by Elise Spenner
David Strauss is the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School, where he also co-directs the Supreme Court and Appellate Clinic. Before entering academia, Professor Strauss served as an Assistant to the Solicitors General Office, arguing numerous cases before the Supreme Court, and in the Office of Legal Counsel of the U.S. Department of Justice. He has written two books — The Living Constitution and Equality and Democracy: The Enduring Constitutional Legacy of the Warren Court — and the topics of each guided our wide-ranging conversation.
What were you like in high school? Who were you?
I was two things. One is a much, much, much less impressive version of you, which is to say I was really interested in the Supreme Court. I paid a lot of attention to the Supreme Court, read what I could about the court, read opinions, all that stuff, although at a level that — take what you’re doing, and divide it by one 1000 or more. That’s where I was. So nothing like what you’re doing. But the same sort of preoccupation, just less well executed.
And the other thing I was was a swimming jock, which I think if you’re academically-inclined — at least that was the case for me in my high school, at least for guys — jock credibility is very important. So I had that too, which at least convinced me that I was in a better position being as academic as I was because I had jock cred.
That’s good to hear. I play soccer, but I have no jock cred. I feel like today you’re either a nerd or you’re a jock, and there’s no bridging the two worlds.
Is that right? Is it the case that kids who are very academically-inclined but also can do other stuff like the jocks have a greater claim to be cool than if you’re just academic?
Oh, yeah. But there’s fewer and fewer of them that pull it off. Were you one of those debate people that become lawyers later?
No, I did not do debate. I don’t even know if it was even available in my high school, but I didn’t do it. But I know the type. I wasn’t like that.
Did you have any mentors or role models growing up, and what did they teach you?
Not in high school, and really not so much in college. I had some teachers. I mean, I had one teacher in particular in high school, whom I now think of consciously as a role model of how to be a teacher. And what was notable about her was that she was just a real human being. No pose, no artifice, no propping herself up. She treated us like people. And I try to keep that in mind when dealing with students. Don’t try to be something you’re not. Be who you are, and treat them like people, and act like a human being.
Why was government work appealing to you, straight out of law school?
I went to the Office of Legal Counsel and then to the Office of the Solicitor General. Government work really appealed to me. I thought it was a chance to practice law in a way that was interesting, and that would make a contribution. I thought it was important for government lawyers to be the right kind of people, not blood and guts committed to one side or another, but willing to represent the government in the way it should be represented. I thought that was an important thing to do. And to try to do what you could. I mean, I was a scrub, I was just the lowest level of lawyer, but to do what you could to make sure the government acted lawfully.
You served when Rex Lee was Solicitor General, and he had that independent streak. He was occasionally criticized for not exactly following the administration’s political stances. What do you think he taught you about going against the grain and being independent in your beliefs?
Rex was great at protecting the Office and protecting people like me, who were not in tune with that administration politically. And so that took a couple of forms. One was that when I worked on cases that were sensitive politically, he backed me up, and his deputies backed me up. If I was doing good work, if I was analyzing cases the right way, taking the positions that the government should take, as opposed to positions that might be more appealing politically, he backed me up — as he did for everybody in the office. And the other thing was just to make it clear that if I wanted to avoid those cases because of the flak that it attracted, there were plenty of things the government does that any Solicitor General’s Office was going to do, whoever the administration was. Plenty of that work that’s not particularly political. And I did a lot of that.
But Rex did take a lot of guff, from other people in the administration because, as he put it once memorably, “I’m the Solicitor General, I’m not the pamphleteer general.” I’m not here to take positions. I’m here to be a lawyer representing the government.
You weren’t super experienced when you were in the Solicitors General Office but you were arguing before the Supreme Court. Were you nervous the first time you argued? How did you get over those nerves? What was so valuable about experiencing that at a young age?
It’s fantastic experience, of course. And yes, you’re nervous. If I went up there now, I’d probably be a little bit nervous. But certainly then. Professional football players say you’re nervous until the first time you’re hit, and then it all goes away, and then you’re just playing football. And it was kind of the same thing: you’re nervous until you get your first question. And once you get the first question, you’re just engaged in figuring out how to deal with these questions, and that’s all you’re focused on. As everyone, I’m sure, has told you, you prepare carefully. You have to think about the weaknesses in your case. Because if you haven’t figured it out, it’s very easy to convince yourself and be so sure you’re right that you lose sight of the weaknesses in your case. And you’re going to hear about them in argument. So you better think about them ahead of time and figure out how you’re going to address the weaknesses. Every case, especially at the Supreme Court level, has weaknesses, and you don’t want to fall into the trap of not thinking about them ahead of time.
And the other thing that is great about argument — it actually has something in common with teaching — is that it’s very audience focused. You’re not thinking about, “What do I think about this issue? How do I analyze this issue?” Maybe you are thinking about that, but that’s only the first step. Most of the time, you’re thinking about your audience: “What do I say to this audience to get them to see what I want them to see?” And that’s a separate thing you have to do. That’s a separate capacity you have to develop in yourself. And it’s not enough just to say what you think is right, what you want to say. You’ve got to be thinking about: “How do I get them to see this?” And that’s a terrific intellectual challenge.
I guess the final thing I’d say about argument and why it’s so terrific is that there aren’t that many times in your career that you get to address a decision-maker at the highest level of the government face-to-face and try to convince them to do something you think they ought to do. Not putting something in writing or sending a chain of command, but actually being within a few feet, looking them in the eye, and trying to convince them. And sometimes you do and sometimes you look them in the eye, you try to convince them, and then you say to yourself, “Well, I can see from your body language, I didn’t convince you.” But just having that opportunity is one of the things that makes argument so fulfilling even when you don’t succeed. You had your chance to talk face to face to this person in the position of immense power and try to persuade them.
Last summer, I talked to Professor Irv Gornstein, and he told me there isn’t one way to be a really good advocate. But there might be three or four ways: you have debaters with really good rhetoric, you have academics, you have people in the middle that are really even-keeled, like the Chief Justice when he was an advocate. Are there certain advocates you try to emulate or a certain style of advocacy you model?
I agree that the Chief Justice when he was an advocate was terrific. I think everybody will tell you that. When people tell you about litigation, generally — not just oral advocacy, but in the appellate court and even before a jury — is don’t try to be someone you’re not. So if you are naturally soft spoken, and quiet, don’t get up there and try to be a revival preacher. And what works with me — to the extent it works at all — is to be reasonable and explain things. And if I could be a successful explainer, I could be a successful advocate. You’re trying to persuade, of course, but I had that in mind: I’m going to explain this. And I’m going to try to come across as someone who is working on the same side as they are. They’re trying to work through this problem. I’m trying to work through this problem. “Here’s how I’ve worked through these issues,” and take that approach with it. In writing too, I should say, not just oral advocacy.
And that’s a style that I think you can do much more easily when you’re representing the government, both because that’s a good posture for the government to strike — ”we’re on the side of sweet reason here” — and also because you don’t have a private client who wants you to raise the level of your rhetoric because they think they were wronged, and maybe they don’t want you to be reasonable; they want you to be shouting about how they were wronged. When you’re in the government, you don’t have to deal with that to nearly the same degree.
How do you think your writing improved during this time, when you were constantly writing briefs and getting edited?
I think of the SGs Office as my postdoc. When you’re in natural sciences, liberal arts, you go to graduate school, you get a PhD, then you do a postdoc. And that’s where you really become a member of that community. And that’s what the SGs Office was for me. That’s where I really learned. Law school was fine, but that’s where I really learned how to be a lawyer and really learned what the law was about.
I had great editors — the deputy SGs at the time. And I learned that you should be in a position where, if someone points to a sentence in what you’ve written, and says, “Why did you write that sentence? And why did you write it that way?”, you have an answer. They didn’t do that, because they’re not jerks, but your internal monologue is, “Okay, can I say that better? Why am I saying that? Is that really right? Can I say that more clearly? Can I say that with less jargon? Can I say that more directly? Can I say that more accurately?” And that’s your internal monologue. And that’s what I got out of having people who are good editors. Not because they were micromanaging like that, but just because I knew they were good, and I wanted to be in a position where if they ever did say that, I’d have an answer.
What’s your stance on the tension between being really accurate versus being super concise?
I don’t think there’s a tension actually. I think complicated sentences and big words obscure clear thought; they don’t facilitate it. If you find yourself saying something really complicated — I’m generalizing, but I think it’s a totally fair generalization — and if you find yourself using big words or long sentences, go back. “Can I say this point? What am I really trying to say here?” And if you ask yourself what you’re really trying to get across, you should be able to say it simply. Sometimes not, but that should be your impulse. Let’s make this as simple as possible. And if I’m not making it simple, then I’m probably not clear on what I’m trying to say.
What would you say were the most common edits you received while in the SGs office?
Well, I remember one in the very first brief I wrote, which is along the lines of what I just said. I had a whole section of the brief where it was too complicated and the Deputy SG Andy Frey said to me, “Well, the first two parts of the brief, they’re very good, I made a few edits here and there, but this third part, I don’t understand. What are you trying to say here? This looks all really complicated and like it’s written in a foreign language.” That was kind of rough. And I thought and I said, “Well, I’m trying to say that the position we’re advocating for treats the prisoner fairly.” And Andy said, “Well, say that. Why don’t you say that?” And I thought, “You know, I’ll say that.” So that’s really what got me started on figuring out what you’re really trying to say and saying it as opposed to somehow getting your thought process all tangled up in what you think is going to look impressive.
What do you think was your most memorable argument from when you were in the SGs Office?
I argued a case that’s since become a moderately important administrative law case in the administrative law casebooks. It was about the disposal of nuclear waste, which is a very difficult issue. And I was representing the Nuclear Regulatory Commission, which was trying to justify its approach to disposing nuclear waste. And I actually thought the position that we, the government, had taken before was really not quite right. Our bottom line was right, but the way we argued for it was not quite right. But the other side was not right, either.
And during the argument, I started getting questions about that. And about how my side and the other side seemed to be ships passing in the night. The justices said to me, “What’s going on here?” And I thought they were generally uncertain; they weren’t trying to beat up on me. In fact, they were generally receptive to the position I was taking. And I thought I was able to work them through that and explain it to them. And I thought I removed their skepticism and dissatisfaction with what the government was doing. Now, they were sort of favorably inclined to us, it was just the matter of overcoming their initial hostility. But there was some skepticism, like “Are you trying to pull a fast one on us here?” And I think I got them away from that, and it was a big deal case, and it became an important case. So at least retrospectively, I think of that as a neat oral argument experience.
After the SGs Office, you quickly went into academia. Why were you so drawn to being a professor? Was there something that didn’t appeal to you about being a government lawyer for the rest of your life?
No, there was not. On the contrary, it was a great job. I wasn’t unhappy with it at all. But two things. One is I had a sense that, in certain respects, my learning curve in the SGS office was flattening off a bit. Not as far as arguments — I still very much was and remain a baby when it comes to arguments. But brief writing. It was so great, and it was still fun, but I kind of knew how to do it. So I had that sense.
And then I had a friend who was teaching who said to me, “You are really not going to want to do this for the next 30 years; you should think about doing something else. Give it a try.” So I thought that made sense. I’d give it a try. I’d try teaching for a while, maybe just a couple of years, and then I’d go do something else. But as I’m sure many, many people have told you — this is the way life works sometimes. You say, “Oh, I’ll just give that a try.” And you look up 30 years later, and you’re still doing it and still loving it, and that’s truly what happened to me.
What made you love it so much and stick with it?
One great thing about academic life, I think, is that you set your own agenda. If you’re curious about something, not only is it okay for you to pursue that, it’s your job to pursue that. At least part of the job is to find things that interest you and get into them and figure it out. In private practice, or to a lesser degree in the government, you’re working on stuff the client brings to you. Here, it’s your own agenda.
The teaching aspect of it is great. It’s a little bit similar to oral advocacy in that there’s an intellectual challenge in figuring out how to say stuff. And it’s different from the intellectual challenge of figuring out what you think. And I like that idea. If you just say, “Here’s a way I think about this problem,” people who have no experience in the law are never going to get it. I’ve got to figure out how to say it. I like that process and that intellectual challenge.
And I like having younger colleagues and students. You become fossilized and complacent when you get old, and it’s good to have people who are younger and challenging. On a day to day basis, now that my kids are no longer living here, to be in contact with people younger than me is great, and for me, actually really quite important.
I’ve tutored for a few years and after the first year, I started to feel like it was a lot less work because I had all the material — I just had to teach it again. Is it the same way with teaching, where the first year is so much work, but then the years after feel like you’re just doing the same thing over and over again?
Yes. It took me three times through the course before I figured it out. But then the challenge became to rethink, and not just to say, “Okay, I’ve figured this out. I know what I’m going to say.” Now and then, you’re underprepared for a class. Then, you go back to your notes from last year, and you teach from your last year’s notes. But I try to make it a practice to read the material again, try to think about it, try to see new stuff. If you’re teaching interesting courses, even if the material hasn’t changed, you often see new things, and you see new angles, either in the substance or in how to talk about it. There’s a more effective way I can get people to see what the courts are doing here, and how they’re getting it right, and how they’re screwing it up. I could do that more effectively than I have in the past.
Because it is a real trap when you have tenure, and you’ve been teaching a long time, just to pull out the old notes and talk from the old notes. And I just think that’s not the right way to teach, and it’s also just internally deadening. That you’re no longer active, you’re no longer engaged, you’re no longer using your mind and challenging yourself.
This year will be a lot of work for a constitutional law professor because of the monumental changes the Court has made in so many areas of law. Have you thought about how that totally changes your course?
Happily, I’m not teaching constitutional law next year, so I have a longer time to figure this out. And to some extent, I was anticipating it last year when I taught it because these cases were coming up. So I kind of said, “If the court does this with abortion or does this with affirmative action, assuming they go in this direction, here are the issues and here are the things that we’re going to have to think about” while at the same time teaching the existing law. You don’t want to engage in guesswork about where the law is going, but you do want to prepare students so if the law takes a dramatic shift, they won’t be stuck with no way to think about the new version.
So yes, and there are two issues to it. One is just re-gearing, and that’s relatively straightforward. You add some new cases, they settle some things, they raise other questions. You ask, “What’s going on here? If you were a lower court judge, how would you handle this issue if it came up? If you were an advocate, how would you handle this issue if it came up?”
The bigger challenge for me is the overall trajectory, the big picture, the arc of the law. Because — and this actually goes back to your very first question about what I was like in high school — if your image of the Supreme Court was formed by the Warren Court, and Brown v. Board of Education, and the fight against Jim Crow, and other very bad practices that the Supreme Court played an important role in getting rid of, that always sticks with you. And you think “Okay, there’s been a setback here, but I can tell a story in which, starting with the Warren Court, the big picture is okay. Three steps forward, two steps back.”
But I’m not sure we can tell that story anymore. And I need a new story to tell. That, for me, is the bigger challenge.
It’s like you had this anchor, and that was the Warren Court. Naturally, you branch out from there, things happen, you backtrack. But now, we’ve totally reversed course, and you have to find a new anchor point.
Exactly.
Jumping around a bit, you run the Supreme Court and Appellate Clinic at the University of Chicago, which gives students the chance to do everything that an advocate would do. Why do you think this is such a valuable experience for students who are just out of college?
A couple of things about it. Some of which I didn’t appreciate until I started doing it. I really got involved in it because I wanted to maintain the side of my thinking that is engaged with practice as opposed to just academic life. I think, in some ways, the law professoriate is too cut off from the profession — much less so at Chicago and Harvard, the places I’ve taught, than at a few other places. But there’s an issue there. So I wanted to stay connected to the profession. And this gave me a chance to do that because I’m working with great lawyers who are actively engaged in practice, and you’re thinking about courts and litigation and brief writing.
Anyway, that’s me, that’s not the students, and the students are the real issue. The Supreme Court practice is different from any other kind of practice. It’s different from the normal practice of a practicing lawyer, even in a big firm or in a public interest outfit or in the government. The Supreme Court practice is different. We thought it would be valuable for students to see that, even if they don’t end up engaging in it, because what the Supreme Court does is so important in so many areas. It’s good to see what’s going on with the Court and how they’re being talked to about issues and how they think about issues. We thought being in that position would be valuable for students.
And the other thing is close supervision of students’ written work. In a lot of law schools, there’s not the capacity to do that, but in the clinic you can do that. I don’t do it nearly to the extent that I should, but my partners will actually sit down with students and go over their drafts the way my editors did with me, and I think that’s a valuable thing.
And then there’s a third thing. We work with Jenner and Block — Matt Hellman is the head of their Supreme Court and Appellate practice, he’s absolutely fantastic, and his colleagues are great. And then my co-director Sarah Konsky was a partner at Sidley Austin before she joined us. And they model professionalism for students in a way that my colleagues and I don’t. Not because we’re unprofessional, but just because it’s not our culture. What it’s like to be a professional and have clients, how you handle yourself that way, is really valuable for students to see. We do a lot of great things in the classroom, but if you’re trying to educate people to be part of our profession, I think it’s really valuable for them to see how elite professionals handle themselves.
What are your strategies for guiding and helping these students without being overbearing? How do you avoid saying “I’m going to take over. These are real people and real cases and we need to do this right”?
That is such a good question. I don’t have an answer to that question. It is, I think, the question if you’re teaching in a clinic, and it’s plagued me from the start. You’ve exactly identified the dilemma. The dilemma is you’re supposed to be teaching. The students are supposed to be learning things, and learning by doing. That’s what they’re supposed to be engaged in. But you have real clients. I don’t want to send something out the door that doesn’t look like, in relevant respect, what I would have done. Because if it’s not what I would have done, then I can’t say that we’re representing the client to the best of my ability. It’s a real challenge. And I don’t have an answer for that.
The unsatisfactory answer — what I’m doing — is we’ll get stuff from students and try to give them guidance. I say, “Here’s what we need to do. Here are the arguments we need to make. Here are the vulnerabilities we need to address. Here are the points that I think are strong, that we should emphasize. Whatever else you do, make sure this gets through. Make sure you’ve got a way to answer this weakness.” Give them as much instruction, and then when I revise it, I’ll write down notes saying, “You said this, and that was good, but I thought we could do it more effectively if you said this, and so that’s why I made that change. And tell me if you don’t get it or if you think I’m wrong.” I try to go in detail about why I changed what I changed.
That’s what I’ve come up with. Someone at Stanford’s clinic, which is a fantastic Supreme Court clinic, told me that what she does is she actually sits down with the students. They have two computer screens, and they go line by line through what the student has written, and they edit together. It is my deficiency that I couldn’t do that. It would drive me crazy. But that’s the bottom line. So I do a modified version of that. It is a fantastic question that you asked about clinical education and as I said, I don’t have a fully satisfactory answer.
Let’s say an advocate that graduated or is still in the clinic comes back to you for advice before their first oral argument. What is the most common piece of advice you would give them?
The best single, one-phrase piece of oral argument advice that I’ve gotten and I’ve heard is: “Oral argument is a billboard not a tapestry.” So it is not the time for careful, refined distinctions and subtle arguments. You’ve got to do that, but that goes in the brief. In argument, you want to come through clearly. And that doesn’t mean you make a jury’s speech or shout at the Court. They get shouted at enough; they don’t need more people shouting at them. But you want the points to come through clearly, and I think for really smart, high-level students like the ones we have, who are really good at analysis, the temptation is to extend that skill at analysis to argument. And in argument, to try to say, “Well, here are six different ways I could distinguish that case,” instead of giving the basic, “Here’s why our case is different,” and trying to make that stick.
That’s not the advice for everyone. If you’re talking to someone who has made a living as a trial lawyer standing up in front of juries, you’re not going to tell them that because then they’ll just make a jury speech. You’re going to tell them something different; you’re going to say this is much more like law school than what you’ve been doing. But if you’re talking to people of the kind that go to our law school and graduate from our law school having done well, the temptation is going to be to be overly elaborate, overly refined, and then you want to tell them “billboard not a tapestry.”
I was listening to Ezra Klein’s podcast recently, and there was a discussion about how liberals lack a clear view of what role the Constitution should play in our society, while conservatives unify around originalism as their core philosophy. You’ve written extensively on the progressive idea of a living Constitution. Why is this such a hard position for liberals to get behind?
It is part of our legal culture, it seems to me, to attach too much significance to the fact that we have a written text as our Constitution. And going along with that is a treatment of the framers in a way that accords them importance that we shouldn’t accord them. So, I think because of that, everybody underestimates the extent to which the Constitution should be regarded as a work in progress in the sense that it evolves — it wasn’t frozen time, we’re not archaeologists trying to recover something that was done decades or centuries ago. We’re actually trying to solve some problems today. That doesn’t say we disregard the past, but take advantage of that and shape it in a way that addresses today’s problems.
And the other thing that gets lost, that’s hard to get people to acknowledge, is the extent to which we are actually shaping the law, and we should be candid about that, and about why we’re doing it. And you can see why this easily slips into, “Oh, you think judges should just do what they want and propose their own views.” And of course that’s no good, and it’s really important to emphasize that that’s no good. But the rhetorical power of that move — ”Oh, you just think that judges should do what they want” — causes people to repress the extent to which we are inevitably actively shaping the law that’s been handed down to us. Not throwing it out of the window, but actively shaping it.
And we ought to admit that, and we ought to admit why we’re doing it and defend our views as to doing it, instead of saying, “Oh, it’s just because that’s what the framers want.” Or “Oh, it’s just because that’s the tradition.” And that element of choice and candor and being self-critical? It’s tough to get people to take that on board. It’s much easier to say, “I’m just following the law” or “I’m just following the framers” or “I’m just following the text.” And of course, lots of times, that’s all you’re actually doing. But not in controversial cases. Not in the kinds of cases that get to the Supreme Court.
I feel like it’s very hard to be the first person to say, “I am going to take that self-critical, truthful route.” Because when one person is an originalist, everyone has to be an originalist. Do you feel like that tendency plagues the current Court?
Yes, I think it does. I don’t know if that is the root of the problems, but I think that is true, and it definitely plagues liberal criticism of the Court. People think they’ve got to be originalists and enlist the framers on their side. And I understand that. Rhetorically, I think that may be right, that you have to try to do some of that. But I think it’s really pernicious because it suppresses this element of self-critical reflectiveness, of candor. And in a weird way, the claim that you’re an originalist empowers you. That’s where the risk that you will just do what you want comes from. Because if you’ve convinced yourself that you’re not deciding anything and you’re just following what was handed to you, that’s when you risk just enacting your own views, rather than saying, “Look, there’s a limited space in which I’m allowed to operate because a lot of things are settled in law. But there’s a limited space, and that’s where I’m going to make a decision, and here’s why I’m making that decision.” And that is more limiting than approaching things with the attitude of “I’m just channeling the framers.”
Let’s talk about the Warren Court as well because I know we touched on it briefly earlier in our conversation. At both the Warren Court and today’s Court, we’re seeing displays of judicial supremacy. Are liberals hypocritical for admonishing modern overreach, but embracing the Warren Court?
I think conservatives kind of use the Warren Court as an epithet and imagine it to be this time of unrestrained action, judges running amuck, doing what they wanted, ignoring precedent, imposing their values on people. When you actually ask them, “Well, give me an example of that, that the Warren Court did,” they’ll say Roe v. Wade. And you say, “Earl Warren had left the Court for four years at the time Roe v. Wade was decided.” The court was dominated by people appointed by Richard Nixon, who ran against the Warren Court, and there were four Republican appointees in the majority, three of them Nixon members. Roe v. Wade was a Nixon Court product, not a Warren Court product. And that also assumes that Roe v. Wade was a problem — but that’s a separate conversation.
A couple things about the Warren Court. Its main target was Jim Crow segregation, which was a blight on American society. Large parts of the country were in the grips of an undemocratic, authoritarian, racist regime that did not allow Black people to vote and treated them as non-human. That was true in large parts of the country. People ask, “Can it happen here? Can we have authoritarianism here? Can we have an ethnostate dictatorship here?” We have had it here. We had it in large parts of the country for decades. Now, the Warren Court didn’t solve that problem, but it did take a leadership role in tackling that problem. That was the main thing it did. And that was the most controversial thing it did. And that was a good thing. And something the courts needed to do at the time because the other branches of government were paralyzed. Eventually, the other branches of government got into the picture and that’s what really solved the problem.
Number two, the Warren court stuck up for people who were not getting their fair share — religious minorities, political dissidents — in ways that are now generally, if not universally, accepted.
And number three, a big theme of the Warren court was an unease about doing something without the support of the political branches. And as soon as the political branches wanted to tackle these problems, they were rolling out the red carpet for them. Their thought was “Congress, the Presidency, please solve these problems. We, the Court, don’t want to be solving these problems.” And some of the most important Warren Court decisions were the ones that extended Congress’s power to address problems.
And paradoxically, if you think about what Warren Court constitutional decisions conservatives have really cut back on, they haven’t cut back on Brown v. Board of Education; they haven’t cut back on Gideon v. Wainwright; school prayer, there are occasional rumblings, but we are quite a long way away from overruling those cases. What they have cut back on are decisions that empower Congress to address problems. And that just gets lost. The Warren Court was about solving the problems that, in the current state of politics, they were the only ones who could address. As soon as the other branches wanted to tackle them? “It’s all yours, buddy.”
And this Court’s attitude on that score is antithetical. It’s hostile to aggressive federal legislation to solve problems. So that’s really the opposite of what you hear, which is that the Warren Court thought courts should be running the show and people’s votes shouldn’t matter. It’s the opposite. The Warren Court was more than happy to allow Congress to solve problems, and this Court and its decisions — including the really important decision about environmental regulation — have the opposite attitude.
I’m rattling on, but I think the Warren Court has become an epithet, and when you pin people down, with “What do you really object to? Do you really object to the Warren Court going after segregation when no one else would? Do you really object to the Warren Court deferring to Congress when it enacted the civil rights laws?”, they don’t have an answer.
I was going to ask “Can the court ever return to the Warren era?” But I feel like that’s a misguided question because the Warren Court was an isolated incident in a totally unique time. But what would you say is a viable, long-term path that liberals should look toward? Does a future, progressive Court even exist?
That’s a question I’m puzzled over, that a lot of people on the progressive side of the fence have puzzled over. Do you see the Warren Court as a template for what a progressive court could do? Or do you see it as a one-off that was a particular confluence of things in American politics and American law at that time, and there’s no reason to expect that to come about again? I could even take that a step further and say that the temptation to view the Warren Court as a template has actually produced some of the bad things we’re seeing. I think it’s a big question. If you try to piece it out, intellectually, it’s really hard to resist the conclusion that you suggested, that the Warren Court was an isolated thing, and we shouldn’t be thinking of the Supreme Court as a potentially progressive institution. That’s such a council of despair that you hate to say it.
I guess I would say that if you can try to keep alive that vision of what the Court should be doing — step in to protect people who are not getting a fair share in the political process, but otherwise stay out of the way and let politics solve problems — maybe there will be another Court like that in the future.
But the Warren Court was a product at a time when the parties were not as ideologically polarized as they are today. Earl Warren was, of course, one of the great politicians of his generation, and he was a Republican. Brennan was a Democrat appointed by a Republican president. Byron White, a life-long Democrat appointed by a Democratic president, was a conservative on the Warren Court. So we just did not have this ideological polarization.
And the other thing you had on the Warren Court was a consensus among legal elites that something needed to be done about racial segregation. That was common ground among legal elites on both sides of the aisle. The elites thought, “This is a blight. We need to do something about it.” And it’s unlikely you’re going to get something like that again.
An even more despairing story is that because the Warren Court and what it did exists in people’s mind as either a positive or negative model — liberals thinking, “Yeah, let’s recreate the Warren Court,” and conservatives thinking, “They did it, now we get to do it,” — what you get is a kind of competitive victimization, where everybody wants to be some version of Black people in the Jim Crow era: “They’re taking away my rights. I have a right to do this, and the courts ought to defend my right to have a gun, engage in my religious practices, not be the ‘victim’ of affirmative action. After all, the Court protected the rights of Black people; it should protect my rights too.”
True, by the way, on the other side, about LGBTQ+ people. Same dynamic. And I think the argument that the Chief Justice made in Obergefell v. Hodges, that the political process is solving this problem and so the Court shouldn’t be stepping in, is on its face an argument that has some plausibility. I think it’s a response to say, “We’re not going to unilaterally disarm. If you guys are using this to protect your favored groups, we’re going to do the same.” But I think you can make an argument that the Warren Court set in motion that dynamic, and that’s what we’re living with today.
You’ve talked about political divisiveness, and from what I’ve read, the University of Chicago is this microcosm for a wide variety of opinions and belief systems. That’s obviously a trademark President Obama ideal. In such a divisive time, how do you continue to foster respectful disagreement?
It is part of our culture. I think it’s true of Chicago, although it’s not unique to Chicago. But you make sure that people you hire adopt those values. That you treat people respectfully, you don’t sneer at them, you meet their arguments, you acknowledge when they’ve got good arguments, and you approach conversation with people with whom you disagree with the attitude of, “Maybe I can learn something from this.” And we try to have that culture among the faculty, and then we try to convey it to the students, which is more difficult to do. But you try to do that.
I saw that you interviewed my colleague Will Baude recently. And I think Will is seriously confused about a lot of things. But I never have a conversation with him that I don’t learn something from. He has that attitude, even though I still hope he will someday outgrow his youthful, misguided enthusiasm for originalism.
High School SCOTUS 