Thursday, September 27, 2018

Oral Argument Preview: Mount Lemmon Fire District v. Guido

By Anna Salvatore

Next Monday, the Supreme Court will consider whether the Age Discrimination in Employment Act (ADEA) applies to state and local employers with fewer than twenty employees. The case, Mount Lemmon Fire District v. Guido, arose when an Arizona fire district was having financial problems. A drop in property tax revenues forced the district to make budget cuts, so the fire chief laid off his two oldest employees: John Guido and Dennis Rankin. The former employees filed a federal age discrimination suit in 2013. The district court ruled against them, finding that the ADEA only applies to state political subdivisions with at least twenty employees. Mount Lemmon was exempt from the law because it had eleven full-time employees.

After the firemen appealed, the Ninth Circuit Court of Appeals reversed the district court. It held that, “as a matter of plain meaning,” the ADEA applied to all state political subdivisions regardless of size. Because this opinion broke from Sixth, Seventh, Eighth, and Tenth Circuit precedents, the Supreme Court had almost no choice but to resolve the circuit split.

Before you read any further, it may be helpful to read the ADEA’s definition of “employer.” (Note that the word “person” isn’t meant colloquially, as it refers to organized groups of people like unions and corporations.)

[An employer is] a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year … The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.

Guido and Rankin claim that the phrase “also means” helps their argument because it “creates a distinct, freestanding category of public employers.” In other words, the phrase introduces additional employer categories that are covered by the ADEA. If you have trouble understanding this, imagine that your school principal defines misbehavior as “failing to follow your teacher’s instructions.” She then says, “misbehavior also means acting obnoxious in class.” The firemen argue that the second definition is entirely different from the first. Failing to follow your teacher’s instructions is misbehavior, and so is acting obnoxiously in class. When carried over to the Mount Lemmon, this means that groups with twenty or more employees are “employers” — and so are state political subdivisions.

The fire district interprets “also means” very differently. In their opinion, the phrase doesn’t introduce additional definitions of employers; rather, it clarifies and amplifies the first part of the sentence. Let’s go back to my school hypothetical. Using Mount Lemmon’s logic, the phrase “acting obnoxious in class” restates and clarifies the previous sentence about “failing to follow teacher’s instructions.” Acting obnoxious is not a separate offense from disobeying your teacher. The second sentence merely emphasizes that school administrators disapprove of obnoxiousness.

From a common-sense perspective, Guido and Rankin’s interpretation seems more reasonable than the fire district’s. We’ll just have to see whether the justices agree on Monday. In the meantime, interested readers should check out SCOTUSblog’s oral argument preview.  You can then navigate to Mount Lemmon’s homepage and read the parties’ briefs. 

Fun Fact: In a previous post, I mentioned that us High School SCOTUS kids are seeing oral arguments next Monday. Mount Lemmon is one of them!


Monday, September 24, 2018

Hi everyone. Sorry for the huge gap between posts. I started junior year a couple of weeks ago, and that’s been predictably hectic.

Some exciting news: five of the six High School SCOTUS nerds, including me, will soon travel to D.C. for the start of the Supreme Court term. We’ll see Weyerhaeuser Co. v. Fish and Wildlife Service and Mount Lemmon Fire District v. Guido on October 1st. The former is much better known as the “dusky gopher frog case,” and the latter involves the Age Discrimination in Employment Act. We can’t wait! Plus, as crazy as it sounds, this will be the first time that we’ve met in person.


Tuesday, September 18, 2018

Justice Sotomayor and National Constitution Day

By Kai Franks

Yesterday was the 231st anniversary of the day that delegates to the Constitutional Convention signed the Constitution. I celebrated the holiday by hearing Justice Sonia Sotomayor speak at NYU Law School; the event was hosted by ConSource, iCivics, and the New York Historical Society. Sotomayor was interviewed by Carmen Iguina, one of her former clerks, who is now a staff attorney at the ACLU of Southern California.

As the two settled into their seats, Sotomayor joked that we should sing happy birthday to the Constitution, producing the first of many laugh lines that night. What does the Constitution, began Iguina, mean in our daily lives? To answer, Sotomayor recalled a speech that the late-Justice Antonin Scalia once gave: “His whole point was that the Constitution was created by lawyers, and non-lawyers. [So,] for me it is not an instrument of just the lawyers or judges; it is an instrument for us as a community.”

Throughout the event, she reiterated that the law is inherently entangled in the community. “Most people,” Sotomayor said, “don’t understand how critical laws are in their lives… [they] create a relationship between us. They regulate our interest as a society and a community.” We all take part in the law constantly, and most laws exist because we have agreed that they are good for us collectively. Some laws we may not agree with, and those are the ones that are most often debated — that we are always seeking to improve or change. But, the Justice emphasized, “Mine, or even that of lawyers and judges, is not the only voice.” She spoke about judges in the South during the Civil Rights Movement who, even having been born white into segregation, nevertheless “ordered the integration of institutions they grew up in” because they cared about the rule of law and “believed in the 13th and 14th Amendments.” She sees them as judicial exemplars for acknowledging that the Constitution is greater than any individual, but still serves us all.

Both Iguina and Sotomayor bemoaned that they hadn’t read the Constitution until they were in law school. The Justice wondered why it isn’t given to middle schoolers to read (“Just read it! It’s not long!”). But next to reading the Constitution itself, “Read the seminal Supreme Court cases in the areas that engage most people. The seminal case in the 1st Amendment is New York Times v. Sullivan, which arose in the Civil Rights Era. The Court said you had to prove actual intent of malice.” Two things, she said, are operating there: the 1st Amendment itself, and then the courts ensuring its protections. If the courts don’t protect our right to speech, then people are constantly in fear of being sued for what they say, and speech is chilled. She fired off other seminal cases: Katz v . United States, Gideon v. Wainwright, Miranda v. Arizona, Atkins v. Virginia. But, she cautioned, “You should also read the dissent. You don’t have to accept them, but at least read them. When I read these older cases, it makes me question what has changed in our society to make the dissent [positions] less acceptable.” Reading dissents, she said, gives you a sense of the argument on the other side and how we can disagree civilly.

“What’s at stake if civic education doesn’t improve?” asked Iguina. Sotomayor referenced an observation made by retired Justice Sandra Day O’Connor — that the decline of civility in our political discourse has coincided with the decline of civic education. Without civic awareness and education, Sotomayor warned, “There is a real danger that we will lose our republican form of government.” She pointed to the recent book by Daniel Ziblatt and Steven Levitsky, How Democracies Die, which explains that the Nazis gained power partly due to an uninformed citizenry. Lack of civics education among Americans doesn’t just worry her, said the Justice; it makes her afraid.

As Iguina shifted to audience questions, Sotomayor walked down the aisles and greeted people as she answered them, teasing her security guards for their worry. (I happily received a handshake as she passed by.) “Too many lawyers, and actually too many judges, forget what our role is,” she said. “We’re here to help people with their problems.” When her six year-old niece asked what she does, Sotomayor said that she responded, “I take care of people who are in trouble with each other.” And sometimes, she told us, those people are institutions and governments. But the law is always about those people, those human relationships, the community however broad it is. “Why are people so fascinated by it [the law]? It’s because law is about every human activity.” Our Constitution changes with society because our norms aren’t static; so, as one of her originalist colleagues had suggested, burning at the stake is not permissible under the 8th Amendment.

Sotomayor continued to walk around the room, answering questions, shaking hands, and hugging the young girls who came up to her. When she realized that she would have to leave the auditorium in order to reach the other aisle, she instead made a whole row stand up so she could cross over. As she neared the stage again, stopping to take a group picture with a high school class, she answered the last question: “Who is your hero?”

“Oh. My mom,” she replied. “I think if most kids stop and think, they would probably answer the same way I do.” She remembered that when she was being considered for the seat on the Court, she called her mom. She was worried that, if she took the job, she wouldn’t have enough time to take care of her. Her mom said, “I spent my whole life sacrificing for you. Don’t take this moment of joy from me.”

I headed home struck by how many young people Justice Sotomayor had inspired.

Wednesday, September 12, 2018

Power of the Federal Judiciary

By Joe Hanlon

I’ve recently been thinking about the Supreme Court’s place in society. To better understand this issue, I researched Court decisions that demonstrate the ebbs and flows of judicial power. It’s been fascinating to learn about the delicate balance between our three government branches. By no means is the following list comprehensive, but it includes cases that are both important and interesting to me.

All AP Government students know about Marbury v. Madison, which cemented judicial review as a hallmark of American jurisprudence. Suddenly, the Supreme Court went from an obscure, disorganized third branch to the immensely powerful institution we know today. The unanimous decision in Marbury underscored a central part of the court’s role: the ability to strike down laws that it deems unconstitutional. Now armed with the power to significantly check the other branches’, the Supreme Court began to do so. The modern court is hesitant to invalidate Congressional statutes, and does so relatively rarely, but the option is always available. 

Thirty years later, the Supreme Court reviewed another controversial case: Worcester v. Georgia. Again, the Marshall-led Court invalidated a statute — this time passed by the Georgia state legislature — that it found unconstitutional.

Georgia passed a law prohibiting any interaction between its citizens and Native Americans. Samuel Worcester, a Georgian, was criminally charged for living on Cherokee land without a permit. The case made its way to the Supreme Court, and the justices declared the law unconstitutional. The decision would have given the Cherokee nation more autonomy over their land. However, President Andrew Jackson refused to obey it. He famously said, “John Marshall has made his decision; now let him enforce it.” President Jackson outlined the Court’s main weakness, which is its lack of enforcement powers. This case  shows that the Court can’t do its job without support from the other branches. 

Almost a century later, the Court struck down multiple statutes that regulated labor and workers rights. In the infamous case Lochner v. New York (1905), it said that maximum hours legislation violated workers’ liberty of contract. This method of invalidating laws under the guise of Due Process enforcement is called Lochnerism, and it’s now defunct. For several years, though, the justices used their power to shape progressive laws to their own liking or understanding. Critics regard the Lochner Era as legally dubious, yet its implications reinforce the power and consequence of the Court’s decisions.

Perhaps the Supreme Court’s most consequential expansion of power occurred in the mid-twentieth century. Under Chief Justice Earl Warren, the Court took substantial steps to ensure that Americans’ rights were respected and recognized. In decisions like Miranda v. Arizona and  Gideon v. Wainwright, the Warren Court expanded the meaning of the Bill of Rights and instituted now relatively uncontroversial practices, like the right to court-appointed counsel and the Miranda warning.

Its most important decision was Brown v. Board of Education of Topeka, where it unanimously held that the “separate but equal” standard violated the Fourteenth Amendment. That is not to say that Brown eliminated segregation. Not wanting to push southerners’ bounds, the Court failed to prescribe a mandated timeline of enforcement. But four years after Brown, when many schools were still segregated, the Court had a chance to cement its power for good. This chance arrived in Cooper v. Aaron, where the Court said that Arkansas’s state government had to abide by Brown. More broadly, this meant that states couldn’t be exempt from federal court orders.

Most recently, in Obergefell v. Hodges, the Court said that the Fourteenth Amendment requires states to legalize same-sex marriage. This was a considerable exercise of power, as the decision invalidated several states’ laws. Supporters of the decision would say that the Court moved the nation forward when legislatures failed to do so; detractors would call it an over-extension of power.

In a time plagued by partisan gridlock, the judiciary is often the most respected and well-run branch of government. Tasked with no small job — interpreting the law and safeguarding our rights — the “least dangerous branch” is no less important than its coordinate branches. 

Interview: Shon Hopwood

Shon Hopwood is an associate professor at Georgetown University Law Center. He co-founded Prison Professors, a blog about the criminal justice system, and he wrote a memoir called “Law Man.” When he was younger, he robbed five banks in rural Nebraska. He then served ten years in federal prison, where he discovered that he loved the law after helping out other prisoners. He became an astonishingly successful jailhouse lawyer: two of his cert petitions, including Fellers v. United States, were granted by the Supreme Court. He’s now an accomplished appellate practitioner.

My words are in bold; Shon’s are in plain text.

What kind of a teenager were you?
A rebellious one. I liked sports. I did not like academics nearly as well. In fact, I don’t think I ever took a book home my entire time in high school.

Looking back, were there any signs that you might have an aptitude for the law?
I did well on tests. I liked history and studying the Constitution. That was the one thing that was interesting. And I did well on aptitude tests, but I was a solid C student in high school — in part because I didn’t try. It really frustrated my parents.

Who were your role models back then?
Nebraska football coach Tom Osborne and probably Michael Jordan. The Cornhuskers are a big deal in Nebraska. When Nebraska has a game and they fill up the stadium, the stadium is the third largest city in the state.

You live close to pro sports teams. See, we don’t have any pro sports teams in Nebraska. College athletics is the only thing we have, and because of that, we have a much bigger following for our two major universities, The University of Nebraska and Creighton, than we would if we had states with professional sports.

Did one of your parents go to the University of Nebraska?
No. Most people that grew up in Nebraska in the 80s and 90s were Nebraska football fans
because the football team was so good. And basketball was my first love. It’s the first thing I found that I was really good at, and that I could just not get enough of. Which is much like the law now, but I didn’t have that then.

I was going to say — there are similarities between your practicing basketball all the time in high school and compulsively soaking up the law in prison. The same singleminded focus.
Yeah. Do you know who Malcolm Gladwell is? In one of his books, he talks about how people become experts or savants at a particular issue. And he says that you have to spend ten thousand hours of studying one thing, which is about ten years. After reading that book, I went back and thought about it. I spent about eight years in prison doing not much else other than studying law. Day in and day out. And I think that’s why I’m able to see arguments that other people can’t now. It’s because I just had a full focus on knowing the law — without a lot of other distractions. [laughs]

Part of the reason you quit college basketball is because you felt mediocre compared to the other players. But when you started out studying the law in prison, you probably weren’t amazing at it right away. What was the difference?
You’re right: I wasn’t very good right away. I knew nothing about the law, or very little, the day I accepted the job handing out books in the prison law library. The difference was that I grew out of sports a little bit. But the law was something I could do forever, and for the last eighteen years I’ve been, shall we say, trending upward in the law. And unlike basketball, where my body is now so beat up that I can’t play, I should get better at the law as time goes on.

In “Law Man,” you said that some guy knocked you to the ground in a prison
basketball game and wrecked your back.
Yeah. Prison basketball isn’t for the faint of heart. [laughs] It’s pretty rough, and I’m still suffering the consequences of being so foolish and playing so much of it while I was in prison.

How often did you play?
A couple times a week, every week. That was my escape.

Did a lot of guys show up to watch those games?
Well, we had leagues. And then sometimes we would just play during the afternoon pick-up games. But we also had leagues where people would show up and watch. That got me through the first couple years in prison until I found out I had a love for the law. And then I was either studying or playing basketball.

When did you realize that you loved the law?
I think once I started having some success. The law is really hard and challenging, and that’s what drew me in. But the law is also very frustrating when you’re litigating cases from inside a prison, and you know that your claim has merit, but you can’t get a fair shake because the judge sees a brief with a prisoner’s name on it. And because of that it would get discounted. It’s a lot of rejection for anyone who’s attacking convictions and sentences — for lawyers, let alone indigent federal prisoners who have never been to law school. It’s just a lot of rejection, a lot of losing. And so I think that winning a couple cases in those first formative years really propelled me forward. The case where that happened was John Fellers’, a Supreme Court case. And then I won a habeas case for a man named Melvin Brown that took ten and a half years off his sentence.

You obviously don’t want to go back to prison. But it must be frustrating to be on the outside and know that if you were still there, or if some other competent prison lawyer were there, people could have years shaved off their sentences.
It’s hard all the way around. So many people have been sentenced far longer than necessary to keep the public safe. And that’s part of the reason why I’ve started shifting from doing litigation, where you’re only helping one person at a time, to doing policy work, where the goal is to get a law changed that will help 100,000 people at a time. Because you’re right, I do feel bad that I can’t help more people. But I’m only one person, and there’s only so many hours in the day.

I’ve been working on sentencing and prison reform with FAMM, which is a nonprofit advocacy group here in DC. And now I’m working on reforming executive clemency. We just had a meeting at the White House earlier this week with a bunch of policymakers and advocates. I sat across from Kim Kardashian; she was there. And it looks like the White House is thinking about reforming the clemency process and making structural reforms so that the next person doesn’t need Kim Kardashian to advocate for them at the White House. Everyone will have a fair shot at getting a second chance and having their sentence commuted by a president.

So how did you get interested in the — what year are you in high school?

I’m a junior.

The thought of being interested in the Supreme Court as a junior in high school would have been so foreign to me. I think it’s really amazing and awesome now, but how did you start thinking about and getting interested in that?

Well, I’m pretty nerdy. So the fact that I’m interested in this isn’t shocking. But I became interested one day while I was in a study hall, and I was browsing the New York Times site. I stumbled across this oral argument transcript of a case called Maslenjak v. United States. It’s about the relevancy of certain false statements when you’re applying for citizenship. I ate it up, and I just loved it. So I started reading as many oral arguments as I could.
Huh. That’s a lot like my story. Only, I was reading legal briefs prepared by people like Seth Waxman and Paul Clement and Jeff Fisher and Tom Goldstein because I wanted to know how to do it better. I find the most interesting cases to me at the Court are often the ones that nobody pays attention to. I very much like those cases. In part because in the cases that aren’t the big political cases, it’s much harder to figure what justices are going to be on each side than, say, a case on affirmative action, where I can basically tell you what the votes are going to be no matter who argues the case and how they brief it.

What are some lesser-known cases that you’ve really liked?
Oh, well, I’m really partial to a criminal case called Apprendi v. New Jersey. That was decided June 26, 2000. I had been working in the prison law library for about six months, and all I did was check out books. I wanted nothing to do with the law. I didn’t know anything about it. Those books were big and thick and intimidating. But then the Court decided Apprendi, and I, along with every other federal prisoner in the country, thought that the reasoning in that case might apply to the Federal Sentencing Guidelines, and that we could all get a sentence reduction. So then I had a lot of motivation to pay attention the Court and study law, and that’s really what got me started.

One of my favorite opinions is a case called Crawford v. Washington, and that was a Justice Scalia opinion involving the Confrontation Clause — the right to confront your accusers at trial. It’s just a really great opinion on why the framers created the Confrontation Clause, and why the Court had nearly destroyed it for thirty years. And in that case, they reversed nearly thirty years of precedent on the Confrontation Clause.

How did you know about Apprendi? Did you keep up with most Supreme Court
Oh, yeah. I mean, people that are in prison are always following what the Court’s doing, and to a certain extent, what their circuit court is doing in case a decision comes out that could help them fight their case. Because you generally need to file within a year of a new Supreme Court decision that’s applied retroactively. And if you file too late, it doesn’t matter if you’re right. You’ll be barred from court. So most people pay pretty close attention. And when a case comes down that could impact people, that knowledge spreads like wildfire throughout the prison system.

How were you able to access the opinions?
We had books. Now they have legal databases, but then we had books and a Criminal Law Reporter that told us about which cases were up for consideration and which cases had been granted. I spent a lot of time listening to Nina Totenberg on NPR; any time a big case was argued, I listened to her at four o’clock on All Things Considered and heard about what was said at the argument. And I read newspapers and legal periodicals.

How long did it take before you could comfortably understand legal casebooks?
It depends on what area of law we’re talking about. [laughs] You can hand me an international law book today, and I’m not certain I would do any better than I did eighteen years ago as a federal prisoner. But you know, after a couple of years I felt a lot of familiarity with how judicial opinions are written and the reasoning behind them. Things started to click shortly after the Fellers petition.

Which books did you use most frequently in the law library?
The Georgetown Law Journal Annual Review of Criminal Procedure. That’s a book that
Georgetown still puts out today. It was very helpful in figuring out the law. There were books on habeas corpus, which is basically post-conviction motions, and I read a lot about those. And then there was a legal casebook called Modern Criminal Procedure that basically helped me understand what the issue was in Fellers.

There’s another famous jailhouse lawyer named Clarence Earl Gideon, who lent his name to Gideon v. Wainwright. Did you know about him when you were a prisoner?
I did. I had seen the movie that had been made about that when I was a kid, so I remembered Clarence Earl Gideon. You know, there’s a surprising number of cases that have been filed or granted by pro se people in prison over the years. In fact, I need to write an article about that someday.

I would read that article.
Yeah, it’s kind of fascinating. Going through the years, and seeing the number of cases — it’s not a great number. The chance of an indigent prisoner getting their case heard by the Supreme Court is one half of one percent. It doesn’t happen often, but when it has… Gideon is one of the most cited, most important decisions of the twentieth century.

Did you see this dynamic with indigent prisoners’ cases when you clerked on the D.C. Circuit? That must have been a pretty small percentage as well.
We had a couple pro se cases when we clerked at the D.C. Circuit, but they weren’t prisoners; they were people that were out and couldn’t afford a lawyer. And I remember one case involved the tax court. Somebody was disputing income taxes and actually came and argued a case on their own in the D.C. Circuit.

I don’t know anything about tax law, but it seems very complicated.
Yes, it is. [laughs] It is. She was a stewardess who lived overseas part of the time and was
disputing that part of her income should have been taxed under American law. And she lost most of her case, but she won on one particular argument. So she got a reversal and remand on it. Which, you know, a lot of lawyers can’t say they’ve done the same thing in the D.C. Circuit. I’ve never argued a case in the D.C. Circuit. I’ve litigated cases there, but I’ve not argued there.

How many arguments did you get to watch when you clerked there?
I watched as many arguments as I could. The D.C. Circuit is kind of unique, even among all the federal courts of appeals, in that there’s a higher percentage of really good appellate advocates in that court. One because it’s in D.C., and two because of the nature of some of the cases. There are administrative law cases that are really important, and so they draw some of the best attorneys. I liked to see arguments because I’m always trying to learn how to be a better oral advocate.

What did you learn from those oral advocates in the D.C. Circuit?
Quite a few things. One, when a judge asks you a yes or no question, give him a yes or no
answer and then explain it. So many attorneys want to fight the judge on the question that they never end up answering it. I watched judges get very frustrated by that. Another thing is that when the judges are asking questions, you stop talking altogether. No matter how important it is what you’re saying, when they start talking, you stop. The good ones wouldn’t do that, but I would see bad lawyers try to talk over the judges. That kind of defeats the whole purpose of oral argument.

The best arguments are really like a conversation. It’s why I, for the most part, take one or two pages of notes, and then I’ll set the record to the side. I don’t want to refer to anything unless I absolutely have to. Because any benefit you get from looking down at your notes and reading, you just lose so much by not making eye contact with the three judges as you’re giving a response to a question. So I did an argument in the Washington State Supreme Court last November where I put all my materials on the side and really had nothing in front of me. And I find that I do better that way.

That sounds terrifying.
[laughs] It is a little terrifying. But at the end of the day, that works for me. If I have to rely on notes at an oral argument, then I haven’t done the prep work. Usually, by the time I get into an argument, I can tell you everything about a case by memory. And I’ve usually done at least three moot courts. I’ve got an argument on September 27, and I’ll do three moots before I even drive down to the courthouse.

And you do those moots at Georgetown?
I do. We have a really extraordinary faculty at Georgetown as far as faculty who, at one point in time, have been appellate practitioners. And some still are. You know, we have the Supreme Court Institute at the law school. We’re the only law school in the country that has that. And in the last three years, I think, we have mooted 99% of cases that have come before the U.S. Supreme Court.

When lawyers want to get their case heard, one from each side calls Georgetown. Everyone wants to do the moot there because they’re really good. We get the top appellate lawyers to serve as justices. Last time I served as a justice, I sat next to Don Verrilli. When both of the advocates call, Georgetown flips a coin for who gets it. So we get one side of almost every case that’s argued in the Supreme Court year after year after year.

They actually flip a coin?
Yup. And Georgetown has a courtroom for this purpose that looks like the Supreme Court.

I guess it’s meant to elicit the same anxiety as that big, high-ceilinged courtroom at the Supreme Court.
It is. And it’s a public service for the Court, to help prepare advocates. Everybody does it, from Paul Clement to Seth Waxman. But you know who really gets the most benefit from doing it? First-time advocates at the Supreme Court. Because they’re going to be mooted by people who follow the Court closely, who have argued a lot in the Court, and who know what the justices are looking for.

How often do you serve on moot panels?
I do a couple every year. I do them for a number of reasons. O of them is that it makes me a better lawyer to do those moots. You’re learning an area of law you may not have learned before. You’re thinking about the arguments in a way that a judge would, and then you’re sometimes trying to help the advocate change their arguments to the ones that will be most persuasive. And just going through that routine several times a year is really beneficial for someone that does appellate law.

Do you volunteer for moots, or are you selected?
They have a selection process. They call me, especially on criminal cases — I do a lot of work for criminal cases. And you teach classes related to sentencing and criminal justice reform, right? I do. What’s your favorite part of teaching? I’d say watching students graduate and then go on to have remarkable careers. Or just the interaction in class I find fun. I tell my students to argue with each other, and to argue with me if they think I said something wrong. So we have pretty robust arguments in class, and that’s the
way I like it. It’s similar to an oral argument, where we’re discussing and not getting upset about things, but we’re very much arguing each other’s points. I want to prepare students to do what lawyers do, which is argue — and do it respectfully, and do it without it becoming personal.

If my students don’t remember anything else, that’s what I want them to take from my class. I feel like that is a broader issue in America that many people have problems with. Nobody can argue anything without getting offended, or devolving into name-calling and ad hominem. As a lawyer, you can’t afford to do that when you’re arguing on behalf of a client. It’s counterproductive, and it’s not effective advocacy. It just isn’t. You never score points with a judge for putting down the other side.

Another broader issue, I think, is that a lot of lawyers are unhappy. Of the lawyers you know who love their jobs, what are they doing differently?
I enjoy the law, but I’ll tell you: the law itself wasn’t what got me into the civic career. And it’s not what changed me when I was in prison. What changed me was using my legal skills to help other people. And I feel like people who want that as their careers do really well in the law because there are all sorts of different ways to help people.

You know, when you’re just doing document review for seventy hours a week, and you don’t really have any decision-making power over the shape of the litigation, that would be miserable.

I have a few more questions. If you could sit down with the Attorney General for ten
minutes, one-on-one, what would you talk to him about?
[laughs loudly] I probably shouldn’t answer that. In part because I’ve already done that, and had that conversation, and I should not talk about it. I met the Attorney General back in January at the White House, and all I’ll say is that we had an interesting conversation.

Alright. I won’t press any further, then. Are there any books that you’d recommend about mass incarceration?
There are a couple different books. There was a book last year that won the Pulitzer Prize from Professor James Forman of Yale Law School that is really, really phenomenal, and it’s called “Locking Up Our Own: Crime and Punishment in Black America.” I would highly recommend that one. And then the other one is a book called “Locked In,” by a law professor at Fordham named John Pfaff.

Which non-legal books have influenced you?
I am a very big fan of Raymond Carver, who was a short story fiction writer in the 70s and 80s. He wrote in a style that’s called minimalism, which I think more lawyers need to adopt. Lawyers tend to overwrite. Those books, and the writing in them, impacted me.
Have you heard of Chuck Palahniuk? He wrote “Fight Club,” and he’s written a bunch of books. He writes in the same style. They write short, choppy sentences that sound just like how someone speaks.

And have they influenced your own writing style?
They have, because I used to write based on how I thought lawyers wrote. But it turns out that lawyers are horrible writers, and many judges are horrible writers, and the whole profession is moving to what’s called plain language writing. We’re using less legalese, and more legal briefs read like they’re pulled out of the New York Times.

When did that movement start?
Probably ten, fifteen years ago. I’ll tell you, my favorite legal writing book is by a guy named Ross Guberman. And it’s a book called “Point Made.” It’s by far my favorite writing book. What he did was he took the top fifty appellate advocates, looked at a bunch of their briefs, and pulled out strategies that they all used. And then he actually takes methods from each brief and illustrates the point by examples from the best appellate litigators in the country. And that’s how I learn the best: by seeing examples. So I can’t recommend that book enough. I tell my students all to buy it. I’ve probably bought twenty or thirty copies that I’ve sent people all over. I also know Ross really well now, and I’ve had him come speak to my class.

Other interviews conducted by Anna Salvatore: UChicago law professor Justin Driver, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman. former Court writer Linda Greenhouse,  NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes. 

Sunday, September 9, 2018

by Anna Salvatore

Next week, I have a history test on the progressive era. I’m expected to know about the progressive movement; the presidencies of Roosevelt, Taft, and Wilson; and pertinent events like the Triangle Shirtwaist Fire and the Treaty of Versailles. This has given me the opportunity to reread Jeffrey Rosen’s great biography of William Howard Taft. Even though I only read it a few months ago, I figured it would be a helpful refresher.

What does this have to do with High School SCOTUS? Well, the book is largely about Taft’s reign as a “presidential chief justice.” He was an unpopular president, since he lacked a politician’s temperament and insisted that “he could only do what the Constitution explicitly allowed.” Among other things, this meant that he refused to lobby Senators to vote for his favored legislation. But this single-minded constitutional focus served him well when he was appointed Chief Justice in 1921. He had yearned to be chief all his life, and he couldn’t wait to make the judiciary “fully equal in independence, power, and dignity to the White House and Congress.”

Funnily enough, Taft’s leadership skills dramatically improved when he became chief. In 1922, he successfully lobbied Congress to create a conference of federal appellate judges.  This allowed judges to formulate administrative policy, recommend legislation, and temporarily reassign other judges. The legislation also allowed roving judges — a “flying squadron,” Taft called it — to fill in when other courts were congested.

He also encouraged Congress to pass the Judiciary Act in 1925, which gave the Supreme Court more control over its docket. It was previously required to hear all cases involving federal rights and laws. “The 1925 reform achieved Taft’s goal,” writes Rosen, “giving the Court the discretion to focus on those cases it believed raised important constitutional questions or questions of federal law about which lower appellate courts disagreed.” It greatly decreased the number of cases heard by the justices, from more than 500 cases in 1926 to less than 200 in 1926. The number is even lower today.

Although these are hugely important accomplishments, Taft may be best-known for moving the Supreme Court to its own building. If you’ve ever toured the Capitol, you know that the justices once hunkered down in the old Senate Chamber. It wasn’t very dignified. Taft secured funding to create the Supreme Court’s current marble palace, which was designed by prominent architect Cass Gilbert.

Here’s my message to other high schoolers — and anyone else who may be reading:

  1. Jeffrey Rosen’s biography is terrific, and you should read it.
  2. William Howard Taft is often mocked by kids for being “the obese president.” You know, there’s a famous story that he got stuck in a bathtub. Beyond that, though, he had a shockingly distinguished career as Solicitor General, Court of Appeals judge, civilian governor of the Philippines, Secretary of War, President, and Chief Justice of the United States Supreme Court.



Interview: Justin Driver

Justin Driver is a professor at the University of Chicago Law School. After college, he received a master’s degree in education from Duke. He then attended law school and clerked for Justices Stephen Breyer and Sandra Day O’Connor. We mainly discussed his new book, “The Schoolhouse Gate,” which is about students’ constitutional rights. What could be better for a High School SCOTUS blog?

What kind of a teenager were you, and what were your interests?

I attended public schools in Washington, D.C. through the ninth grade, and then starting in tenth grade I went to an all-boys Catholic high school. I definitely enjoyed school, but, certainly in my early teenage years, I also had a substantial mischievous streak. In The Schoolhouse Gate, I mention getting suspended in the ninth grade for drinking on an overnight field trip. I’m struggling with how I’m going to tell my own two young daughters about why I thought that was a good idea; I’m glad they won’t be reading my book any time soon. [laughs]

One of the reasons I mention getting suspended in the book is to draw attention to zero-tolerance policies. I consider myself incredibly fortunate that I got suspended for only three days, whereas if I had done the same activity during the era of zero-tolerance I would have been suspended or expelled for the remainder of the year.

Who were your role models in high school?

Justice Thurgood Marshall was a major role model. At the beginning of my time in high school, Justice Marshall was still on the Supreme Court. I didn’t know much about law at that time, but I revered Justice Marshall; in large part, of course, for his litigation with the NAACP Legal Defense and Education Fund. 

Thurgood Marshall seems like an interesting role model to have as a high schooler.

In the D.C. public schools that I attended, teachers emphasized black history month and black heroes generally — throughout the year, not only in February. And so I must have encountered Thurgood Marshall early on as a figure who improved the nation, as teachers instilled that these were American heroes that every American should know and venerate.

A couple minutes ago, you mentioned that you were suspended in ninth grade for drinking on a school trip. I’m guessing you didn’t feel lucky at the time for being suspended. When in your life did you realize that it was sort of fortunate?

When I was suspended, I definitely did not think, “What a great stroke of fortune.” To the contrary, I was devastated. I was unaware of a Supreme Court decision that I discuss in the book called Goss v. Lopez, which afforded due process rights for students prior to suspensions. Justice Powell wrote a dissent asserting that, for most students, getting suspended is a welcome holiday from school. For me, being suspended felt like a decidedly unwelcome holiday. It felt like I was being banished from my school.

Zero-tolerance disciplinary policies were typically not in place at that time. It’s only through researching this book that I realized how close in time my young and irresponsible behavior preceded the rise of zero-tolerance, which would have thrown my life off course, perhaps irrevocably. School discipline has, regrettably, become a lot more severe and punitive since the 1980s.

And that’s one of the other things I discovered when writing the book. Principal Joe Clark of Paterson, New Jersey, who is the real-life person depicted by Morgan Freeman in the movie, “Lean on Me,” had a reputation for being an incredibly harsh, punitive principal. In Clark’s memoir from the 1980s, he recounts announcing a new code of suspensions for bringing weapons to school, drinking, and drugs. Surprisingly, though, Clark’s punishments were extremely mild compared to those that are routinely distributed to students today. As a default matter, Clark’s suspensions were very brief in time – only ten days for even serious infractions. Clark’s penalties illuminate how dramatically school discipline has intensified over the last three decades.

What other books were especially helpful when you were researching “The SchoolhouseGate”?

A few books spring to mind. Richard Kluger’s “Simple Justice” is a magnificent work. It’s a rarebook that takes a legal topic and achieves something close to literature. Kluger does just that by using Brown v. Board of Education to tell the larger story of the quest for black legal equality in America.

Another book that was important to me is one that I was lucky enough to be a research assistant on as an undergrad at Brown University. Professor James T. Patterson hired me to work on his book called “Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy.” That experience was formative because I now ask my research assistants to perform similar tasks to those that I performed in 1997. Professor Patterson would often have me go to the stacks where old magazines resided to uncover how people at the time viewed these legal conflicts. Judge Louis Pollak, before he ascended to the federal bench, once said, “Life magazine is America’s most widely read law review.” That is an incisive comment about the way that poppular publications can reflect, but sometimes also create, legal meaning in society.

Finally, in terms of form, Professor Randall Kennedy’s Race, Crime, and the Law influenced me deeply. Kennedy’s book manages to speak both to legal audiences and nonlegal audiences, combining the historical with the normative. That maneuver is often attempted, but seldom executed as successfully. I was fortunate enough to take multiple classes with Kennedy as a law student at Harvard.

Do you trace some of your interest in education law to researching Professor Patterson’s book, or were you already interested beforehand?

I was already interested in education, but my work for Professor Patterson definitely inspired me to contemplate law as an important part of education. My senior thesis at Brown examined public schools in Milwaukee, and I’d also decided to pursue a master’s degree in education.

After teaching high school through a program at Duke University, where I got my masters of arts in teaching, I went to Oxford and studied the San Antonio Independent School District v. Rodriguez decision. I’m confident that crafting my proposal to examine that case owes a heavy debt to my work with Professor Patterson. His book examined Brown, and I aimed to examine underexplored legal decisions that had major consequences for the United States. The Rodriguez decision, which evaluated the methods by which schools are funded, seemed to be a prime candidate for exploration.

For people who aren’t familiar with Rodriguez, what’s the gist of the case?

In Rodriguez, litigants in San Antonio challenged the way that Texas funded its public schools, which was overwhelmingly done through property taxes. The resulting system meant that students in one destitute neighborhood in San Antonio, Edgewood, received a lot less money per pupil than students in Alamo Heights — a wealthy neighborhood in San Antonio. Demetrio Rodriguez claimed that this scheme violated the Equal Protection Clause, and the Court rejected that argument.

I was fascinated to discover that, when the lawsuit was initially filed in the District Court, many people believed that Rodriguez was destined to prevail. My predecessor at the University of Chicago, Professor Philip Kurland, wrote an article in the 1960s saying in effect, “It’s only a matter of time before the Supreme Court invalidates the method by which the overwhelming majority of public schools are financed in the country.” Kurland did not relish that prospect, but he deemed it almost inevitable. Things did not, however, quite turn out that way. In a 5-4 decision, the Court upheld Texas’s method of school financing.

Today, I wonder whether there’s even a single vote on the current Supreme Court that would side with Rodriguez. One notable coda to Rodriguez is that litigants turned from federal courts toward state courts and made claims under state constitutions. Many of those claims have found receptive audiences in state supreme courts as they interpret the state constitutions, including in Texas. 

If you had to explain the thesis of your book to a room of high schoolers, what would you say?

Students possess a whole host of constitutional rights in public schools that are different than those they have in, say, public parks. One of the goals of the book is to try to explain to students and teachers the origins of those rights, the contours of those rights, and then also to offer ideas about how those legal doctrines should change going forward. The second goal of the book is to enter larger debates about the Supreme Court’s role in American society, and I use the education field as a prism for examining some of these larger questions. These days, many law professors view the Supreme Court as a frail institution — one that is incapable of issuing decisions that prompt major changes. I believe that the Supreme Court has a much greater capacity for changing society than the conventional view suggests.

The subtitle of your book is “Public Education, The Supreme Court and the Battle for the American Mind.” I’m curious about the battle part. Do you understand that as the justices’ clashing interpretations, or maybe the Supreme Court on one side and the American people on the other?

Large cultural conflicts at a national level often end up playing themselves out within the walls of the Supreme Court’s marble palace. To take one example, consider the Tinker v. Des Moines Independent Community School District case involving student speech. In 1965, students in Des Moines, Iowa, wanted to wear black armbands protesting the Vietnam War. School officials got wind of this plan and told the students that they couldn’t return to school until they took off their armbands. Educators contended that this was an incredibly emotional issue; a Des Moines graduate had died in Vietnam, and these protests occurred long before opposition to the Vietnam War was in any way popular. And so the school’s concern was not made up out of thin air.

The Supreme Court of the United States held that the school officials’ actions were unconstitutional, saying, “It can hardly be argued that students shed their constitutional rights… at the schoolhouse gate.” That was an important intervention; however, it was not universally embraced. Justice Hugo Black wrote a vehement dissent. He read it aloud from the bench and noted that he completely disavowed every word of the Supreme Court’s decision. Justice Black feared that society was in effect going to hell in a handbasket; that things were spiraling out of control with the protest movements of the 1960s.

Thus, the cultural battle that divided the nation in the 1960s ended up also dividing the Supreme Court. Many citizens with more traditional views thought, “Students are there to be seen and not heard; they should not articulate their views on urgent issues of the day. That’s simply not what school is for.” That was the view that Justice Black enunciated. The Supreme Court countered that students have an important part to play in society, and that a vital part of the educational environment is students educating one another — often in informal ways. So that’s what the word “battle” intends to conjure.

I should add that although most people today would think that Tinker was correctly decided, the decision seems to have been unpopular at the time. Had the Supreme Court simply followed polling results, more people would have thought that schools should have been permitted to silence and suppress student speech, even on the Vietnam War. Tinker vividly represents the Court’s counter-majoritarian capabilities.

In Chapter Two, you then say that Tinker’s on “life support” because it has three competing approaches for regulating student speech. And reasonable fear of substantial disruption, the most lax one, has become the dominant test. How optimistic are you that the other, less restrictive approaches will become more accepted?

This is one area where I hope that it may be possible to cobble together a coalition of liberals and the libertarian-inflected vision of constitutional law that is ascendant in some conservative circles. I greatly admire Tinker; that represented a major breakthrough. But I also believe that the Court should have built more on the decision than it has done to date.

One problem with Tinker is that can readily be understood to codify a heckler’s veto. The rule that emerges from Tinker holds that if there’s a reasonable fear of a substantial disruption about student speech, then it’s permissible for the school to suppress it. But that allows what Professor Harry Kalven famously termed the heckler’s veto, by which he meant: if sensitive listeners object to certain speech, those objections ought not be permitted to silence otherwise legitimate speech.

When I was a law clerk at the Supreme Court for Justice Breyer in 2006-2007, the Supreme Court decided a case that lawyers refer to as “BONG HiTS 4 JESUS.” The actual name of the case is Morse v. Frederick. Joseph Frederick, a high school senior in Juneau, Alaska, was holding a banner at a parade that read “BONG HiTS 4 JESUS,” and the principal marched across the street, ripped it out of his hand, and suspended him. Chief Justice Roberts’s opinion for the Court adopted an incredibly unusual approach by legitimizing viewpoint discrimination.

Frederick deemed it permissible for principals to punish students for speech if they reasonably understand the speech to promote illicit drug use. In the First Amendment realm, viewpoint discrimination is usually anathema. But here, the Court said it’s fine, even though debates about the illegality of marijuana were percolating at that time and have only accelerated since. Justice Stevens wrote a powerful dissent reminiscing about Prohibition and the way that something that’s illegal today can become legal tomorrow; that dissent seems more prescient with every passing year. I hope that the Supreme Court will recommit itself to defending the First Amendment in schools.

In multiple cases throughout the book, you seem to agree with Justice Stevens. What is it about his interpretive approach — in education cases, at least — that appeals to you?

Justice Stevens can be understood as the inheritor of Justice Jackson’s legacy in West Virginia State Board of Education v. Barnette. In Barnette, Justice Jackson wrote an opinion invalidating the efforts of schools to expel students for refusing to salute the American flag. Jehovah’s Witnesses viewed saluting the flag as a violation of their religious faith. Jackson’s opinion in Barnette observed that courts have a special responsibility to vindicate students’ constitutional rights lest schools strangle the free mind at its source and teach youth to discount constitutional principles as mere platitudes. I’m paraphrasing there, but it’s pretty close.

Similarly, Justice Stevens has consistently argued that it’s vital to recognize constitutional rights within schools. Stevens made these arguments in a Fourth Amendment case called T.L.O.  v. New Jersey, and also in Morse v. Frederick. While Justice Stevens has offered a robust defense of students’ rights, one of the book’s themes is that in recent decades, the rest of the Court has often missed the mark in this area. It is no accident that Justice Stevens is writing in dissent in both T.L.O. and Frederick rather than in the majority, as Justice Jackson was in Barnette

A couple of times, you included specific quotes and conversations from the justices’ internal deliberations. How did these details inform your views of certain cases?

I made a decision relatively early on in writing the book that I was going to focus my attention on the Supreme Court as a regulator of public schools. And so the drama, such as it is in my book, is overwhelmingly on the public school part of the story — and less so on what happened when Justice Brennan walked down to Justice Marshall’s office, or whatever. I omitted most material along those lines because I thought that having lots of palace intrigue would distract from my primary focus.

I do note these comments a couple of times along the lines you suggest. In addition to citing “Closed Chambers,” I reference Chief Justice Warren’s efforts to bring about unanimity in Brown v. Board of Education. But as a general matter, I focus my attention on the Supreme Court and its regulation of public schools rather than what happened behind the scenes.

I actually haven’t read “Closed Chambers” yet. I got it for my birthday, so I’ll definitely check it out at some point.

You should read it! And you should also read “The Brethren,” by the way.

I have read that! It’s awesome. 

With “The Brethren,” it is remarkable that the Supreme Court Justices were some of the main sources. One of my book’s aims is to offer revisionist accounts of major figures and events in Supreme Court history. I offer a revisionist account of Brown, but I also suggest that Chief Justice Burger may be due for a revision. “The Brethren” was essential in crystallizing this vision of Burger as being incompetent and unintelligent. And it seems to me that he was actually quite effective at delaying a decision on de facto segregation until he had colleagues who viewed desegregation as he did. So it’s quite possible that Burger was less than straightforward with his colleagues, and he may have even been duplicitous, but that’s not necessarily incompatible with being effective at realizing one’s jurisprudential agenda. Both items can be true at the same time, and that’s something I want readers to draw from the book.

That was fascinating. You’re making me want to reread “The Brethren”… and get started on “Simple Justice,” too.

“Simple Justice” is a major achievement. In The Schoolhouse Gate, I aim to keep alive some of the techniques that Kluger used. Too often, in my view, law professors analyze legal phenomena in excessively abstract ways. When we do that, we overlook the very real sacrifices that litigants undertake. In the school context, students and their families often challenged not only school officials, but their entire communities.

The Tinker family had red paint splattered on their front door because some believed that only people with communist sympathies would oppose the Vietnam War. Lindsay Earls, a high school student in Oklahoma, challenged her school’s suspicionless drug testing regime. Earls’s neighbors asserted that she was a druggie and that she had lost sight of her Christian faith. These are criticisms that carried real bite in her region of Oklahoma. I aim to revive the tradition that found its highest form in Kluger by chronicling the enormous personal sacrifices that frequently are required when students attempt to vindicate their constitutional rights.

I was fortunate enough to be a law clerk for Justice O’Connor, and I had her in mind when I was writing this book. When we would discuss cases, she’d often want to understand the backstories. She cared about individual litigants and how they illuminated some larger constitutional problems. In addition to paying homage to Kluger, I like to think that I’m also honoring Justice O’Connor.

What is the most common misunderstanding people have about students’ rights?

The most common misunderstanding is that corporal punishment has been abolished from public schools. The single issue in the book that I feel most passionately about is the ongoing persistence of corporal punishment. I write about the Ingraham v. Wright case from 1977, where the Court had an opportunity to rein in corporal punishment through the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Supreme Court, in a 5-4 decision, declined to do so.

At the time, only two states had abolished corporal punishment: Massachusetts and your home state of New Jersey. Today, most states have eliminated corporal punishment, but it still persists. A handful of states, all located in the Deep South, are responsible for the lion’s share of instances of corporal punishment.

This is another area in which it’s at least plausible that libertarians and liberals will evince some skepticism of the state’s authority to beat students. Public school students are the last group of people who can be hit by the state for failing to follow an order but not posing any safety threat.

Before the Ingraham decision in 1977, the courts of appeals abolished corporal punishments in prisons. And many observers thought there’s no way that if it’s impermissible to strike prisoners, that it would be permissible to strike students. But that’s not how it turned out. Now here we are, forty-one years later, and the Supreme Court still refuses to get involved. I hope that the Supreme Court will soon address this issue because the jurisdictions that retain corporal punishment seem unlikely to eliminate it on their own any time soon.

That was one of the more surprising things I learned. It speaks to my New Jersey bubble that I didn’t know it still existed. Was that the most surprising thing you learned in the course of researching this book, or were you already aware of its existence?

No, that is the single most surprising and distressing thing that I encountered during my research. In fact, when I teach this case — I teach a class called “The Constitution Goes to School” at the University of Chicago Law School — some of my students, even though I say this practice continues, have difficulty grasping that students are still being struck with wooden paddles in the United States today. They come up to me after and say, “Yeah, but not really, right?” It’s like, “Yes. Really.” As I say, that’s the single greatest hope that I have with this book: to try to generate some interest and hopefully outrage at the ongoing existence of corporal punishment.

But I don’t think that you are, by any stretch of the imagination, alone in being unaware of corporal punishment. Indeed, even in the states that retain corporal punishment, it’s generally found in the rural districts rather than the urban districts. But out of sight should not, of course, mean out of mind.

How has your law school class, “The Constitution Goes to School,” helped you develop ideas and arguments for your book?

It’s crucial that I’m able to teach the subjects that I’m most excited about at any particular moment. And the opportunity to test out ideas, with excellent students who have been in public schools more recently than I have, is invaluable. And not only because they’re younger, but also because some of them have taught in public schools, many through Teach for America. So those former teachers have been all over the country, including in areas that are somewhat off the grid. They can suggest that an idea of mine is unsound, or unrealistic, or off-base in some way for how things actually happen in practice. That’s been an invaluable resource.

Before you set off on your law school path, you were interested in teaching high schoolers, right?

That’s right. I was the beneficiary of having some excellent teachers in public school in Washington, D.C. who encouraged me, and they made a tremendous positive difference in my life. I can still remember my third grade teacher, who took my parents aside at one point — I’d written some short story — and I used the word “clinked.” My teacher was like, “Oh my gosh, Justin is so precocious; we hadn’t even gotten to onomatopoeia yet!” [laughs] That sort of enthusiasm for my early writing efforts made a big difference for me.

I can also remember a teacher that I had at Alice Deal Junior High School named Ms. Wickersham. She showed up, and she’d just graduated from Yale College. That was an incredibly important moment for me, because the idea that actual mortal human beings attended Ivy League institutions was something I didn’t totally appreciate. Just simply by her example, it made a positive difference. I was attracted by the prospect of being able to do for somebody else what Ms. Wickersham did for me.

In addition, I don’t believe that I ever had a black male teacher in all of my time in Washington, D.C. public schools. I can remember an occasional substitute teacher who was a black male, but I don’t believe that I ever had a black male teacher for more than a few days. So that absence also partly motivated my thinking.

Eventually, I got certified to teach public school at Duke. During that year, I was teaching US history and civics. It was really enjoyable for me to attend graduate courses in history and then also to student-teach at Jordan High School in Durham, North Carolina. While I was in Durham, I ended up receiving the Marshall Scholarship. At that point, I had never left North America. It seemed like too good an opportunity to let pass. I went to Oxford and I studied constitutional law, and that experience set me on this path.

If you could make all nine Supreme Court justices read one chapter of your book, which would it be and why?

The first thing that springs to mind is my chapter on freedom of speech. The story I tell there is of Tinker being a momentous decision, but the Court has consistently refused to build upon it — and indeed perhaps can even be seen as retreating. I encourage the justices to recapture the animating spirit of Tinker.

The modern Supreme Court could plausibly become more receptive to vindicating students’ speech rights. There are several major issues that the justices need to address, including off-campus student speech in the age of the internet. I hope the Court will demonstrate renewed interest in this area.

Which Supreme Court opinion would you like to read that hasn’t been written yet?

The issue of transgender students and access to restrooms is on the horizon. The Court granted certiorari on the Gavin Grimm case out of the Fourth Circuit, and then decided to remand it after the Trump administration revised the Obama administration’s guidance on these issues. In the aftermath, some lower courts have been using not Title IX, but the Equal Protection Clause to analyze these claims. It would be surprising if the Supreme Court in another two to three years had not issued a decision in this area. That decision would be only the latest instance where the Court has taken a high-profile, deeply contested issue and decided it in the context of schooling.

Other interviews conducted by Anna Salvatore: former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman. former Court writer Linda Greenhouse,  NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes.