Interview: Jay Wexler

Jay Wexler is a professor at Boston University School of Law, where he teaches courses on cannabis law, environmental law, and the First Amendment. His books include “The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions,” “Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars,” and a novel called “Tuttle in the Balance.” He’s also known for tracking laughs in oral argument transcripts. You can follow him on Twitter @SCOTUSHUMOR.

My questions are in bold. Professor Wexler’s answers are in plain text.

What kind of a teenager were you?

What kind of a teenager was I? I don’t know how to answer that. I mean, I studied a lot. But what I really wanted to do was play football. The only problem with that is I have no athletic talent or speed or strength or anything, so it seemed unlikely. I did work out really hard before my freshman year and made it on the freshman football team, and that was exciting. It was sort of the high point of my entire life. But I was a terrible football player, and I got cut from the team my second year.

I was irreverent. I worked on the newspaper, and we put out a spoof of the newspaper called the Satanic Review that made fun of the teachers. Many of the teachers got mad, and I got kicked off the debate team and we had to make our own team.

When did you start gravitating towards comedy, and why?

I was always the class clown goofball guy. I started my comedy career as a puppeteer, putting on puppet shows in elementary school. Usually spoofs of movies like Friday the 13th. Then in high school, when I was on this newspaper, I wrote some ridiculous humor columns, most famously my review of the various Slurpee flavors from the Slurpee machine in the cafeteria. That remains one of my best works, I believe.

In college, all I wanted to do was get on the Harvard Lampoon. All I wanted to do in life was to go write comedy somewhere. The problem was, I’m not good at writing comedy under pressure. I can be funny, but it has to rise out of some situation. I can’t just sit there and think, “Ooh. Let me come up with a humor piece.” And so I never made it onto the Harvard Lampoon. They cut me multiple times, rendering my college career depressing and full of regret [laughs].

After that, I kind of shelved it and didn’t write much comedy until my clerkship years. I wrote a ridiculous novel when I was clerking called “Arrivederci, Loser,” which would be hard to explain. But it’s about this giant blueberry muffin who walks and talks, and it gets more ridiculous from there. It’s only a novel in the sense that it’s 200 pages of words. I wasn’t able to write any good humor until I started teaching. I would write as a counterweight to writing the serious law review and academic articles that I had to publish to get tenure.

I’m surprised you had that much time to write during your clerkships.

Clerking was a full-time job, but it wasn’t more than a full-time job. The job that was harder was my first clerkship for Judge Tatel on the D.C. Circuit, because that involved more intensive back-and-forth work. He would edit opinions twenty times and call on Sunday with some idea about a word choice on page 43. 

During my Ginsburg clerkship, she really knew — and still obviously knows — what she wanted to do. She probably liked having the clerks, but I’m not sure we were necessary. We drafted things according to what she asked us to do, and then she rewrote them and went through three or four drafts. There was some free time there. I lived about a block from the Court, and I would go home for lunch and watch an old sitcom called “Good Times.” Then I’d make my way back. There were some days of course in which I worked very hard, but mostly it was a normal job. I was able to write in the evenings. I wasn’t spending four hours a day writing or anything — if you were to read my novel, you could tell that it didn’t take too much effort. The blueberry muffin says, “Hi, I’m a blueberry muffin.”

How did your clerkships inform or strengthen your interest in church/state law?

I did graduate work in religion before I went to law school, and I was an East Asian studies major in college, where I had gotten interested in Chinese philosophy and religion. So I’ve always been interested in religion. It was something that I always knew I wanted to do, and I wrote about it when I was a law student. My student note was about teaching evolution in public schools.

In fact, during my clerkship years, and even the two years I worked at the Justice Department, I barely worked on religion at all. The Justice Department is where I got interested in administrative law and environmental law, but the religion stuff was pre-law, really.

How did you get interested in religion in college? 

When I was in high school, my father worked in Tokyo for a couple years. I visited him one summer in Tokyo and really liked Japan. Then when I got to college, I decided to major in East Asian Studies. I was going to study Japanese society or something, but if you’re a Japan person, they make you take a class in China, and vice versa. After taking a class on China, I became fascinated by Daoism and Buddhism. And that’s when I started being interested in religion and philosophy and Zhuangzi. I wrote my senior thesis on Zhuangzi, who was a Daoist sage. He didn’t believe in reason or rationality; he thought everyone should be spontaneous and go with the Dao rather than thinking systematically. He didn’t like language. So he was kind of an absurdist character, whom I loved.

In fact, I wrote about Zhuangzi in my novel, “Tuttle in the Balance,” which is about a Supreme Court justice who has a mid-life crisis. He gets into the Zhuangzi through a girlfriend of his, and it undermines his ability to do his job. Because if you’re a Supreme Court justice and you stop believing in the power of words to convey meaning, it makes it difficult to adjudicate disputes. I thought that was funny [laughs]. Richard Posner thought it was funny. So I’m not the only one.

Sorry to bug you about your RBG clerkship, because I’m sure you get these kinds of questions a lot. How did you prepare Justice Ginsburg for oral argument?

For her, we wrote bench memos. They weren’t particularly long. We had to read the briefs, read the amicus briefs, recommend how the case should come out, and suggest a couple of questions for oral argument that might be helpful. The memos were generally fifteen pages — maybe longer if it was a complicated case or shorter if it was a less complicated case. She read it, we chatted about it, and that was really what we did to prepare her for the oral argument. She had already been on the bench by then for eighteen years, so she knew most of the time what she thought about the issue. I mention that because it was a big contrast with the clerkship I had the year before, where the judge was new to the bench. So everything was a new, exciting, surprising thing, and he had to work through it all for the first time. That was difficult; it required more preparation and more conversation prior to the oral argument. For RBG, it wasn’t all that intensive.

That’s one of the reasons clerking was so interesting. It’s the kind of job where you could — and some people did — work eighteen hours a year. But I never felt like you had to do that, so I didn’t. I had to get to the novel [laughs]. Blueberry muffin. I’m really hoping that blueberry muffin gets into this interview, okay?

How much does Justice Ginsburg care about hiring clerks with the same politics or philosophy?

I guess I don’t really know the answer to that. What I remember is that she interviewed very few people, so the people she interviewed were the people she hired. It wasn’t like she was trying to hire from a big group and figuring out who had more in common with her views. She did rely on people at different law schools that she trusted to recommend clerks, and these people knew who she might like. I can’t think of any conservative clerks that RBG had, although Peter Huber — he clerked a long time ago — is kind of a libertarian. But I can’t think of many clerks who didn’t agree with her, so there must have been something that made it so that she got clerks who agreed with her. I just don’t remember it being like, “let’s find someone who wrote this kind of note or wrote this kind of argument.” She never said, for example, “I really like her, but I think she’s too conservative.” I can’t even imagine her saying that. But maybe there was something in the screening process that I didn’t see that did the same thing.

I will tell you, though, that when I interviewed with Justice Ginsburg, I had written my note about evolution and creationism, and the main case that my note talked about was called Aguillard. There was also a case in front of the Supreme Court that term called Aguilar. RBG started asking me about Aguilar, and I figured she was asking about the case I wrote about in my note. I started talking about Aguillard, and went on for a minute or two before I realized what I was doing. I realized she was talking about this other case — which was also a religion case, by the way — so I was able to pivot somehow to make it work. I got the job I guess, so it must have worked. But it was horrifying to realize in the middle of the interview that you were talking to a Supreme Court justice about the wrong case.

When I interviewed a former Scalia clerk, he said that all of Scalia’s papers and case files were accessible to the clerks. For example, he could read the Lawrence v. Texas case file whenever he wanted. Did you have that kind of access to Justice Ginsburg’s papers, and if so, which ones were most interesting to you?

I don’t think we did. If we did, I’m sure we would have wanted to look at the papers in United States v. Virginia, but I don’t remember us ever doing that. That either means we didn’t have access to it or we didn’t know we had access to it. My guess is that we didn’t have access to it, because I’m pretty sure in an idle moment we would’ve flipped through that thing. I’m trying to even think where the files and cases were.

The thing about her chambers is that it was very formal, in a sense. She was at arms length. She was in her office, the office door was closed, and it wasn’t like she wandered back into the clerks’ chambers and sat on the couch and threw up her feet and chatted about the cases. That’s kind of what my clerkship before was like. If she wanted to talk with you, she would buzz you on the phone. Another really scary thing. You’d be sitting there working on a memo or whatever, and then the phone would go “BZZZZ!” Your heart would leap, and you’d be like, “Oh no!” It wasn’t the kind of place where you might find yourself in her office next to a box of files about something interesting. My understanding is that Scalia’s chambers were much more rough-and-tumble, where everyone was going everywhere and arguing about things. But I wasn’t there, so I wouldn’t know.

For the past fourteen years, you’ve been tallying laughs in Supreme Court oral argument transcripts. What have you learned?

I’ve learned that people are much more interested in it than they ought to be. For me, it was a humor piece. I wrote the original thing in like three hours and thought no one would even look at it. It ended up getting picked up by the New York Times and was the front page story. All of a sudden everyone was asking about it, and I sort of pretended that it was more serious. But really, all it is is a joke from my perspective. So the fact that people still think it’s interesting or funny, even though the joke has been made for fourteen years, is pretty surprising to me.

There’s a new law review article coming out, a major piece in the Vanderbilt Law Review about the function of laughter — or something very serious. And the authors say, “Wexler has the pioneering work, but he underestimated the importance of laughter studies.” Every time somebody does that, I just roll my eyes. I’m sure there’s something academically important there, but for me it’s a joke. I don’t think it shows that justices are funny or not. I don’t think it shows that justices are human or not human. But it’s fun to watch, and it’s fun to see people interested in it to and to make riffs about it.

You’ve said that the most interesting oral argument “from a humor perspective” is FCC v. Fox Television Series. What are some other funny arguments that my high school readers might appreciate?

There was the argument about fish, Yates v. United States, which is about if you throw the fish that’s too small into the water, is that a violation of some securities fraud law. That was mildly funny. If you’re looking for funny things, though, the last place you should look is Supreme Court oral arguments. For the readers out there who are looking for something funny, try Bojack Horseman.

Once I thought about counting the number of laugh lines in a Chris Rock comedy special and comparing it to the number of laugh lines at oral argument just for fun. I didn’t do that, but I think Chris Rock might win in that head-to-head competition.

One argument against cameras in the courtroom is that the justices already joke around too much — they play too much to the audience — and that cameras would only exacerbate the problem. What do you think of that argument?

I think that there should definitely be cameras in the Supreme Court. I don’t think it would affect anything. Nobody who’s not interested in the law would watch it for more than two minutes, and the people who are interested would benefit from it. I can’t imagine there’s any lawyer, for example, who’s going to do something different in the way he or she argues a case because it’s on camera. And there’s no way that the justices would act differently. I just can’t imagine that. So my view is, put the cameras in.

It’s possible that there will be another vacancy on the Supreme Court within the next five-ish years. From a comedy perspective, who would be the best nominee?

Pam Karlan. I don’t think she’d ever get nominated, but she is the most genuinely funny person who would be a great justice. She is in fact hilarious, and also a legal genius. Were she put on the Court by a Democratic president, she would quickly rise to the top of the standings. Now, I predicted that about Elena Kagan, and it hasn’t quite worked out yet. But she’s got time, and I think she will refine her craft and give Breyer a run for his money.

On your now-defunct Odd Clauses blog, you made “original jurisdiction standings,” where you listed the win-loss records of each state in State vs. State cases. If you had unlimited time, what other standings would you put together?

Oh, boy. That’s a great question, but I don’t know if it’s one I could answer. If I was able to come up with the answer to this question, then I would be the type of person who would have gotten onto the Harvard Lampoon and went on to SNL. Then we wouldn’t be having this interview. Womp womp womp. What if there was a small band in the Supreme Court that had a drum, so when Justice Breyer made one of his dumb jokes they would go, “Badum-bum”? Just a little band in an orchestra pit, right below where the justices sit. Okay, never mind.

Or maybe there could be a band in the basketball court above the courtroom. Apparently you can hear stuff up there, like when Justice White would play basketball. But the sound would be more muffled. 

I have heard about Justice White playing basketball, and he would throw elbows around because he was a professional athlete. I’ll tell you this story. When I was in law school, I was on the moot court board, and Justice White was coming to judge the finals of the moot court competition at Stanford. I was tasked with a friend of mine to go to the airport and pick him up. We went in my little Honda Civic to the airport, and we didn’t even know what he looked like. So we got a piece of paper, and we wrote “Justice White,” and we held it up and there he was! I drove like twenty-two miles an hour on the way home so as to avoid crashing and causing a front-page story: “Dumb Law Student Crashes With Supreme Court Justice in Passenger Seat.” That was fun.

You could write a Green Bag piece about that.

If I remembered more about it!

Switching gears a little bit: In your book, The Odd Clauses, you analogized certain clauses to the animal kingdom, like shrews and wombats. What would the Establishment Clause be if it were an animal?

The Establishment Clause… how about a sponge? It would be a sponge because the way it’s been read, it’s like a porous wall between church and state instead of a strong wall. It lets the church and the state mingle through it like the water in the sponge. Thank you.

In an interview with Americans United, you said that you’re “worried any time the court gets a church-state case.” How worried are you about the Bladensburg cross case?

I’m pretty worried about the case. I sat there during its oral argument, with the justices debating for seventy minutes about whether a forty-foot cross is a Christian symbol or not. If you step back from that, especially if you’re somebody like me who’s not Christian, it’s just ridiculous. It’s absurd to the point of comedy. The idea that the Establishment Clause would allow the government to allow a gigantic cross on its property to me is a very easy question that does not need seventy minutes of argument. So yes, I’m worried. The question is how narrowly or broadly they’ll write this opinion, because surely they’ll uphold the cross. I hope it will be a very narrow opinion saying, “This cross was there for seventy years and it has the names of the fallen soldiers on it and it’s specifically about World War I” and any other nonsense they can come up with to limit their decision. That would be good. If they say, “The cross, in addition to being a Christian symbol, can also be a symbol for [whatever they make up], and therefore it’s okay for the government to put up crosses everywhere,” then that would be horrifying. I am pretty worried about how they’re going to write it. I think they’ll go narrow, but I won’t be shocked if they go really broad. And then I’ll feel sad.

They might kill the Lemon test, right?

I don’t care if they kill the Lemon test. Unless what they mean by killing the Lemon test is killing the endorsement test — then I would feel bad. The Lemon test itself is silly, and I don’t think it does anything. If they get rid of the endorsement test or the endorsement expansion of Lemon, that would be a big mistake. I hope they don’t do that, but who knows. The Chief is seeming to me pretty reasonable and minimalist and consensus-building, so I hope that he has a good influence on how this case comes out. It should come out narrowly and not get rid of some of the decent jurisprudence that the Court has come up with in this area.

The Court hasn’t struck down anything under the Establishment Clause since 2005, so I don’t expect this Court to interpret the Establishment Clause in any strong way ever. It’s just a matter of how much precedent they get rid of. I would like them to keep the word “endorsement” in there, so that later on when hopefully we get justices who are more sensitive to this kind of thing, they can use the endorsement test to strike down some of the more egregious symbols on public property.

What should high school students know about the endorsement test, and which church/state cases should they read?

High school students should know that the endorsement test by its terms prohibits the government from putting up a display or symbol that, from the perspective of a reasonable observer, endorses a religious belief, either compared to some other religion or compared to nonreligion. The second thing they should know is that even though that’s what the Supreme Court says, in fact many things that clearly endorse religion have been found to be totally okay, like the “Under God” in the Pledge of Allegiance, or “In God We Trust” on money, or the Ten Commandments on the Texas capitol grounds.

As for what they should read if they’re interested in the endorsement test… I would recommend the case of ACLU v. Allegheny, except it’s like 97 pages long and has eight opinions. So that might not be a good idea. I guess they ought to read Van Orden v. Perry, which is the Ten Commandments case. They should read both the majority and the dissent. Then when high school students read Breyer’s opinion, they’ll go “What!?” like everybody else.

 

Other interviews conducted by Anna Salvatore: Michigan Supreme Court Justice Elizabeth Clement, University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, legal journalist Chris Geidner, SCOTUSblog founder Tom Goldstein, 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, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes. 

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Thursday, March 21, 2019

SCOTUS Rules for American Indian Tribe in Treaty Dispute

By Will Foster

In 1855, a Native American tribe called the Yakama Nation made a treaty with the United States government in which the Yakamas ceded land and agreed to live on a reservation. The U.S. promised to allow the Yakamas to keep exercising various rights and privileges, including “the right, in common with citizens of the United States, to travel upon all public highways.” However, Washington state (where the Yakamas’ reservation is located) now taxes residents who transport fuel on public highways. A Yakama corporation that uses Washington highways to transport gas challenged the tax on the grounds that it interfered with their treaty right “to travel upon all public highways.” On Tuesday, the Supreme Court agreed. The decision in Washington State Department of Licensing v. Cougar Den was 5-4, with Justices Breyer, Kagan, Sotomayor, Gorsuch, and Ginsburg in the majority and Justices Roberts, Kavanaugh, Thomas, and Alito in dissent. Interestingly, the majority could not settle on one opinion: Breyer’s opinion was joined only by Kagan and Sotomayor (although, possibly by mistake, it is headed “Opinion of the Court”), while Gorsuch’s was joined by Ginsburg.

One big question is what “in common with” means. If it means “on the same terms as,” then “the right, in common with citizens of the United States, to travel upon all public highways” would allow Washington to tax the Yakamas, since the state can impose this tax on non-Yakama residents. Justice Kavanaugh argued this in his dissent. On the other hand, if “in common with” only means that the Yakamas have to share public roads with other Americans, then the Yakama might even have broader rights than other citizens — perhaps they’re exempt from the fuel tax, as the majority ultimately concluded.

The majority examined what the treaty meant to the parties when it was signed. Yet both majority opinions focused on what the Yakamas understood the treaty to mean rather than what the federal government understood. This seems sensible due to the massive imbalance of power facing the Yakamas when they negotiated and signed the treaty. The final treaty was written in English, a language which the Yakamas couldn’t read or write. During negotiations, the Yakamas relied entirely on representations made in Chinook Jargon — which, while better than English, was not the tribe’s primary language and only contained about 300 words, leading to precision difficulties in the translation. It would seem unfair, then, to hold the Yakamas to the exact English wording of the treaty rather than the general spirit of the bargain that they agreed to. As Justice Gorsuch mentions, this approach is supported by the longstanding canon that in ambiguous cases, agreements should be construed contra proferentem — against the interests of the party that drew up the agreement (here, the U.S. government.).

Gorsuch and Breyer both provided impressive evidence that the Yakamas understood the treaty as protecting their right to transport goods, a right that was not merely a protection against discrimination. In any event, as Gorsuch and Breyer explained, whatever uncertainty there may have been about the original meaning of “in common with,” Tulee v. Washington conclusively resolved the question in the Yakamas’ favor. This 1942 case concerned a provision in the same treaty that guaranteed a right to fish “at all usual and accustomed places, in common with the citizens.” There, the Court clearly explained that “in common with” does not limit Native Americans to equal privileges with other citizens. Citing United States v. Winans (1905), the court said that “despite the phrase ‘in common with citizens of the territory,’ Article III conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their ‘usual and accustomed places.’”

Both of the dissenting opinions in Tuesday’s case (by Roberts and Kavanaugh) strike me as pretty weak. They don’t seriously try to contest the history offered by Breyer and Gorsuch. Probably the dissenters’ strongest argument is that the Washington tax does not technically tax travel; it taxes goods (namely, fuel). As Roberts put it, “Because Washington is taxing Cougar Den for possessing fuel, not for traveling on the highways, the State’s method of administering its fuel tax is consistent with the treaty.” Yet this seems overly formalistic. As explained by the plurality and concurrence, the Yakamas reserved the right to travel because they wanted to transport goods for trading purposes. So requiring the Yakamas to pay the government every time they want to transport fuel on public highways seems to infringe upon a core aspect of their reserved right. In my view, it’s irrelevant that the state’s tax also affects fuel not possessed on public highways.

Indeed, as Justice Gorsuch pointed out, “If the State could save the tax here simply by labeling it a fee on the ‘possession’ of a good, the State might just as easily revive the fishing license fee Tulee struck down simply by calling it a fee on the ‘possession’ of fish. That, of course, would be ridiculous. The Yakamas’ right to fish includes the right to possess the fish they catch—just like their right to move goods on the highways embraces the right to possess them there.” As Gorsuch noted, Roberts could only reach the contrary conclusion because the Chief Justice denied that the treaty’s right to travel protected a right to travel with goods.

“Really, this case just tells an old and familiar story,” Gorsuch wrote in the conclusion to his concurrence. “The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.”

Wednesday, March 20, 2018

Oral Argument Review: Flowers v. Mississippi 

by Anna Salvatore

When a prosecutor selects a jury, he’s allowed to dismiss prospective jurors without explaining why. This practice is called the right of peremptory challenge, and the number of challenges a prosecutor has can vary based on state law, whether the trial is civil or criminal, and how many parties are participating in the case.

The Supreme Court recognized in Batson v. Kentucky (1986) that peremptory challenges can be cudgels of racial injustice. For example, if a black man is on trial, the prosecutor can use all of his peremptory challenges to strike black people from the jury. In the Supreme Court’s view, not only does such discrimination “[undermine] public confidence in the fairness of our system of justice,” but it is also unconstitutional under the Equal Protection Clause. “The Equal Protection Clause guarantees the defendant that the state will not exclude members of his race from the jury venire on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors,” wrote Justice Powell for the seven-justice majority. If a defendant brings a Batson claim, the prosecutor has to give race-neutral reasons for excluding the jurors. Then the trial court must conduct a “sensitive” and thorough review of the prosecutor’s reasons.

In this morning’s oral argument in Flowers v. Mississippi, the justices were curious about one main question: Which information is relevant when courts evaluate whether a prosecutor struck jurors impermissibly? Should courts only look at the facts of the case before them, or can they also look at the prosecutor’s history of Batson violations?

Curtis Flowers has been tried six times for quadruple murder, and in these trials prosecutor Doug Evans has struck a significant percentage of black jurors. In the first four trials he used 36 peremptory challenges against black jurors, and in the sixth trial he used five of his six challenges against them. Even Justice Alito, who was least sympathetic to Flowers’s side this morning, acknowledged that Evans had “an unusual and really disturbing” prosecutorial history.

Not all cases will be as extreme as Flowers v. Mississippi, so the justices expressed interest in a general rule for determining when a prosecutor’s race-neutral explanations are credible.

Sheri Johnson, who represents Curtis Flowers, said that a prosecutor’s history is relevant in this situation. “We [should] look at how recent a fabrication has been, whether it’s on a relatively similar matter, [and] whether the person has the same motive,” she said. “The right rule is a sensitivity inquiry.”

Opposing lawyer Jason Davis argued that the strikes in Flower’s sixth trial, though troubling, were constitutionally justified. He said every juror that was struck had connections to Flowers, had connections to the victims, or had admitted to lying in their questionnaires. He dwelled on the specific facts of the strikes instead of on a general rule.

Judging by the questions of the four more liberal justices — plus Justice Kavanaugh, who said that “history is relevant,” and who as a law student wrote an article advocating for tougher enforcement of Batson — the case will go in Flowers’s favor.

Other interesting SCOTUS stuff:

  • Justice Thomas spoke during oral argument today for the first time in three years. The content of his questions wasn’t super enthralling, but the fact that the “Supreme Court Sphinx” said anything received a lot of media attention.
    • BYU law professor Aaron Neilson has compiled all of Clarence Thomas’s questions in one document.
  • Yesterday the Court decided Nielsen v. Preap, holding that noncitizens who have committed crimes or have connections to terrorists can be detained by Homeland Security “when…. released” from prison and held without bail. The Court said “when… released” can mean basically any time after they leave prison; it doesn’t have to mean “immediately.” Justice Breyer dissented, echoing his dissent in Jennings v. Rodriguez (2018).
  • A new piece from Empirical SCOTUS: “Is the Court Tracking Left or Right?” 
  • Orin Kerr, the bigshot Fourth Amendment scholar, has filed a cert petition in a 4A case out of the Nebraska Supreme Court. According to his post on the Volokh Conspiracy blog, the opinion in State v. Sievers “permitted the stop of a criminal suspect without reasonable suspicion on the ground that the stop was ‘information seeking.'”
  • A SCOTUSblog oral argument preview for Kisor v. Wilkie, the administrative state/Auer deference case the Court will hear next week

Monday, March 18, 2019

Sorry for posting so infrequently.

A brief round-up of what happened today at the Supreme Court:

  • The justices agreed to hear two criminal justice cases next term. One of them is about whether the Sixth Amendment permits non-unanimous juries in state criminal cases. The other case, Kahler v. Kansas, asks whether the constitution allows states to eliminate the insanity defense. You can learn more from Adam Liptak’s summary for The New York Times.
  • The Court also heard arguments in a gerrymandering case called Virginia House of Delegates v. Bethune-Hill. Below is the first paragraph of Amy Howe’s oral argument analysis for SCOTUSblog, which you can read the rest of here.
    • “The Supreme Court heard oral argument today in a challenge to the map drawn in 2011 for Virginia’s House of Delegates. A group of African-American voters allege that the state legislature engaged in racial gerrymandering – that is, it relied too much on race when it drew 11 of the state’s districts, which would violate the Constitution. But the state legislators defending the map argue that, although race was one of the factors that the legislature considered, it wasn’t the only one. After roughly an hour of debate today, it seemed quite possible, although not certain, that the justices would reject the racial-gerrymandering challenge and uphold the map.”
  • The Court declined to hear a case brought by the owner of a Honolulu bed and breakfast. In 2007, the owner refused to rent a room to a lesbian couple because of her Christian beliefs, and she was challenging a lower court’s determination that she had violated Hawaii’s anti-discrimination laws. The Court didn’t explain why it rejected her appeal.

 

–Anna

Interview: Chris Geidner

Chris Geidner is a longtime legal journalist. In April, he will become the senior adviser for law and policy at The Justice Collaborative. He previously wrote about politics, the Supreme Court, and national LGBT issues for Buzzfeed. In the past five years he has profiled Jim Obergefell, the lead plaintiff in Obergefell v. Hodges; interviewed President Obama in the wake of Justice Scalia’s death; and covered the Supreme Court’s decision to strike down the Defense of Marriage Act. We spoke about his career in journalism and the state of the Supreme Court.

My questions are in bold, and his answers are in plain text.

You’ve said that you were obsessed with a big topic every year in middle school, from Lincoln to the Civil War to the Kennedys. What was so interesting to you about the U.S. government?

I think that it became very clear to me from a young age that the reality of the governing structure around us has an immense effect on how we live our lives everyday. We’ve seen that throughout history in this country. So far, there’s been a nonstop ability for me to spend six months or a year or two on a topic and try to understand why it is we’ve made these decisions and where we can go from here. There’s such a wide range of ways in which the government affects our lives, so I don’t know that I’ll ever run out of topics I want to be looking into.

What were some of the major political storylines when you were in high school, and how did you engage with them?

One of the first real stories that I remember was having to ask to keep the TV on during the final confirmation vote for Clarence Thomas in 1991.

I was starting high school that year, so I was also starting high school debate. Then, when the Anita Hill accusations came out during the Thomas confirmation hearings that was the news everywhere. So part of my interest was wanting to stay on top of the hearings as a first-year debate student.

So, I had been watching what was happening, and then the final vote was during dinner, so I remember having to ask permission to keep on the TV to watch the vote.

Apart from debate, how else did you keep yourself busy in high school?

Policy debate and drama club were the two main activities that I did in high school. They were great because they taught me to understand the strengths and weaknesses of both my arguments and of my opponent’s arguments. It’s not good enough in reporting, in advocacy, or in anything to only understand your argument. You’re going to fail if that’s all you understand. You have to know the strengths and weaknesses of your opponent’s argument in order to know what the path forward might be and if there’s any room for compromise. Or maybe there’s something you’re wrong about that you need to reassess.

And then from drama club, I gained a love of theatre that has stayed with me since — but also a real appreciation of the way that a dramatic or humorous portrayal can make you think about important topics.

Do you think that your debate experience made you better at evaluating the quality of Supreme Court arguments?

Debate is part of it, although that training continued when I went to law school and when I practiced law — all of those experiences combined. But debate involved paying attention to the little moments when you hear an argument that’s particularly effective or ineffective. For example, at oral arguments at the Supreme Court, you see that some lawyers don’t have a third backup for their arguments. When the second question is asked they have an answer, but then when it’s drilled down a little further, when the justices really want to understand the logical endpoint of an argument and how the proposed rule will be applied nationwide, the lawyer’s response is a little weak. They don’t quite know how to answer hypothetical questions that might not be at issue in their case. But when the Supreme Court issues a ruling, it applies to everything, and the best advocates know how to talk about even the wildest hypotheticals.

Tell me about your experience in law school.

It was a great time for me. I got to spend three years thinking about the law and what it means, and what it should mean, and what it should do. That was a wonderful opportunity. I also got to work with professors who deeply understood their area of the law, who knew their area of research better than almost anybody else in the country. I was able to see their thinking at work, because I was helping them on articles, assisting their research, checking their footnotes, and understanding how they put together an argument. I also ended up as the editor of the law review, and that gave me the opportunity to work with even more professors from other schools on their own ideas. Law school is a lot of fun if that’s where you want to be.

I know people who went to law school when they probably shouldn’t have, as they just wanted to do it for a job. You can get through it, but then you have debt and you’re going to have to do that work. Whereas I loved law school, and even when I moved into work that technically didn’t require my law degree, it has been beneficial every day of the last decade. I’ve covered marriage equality, the end of Don’t Ask Don’t Tell, the end of DOMA, broader Supreme Court issues, the death penalty, campaign finance rulings … and my law school experience of learning how to think about the law has stayed with me the entire time.

How did the decision in Lawrence v. Texas influence your decision to start blogging in your 1L year?

When Lawrence was being heard, I read a piece about the case and thought, “Well, this person is wrong. And I want to explain why I think that.” I was a 1L in law school, so nobody really cared what I thought. I talked to an older law student who had started a blog, and he encouraged me. He said, “You worked at a newspaper before law school and you’ve been doing journalism. Why don’t you start blogging?” I said, “That sounds like a great idea. I’ll do it!” And so I did, and very quickly I fell in love with it. It was early enough in blogging that there weren’t a lot of people doing it. In order to have a real critical mass of people talking on the internet about legal issues, the law professors who were blogging talked to the law students who were blogging just to have enough people out there who were doing this. That’s how I got to know a lot of those early law professor bloggers. It was really fun. You got to talk about ideas in a much more pragmatic way than as a law professor, because you were reacting to the news. You were reacting to what was going on in the world.

What is the best advice you’ve received about blogging?

Honestly, the best advice was that original advice from my friend Steve. He said, “If you want to write about it, start a blog.” And that’s it. There are general rules that I talk to students about for social media — everything is public, everybody can find everything, there is no privacy — so if you start a blog, keep in mind that somebody can find it in 20 years. Even if you think it’s gone completely, it’s not. Keep that in mind. But if you want to be a better writer, the only way you can be a better writer is by writing. And the only way you’re ever going to get better ideas is by exploring them and tapping them out on your keyboard or putting pen on paper. You have to figure out what you think, and not just read what other people think. That’s been the great gift of everything that I’ve done for the past two decades.

You’re leaving BuzzFeed today, where you have worked for almost seven years. How do you think your writing has improved during that time?

I’ve had great editors. Anybody who tells you that they don’t need an editor is done growing as a writer. Before I started working at BuzzFeed, I had been a practicing lawyer, and the fact is that you learn ways of communicating as a lawyer that aren’t as good for public consumption [laughs]. John Stanton, who was one of my first editors at BuzzFeed, would get one of my stories about a court ruling or a court filing. Then he would hit “enter” and say, “Okay, that’s a great second paragraph. What’s the actual news?” You don’t have to dumb things down, but you have to explain why a story matters.

One of the best examples of things I’ve learned is when I wrote my profile of Mary Bonauto, the lawyer who argued the Massachusetts marriage case and ended up arguing the Supreme Court’s Obergefell case. I went up to Maine and spent the day with her. Then I came back and wrote a story that looked back at her work a decade after the Massachusetts marriage decision. I turned in the draft to my editor, Katherine Miller, and she told me that I had written a great law review article. We needed to go back to the drawing board and make it more accessible to people. Tell more stories. We wrote an entirely new opening section that added life to the piece, so it wasn’t just a legal story but the story of a person who did this incredible work. I talked to some people who had known her and worked with her over the years, and got some more information. Then Katherine melded the two products. The truth is that she used ⅔ of that first story, but it needed a little more. That’s what a good editor does. She tells you what you’re missing from your story, and, on the other side, will always tell you when it’s too long.

How has your outlook on the Supreme Court changed?

Well, I know the Court now [laughs]. I had understood Supreme Court opinions when I started at BuzzFeed, and I had attended a handful of arguments. But at this point, I understand the justices a lot better. Some of them I’ve been watching for nearly a decade, as this is the eleventh term that I’ve covered.

It’s fascinating to watch the Court, because at one time it’s two very different things. It’s this huge ocean liner that has nine captains, and it takes five of them to agree to go anywhere. So it’s slow-moving in that sense. In another sense, though, it’s the smallest job in the world. You have eight co-workers, and you’re going to work with some of them for a decade or two or three. When one of those people changes, your interpersonal relationships and “Who does what?” and “Who cares the most about what?” can dramatically change.

Covering the Court over the past three years has been a wild time, because you went into 2016 with the Court planning to be itself for at least another year. You had nine justices who were approaching issues the way they had always been approaching them. Then with Justice Scalia’s unexpected death, there was an eight-justice court that had to adjust after losing an outspoken member. All of the sudden, his voice was gone from arguments, and his writings were gone from opinions and dissents. The Court, and particularly the conservatives, had to reassess what their role was. At that point, like many people, I suspect that the justices thought that either Merrick Garland or another left-leaning nominee would be nominated to the Court. We started to see some signs of the Court adjusting to its future as a majority-left court. When Trump won, though, the Court was back to eight, and it went from neutral to expecting a Trump nominee. Soon Justice Gorsuch joined the bench, and the other justices had to adjust to that. A little more than a year into that nine-justice grouping, Justice Kennedy retired. Then, that fall, he was replaced by Justice Kavanaugh, and the Court had to adjust again.

If you look back, there was a period after Justice Breyer joined the Court where we went for eleven years without a change. You still have people on the Court who were a part of that. On the other hand, over the past three years we’ve had all these major changes in the way that the justices perceive the Court. That’s why these past three years have been a really, really interesting time to be covering the institution, to be covering the Chief Justice in particular, to watch what the new justices do, and to see how the more liberal justices adjust to this new reality.

It’s wonderful to able to do that from within the Supreme Court press corps. I have had the greatest colleagues, and it’s such a collegial environment. Covering the White House or Capitol Hill, there are many, many reporters doing the work, all over the place, and they change often. At the Supreme Court, we have about 25 hard pass holders and another 15 or 20 people who regularly cover the Court. It’s a smaller world, and it’s extremely collegial.

One thing I’ve learned from talking to Linda Greenhouse, the New York Times reporter, is that she reads the dissent before the majority opinion. What unusual habits (if any) have you developed in your Supreme Court coverage?

Even though you can read oral argument transcripts or hear the audio later, I think there’s something important that you get from attending arguments in person. I got sick at the beginning of last term and missed the October sitting, and I was disappointed because I knew that I would never see what happened. As we heard in yesterday’s Congressional hearing, though, where Justices Alito and Kagan were talking about the budget, the Court has no plans to add cameras to the courtroom anytime soon.

One thing that people don’t understand is that Justice Thomas is engaged at oral arguments. He doesn’t ask questions, but that’s different from being disengaged. Oftentimes at arguments, you’ll see him chatting it up with Justice Breyer and then Justice Breyer will open one of his briefs and ask a question. Justice Thomas might not be asking questions, but sometimes I feel like Justice Breyer is asking a question that Justice Thomas posed to him. And other times it seems like they’re discussing something, and it raises a question for Breyer. That’s something you would have no idea about if you didn’t see it in person.

There was an argument recently after Justice Ginsburg returned to the bench. At some point, I think Justices Kagan and Kavanaugh had been asking some questions, and then Justice Breyer piped in to ask about an air-conditioned igloo. It was one of those Breyer questions that meanders about a bit, a strange hypothetical, and you could see Justice Kagan surrounded on each side by Justices Alito and Kavanaugh. They were all looking back and forth with each other and sort of laughing at his question. I got the impression that they were laughing because they were trying to ask this mechanical question of the lawyer, and Breyer was trying to get at the same point, but he asked it in this different, Breyer-storytelling way that actually got to an answer from the lawyer. What was going on there with the justices was something that I suspect you would only have picked up if you were there to see it.

Even if I’m not going to write about an oral argument, I’ll sometimes go to watch it because I want to understand what the justices are thinking in a way that I’m not necessarily going to get from the transcript.

Imagine how hard it was to report on the Court when the oral argument transcripts didn’t say which justices asked which questions.

Exactly! Reading transcripts would have been almost pointless.

Earlier, you mentioned how fascinating it is to report on the Chief Justice. If you had five minutes to talk with him, what would you ask?

Oh, that’s tough. I can’t tell you, because then if I get the chance it’ll already be out there! [laughs]

Honestly, I find that the Chief is in such an interesting position. He is a true D.C. institutional lawyer, and in a lot of ways he’s the anti-Trump. The Chief has pushed back at times, specifically on that one occasion when he issued a statement after Trump’s comment about the judge’s asylum ban ruling within the Ninth Circuit. And Roberts is in a difficult position both with this quickly changing Court and with the Trump era. It’s been interesting to watch how he tries to straddle the line. He’s gotten a lot of criticism from conservatives for his rulings, and he gets criticism from liberals for rulings. That doesn’t necessarily means he’s a moderate. I think he’s in the middle space on the Court now, and it is to the conservative side, but sometimes his institutionalism leads him to vote with the liberal justices. I also think that it is possible that he’s changing a little on some of his views, but we won’t truly know where the Chief Justice is going until we’re out of this frame of reference of the changing court and the Trump era.

Which areas of the law vis-à-vis the Chief are you particularly interested in?  

Later today, I’m going to be announcing my new job. I’m still going to be doing one aspect of Court reporting, but I’m going to join The Justice Collaborative — it’s a criminal justice advocacy organization — and will be the senior advisor for law and policy. So I will be paying a lot of attention to the Chief Justice on criminal justice issues. He’s made some interesting decisions in recent terms; for example, earlier this year he concurred in Bobby James Moore’s case out Texas. He had dissented the last time Bobby James Moore’s case came to the Supreme Court, and this time he concurred with the more liberal justices. He’s been interesting in his votes on the death penalty, something I’ve written about, so I will be watching where he goes on criminal justice issues in the coming years.

How many death penalty stay requests does the Court consider each term?

It depends on what’s going on in the states. There are fewer death penalty stays because there are fewer executions, but there tend to be two or three a month if they haven’t been stayed by state courts on state grounds or reprieve or clemency hasn’t been granted by governors or parole boards. It’s an fascinating aspect of the Court’s work that you often see justices writing on, so you get some insight into where the court is moving on things a little more quickly than you see in other areas. Normally it takes six months to two years for issues to go from an appellate decision to a cert petition to a grant to merits briefing to argument to decision. With a death penalty stay application, you, effectively, go through that process in three days. It’s really important to pay attention to them, and I’ve been privileged to work at places that have allowed me to do that.

I’d like to shift gears a little bit and ask about your process for covering oral arguments. There’s a huge emphasis on quickness now, on explaining the contents of an opinion as soon as you possibly can on Twitter. From beginning to end, what you do you when a major Supreme Court opinion is released?

The first thing that I do is figure out what it means, which sometimes can be really quick and sometimes can be complicated. An example of that was the Masterpiece Cakeshop case last year. I don’t think I had a very quick tweet, because I didn’t want to tweet until I knew what we were dealing with. That means looking at the vote, figuring out if it’s close, and figuring out if there was a concurring opinion that is going to narrow what the ruling means. If there are five justices or more who have wholly joined the majority opinion, that’s what controls and so I figure out what they say it means. Then I look at any concurrences and dissents.

The big thing that you get from a dissent is where the dissenting justices think this could go or where the Court should go next. Sometimes where this could go is their fear, and where the Court should go next is their attempt is say, “This opinion is more limited than what you might think. We encourage lower court judges to agree with us.” It’s their chance to weigh in and influence how the lower courts are going to interpret this decision. They hope that some appeals court judge and their clerks will see that as a sign that when they hear a case, this is what they should focus on. Other times, the dissenters are just upset at the majority decision, and they want to explain where they think the logic falls down.

How often do you write your articles ahead of time?
I don’t like pre-writes. I think that you can pre-write background on where the case came from, the story of the people in the case, what the lower court decisions were… But I don’t like doing much in terms of pre-writes beyond that. That’s how you get in trouble, to be honest. You’ve got nine justices. You don’t know what’s going to go through their mind. There might be two obvious arguments in the case, but who’s to say that Justice Breyer isn’t writing the majority decision with a third path that involves an unexpected combination of liberal and conservative votes? You’re going to be stuck scrapping your whole article. The Supreme Court can do what it wants, and it will often surprise us.

When has the Supreme Court surprised you most?

I think the most surprising outcome was how quickly marriage got back to the Supreme Court. We went from 19 states with same-sex marriage in October 2014 to 38 states that had at least some legally married same-sex couples by the time the Court heard arguments in Obergefell. That’s wild. As somebody who had been watching these cases since the Vermont marriage case in 2000 that led to civil unions, I saw that it was a slow-moving process that all of a sudden moved very, very, very quickly. We knew after Windsor that it was going to speed up. But even that day outside of the Supreme Court, Chad Griffin, who had started the organization that had brought the Prop 8 lawsuit and had become the president of the Human Rights Campaign, said that HRC’s goal was for marriage equality in all fifty states within five years of the Windsor decision. The reality turned out to be two years, and that shows how dramatic this change was.

What are your expectations for the LGBT cases that the Court is considering whether to hear right now?

I’ve been covering the Title VII cases since they were before the EEOC, since I was at Metro Weekly. I think that if you look at Oncale, which says that if the text is there you follow the text, and if you read Price Waterhouse, where it says that sex stereotyping is illegal sexual harassment, it’s hard to meld those two decisions together and end at a place where sexual orientation and gender identity discrimination aren’t covered by Title VII. Because they are discrimination that wouldn’t exist if those people were different sexes.

The fact that some of the first decisions saying that were out of the Sixth Circuit and the Eleventh Circuit is notable. Before these Title VII cases were picked up by groups like the Alliance Defending Freedom, which had been fighting marriage and now needed new work, the courts were all headed in the same direction. Until it was made controversial, it wasn’t controversial. I think that if you read through those circuit court decisions and then you read through the decision by the EEOC in Mia Macy’s case, the strongest argument against it is, “Congress hasn’t passed sexual orientation and gender-identity-specific legislation.” But that is not how we decide what existing laws mean, and that’s basically what Scalia said in Oncale.

It’s become a political issue, so I’m sure it will be a close case. If you read a lot of the dissenting decisions, a lot of them are based on pre-Bowers, pre-Windsor decisions, a time when the Supreme Court had said it was constitutional to criminalize gay sex. They’re based on those old decisions, or they’re based on the fact that Congress hasn’t passed sexual orientation and gender-identity-specific legislation. I don’t think either of those are strong legal arguments in 2019. And so I would be surprised if the Supreme Court goes that way, but I’ve been surprised by the Court before.

Last question: In another interview, you said that a big reason for your Court fandom is that every opinion is a kind of history project. Which Court opinions would you recommend to teenagers who are history buffs?

I’ll give an answer that is slightly sneaky. Read a ruling that is about a topic that interests you. I know that it sounds like it’s trying to get out of answering, and it partially is. But think about why I initially got obsessed in government — it was because I found the Civil War really interesting, and then I started reading about Abraham Lincoln. And I found the Kennedy assassination fascinating and I started reading about Kennedy.

My advice is to find a case that really interests you, and then just dig in. There’s so much knowledge to be gained in every case about court procedure, the way the decision comes down, the impact of those decisions, and the ripple effect in lower courts. It can be as simple as watching a movie about an issue before the Court and then reading about that case. You can go to Oyez.com and listen to the oral argument, and you can read the opinion. Go from there, and look at the other cases that created the backdrop for that opinion. Then, just keep moving forward.

Other interviews conducted by Anna Salvatore: Michigan Supreme Court Justice Elizabeth Clement, University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, SCOTUSblog founder Tom Goldstein, 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, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes. 

Interview: Justice Clement

Elizabeth Clement is the 113th Justice to serve on the Michigan Supreme Court. Born and raised in Lansing, she went on to attend Michigan State University Law School. She operated her own law firm after graduating, where she mainly dealt with family law, and then moved on to be a policy advisor in the state senate. She was serving as Governor Rick Snyder’s chief legal counsel when he nominated her to the Michigan Supreme Court in 2017.

My questions are in bold, and Justice Clement’s answers are in plain text.

What were you like as a teenager?

I was very quiet and shy. I described myself as an introvert back then. I think I’m still an introvert, but because of my career experience and my career path I’ve had to come out of my shell a little bit. I loved to read and write and research. Loved school. We didn’t have Google back then, but if we did, I would have been googling everything. That’s what I do now. Any time I hear something new that I don’t know about, I always have to find out as much as I can about it. And I grew up in a family of five kids that was active in sports and school. I had a very good high school experience. But like I said, I share with young people when I talk to them that I was really shy and really uncomfortable with public speaking. Although I had lots of ideas, I wasn’t as comfortable in my own skin. Looking back, I wish I had challenged myself a little bit more and done forensics or debate team.

I relate to that too. I also get nervous, especially before interviews like this one. How did you overcome or adjust to your nervousness when you were thinking about a career in the law? Did people try to warn you about law school?

I was blessed to have the support of my family and my friends, who all knew where my passion was. And I’ll share this because your readers might be interested. When I was in eighth grade, we were required by our social studies teacher to write a letter to ourselves about what we wanted for our future, and it was mailed to us when we graduated from high school. In eighth grade, I said that I wanted to go to law school and I wanted to be a judge one day. Now, when I was in eighth grade I had no idea what that meant – I didn’t know the difference between a trial judge and an appellate judge. But I knew that I loved history, I loved social studies and government, and I knew that I somehow wanted to work in that world.

So that was always my goal and my passion, and I think that the people who knew me had faith that I would work through that introvertedness. Not change it, because sometimes you can’t change those things. But I struggled with it through undergrad and law school. When you go to law school, you sit in classes and you don’t know when the professor will call on you. It’s not like you get to raise your hand and decide that you want to be speaking in a class. So I had to make sure that I was always very well prepared, and I had to do my best to work through that nervousness that I was feeling. This carried through in my career as well, such as when I was in court arguing cases or when I was working in government and running meetings and testifying at committee hearings. It’s still something that I have to manage and deal with today, because I travel around the state and give speeches and talk to different groups. I think what I try to keep in mind is that even though I might be nervous, there are other people who have some of the same concerns and personal issues, and I really focus on what I’m there to share instead of what I’m feeling behind the scenes.

Being nervous probably makes you more empathetic, too. When you’re presiding over your Mock Trial event later today, I’m sure a lot of the high school students will be nervous about presenting in front of a judge. 

I was with the Youth in Government last night, and I was in a room full of three hundred students. You can definitely tell when you’re interacting with them that everyone is there because they have an interest in government, but not everyone has that outgoing personality that wants a leadership role. But in my mind it’s important to have involvement from individuals that are maybe more outgoing and are comfortable speaking, as well as those who have a lot to offer, even if they’re a little more timid or uncomfortable with those interactions with their peers.

When you speak to kids who are interested in government, are there any books you recommend to them that have particularly influenced you?

That’s actually a really good point that you make. I haven’t done that. Usually, the students are the ones telling me what new stuff is out that they find particularly interesting or that they feel has in some way ignited their passion.

I’m a big fan of podcasts, so I always share, especially with younger people, different podcasts that I listen to that help give a perspective on legal issues or the judiciary that I think might be helpful to them. Radiolab has a podcast called More Perfect, and it’s absolutely one of my favorites. That’s about the U.S. Supreme Court. I’m also listening to Serial, the third season, which is all about the justice system in Cleveland. The state bar of Michigan has a podcast as well, and they do special shows periodically that I make sure to listen to. And I think Wrongful Conviction with Jason Flom has more of a story format, and people can enjoy learning about the justice system through some of those stories of wrongful conviction.

I’m going to go back a few steps. What were some of your favorite classes in law school?

I loved constitutional law, because when you start con law in law school it goes back hundreds of years. It has a historical aspect as well as the legal, and it takes you all the way to present-day cases. Con law courses were definitely some of my favorites in law school.

I thought I was going to go to law school and then go back to work in state government, but I took some family law classes that I really, really enjoyed and developed a passion to work with families. So when I graduated from law school, I went into private practice and practiced in the family law area for a number of years before I went back to state government.

What was so interesting to you about family law?

It was a smaller class, so that helped. I wasn’t sitting in a room with 120 other students — there were about twenty of us in the first class that I took. And I had a professor that did a really good job of presenting all of the legal issues when it comes to family law and the changes that have taken place over the last thirty to forty years. But I think the thing that really grabbed me was that it’s such a difficult area, and it’s so highly emotional for families, whether it’s a divorce or a custody case or abuse and neglect or even an adoption. These are very difficult times for families, and it takes a sensitive and open-minded person to work in that area and to really serve your client as not just an attorney telling them what the law is, but to be emotionally available to them throughout their case. Family law is ever-changing — when a divorce is filed, there are a lot of things that can and generally do happen once that decision is made. You end up wearing the hat of attorney and sometimes financial adviser and social worker and oftentimes serving as a listening ear to your clients.

Do you ever hear family law cases as a state Supreme Court justice?

We do, actually. I think that surprises people. When people think of the Michigan Supreme Court, they think of the highest level of constitutional issues in our state. And we do get a fair amount of constitutional questions, but the majority of the cases that we hear deal with either criminal law or change in custody, termination of parental rights, and abuse and neglect situations. So a lot of those family law matters do come to the Michigan Supreme Court.

How many cases does the Michigan Supreme Court hear each term, and how much time do you have to consider each case?

We get about 200 applications, which are basically requests from parties, every month. The process that we have is that those cases come to the court and get filed, and then they go to our commissioner’s office. We have roughly twenty commissioners that write up reports, and then all 200 of those cases go to each justice. We review those cases and will hold them if we think that there is something that might be of interest. Next those cases get set on an agenda, and we conference on them every Wednesday. Seven justices get together and review anywhere from twenty to thirty cases. Of those 200, most of them end up being denials, where it’s not a case that the court is interested in hearing at that time. But of the ones that there might be some interest by one of the justices or several justices, that case comes to conference. We talk about the case and decide if we want to take it to oral argument. We start oral arguments in October, and we hear cases from October to April, sometimes May, with the exception of February. We usually have twelve cases on oral argument each month, so once a month we sit just two days back to back and hear six cases each day. And then we make decisions after we hear those oral arguments on how we’re going to proceed – if we’re going to write an opinion, if we’re going to deny the case, and if there’s some other way that we’re going to move forward with handling the case.

As far as the time that we have, I like to share with people that I feel like I’m constantly preparing for a bar exam. For the twelve cases that we hear in a month, my clerks write very extensive memos. I review those, I review the briefs filed by both sides, and it takes a significant amount of time to prepare for oral argument. Even after oral argument, we spend a lot of time with cases that we’re going to be writing opinions on to research how we’re going to write the opinion. We also work with our colleagues to come to a consensus on what we’re putting out.

From beginning to end, what does your opinion-writing process look like?

When an opinion is assigned right after oral argument, generally I would say that the first step is that the justices in the majority have a process where we touch base with one another. We make sure that if I’m assigned to write it, this is the direction that I’m going. Because other justices may have voted the same way as me, but that doesn’t necessarily mean that they want to go as far as I’m going, or maybe they want me to go further than where I’m going. So I always check in and make sure that we’re heading in the same direction, which prevents me from circulating an opinion down the road and having my colleagues that I believe are on the same side falling off or changing their positions.

Then the clerk that is assigned to that case, through all of the prior stages, drafts a first draft of the opinion. There’s conversation and drafts that go back and forth before I decide that we’re ready to circulate, and in my office, my assigned clerk — I have four clerks — always circulates that initial draft among the other clerks for their edits and thoughts. The other three clerks haven’t worked on it, so they have fresh eyes.

At that point, the opinion gets circulated among the individuals that have voted with me on the disposition of the case, and then it’s circulated among the entire court. You don’t always circulate it among the justices that are on the same side as you, but it can very helpful just to make sure with a difficult or very technical case that you’ve continued to have support from your colleagues. It gets circulated among the seven of us, and at that point it goes on the opinion agenda. Any justice can indicate that they’re on the opinion or that they’re planning on writing a dissent. There are time frames that we put on one another to keep the opinion moving and keep the process going.

What is the most valuable advice you’ve received about writing opinions?

I would say that what I have heard routinely from the lower courts and the bar is that they are looking at our opinions to give them direction – not just for that instant case, but for other cases that might be affected by the decision that we make. So it’s very important that we write our opinions clearly and concisely. Another thing I hear a lot is that opinions can be too long, and people end up reading the syllabus instead of reading the entire opinion or the entire dissent. There’s a desire, I think, for appellate courts to try to deliver the opinion in a way where there’s a little more brevity.

Are there any judges, living or dead, whose writing style has influenced your approach?

I would say not yet. I haven’t authored that many opinions since I’ve been on the Supreme Court, and of the ones that I have, two of them were unanimous, and I really knew where I wanted to go with those opinions.

I think I may take a bit of a broader approach in describing background, or if we’re talking about a statutory provision, the history of it, especially when it impacts why we’re going in a certain direction. But I love reading U.S. Supreme Court decisions, and over the years that I’ve been reviewing them I like to pull a little bit from different styles. And then there are times when I review opinions that are written by justices or judges and I think, “When I’m writing I’m going to make sure that I don’t do this,” such as opining generally on public policy.

You spoke earlier about being in private practice for a few years and then taking on a advisory positions in the state legislature. How did working with legislators inform your judicial philosophy? Do you think that you’re more pragmatic or less reliant on legislative history because of this experience?  

I think that my career path that led me to the court is rather unique. I worked not only as an attorney in the legislature, but also as an attorney in the executive branch — I worked for the governor for seven years as his deputy legal counsel, deputy chief of staff, and during my last year and a half with him I was chief legal counsel. And I would say that my time in the legislature and my time in the executive branch solidified an appreciation for the separation of powers and the importance as a judge of staying in my lane. What I mean by that is, we have had cases before us where I might not personally agree with the policy behind the legislature enacting a law, but that’s not for me to weigh in on. My job, and the job of the judiciary, is to say what the law is. To read the words that have been adopted by elected officials in the legislature and the governor and to leave my personal opinions completely separate. You hear the phrase “rule of law judge” thrown around. I frankly think that the majority of our judiciary is rule of law judges. They follow the law and they leave their own personal bias and preferences out of it.

I start every case by seeing if there’s any type of constitutional provision that needs to be looked at. Second is the statutory language. I know from working in the legislature that there could be a lot of reasons that language was used in crafting a statute. When you might have the sponsor of the bill saying, in a public hearing, “This is what my intent is,” they’re speaking only for themselves. It doesn’t mean that that was the intent of the entire legislature when they passed that law, so judges have to look at the words that were used. Having been involved in the legislative process and drafting amendments and making changes to statutes, I know sometimes changes are made and specific language is used, but that may not be the intent of everyone who voted on that bill. I try to keep in mind that you can’t really look to statements made on the floor or testimony that’s given on committee and say, “This is what the legislature must have meant.” You really have to look at the language. Because I’ve seen many times where the plain meaning of the language doesn’t reflect what the ‘intent’ of a statutory provision was.

There are several labels used to describe judicial philosophy: textualism, pragmatism, living constitutionalism, stuff like that. Do you identify with any of these labels, and if so, why?

I don’t. I’m not a fan of any of those labels. And I know that they’ve been used in recent history with the U.S. Supreme Court, and then it’s trickled down to state courts in the last thirty-some years. I think that it’s been helpful to have attorneys and the public have a better understanding of how a judge might approach their job, but I’ve never heard a judge say, “I’m an activist. If I don’t like what the legislative branch has done, I’m going to legislate from the bench.” I’ve never heard a judge say that. So I think these philosophies and these labels that are given can give some context to people who are interested in the role of the judiciary, but they can also be confusing, because you can have two judges who both say they’re textualists and then they read the text differently. I try to steer clear of those labels. It might take longer to explain what my judicial philosophy is and how I arrived at that and how I implement that everyday, but taking the time to explain that is more helpful than calling myself a textualist or any other judicial philosophy label.

When you hire law clerks, how much do you care about their political leanings?

I have four tremendous law clerks. They are fantastic, and they all come with different experiences. I like having people around me that push me and are comfortable disagreeing with me. But I am looking for clerks that in general have the same type of philosophy that I do. We might not like the result in this case, but that happens. It’s going to happen with many cases. But we can’t be outcome-driven and say, “This seems unfair; we want that party to win.” My bar with clerks and their judicial philosophy is fairly low, just wanting them to have that in their mindset when they approach each case. A lot of clerks come through the state supreme court or other clerkships positions maybe not ever having thought about their judicial philosophy. I think clerking is a good opportunity for them to work for judges who can help them form that in their head and to understand that philosophies provide stability in our legal system so we don’t have the law changing based on which judge is sitting in the case.

Your court releases videos of its oral arguments on YouTube. What has your experience been with televising the arguments, and have there been any negative side effects that people fear would happen if the U.S. Supreme Court allowed cameras?

I think it’s fantastic that the Michigan Supreme Court is ahead of the curve on this. We livestream right from our website first, and then the argument videos posted on YouTube. I think it’s incredibly helpful. We hear great reviews from lawyers who are preparing to come before the Court, or are just interested because they have an appellate practice. I also hear from the public that they like having the ability to access arguments and to watch something without having to come to Lansing to the Hall of Justice. I’m not sure what the argument would be to either not livestream or to have it recorded and then played later. It can only be beneficial to be transparent and to give the public better access to those proceedings.

I guess the arguments against it — maybe this just applies to the U.S. Supreme Court, which has a ton of publicity — is that clips from oral arguments may be taken out of context and shown on late night TV. An analogous fear for the state supreme court could be that clips are shown in election ads.

For the federal courts, there are no campaigns. And so there would be no concern that it could be used in that avenue. As far as late night TV or any of those programs that might want to comment or point something out about the Court, I find that they do it anyway. They have a longstanding segment on Saturday Night Live about Ruth Bader Ginsburg. So they find a way to do it without having access to the video recording from the Supreme Court. I can understand in state courts, where there are election processes, how that could be used against someone that is running for election. But in my mind, the integrity of the oral argument process is something that each judge or justice needs to be thinking of when they’re asking questions. They shouldn’t be badgering attorneys, they should treat all parties with respect, and they should only ask questions that are important to the case.

What qualities do you appreciate most in a lawyer arguing before the Michigan Supreme Court?

It’s a little difficult, because when someone is coming before the Michigan Supreme Court, they’ve submitted extensive, well researched, well drafted briefs. So they’re coming to us to answer things that some of us might be having difficulties with. I would say that the thing that stands out the most for me is when attorneys are arguing before our court and they truly are listening to one of my colleagues’ questions. It’s almost like you can see it click, where they understand, “Okay. This is the line that the justices are going down. This is what’s causing them concern, or where they think this case is going.” And they’re able to listen to the questions and change what it is that they’re presenting to really address those questions, versus coming in and restating everything that they’ve put in their brief or picking out what they think are their strongest points. Oral argument is an opportunity for them to get a glimpse of what we might be struggling with.

One of the best questions that’s asked by our bench is, “What rule is it that you want us to adopt here? What is it that you’re actually asking us to do?” A good attorney will realize that if you are at the appellate court level, especially the highest court in the state, this is not the Supreme Court making a decision just on this one individual case. If we’re going to adopt a rule on something, it needs to be something that doesn’t go too far and also isn’t too narrow that it only addresses this very instant case. So a good lawyer will understand, “this might be the fact pattern in my case, this might be the decision that I want for my client, but this court is really looking at long-term stability in the law and providing direction to lower courts and the public on where the law stands on this particular issue.”

When you’re going into an oral argument, are you more focused on asking specific questions or on persuading your colleagues?

I’m fairly quiet during oral arguments. I have always been and will always be a listener, and I think that that is imperative to the job — that I’m not coming to an issue with my mind completely made up and that I’m open to listening to answers from the parties. So I’m fairly quiet and don’t ask a lot of questions. Sometimes I don’t ask anything, because I’m really listening and watching the attorneys answer questions that my colleagues are asking. That gives me a sense of what my colleagues are struggling with in the case. If they keep asking the same line of questions, or if they are asking both sides the same question, I know they’re looking for clarification or are indicating which direction they’re heading in. And why that’s helpful is because sometimes you go in — you read the memos that are drafted by your clerks, you read the briefs — and you have a general sense of where the court will be going. Oral argument helps to narrow that and refocuses what the court needs to be addressing in a specific case.

Earlier in our conversation, you said there’s a misconception that the Michigan Supreme Court handles mostly big constitutional cases. Can you think of any other misconceptions that you’ve encountered about the oral argument process or about your experience as a justice?

I get asked a lot, “Are you in court everyday, and do you send people to jail?” That means that I have to explain the difference between our trial courts and our appellate courts. Once I start that dialogue with people who are familiar with the judicial system, it usually clicks, and they’ll remember, “Oh yeah. I learned that back in high school.”

We just elected a chief justice. Amongst the seven of us, we elect a chief justice that serves for two years. Because of the nature of how Michigan Supreme Court justices are selected and elected, we have a bifurcated process where you’re nominated by a political party at convention, and then after that you run as a nonpartisan on the ballot. But people remember which party you were nominated by. If you look at the current makeup of the court, we have four justices that were nominated by the Republican Party at convention and three that were nominated by Democrats at convention.

The chief justice that we selected at the beginning of January is Chief Justice Bridget McCormack, and she was nominated by the Democratic Party. So there was a little discussion about how rare or unique it was that when you have a majority of Republican nominee justices that a Democrat would be nominated as our Chief Justice. My response to that is to explain that the Michigan Supreme Court is different than the U.S. Supreme Court when it comes to the role of the Chief Justice. In the Michigan constitution, we have one Court of Justice, which means that the Supreme Court and our administrative arm are responsible for the administration of justice in all of the state courts. There’s a lot of administrative work that gets done on court rules, funding, and different issues that all Michigan courts are trying to improve upon. For us, it was an easy selection to have Chief Justice McCormack as our chief because she has fantastic ideas, she’s committed to improving access to the justice and the efficiency of our courts, and she has a lot of experience with it. I selected who I thought would be the best leader for not just our court, but for all of the courts in Michigan. And it was a unanimous decision. All of us agreed that she would be the best person for the job.

Plus, Chief Justice McCormack has a public profile on Twitter. That’s not super common among judges.

Yes, she’s very active on Twitter. I love seeing her tweets because she’s sharing information about what she’s doing, but she also posts a fair amount of funny or interesting things. She shares the same view as I do that not just the Michigan Supreme Court but our judiciary as a whole is there to serve the public. We need to be accessible to all of our communities so they understand what our role is and what we’re there to do.

How much resistance have you experienced from fellow judges about appearing on Twitter?

From other judges or justices that I’ve talked to, generally the number one reason that they’re not on Twitter is because they don’t know how it works or how to use it. And I think that there’s a concern — “What if I put something out there and it becomes a problem?” I stick to tweeting things that people who don’t already follow the Supreme Court can connect with. For example, they might be surprised that their Supreme Court justices are involved in problem-solving courts or child welfare issues. I think that it’s so important for the public to see that judges don’t just sit in their offices reading and writing all the time, that they’re out there engaging in our judicial system.

You serve as the liaison to Michigan’s problem-solving courts. Where do these courts lie in the structure of the state judicial system, and why are they important to you?

I started working on problem-solving courts years ago when I worked in the legislature. Problem-solving courts in Michigan are mental health treatments courts, sobriety and drug treatment courts, and veteran treatment courts, and they’re really a shift in how we interact with people that have entered the criminal justice system. When I worked in the legislature, I worked on some pilot projects and legislation to help raise awareness and get these programs off the ground. When I worked in the governor’s office, I worked very closely with the legislature and the budget office to make sure that we had state buy-in and funding to help these courts keep operating. And now that I’m in the judiciary, it is a perfect fit for my passion to be the liaison to those courts.

My job is, in my opinion, twofold. It’s to support all of our trial judges and their teams, which include treatment providers, law enforcement, prosecutors, defense attorneys, implementation officers, etc. The teams are very expansive, and their goal is truly for the participants in these treatment programs to be successful. They try to identify what the participants’ underlying issues are, and they help get them the resources that they need to get their life back on track so they don’t keep interacting with the criminal justice system.

My other role is to figure out — we have 185 problem-solving courts around the state of Michigan  — what’s working well, and what the courts are having difficulty with. We have courts in urban areas and rural areas. Sometimes they have the same issues, and sometimes they’re very different based on their location and population. I like to travel around and visit these courts and hear from them about what improvements we can make.

For example, what I hear from both urban and rural courts are issues of housing and issues of transportation. In the country, people might have to drive two hours to their problem-solving court’s weekly or biweekly meeting, while in the city, people might have access to transportation but they can’t afford it. Or they don’t have a car, or they have driving restrictions. They might need assistance to use public transportation to get to the court for their problem-solving session. That’s just one example of how we need to be continually aware of how are participants are affected by these challenges and what can we do to help address those to make them the most successful they can be.

Thank you for giving such a detailed answer. You’ve posted a few pictures of yourself on Twitter with graduates of problem-solving courts, but before I wasn’t quite sure how they worked.

We collect data, and we have collected data for the past fifteen years, that tracks our participants’ employment. The data shows that our problem-solving courts are incredibly successful. Recidivism rates are drastically reduced. Employment is drastically improved. You see numbers and you think, “Okay, great. This has a positive impact on our communities because instead of people cycling in and out of the justice system, they are getting their lives back together and moving forward.” When I attend these graduations, they are so moving. I always hear, whether from a participant or from a spouse or relative, that the problem-solving program saved this person’s life. You see families reunited because the participant had struggled for years with addiction and was not connected with their family. But the family saw such a change in their loved one that they repaired those relationships, and that means healthier families and healthier communities. I think any time you can change one person’s life, it tells me that these programs are working.

 

Other interviews conducted by Anna Salvatore: University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, SCOTUSblog founder Tom Goldstein, 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, Princeton professor Robert Georgeformer Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes. 

Interview: David Feder

David Feder is an associate at Jones Day in Los Angeles, California. After attending Harvard Law School, he clerked for then-judge Neil Gorsuch on the Tenth Circuit. He has also clerked for Justice Gorsuch at the Supreme Court. He talked with Curtis Herbert about his clerkship experience, his favorite Supreme Court justices, and his advice for young people who are interested in the law.

What was high school like for you?

My experience was pretty ordinary. I enjoyed spending time with friends and golfing. I don’t think I’d ever read a Supreme Court case, except for maybe Brown v. Board of Education in a government class. I wasn’t really following the Court at all. So I think it’s really cool what you’re doing, and what High School SCOTUS is doing, following all the cases that come out and the hot legal issues of the day. I wasn’t even sure that I wanted to be a lawyer when I was in high school, so I was not following things very closely. But I wish I had been. If you end up going to law school, you could have maybe 5-10 years of Court-watching before you even get there, which I think will give you a lot of context when you’re reading cases. You’ll know a lot more than I did on my first day of law school.

How was your experience clerking for Justice Gorsuch?

I think it was awesome. Being a law clerk is probably the coolest job you can have, except for being a judge or a Justice yourself. And being a law clerk for Justice Gorsuch in particular meant a lot to me. He was my first job out of law school when I clerked for him on the Tenth Circuit. He was a great boss and a great mentor. He was amazing to work for – he’s brilliant, thoughtful, hard-working, conscientious, and it was really just a joy to work with him every day. Being a clerk is a lot of fun. You get to see behind the scenes, and you end up getting the judge’s perspective on advocacy and briefs, what sort of arguments are effective, what’s not effective. Clerking is also a chance to see things in the real world. It’s one thing to look at cases in law school and to read about the doctrine and the theory, but it’s something quite different to actually have to apply it to resolve real-life cases and controversies. It’s also a really cool experience, because I got to spend a lot of time thinking about the law, reading old cases, and learning a lot about various doctrines. Law school, for the most part, is an overview, whereas with clerking, you take a deep dive into the doctrine, the sources, sort of everything related to a particular issue, because you really want to master it. So you come away feeling like you know about as much as anyone about a particular legal issue, even if only for a short period of time. It made me think harder about the law, and it was incredibly formative for me. I highly encourage clerking to everyone, if being a litigator is something you’re interested in.

What are the duties of a clerk?

I can’t really get too much into specifics. But it involves helping the justice with whatever he needs, legal research or writing, preparing for a case, and working on opinions, if that’s something your justice wants you to do.

As a clerk, what do you do in your spare time, or what spare time you have? Are there any fun and engaging Court traditions?

It is a very busy job. As a clerk, you want to make sure you do everything right, that you’re giving full consideration to all the arguments and all the amicus briefs. It can be a lot of work, but there’s still time to have fun with friends and co-clerks. At least in our chambers, my co-clerks basically became family to me. We spent a lot of time together, a lot of which was talking about cases. But a lot of it was also spent talking about life, family, or whatever was going on. We also had a lot of fun. There was a lot of practical joking going on with my co-clerks, which was a blast.

A little bit more formally, there’s the weekly clerk happy hour, where different chambers take turns buying dinner for the rest of the clerks. That can be a chance to blow off steam, have some dinner, and interact with some of the people in the different chambers. There’s also a clerk basketball game that some people play in a few times a week. There’s a lot of things like that. An informal lunch, or you’re walking by someone’s chambers, and you pop in to chat with them for a little bit. You become very close with the people you work with, both in your chambers, and in other chambers. Among the clerks, it’s almost like a family. I’m definitely planning on staying friends with a lot of the people I met during my clerkship.

There’s also an end of the year skit and a law clerk trivia contest. For the skit, some of the more artistically talented clerks put together an almost spoof Saturday Night Live type show, gently poking fun at the term and the justices. I’ve been quite impressed seeing a couple of them now. That’s the other interesting thing about a Supreme Court clerkship: everyone there is tremendously talented. You talk to someone there, and you learn that they were running an international refugee program in Kosovo. It’s pretty amazing, and the skit is just one example of that.

And then there’s also the law clerk trivia contest, where the Chief asks questions to all the law clerks about cases and history and the building. That’s also a lot of fun, and I participated in that in my first term. It’s a great way to relax after the grind of the end of the term.

Besides Justice Gorsuch, who is your favorite Justice and why?

That’s a really hard question. There’s a lot of justices that I admire in various respects. I’m not sure that I agree with any particular Justice entirely, but there are aspects of Justices that I greatly admire. For example, Justice Scalia: I admire him because he reminded us of the differences between judges and legislators, and that judges should seek to enforce only the original and ordinary public meaning of the text. He wrote a lot of opinions that he probably didn’t agree with as a matter of policy, but he thought that was what the law commanded. There was the Crawford v. Washington confrontation case, where the Court overturned a confrontation test for one that more closely tracked the original meaning. I think he also did a great service to law students and people thinking about the law. He wrote a lot of books that are very useful and that I still have on my shelf today. Some examples would be “A Matter of Interpretation,” which I think is a must-read for someone in law school or someone thinking about interpreting the Constitution. Another one, “Reading Law,” is all about the canons of construction, which I think most practitioners have on their shelf and look at when they are writing briefs. I know that I look at it a lot.

I admire Justice Jackson a lot. I think he was a very independent justice who stood firm for the rule of law no matter whom it made happy or whom it displeased. Here I’m thinking of his dissent in Korematsu, where the Supreme Court wrongly upheld the internment of Japanese Americans during World War Two. He dissented, against the President who appointed him and who signed the executive order. That’s what judges should do. They should enforce the Constitution, and its meaning, regardless of whom it makes happy and whom it angers. Also, he was an amazing writer. I don’t know if you’ve ever read any of his opinions, but he just had a flair with the pen. Another interesting thing is that I don’t think he even graduated law school.

I think you’ve also heard of Justice Story, who wrote his very famous Commentaries. It’s one of the earliest comprehensive pieces that looks at the Constitution and its provisions. It’s very in-depth, and really is an invaluable historical resource when you’re trying to determine the original meaning of the text of the Constitution. I think whenever you’re doing a case that involves Constitutional Law analysis, you have to think of that book and read it to see what Justice Story said about a particular provision. It’s hard to imagine he had time while he was a Supreme Court Justice to write an entire treatise on the Constitution, but he did it.

Scalia did join Texas v. Johnson, which he may not have agreed with as a matter of policy.

I think that’s another good example. I think he even said something about this in “A Matter of Interpretation,” that if he were King of the United States he would throw every flag burning hippie in jail. But he’s not king. I think it’s great that he is willing to vote a certain way, even if he doesn’t agree with the result. Who’s your favorite Justice?

Hmm. I’m a big fan of Chief Justice Salmon Chase for joining the dissent in the Slaughter-House cases and for dissenting in Bradwell v. Illinois. I also think that his stint as Abraham Lincoln’s secretary of the Treasury and his work with paper money was really interesting.

What about your favorite Federalist Paper?

That’s a hard one too. There are a lot of canonical Federalist Papers, like 78, about the role of the Judiciary. There’s a famous quote that the Judiciary will exercise “neither force nor will, but merely judgement.” That’s about the best one sentence summary of the proper judicial role. I also like a lot of the Federalist Papers having to do with the separation of powers, both the horizontal separation of powers, between the three branches of government, and the vertical separation of powers, or federalism. This structure is incredible, because it allows a nation of 300 million people with very different views to live together in harmony. But my favorite might be the very first Federalist Paper, more for what it represents than what it says. If you stop and think about it, the Federalist Papers are quite an amazing project. The Constitution establishes a government of, for, and by the people, not the states, not some elite, but the very people themselves. If you created a dictatorship or a monarchy, you wouldn’t need a Federalist Papers to convince the people that your form of government is legitimate, good, and should be adopted. So I just think that what it represents is a radical and revolutionary idea, that the people should govern themselves and that they can govern themselves. It’s not easy to pick one, though. What about you?

Federalist 10 is my favorite. Madison talks about the dangers of faction and explains that our representative republic is designed to prevent the tyranny of the majority. In our political environment, I think we’d do well to heed Madison’s advice and be very wary of faction.

I think Federalist 78 is sort of a corollary of that. Why do we need an independent judiciary? Because we want the judges to apply the law impartially, neutrally, and as written without trying to gore a disfavored minority. It’s to protect minority interests and minority voices against the tyranny of the majority and the faction problems that you talked about. The whole system really goes hand in hand, but in particular, I see a strong connection between Federalist 10 and 78.

When you’re thinking about an opinion, where do you start, and how do you write?

I can’t really get into the specifics of opinion drafting, but I think good opinion drafting shares a lot in common with good legal writing. It has to be clear, it has to have a good structure, and the arguments have to be sound logically, structurally, textually, and historically. Good legal writing is at least somewhat enjoyable to read. To me, the big difference is that when you’re working on a judicial opinion, you have a civic duty to write it in a way so that the people who come to the Court to get their dispute resolved can understand why they won or lost. That’s not to say that you want to dumb it down or anything, but you have a particular focus on making it understandable to the layperson, which can be very challenging when you’re working in very complex areas. The judiciary has to give a comprehensive reason for a decision, but if the litigants can’t understand why they won or lost, you lose a lot of trust and understanding in the judiciary. So I think that’s an important responsibility that is somewhat unique to judicial opinions.

What qualities set the good briefs apart from bad ones?

A clear brief that you can understand on the first read is always very helpful. A brief that has a good structure, and addresses text, structure, and history of the relevant provision is important. Good briefs are easy to follow, and you should always cite the full text of whatever you’re talking about. Sometimes you’re interpreting a provision, and nobody quotes fully the provision until the appendix of the brief. It’s also useful to put forth a limiting principle and deal with counter-arguments. The judges and people who work on cases are all very smart, and they see the counter-arguments and the weak points in your arguments. So simply ignoring them is not going to make them go away. You want to address the concerns that people may have for whatever argument you’re making. It’s also important to realize you’re writing for judges or justices who have a wide variety of methodologies. You don’t want to write a brief and not talk about the history, or the original understanding, or what people like Justice Story said about it. Sometimes there will be a brief that doesn’t make an originalist argument, when there are many originalist judges and justices out there. I think they are doing their client a disservice. Good advocates make arguments based on all the modes of interpretation.

Is that what sets the star oral advocates like Neal Katyal or Paul Clement apart?

I think those are definitely things that really strong oral advocates do. I think another thing that good oral advocates do is look and see where they need to concede, but explain why they still win anyway, or why the Court doesn’t have to decide that. They answer questions directly, and give a yes or no answer, and then go on to explain why it’s beside the point, or why it’s outweighed by other evidence, or something like that. Some people are hesitant to answer a question, and I think that hurts them. Because the people who work on these cases are very smart, and they will see the weaknesses in your argument. Oral argument is the chance to shore up those weaknesses. It’s really your chance to be heard. So if you’re dodging the question, or refusing to answer the question, or just throwing up a wall, then it can be harmful to your case because you’re not giving an answer to what the people on the bench are most concerned about.

Do you have any advice for younger people like me who are interested in the law?

Well, I think watching law school lectures on YouTube is a great way to inform yourself about the law and learn to think like a lawyer, which is really what law school teaches you. It also lets you learn a bit of the doctrine. It’s good to read a lot, and not always legal material. I remember asking Justice Gorsuch, back when I started my Tenth Circuit clerkship what he recommended to read if I wanted to improve my writing. I expected him to say something like “go read Bryan Garner or Ross Guberman,” and he said, “go read Dickens. Go read the classics.” I thought that was interesting. I’m reading a book on grammar now by Benjamin Dreyer, and he points out Dickens as an example of a great writer who broke the mold a bit. Reading Ross Guberman or Bryan Garner can also be very helpful – I’m a big fan. I think I’ve read all of their books.

There are justices who have written books explaining their methodology, which is very cool. “A Matter of Interpretation” by Justice Scalia, as I mentioned earlier, as well as Justice Breyer’s “Active Liberty.” Study history, and learn why the Framers adopted a written Constitution in the first place. Learn why they abandoned the British unwritten constitution. Learn what was going on in the colonies that led them to revolt and establish a new government. Learn about when the British government hauled colonists across the sea for trial in England. Learning about the context of the Constitution and why it was enacted can be an invaluable asset when you are trying to figure out what its provisions mean.

And just enjoy it. I think all this stuff should be very fun, and it shouldn’t be a job or anything. Go see an argument. I think you’d get a kick out of it. Keep your head down, work hard, and you’ll be successful. I have no doubt about that. I’ve been very impressed by everything that High school SCOTUS has been doing. I just want it on the record that I’ve been a fan of the blog before it blew up. Keep up the good work!

Curtis Herbert has also interviewed Professor Josh Blackman