have to be perfect. It just has to be accessible to the judge.

Yeah, and you kind of practice your pivots: “Your Honor, I really think that Argument A is the best reading of precedent, but to the extent you disagree with me, I’m happy to talk about Argument B.” You preserve it, it’s in there, it’s in your brief. 

The other thing is, sometimes I think that advocates feel a pressure to touch on every argument in their brief, every heading. But you’ve submitted your briefs. They’ve read them. Oral argument is for what the judges want to talk about. And if they’re all set on an issue, maybe you bring it up for 45 seconds just to make sure you’ve gotten it across at oral argument, but you’re prioritizing what they find interesting and what they’re struggling with so you can help them. It’s not a speech competition where you have to get through every part of your outline. Which is, again, a kind of flexibility that can be hard because you feel like you’ve missed something or haven’t gotten out everything you want to say. But ultimately, they’re in charge, not you.

I’ve asked a lot of questions, but I can’t stop wondering: How do you read 100 books in a year? I know Libby is great for audiobooks and Kindle, but that’s still insane. What do you like about reading so much?

I’ve been on an interesting reading journey of late. I read a lot as a child. My mom would take us to the public library and we would bring these huge baskets, and we would literally fill them up with all the different serieses: “Nancy Drew,” “A Series of Unfortunate Events,” all those pre-teen books. But once I got into college and law school, I was in very reading-heavy disciplines. I studied political science, and obviously, law school is very reading-heavy. So I would read for pleasure occasionally, but I really fell off. And when I graduated, during my clerkship year, all of my co-clerks were voracious readers. My then-boyfriend, now-husband is a very good influence; he’s a voracious reader; my mother is as well. So I realized that I didn’t have the law school excuse anymore. I’m working, and in a world with appropriate work-life boundaries, that doesn’t eat up all your existence, the way law school frankly did — in law school, I worked from the moment I got up to the moment I went to sleep for 2L and a portion of 3L, at least. So I was like, “I should get back into this.”

The Kindle-Libby connection has been huge. When you’re relatively busy, and it’s a trip to physically go to the library, or you have to buy a 100 books a year — which I couldn’t do, it’s extravagant, and I’d have nowhere to put them — hooking my Kindle up to a library card has been incredible. And it’s organically reduced my other screen time-based things in terms of TV shows and movies. I didn’t set out to do that, I just realized that I feel more rested and refreshed and I just feel better when I’ve been reading. So I started trying to do 100 books in 2021, and I did it again in 2022. And it just makes me happy. It’s really fun. And I love talking about books with other people. I have a couple friends who I trade recommendations with, and we’ll have a phone call and catch up about our lives and compare notes on books we’ve re-read. And I’m very glad I’ve revived that part of my life, because I didn’t realize how happy it made me until I started doing it again.

It was also very affirming to hear that you’ll read two or three fiction novels in the span of one non-fiction book. My family thinks it’s crazy that I read more than one book at a time, but I like the variety!

They can be so different! That’s the thing: I don’t necessarily just have an urge to read. I’ll want to read my fiction book or my nonfiction book. They’re such different intellectual exercises, the precision of a nonfiction book versus immersing yourself in the world of a fiction book. So I experience them as very different. It makes so much sense to do a fiction or a nonfiction at the same time, or even two very different fiction books, because the emotional experience, what you need from that particular hour before you go to sleep, could be very different. I never read nonfiction before I go to sleep. That never happens. I’ll read nonfiction on the weekends when I’m sitting up in a chair and drinking my tea, whereas fiction is when I’m sprawled in bed or on the couch and I sort of want to go somewhere else. So I completely defend the multiple books at the same time.

That makes me feel better. Last question: I know you’ve secured the coveted staff attorney role, but what does the immediate future look like for you? What are your goals?

I think stability. I graduated from law school in 2019, clerked for a year, and then was a fellow at Georgetown for two years, and now I’m at the Council on American-Islamic Relations Legal Defense Fund, or CAIR-LDF for a much-need acronym. And I’m loving it. It’s really rewarding; I’ve gotten to branch out from being an appellate specialist to doing trial work and trial relations and doing intake and just becoming a more well-rounded litigator. And I really like it. I don’t want to hunt for a new job for some time. So I think medium term is definitely at CAIR, growing as a litigator and enjoying my colleagues and our amazing clients — and, our 100% remote, work from home set-up which lets me cuddle with my dog whenever I want to!

Oral Argument Preview: Glacier Northwest v. Int’l Brotherhood of Teamsters

by Maxwell Steinberg

Issue: Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer’s property during a labor dispute.

Background: 

Glacier Northwest is a Washington State company that sells and delivers ready-mix concrete. As a result of a labor dispute between Glacier Northwest and the company’s truck driver union, the union planned to strike when concrete was being batched and delivered. Because concrete hardens quickly, the material was destroyed. Glacier Northwest sued the union under Washington State law for intentional destruction of its property.

This case comes to the Court as an appeal of a decision by the Washington Supreme Court, which held that the National Labor Relations Act implicitly forecloses the company’s lawsuit since the resulting property destruction could be justified as a legitimate bargaining tactic.

The guiding precedent here is the Supreme Court’s decision in San Diego Unions v. Garmon, which held that even though the NLRA does not have an explicit preemption clause, the statute implies the preemption of certain state tort claims that are based on actions that the law “arguably” protects or prohibits.

The Gist of Glacier Northwest’s Argument:

Glacier Northwest (petitioner) cites the finding in Int’l Longshoremen’s Ass’n v. Davis that to assert that labor conduct is “arguably protected” by the NLRA, respondents have the burden to provide an “interpretation of the [statute] that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board.” In its merits brief, Glacier Northwest claims the NLRA language emphasizes “non-destructive conduct” and that the Washington Supreme Court’s ruling is a departure from decisions of the Fifth and Seventh Circuits and several other state supreme courts.

Petitioner cites part of the Garmon opinion as a fallback. There, the Court stated that Congress did not want to preempt tort claims relating to activity “touch[ing] interests so deeply rooted in local feeling and responsibility.” Petitioner argued that private property falls into this category, and without a remedy, the destruction of private property would raise Fifth Amendment’s Takings Clause questions. To support this connection, petitioner cites Justice Kavanaugh’s recent concurring opinion in Cedar Point Nursery v. Hassid, which cautioned that courts should interpret the NLRA “to avoid unconstitutionality” given “the Constitution’s strong protection of property rights.” Additionally, Glacier Northwest rejects the Washington Supreme Court’s determination that the Garmon exception only applies to property destruction if it is “violent” or “outrageous.”

The Gist of Int’l Brotherhood of Teamsters Argument:

The merits brief from Int’l Brotherhood of Teamsters (respondents) highlights that the National Labor Relations Board’s General Counsel concluded that the NLRA protected the union’s actions. Why does this matter? Respondent cites decisions from the D.C. Circuit and the NLRB holding that if the General Counsel finds that labor activities are protected, those labor activities are at least arguably protected. On the text, the union maintains, and repeats several times, that the NLRA protects “concerted stoppages of work.”

The respondent argues that any Garmon exception does not apply to protected activities under the NLRA but only to prohibited conduct. In support of this proposition, the union cites Farmer v. United Bhd. of Carpenters, which states that in cases of clearly prohibited conduct “there is no risk that permitting the state cause of action to proceed would result in state regulation of conduct that Congress intended to protect.” Even if the Court disagrees on this point, respondent claims that common-law torts (like conversion and trespass) would not have applied to the union’s activities.

Respondent defends Garmon through an implicit ratification argument. Although the term sounds complex, it basically means that since Congress has amended the NLRA (and jettisoned other parts of Garmon) by statute, Congress has expressed implicit agreement with the elements of Garmon it left in place.

The Supreme Court will hear oral argument on Tuesday, January 10th.

Oral Argument Preview: Ohio Adjutant General’s Department v. FLRA

by Maxwell Steinberg

Issue: Whether the Civil Service Reform Act of 1978 empowers the Federal Labor Relations Authority to regulate the labor practices of state militias.

Background:

State militias have existed since the dawn of the United States (they are mentioned in several clauses of the original Constitution). Consistent with their unique place in American history, state national guards have a unique place in American law: Federal and state governments have some form of “hybrid” authority over them. For example, enlisting in a state’s national guard means enlisting in the National Guard of the United States, as well.

State national guards also consist of “technicians”: full-time employees who do work relating to maintenance, human resources, and other administrative and clerical functions. These technicians are federal employees under the Federal Tort Claims Act, but states can hire and fire them.

Under the Civil Service Reform Act, federal employees have the right “to engage in collective bargaining” 5 U.S.C. §§7102, 7102(2) enforced by the Federal Labor Relations Authority. However, the F.L.R.A. only holds this power over executive agencies. In The Ohio Adjutant General’s Department v. Federal Labor Relations Authority, the Supreme Court will determine whether a state national guard, in its supervisory capacity over technicians, is an executive agency.

The Gist of the State’s Argument:

The state cites the federal definition of executive agency as codified in 5 U.S.C. §105 as “an Executive department, a Government corporation, and an independent establishment.” Petitioner argues that neither the Ohio National Guard, the Ohio National Guard’s Adjutant General, nor the state department (hereby referred to as the “trinity” for convenience) fit into either of these three categories.

Petitioner advances the following arguments:

  1. 5 U.S.C. §101 lists the executive departments by name, and none of the trinity is listed.
  2. Under 5 U.S.C. §103(1), a government corporation is owned or controlled by the U.S. government, which does not describe any trinity members.
  3. 14 U.S.C. §10 defines an “independent establishment” as “an establishment in the executive branch … which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment.” Since all groups within the trinity are either entities or officers of the state of Ohio, petitioner asserts that they fall outside this statutory definition.

Petitioner cites other bodies of federal law to confirm this understanding. Two examples are that individuals cannot sue state guards under laws that give individuals a cause of action against the federal government, and that alternatively, state adjutants general can be sued under Section §1983, which can be used to sue officials acting “under color of” state law. 

Ohio cites the federalism canon, a principle that requires Congress to speak with clear language when encroaching on activities that have historically been controlled by a state. Since Congress usually regulates individuals and not states, citing the High Court’s anti-commandeering case law, petitioner argues that the federalism canon applies.

The Gist of the Federal Government’s Argument:

The Solicitor General’s brief emphasizes 32 U.S.C. 709(d), which required the Secretaries of the Army and Air Force to “designate” adjutants general “to employ and administer” technicians. Since this is the basis for the trinity’s authority, the federal government argues that they exercise federal authority when they supervise technicians.

In an attempt to prove their authority over the trinity, the Federal Government cites executive orders (Exec. Order No. 11,491,3 C.F.R. 505 (1972); Exec. Order No. 10,988,3 C.F.R. 130 (Supp. 1962)) from before the passage of Federal Service Labor Management Relations Act that provided technicians the right to collective bargaining. Additionally, the Solicitor General cites 10 U.S.C. 976, which largely restricts military unions but does not interfere with technicians’ ability to bargain collectively. 

The Federal Government’s brief pronounces that “The F.L.R.A.’s regulations and longstanding practice confirm that components of a federal agency that supervise employees with collective bargaining rights are required to comply with the Act, even if they themselves are not agencies.”

As examples, the Solicitor General cites:

  • In re Headquarters, 22 F.L.R.A. 875, 880: a 1986 decision that found that the Defense Logistics Agency, a part of the Department of Defense D.O.D., had a duty to bargain. 
  • In re Boston Dist. Recruiting Command Bos., 15 F.L.R.A. 720, 722: a 1984 decision that determined that the 94th U.S. Army Reserve Command, a “subordinate level” of the Department of Defense, had a duty to bargain. 

The Federal Government argues against Ohio’s federalism argument with a simple proposition: Technicians are federal employees, so federal regulation of their employment does not pose federalism concerns.

The Supreme Court will hear oral argument on Monday, January 9th (its second argument of the New Year!).

Interview: Brian Wolfman

by Elise Spenner

Brian Wolfman is the Director of the new Appellate Courts Immersion Clinic at the Georgetown University Law Center. Prior to joining the Georgetown faculty, he co-directed Stanford Law School’s Supreme Court Litigation Clinic. Before Wolfman entered academia, he worked for five years as a staff attorney for a rural legal services program in Arkansas, and then spent 20 years with Public Citizen Litigation Group. Wolfman started his legal career as a clerk for Judge R. Lanier Anderson, III on the Eleventh Circuit. In the following interview, we discussed why he gravitated toward public interest work, his writing advice, and the day-to-day operations of his Georgetown clinic. 

What were you like in high school?

That’s interesting. I was not a terribly serious student in high school. I was interested in the kind of things a lot of high school students are interested in: music and sports and social interactions with friends and others. I was not a terrible student, but I wasn’t a superstar student, and I wasn’t as academically engaged as I might have been. 

When I went to college, there was sort of a point where I realized that I needed to know more, and that in particular, I needed to be a better writer. Because I didn’t know exactly what I would be doing five or 10 years from now, but I did realize that writing was likely to be my stock and trade. It was likely to be central to anything that I did. Because although I like science, a lot, and I’ve done science-adjacent cases that were pretty seriously scientific, I wasn’t a science or math person. I knew that wasn’t going to be principally what I did. 

So it did hit me in college that it was likely that whatever I did, the fulcrum of any particular project, was going to turn on writing. And I concentrated pretty consciously on saying to myself, “I need to be a better writer.” And that did make a difference to me as I progressed in my career. I did a few things before I went to law school, four years between college and law school, and those were writing-oriented. And not all lawyers spend a lot of their time writing, but I spend most of my time writing, and so that became very important.

When you were in high school or college, did you have any important teachers or mentors? Any in the writing field who convinced you to pursue it?

I would say yes and no. In high school and college, I had a handful of teachers who were inspirational because of their mindset or what they were teaching, or their capacity to engage me in the subject matter. I would say that my early interest in becoming a better writer was somewhat self-imposed. In other words, I took classes that demanded a lot of writing — writing up papers and research and occasionally even persuasive writing, which is what makes litigation writing so difficult. Persuasive writing tends to be more difficult than sort of term paper kind of writing where you’re talking about a subject. You might come to a conclusion, but you’re not principally trying to persuade. 

And so I thought about that hard and the classes I ended up taking in high school and college that stuck with me the most tended to be classes that demanded some writing. But again, I was engaged by those teachers because of their interests, for instance, in social justice, their interest in things that I was engaged in, politically and ideologically.

In law school, again, I was inspired by several people. I took a clinic in law school that was involved in legal services work, poverty law for people in Boston, and I was inspired by the people who ran that clinic. They were leaders in the field of public interest law and poverty law. 

Law school is a much more intensive experience than college. You are working in these intentional cohorts of people. You’re in this class on say, constitutional law, where there’s a lot of interaction and discussion, and the cohort tends to identify with each other. And for that reason in law school, I became inspired by a handful of teachers, but also by my classmates. And so I think that in a way — this is no dig at any of the teachers — I was principally inspired and learned from my classmates who are extremely talented. And the basic legal skills were acquired in law school. How to analyze legal materials like cases and statutes and regulations, that comes with the territory if you’re in a challenging law school environment, challenged by both your classmates and your teachers. So I learned those things. 

And then the ability to get that stuff down on paper, in a persuasive narrative, occurred principally in my early jobs after law school. I worked for a judge on the Court of Appeals for the Eleventh Circuit who was a fantastic writer and mentor. I would draft an opinion that he had directed me to draft, and he would sit down with me shoulder to shoulder and go over every sentence and paragraph. That’s not something that folks ordinarily have the opportunity to do. 

And then after that, in my first legal job, I worked as a legal service lawyer in 24 rural counties in Arkansas for five years. Just the day-to-day experience there, being in court two, three days a week, having to write four, five small briefs every week, if you’re careful about doing that, and you make sure that you look at colleagues and other people’s work, you begin to pick up the appropriate habits. 

And then I moved to Washington after about five years in legal practice, and went to Public Citizen’s litigation group for just under 20 years, and I directed that group for five and a half years. They do a lot of trial work, but also a lot of high level appellate work, including in the Supreme Court. When I left the group 13 years ago, we had already argued close to 60 cases in the Supreme Court. And we did a lot of other appellate work, too. We weren’t principally an outfit that was getting Supreme Court cases from other people like some of the big Supreme Court practices in Washington do; we were basically litigating our cases from the ground up. But we had the experience and wherewithal — and I think my colleagues had the talent — to do that kind of work. And through that work as well, my persuasive writing skills were enhanced, particularly by a few mentors on that job who, like the judge I clerked for, were really willing to take the time to work with me. 

And one of the things I learned from that is that you’re always sitting on someone else’s shoulders — often, a lot of people’s shoulders. And so I’ve tried, when I was directing the litigation group, and particularly now that I work with students and junior colleagues in the clinics that I run, to be very intentional about working with others on their writing.

When you were clerking in the Eleventh Circuit, what would Judge Anderson tell you about your writing? What was the feedback you got, and how did that improve your writing?

That’s a great question. This is a while ago now, so I’m going to be extrapolating from the experience as opposed to remembering a particular event. Some of it is quite basic, but nevertheless you don’t see it in all legal writing. Your writing has to be logical and linear. One point has to flow from the next point from the next point from the next point. Typically, that means that any narrative that you tell in an opinion, for instance, should generally flow chronologically, because that’s how people best understand events. I know that sounds very basic — but you see writing that doesn’t do that. 

Your writing ought to be, generally speaking, stripped down of any excess. Let me give you an example. You read a lot of opinions, and you’ve probably read some briefs, and you know that one of the things that lawyers are called on to do because of our system of precedent, for better or for worse, is to make analogies between cases and circumstances. And the idea is if something is analogous to something that occurred before in a decision, it’s something that might be persuasive to the reader. And one thing I learned working with Judge Anderson is, yes, you make those analogies, but they should be stripped down to their essentials, right? In other words, the analogy might be useful, but only with respect to the things that are truly analogous to the situation that you’re now going to present to the reader, and often these analogies get carried away in legal writing, and they’re not stripped down to their essentials. That’s just one example of trimming excess from your writing. 

That doesn’t mean your writing shouldn’t be punchy, or occasionally even emotion-laden,  or engaging — it should be all of those things at times — but it shouldn’t be excessive; it shouldn’t require the reader to guess at things or be held in suspense. A good brief sometimes has attributes of a good novel, but it doesn’t have those attributes of a good novel. Because the reader is someone who’s very busy. Your case is not necessarily the only case that the reader is going to be thinking about that day. And so that’s one of the things that I also learned from Judge Anderson: Sometimes it takes 20 or 30 pages to discuss a difficult, intricate topic, right? But if it doesn’t have to, it shouldn’t. And we pride ourselves now in our clinic of writing short, punchy, simple briefs. Not simplistic. They shouldn’t be simplistic. They have to engage with the difficult questions that might be before the court, but they should be as simple and engaging as possible. But without any excess.

A lot of the people I’ve interviewed, after they went to law school, either worked in big law or they worked for the government. What attracted you specifically about public interest work?

Oh, that’s another good question. So you’re right. Besides clerking, I have never worked for the government, and I’ve never worked in a private law firm of any kind, let alone big law, which I was not going to do because I didn’t view the their clients’ interests principally as being consistent with my values and why I wanted to go to law school. So that’s pretty easy, right there. 

But what attracted me to public interest law. That’s always a hard question of what motivates someone to do what they do. Very often, you see evidence that people are likely influenced by people in their family growing up, and I think that’s true of me. I had parents who were interested in social justice. My mother worked in prison reform issues in the 1960s and early 70s. My older brother, who was six years older than me, was involved in the anti-Vietnam War movement. Those are possibilities. Who knows? Is there a gene for one’s politics? Maybe there’s some genetic aspect to it. But all I know is that whether I became a lawyer or did something else, I knew I was going to do something that was socially involved. 

Whether at the end of the day I could prove that what I was doing was better for the world, in a way didn’t matter to me, because that requires some very difficult empirical judgments about “If you spend your time doing X, will it improve the circumstances of Y?” That’s a very difficult judgment. I have a gut sense that the work I’ve done with my colleagues and now my students does make a difference in the lives of the people that we’re trying to help. But there are others who might disagree with that. And so my bottom line is that I’m doing something that I know is consistent with my values. And that’s why I wanted to go into this area of law. 

I sort of joke and say, “The only time I’ve gone into a big law firm is to take someone’s deposition,” which is, by and large, true.

You mentioned being able to determine that what you’ve done has a tangible, positive impact on the world. When you were working on the ground in Arkansas, what was the value of seeing up close the impact that you were having? 

That’s a reason why — and maybe I’ll get up on a soapbox a little bit here — doing that type of work, which is largely day-to-day work in courts or other places, just helping poor people with their particular problems with the law, can be highly meaningful, gratifying and effective for the people you’re trying to help. If you stop someone’s eviction, or you’ve been able to reverse the decision taking away someone’s public benefits, or you’ve gotten someone extricated from a horrible situation, or gotten them a protective order against an abusive spouse, those are very concrete results, and you can say, “Hey, I have a law degree in our system that enabled me to stand up next to another human being in court and make a difference in their lives.”

And that’s very real. Now, I realized that some people would say, “Well, you’re not making a systemic change by doing that.” That’s true. But we live in a big and complex world in which you need people to do that kind of work. And you need people to do systemic work. I’ve had the opportunity, really just the good luck — because a lot of life is just luck — to be able to do both of those things. But I can tell you, and I say this because I think in part I’m talking to high school students, who may one day want to become lawyers: There is nothing like standing up next to a client in court who is at the short end of a power relationship and using your legal skills, and the legal system, to alter that power relationship. There is nothing like that. It’s the result that the client needs and wants. And it’s a human connection that you’re making with another person, and there’s nothing like it in the world as far as I’m concerned. Those are the highlights of my legal career.

On the flip side, were there times when you felt like you weren’t creating systemic change? That you were just feeding into the system?

Right. I mean, that’s always a concern. So when you say, “Is there any time that I ever felt that way?” Maybe the better question is: “Is there any time when I didn’t feel that way?” Because changing systems is very difficult and involves extraordinarily difficult, again, empirical judgments about what actually would make a difference in the lives of people systemically. I mean, it’s easy to say things like “altering the balance of power among or within institutions.” It’s easy to say, “countering massive and increasing income inequality and wealth inequality.” It’s another thing to get there, and those are very difficult things. 

And litigators, with rare exception, don’t typically have the opportunity to do those kinds of things. The marriage equality cases are an exception. I worked on those a little bit when I was out at Stanford; the cases were in our clinic the years I was out there. But generally speaking, making change is a combination of pulling the levers of different institutional mechanisms, whether it be legislatures, courts, social action, demonstration, on-the-ground building of social movements, and we lawyers are just a small part of that. There’s nothing wrong with that. But I like to think that I’m modest enough to realize that in anything I do, I’m only a small part of helping people better themselves in our society.

You talked earlier about how, at Public Citizen, you litigated cases from the ground up, as opposed to firms that might be handed cases once they arrived at the Supreme Court.

Just to be clear, we did a little of both. But yes, we did a lot of our own ground-up litigation.

Right. And what were the unique challenges and rewards of doing that?

So what are the rewards of say, at Public Citizen, suing a regulator for failing to live up to a statutory mandate. We did a lot of that. A lot of the time that would be in the district court, occasionally that would be at an agency and then in the court of appeals, but the point being is we were doing that from the ground up. And I can just throw out a couple of examples. We brought litigation that I was secondarily involved in against the Department of Transportation because they were allowing commercial truck drivers to work extraordinarily long hours. And this was killing people, literally killing people, on our nation’s roads because the truckers were too tired. That was successful litigation. I worked on litigation against regulators to improve the occupational safety and health standards in the workforce because of excess exposure to certain toxic chemicals. I worked on another truck drivers case to improve the standards for training commercial truck drivers. Just a wide range of litigation. We sued the FDA, OSHA, the FTC, the consumer product safety commission, for failing to live up to a wide range of statutory mandates. 

This was important litigation. And why is it important to bring it from the ground up? First of all, a lot of times, no one else would do it if we weren’t going to do it. Second of all, bringing litigation from the ground up, whether this is litigation against regulators or just suing some company for some unlawful business practice, which we did a lot of as well, when you bring the litigation from the ground up, you can have much more control over the record that is made. You can put your witnesses, your affidavits together. You can bring before the court proper plaintiffs who you are more confident have standing to bring that litigation. You do not have those luxuries of building the record and envisioning the case from its beginning, when you take a case on appeal, let alone for the first time in the Supreme Court.

More broadly, what is it like to work at a nonprofit like Public Citizen?

Well, I think it depends on the non-profit. I, to this day, work in coalitions with non-profits on litigation, and there are so many great non-profits who do excellent legal work. We were, at Public Citizen Litigation Group, different from many of them. The litigation group was just 10 lawyers, and we were very horizontally organized. We were able to work quickly. If we had read something the day before in the newspaper that indicated that there were government records that were being kept secret, or the government or a corporation was doing something unlawful, or just read about a problem in the newspaper that we thought might be amenable to a legal solution, we could act quickly. There was a director — as I said, I was the director of the group at one point — but because of the horizontal structure, if someone read something in the paper and had an idea, we could talk with each other quickly, and if we had the information, we could sue quickly. Large structures find that hard to do. They have conflicts; they have lots of potential impediments. I’m not saying that’s true of all other non-profits, by any means. But I’m just saying that it was a wonderful place to work because we had enormous independence and ability to sort of spring up on our feet and do litigation. 

I will say this as well: One’s funding sources can be — not necessarily, but can be — intimately related to the independence you have as a lawyer. Public Citizen’s litigation group, from its inception, took no government money, no government grants, and no corporate money — at all. So even if it was a corporation that wanted to fund our environmental litigation or our other litigation, which would be unusual, we would not take that money. Now, that meant we didn’t have that much money. But it meant that we were highly independent. Because if you get money, there’s strings attached. We took some foundation grants, but those foundations had to be independent from any corporations. And so, this made it a great place to work.

I want to spend the rest of our time talking about your current work in the clinic. How do clinics get the cases that you work on?

So that depends on the clinic. In general, there’s just a wide variety. A clinic might be doing, say, work in asylum cases or other immigration cases. They might have a relationship with a non-profit in the community that brings them cases. A clinic might have a relationship with a tribunal. For instance, a clinic that does veterans law might take referrals from the court of appeals for veterans claims because they have a program that tries to funnel cases from that tribunal to nonprofit organizations. Let me mention one other example: the bars in the various states — the DC bar, the Maryland bar, the bar associations that license lawyers — might themselves have lawyer referral services that refer cases to pro bono advocates, including perhaps clinics. 

What we decided when we got started in my current clinic — and this was true of my other clinic at Georgetown too, my civil rights clinic — was that we were not going to limit ourselves to one type of source, or even a couple, that we were going to be highly entrepreneurial. So even though we were not a for-profit law firm — of course, we’re a nonprofit institution within another nonprofit institution, Georgetown University — we were going to be highly entrepreneurial. So if a court wanted to appoint us to a case that we thought was a great case where we could make a difference, would we take it? Yes, we would. And we take a handful of appeals from courts of appeals. But only if we want to do the case. We will not take an appointment that’s mandatory. 

But we also take cases just because someone has called us, and it’s a great case. The client or another lawyer has called us on the phone, written to us and said, “We lost this case in the lower court.” And sure enough, when you dig into it, you realize that this is quite a good case. We’ll take that case. Or we’ll take a case because, having practiced now for a number of years (maybe too many years), I know a lot of lawyers around the country working both in private law firms or nonprofits, who will just bring a case to us, saying, “We lost his case. Do you want to take this appeal?” Frankly, we get requests like that all the time, and we have to be selective in the sense that we need a case that would be a good case for students to work on, that is meaningful, that meets whatever public interest goals we may have. And meaningful to students in that it would be a challenging, difficult case in which they would be engaged by the legal issues and by the social justice aspects of litigation. 

The final category, and this is where the entrepreneurial aspect of it really kicks in, is that we will go out and look for cases. And how does one look for cases? We do Westlaw searches trying to look for cases that are both interesting, challenging, consistent with the kind of cases we want to do, and also at the right disposition point, such that they can be immediately appealed, or they’re about to be appealed, or they actually just were appealed. And then we will reach out to clients and lawyers to see if they want our assistance. This isn’t most of our docket, but it’s a significant slice of our docket. 

Why do we do this? Not because we need it to fill our docket, but we’re trying to get a range of different types of cases. And the only way to do that, I thought, for the kind of clinic I wanted to run, was to have this entrepreneurial mindset where we take cases from courts, take cases from nonprofits and lawyers that I know, clients that contact us, and also, the most highly entrepreneurial part, looking for cases. Because the end result that I want is a wide variety of civil and criminal appeals — about two thirds or three quarters in the courts of appeals, about a quarter of the projects in the Supreme Court — on a wide variety of subject matters that are multi-issue appeals that are challenging for students and can keep them busy. So the quintessential project in our clinic is an opening brief in a multi-issue, complex case in a court of appeals. That’s the quintessential project, and to me, in terms of case type, the most challenging thing for an appellate lawyer is a multi-issue complex appeal in a court of appeals with a large record. That’s the biggest challenge, and we are looking to give our students the biggest challenges.

I’ve read your extensive Twitter threads about various aspects of writing. What do law schools get wrong about the brief writing process?

So I want to put it a little bit differently than your question, if you don’t mind. It’s not that, at least in our institution, students are being led astray about so-called legal writing — writing for lawyers — or that something needs to be fixed. Because at our school — and this isn’t true of all law schools — we have a highly professional, Professor-level group of academics who teach legal writing. It’s not being taught by third-year students. It’s not being taught by visitors. We have a highly professionalized law professor staff, and they do a terrific job. Some of those folks are friends of mine and are among the best writers I know.

I think the difficult problem is that you’re bringing in, in the first-year classroom, a large cohort of 25 or 30 students in each group of legal writing instruction, and they are new to this subject matter. And in a quite short period of time, you have to get them up to speed to be competent writers about the law. I hesitate using the term “legal writing” because to me, a good legal writer is just a good writer. And so that term bugs me a little bit, but you have to get this cohort of newbies up to a basic level of competence. This is not a criticism of our students. But it’s a new thing for our students. And that is an enormous challenge for the teachers of legal research and writing. And so they do a wonderful job of it. 

But then when they get to me, which is typically in the second and third year of law school, we are then asking them to do something that they haven’t done before — to work on challenging, complex, multi-issue briefs in a federal court of appeals with a large record. And that calls for very high-level skills, and so we work with them in an intensive way that couldn’t be done with 40 students. I mean, I talked to you about sitting shoulder to shoulder with the judge I clerked for. We will sit shoulder to shoulder with a student or two or three students working on a brief-writing project. Over and over and over again. Five drafts, seven drafts, 10 drafts. It’ll be me and the two fellows that are working in my clinic who are relatively new lawyers, but they are extraordinarily talented lawyers, and they will do the same thing with the students. And we will project drafts of the brief up on our very large television screen, and we will go over the outline of the brief, and the brief line by line, paragraph by paragraph, and that is something that we have the privilege of being able to do. That’s one answer. 

Another answer is: Are there advanced topics in writing about the law that aren’t covered in the first year? Of course there are. Because again, it’s an introductory course. So the things that you’ve seen of mine, for instance, on the internet, about writing reply briefs, dealing with parentheticals, using footnotes, constructing a legal argument, or how to use legal authority in a brief, these are the kinds of things that can’t be touched on in an introductory course. And on that score, it’s important to note that that class is trying to do other things. For instance, how to cite legal authority, the so-called Blue Book. I don’t have to deal with that because they’ve already dealt with it in the first year classroom. That is annoying, highly-reticulated learning that has to be done. And it takes up time in the first year curriculum. So I’m quite praiseworthy of that curriculum, but we’re doing something that is different. We’re working on these challenging briefs. 

Let me use one example. I think this will drive this home. If you’re first learning how to use legal authority, you might be given a very short proposition or a short, hypothetical set of circumstances, and then be given a couple of cases and be told in some sort of prompt to try to persuade me about “x” by using these authorities. And the student might write a paragraph and try to insert things about the authorities. They might use a quote from a case, and they might use a proposition from a case. That’s a basic thing that a student new to legal argument will have to learn how to do, and the engagement in legal materials in your entire first year curriculum will help you do that task. 

But that’s a task that will just get you to a minimum level of competence. It will begin to get the student, the prospective lawyer, to be able to discern what the legal problem is and to use the authority to support a position. But if you were to do that in every paragraph of that complex brief I was talking about, it would be a very ponderous, choppy brief. You’d have a sentence or two, then you’d have an authority, then you’d have a quote. But what you’re trying to do in a complex case that I’m talking about, is to get a sense of the entire legal framework and ecosystem, and then often come up with a thesis statement, a theory of the case or multiple theories of the case. And then essentially write an essay about why you should win. Write that persuasive essay that brings to bear your understanding of that thesis statement, and then adorn it with the legal authorities. 

So I say this to students all the time. This is a higher level way of thinking about how to write a brief. You’ve done all your research; you understand the law that pertains to the situation. And then you take those cases, those statutes, those legal authorities, and you metaphorically stick them in the corner. You write your essay about why you win, and then you use those authorities to adorn your theory of the case. That’s higher level, but that’s what wins difficult cases. Coming up with a thesis statement and understanding a way of thinking about the problem. But when you first start law school, you’ve got to learn the basics first. Does that make any sense?

It completely does. You have to learn to do all the research, and then work backwards almost, starting with your thesis statement and then adding in your evidence.

And there are easy legal problems in the course of practicing law where all you have to do is tell the judge two sentences and cite the case. That happens. And I’m not saying you always have to come up with something novel. That’s not true. But if you have a complex multi-issue appeal where you could win or you could lose, you do have to understand the problem and understand your thesis statement, and, as I said, typically the case law and the statutes become adornments on that thesis statement. That’s where the lawyer makes a difference. 99% of lawyers can read the cases and figure out what they say. The bigger problem is understanding how you persuade the reader in a tough case, and that is usually by coming up with some thesis about why you win.

When you’re working side by side with these law students, what is the thing you tell them over and over and over again?

That’s an interesting question. It’s hard to say one thing, but some of these things I have already mentioned. Which is if we’re writing the so-called statement of the case, the narrative of the factual scenario, what’s happened before the appeal, I stress linear, chronological, logical presentation, and in all events, good, pared down, punchy writing. I know that might not answer your question because it maybe is a little more general than you’re looking for. But this is what we do. 

And let me explain a little bit more about how it’s carried out. If we are three or four weeks away from the due date, I’m not engaged in line editing. What I’m engaged in is truly sitting side-by-side with two or three students, with that brief up on the screen with “bubble comment level” Ideas — like “this needs to be more chronological,” or “here’s an example of the kind of slimming down that can be done,” or “here is an example of what I view as excessive use of authority.” “Why are you citing three cases when two will do?” “Why are you using a parenthetical when the material in the parenthetical seems to be your thesis statement? Pull it out of the parenthetical, and try to use it yourself as opposed to using the case law as a crutch.” So these are general comments. I don’t view myself as an editor — and I think this is true of my colleagues, my fellows, other lawyers in my clinic as well — until very late in the process. I view myself as a colleague with the students; we are engaged in a back and forth, in which the whole will be greater than the sum of the parts. We’re engaged in a discussion with each other in which, yes, I have more experience, but at the end of the day, my input and their input will result in the best product. So I’m learning from them just like they’re learning from me.

What have you learned from your students? On a daily basis, or broadly.

Well, broadly — and you may view this as a sort of a cop out — what I gain from them is their level of engagement and interest. It keeps me highly engaged and passionate about the work. I’m not saying I wouldn’t be if I was doing something else, but I know that they definitely have that effect on me. I do think if you have a more horizontal relationship with your colleagues, even when the colleagues are students, it’s going to have a highly beneficial effect on the work product. It doesn’t matter that it’s coming from “just” students and I put the “just” in quotes because if you engage them at a very deep level, they are going to see things that you don’t necessarily see despite your experience. They’re going to have six or seven weeks to engage a 5000-page record and draft a brief. Will they do everything at the same level that you’re capable of on every task? No. But it’s a symbiotic relationship.

Two or three weeks ago now, I can’t give the specific example because it’s confidential, but we had a part of the brief where we felt like we had to respond to a couple of points that the district court had said. And sometimes you have to do that in an appeal that you lose before the district court. Other times, you don’t actually have to engage with the district court’s errors. But in this case, we felt like we had to. And there was one statement by the district court that I had been running away from, psychologically. And in one of the very last substantive meetings, the student just confronted me about this thing, saying, “This is one of the things the district court said, and we just haven’t engaged with it. And there are answers to it. And there are not only answers to it, but it actually reveals something quite wrong about the district court’s reasoning.”

This is something that I sort of intuitively knew but I just wasn’t engaging with. And she said that to me, in one of our group meetings, and I said, “I think you’re right, actually, and let me try my hand on it.” I had just been resisting this. I wasn’t confronting a problem in the case, but it was actually an opportunity if I was willing to confront it. I had gotten lazy about that aspect of the case. And I took a crack at it, just a paragraph or so; she took a crack at it, and it improved the brief. I think of myself as a highly determined, very hard-working lawyer, but that doesn’t mean I never get lazy. Also, people who have been at this job for a long time, they all might not admit it, but everybody gets tunnel vision. Everybody gets tunnel vision. And so being engaged by students and my fellows is a great antidote to that tunnel vision, particularly if you structure your office horizontally. If you structure your office highly vertically, you’re not going to get that kind of engagement because you’re too far away from those people.

So I’ll get off my soapbox now.

Previewing Oral Argument in Moore v. Harper

Video by Audrey Jung

Article by Elise Spenner

On Wednesday, Dec. 7, the Supreme Court will hear oral argument in Moore v. Harper, the contentious independent state legislature case. When the Court granted certiorari in the far-reaching case, Blake Fox wrote an excellent preview of the issues for the blog. You can find it here

I read the briefs from both petitioners (Timothy K. Moore, Speaker of the North Carolina House of Representatives) and respondents (Rebecca Harper, a member of Common Cause NC), and will summarize their claims below. 

But for those who didn’t read Blake’s piece, here’s what happened to get us to an oral argument at the Supreme Court just a month after the midterm election: 

First, the North Carolina General Assembly drew up a congressional map that was clearly gerrymandered. The state supreme court invalidated the map, claiming that it violated four different clauses of the state constitution. The legislators tried a second time to create a map that would fall within the parameters given by the court. This time, the state trial court struck the map down, and instead adopted a map created by three special masters. Notably, petitioners appealed for an emergency stay from the Supreme Court. They were denied, but four of the justices made clear that they wanted to hear the case. The Court officially granted certiorari on the last day of the 2021 term.

In their briefs to the Court, petitioners and respondents framed the questions presented very differently.

Here’s what petitioners said the question was: 

“Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.”

So, according to petitioners, state courts are currently rewriting elections provisions on a whim with little grounds for their actions. A few key words to pick out: devising, vague, purportedly, whatever. Petitioners’ argument, then, is very simple: they say the Elections Clause is “unambiguous.” It clearly grants all authority to state legislatures to govern elections, and does not let the judicial branch enforce the state constitution. 

Although petitioners attempt to make their claim seem obvious and unexceptional, it is relatively unprecedented, and requires that the Court embrace the “independent state legislature theory”: state legislatures are omnipotent when it comes to running elections.

Now, read what respondents said the questions were:  

“Does the Elections Clause bar a state legislature from prescribing rules that authorize state courts to exercise judicial review of election regulations for compliance with the state constitution? When a state legislature regulates under the Elections Clause, may it pass laws that violate its state constitution?

Respondents’ question posits that it is the state legislature who has given state courts the authority to review elections provisions — the judicial branch didn’t just claim the power for themselves. It also attempts to emphasize the absurdity of petitioners’ case: why should a state be able to pass laws that violate its constitution?

Meaning of the Elections Clause: 

As mentioned above, petitioners announce a simple view of the Elections Clause: it grants unfettered authority to state legislatures. The Framers made a conscious choice to pick out the “legislature” rather than designating authority to the state as a whole. At other times throughout the Constitution, the Framers “took great care” in identifying roles for a particular branch of the state government. And, petitioners claim that because the Elections Clause is in the federal constitution, state constitutional limits — including judicial review — should not apply. 

Respondents say that petitioners are advancing a radical and unsupported interpretation of the Elections Clause. When the drafters mentioned “Legislature” in the Elections Clause, respondents argue, they understood that a “Legislature” was constrained by its state constitution and judicial review — that’s why they created “separated powers,” after all. 

Other important considerations:

Notably, respondents ask that the Court avoid the Elections Clause altogether. In North Carolina’s case, their redistricting process requires that redistricting plans survive judicial review, to ensure they are constitutional. So the courts were simply following an “explicit grant of statutory authority.” On the other hand, petitioners say that state law provisions don’t delegate any power to the state courts, and if they did, it would be unconstitutional under the Elections Clause. 

There is clear disagreement about history, as well rely heavily on selective history to advance their arguments. Here’s what petitioners say: During the first forty years of the republic, eleven states adopted provisions in their Constitution to govern state legislative districts, but no state constitution includes provisions related to congressional districts. That means states understood that the federal constitution said everything that needed to be said about state elections, and all other power rested in the legislature. But respondents cite the Court’s judicial record, saying that the Court has never ruled that the Elections Clause prevents enforcement of the state Constitution.

73 amicus curiae briefs were filed in this case, and while I didn’t have time to read through all of them, I highly recommend taking a look: it’s important to understand where other stakeholders stand on this critical question. 

Student debt relief litigation reaches SCOTUS

by Elise Spenner

On Thursday, Justice Amy Coney Barrett acted alone in denying a Wisconsin challenge to President Joe Biden’s student debt relief plan. She did not refer the case to the full court. 

However, just a day later, the Eighth Circuit temporarily stayed the student debt plan while hearing an entirely different lawsuit brought by six Republican states. That means the Biden Administration may not relieve any student debt until the circuit court finalizes their ruling. 

Below, I’ll break down the student debt proposal and the progress of the two prominent legal objections to it.  

The “One-Time Student Loan Debt Relief” Plan:

In late August, President Biden announced the “One-Time Student Loan Debt Relief” plan, canceling $10,000 in federal student loan debt for those who make less than $125,000 a year and $20,00 in debt for Pell grant recipients. Thus far, more than 22 million borrowers have submitted applications for debt relief. The program is intended to last more than 30 years, and will cost $379 billion over that time, the Education Department has estimated. 

To implement the program, Biden leveraged the HEROES Act, a 2003 federal law enacted after the 9/11 attacks, that says the Secretary of Education may “waive or modify” student financial assistance programs during a war, military operation, or national emergency. The COVID-19 pandemic, his administration said, qualifies as a national emergency. Notably, President Donald Trump’s administration also relied on the HEROES Act to pause repayments for federally-held student loans through the end of 2022. 

Brown County Taxpayers Association v. Wisconsin:

At the district court level, a judge found that the applicants — Brown County Taxpayers Association, a conservative group that represents business owners and taxpayers — lacked standing. The judge reasoned that they hadn’t faced personal injury as a result of Biden’s plan. 

Although the applicants acknowledged that standing was likely their largest barrier to relief in appealing to the Supreme Court, they argued that any and every taxpayer is impacted when the President asks them “to assume perhaps over one trillion dollars in debt.”

Interestingly, in their application to the Supreme Court, Brown County relied heavily on the “major questions” doctrine embraced by the Court in West Virginia v. EPA. This theory argues that Congress must “speak clearly” if it delegates authority to an agency to make decisions of “vast economic and political significance.” If Congress’ statutes are vague or ambiguous in language, the Executive Branch — through agencies — can’t claim the power to make radical changes. According to Brown County, the Secretary of Education overstepped its constitutional authority in changing student debt policy — a “major question.” 

Brown County brought the case to the Supreme Court through an emergency appeal on the “shadow docket.” It reached Justice Amy Coney Barrett’s desk because she has jurisdiction over requests from the Seventh Circuit — Illinois, Indiana, and Wisconsin. However, when a Justice receives a concerning or contentious case from the “shadow docket,” they typically refer it to the full Court for consideration. It’s notable, then, that Barrett didn’t think this case deserved the attention of all nine justices; she felt comfortable rejecting it on her own. 

State of Nebraska v. Biden:

Across the country, six attorney generals in conservative states have challenged the plan on the grounds that their state-based loan companies would lose profit if student debt was canceled. Once again, their standing claims rest on shaky ground.

Initially, the case was brought before Judge Henry Autrey of the Eastern District Court of Missouri, appointed by President George W. Bush. He ruled that none of the states met standing requirements, and thus their cases could not move forward. 

Arkansas and Nebraska both claimed that the consolidation of a certain type of family education loans into Direct Loans would impact their ability to finance further loans. But at the end of September, the federal government said that consolidated loans would not be included in debt relief. Thus, those claims were no longer relevant, and any other possible injury was speculative.

In Missouri, Judge Autrey said that MOHELA — a non-profit entity that services federally-held student loans — could suffer damage from loan relief in the form of “loss of revenue, limited access to debt markets and lesser borrowing capacity.” However, Judge Autrey clarified that MOHELA was, by law, financially separated from Missouri and the state had no obligation to pay for MOHELA’s debts. Missouri has never before sued on behalf of MOHELA or stepped in to shield MOHELA from legal obligations, and it couldn’t start doing so now.

The Eight Circuit didn’t say they disagreed with Judge Autrey. They merely put a stop to Biden’s debt relief plan until they make their final ruling — either dismissing the suit or permanently enjoining the debt plan. The Eight Circuit has expedited the case, meaning that official ruling will likely come sooner rather than later. 

Conclusion:

The important thing to note from these suits is that standing is the central issue. The merits of the claims have not yet been considered because it seems like most of the plaintiffs are stretching implausibly for sources of injury that could make them eligible for relief. Thus, issues related to the “major questions” doctrine and the authority of the executive branch won’t even be considered if the parties don’t clear the hurdles posed by standing requirements. 

Eventually, however, you should expect that the full Supreme Court will hear a case about Biden’s student loan plan in one form or another given the avalanche of lawsuits currently stewing in lower courts.