Supreme Court Justice Elena Kagan participated in a talk at Notre Dame Law School on Friday.
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00:00:00 [APPLAUSE]
00:00:03 Thank you.
00:00:05 As I told you, you have a lot of fans here.
00:00:19 Well, thank you so much for the introduction
00:00:22 and the great warm welcome that I've received already
00:00:26 from your law school, great law school.
00:00:29 And I've really enjoyed the day so far.
00:00:31 And I'm sure I'll enjoy this conversation too.
00:00:34 Well, I'm so grateful that you're here.
00:00:37 So I first want to start off by asking you,
00:00:41 your path to the Supreme Court ran through academia.
00:00:45 You were an academic first.
00:00:47 In fact, you were the first nominee
00:00:50 to the court without prior judicial experience
00:00:52 since Justice Rehnquist was nominated 50 years earlier.
00:00:57 How does your academic background
00:00:59 shape your perspective on the court?
00:01:01 And do you think it gives you a different perspective
00:01:03 than your colleagues?
00:01:05 You know, I'm not sure.
00:01:06 The court has actually had many people
00:01:08 who have served a great deal of their career in academia.
00:01:14 So they were all judges, and I wasn't.
00:01:19 But of course, Justice Barrett is essentially an academic.
00:01:24 And we're the only two on the court now, I think.
00:01:28 But I hope I'm not forgetting anybody.
00:01:31 [LAUGHTER]
00:01:33 Justice Ginsburg, her formative years
00:01:36 were spent in academia at Columbia Law School,
00:01:39 Justice Breyer at Harvard Law School,
00:01:41 Justice Scalia at the University of Virginia Law School.
00:01:45 So the court has had plenty of academics in its time.
00:01:48 And I'm not sure that--
00:01:52 in terms of-- you can tell from those people,
00:01:56 they're very different kinds of judges.
00:01:58 They're very different in the decisions they made.
00:02:01 So there are all kinds of academics in the world.
00:02:03 And I'm not sure that academic background leads
00:02:07 to a particular kind of judge.
00:02:09 I'll tell you the way I think it's affected me most.
00:02:12 And it's not the scholarship I did
00:02:15 or the academic environment generally.
00:02:20 It's actually the experience of teaching.
00:02:22 And the way that has affected me is when I write my opinions,
00:02:27 I try hard to figure out how it is that I'm going
00:02:30 to explain things to people.
00:02:32 Because law is complicated.
00:02:35 And law is often arcane, especially as when
00:02:38 I started the court and I was a junior justice,
00:02:40 I got all these really super arcane technical opinions
00:02:45 that I wanted to write.
00:02:46 That's the thing that junior justices tend to do,
00:02:50 tend to get.
00:02:51 But I wanted ordinary people to understand them.
00:02:56 I wanted not just legal specialists to understand them.
00:03:00 I wanted non-lawyers to understand them.
00:03:02 And you don't want to dumb them down so that absolutely
00:03:07 everybody can understand them at the expense
00:03:09 of the legal precision and sophistication.
00:03:15 But I wanted to figure out a way to present ideas in a way
00:03:19 that they were comprehensible to people.
00:03:21 Because in the end, this is a democracy.
00:03:24 And people in a democracy should be
00:03:26 able to understand how our institutions of government
00:03:30 work, including the courts.
00:03:32 And the best way I knew to do that
00:03:34 was when I sat down to write an opinion,
00:03:37 I would think about sitting down to prepare a class.
00:03:40 Because when you're preparing a class,
00:03:44 you're imagining going into a room of smart people,
00:03:47 engaged people, but people who at that moment,
00:03:51 before they've had the class, they
00:03:53 don't know all that much about what
00:03:55 you're going to teach them.
00:03:56 Maybe a little bit, but it's important to figure out
00:04:01 how to present ideas, including complicated ideas,
00:04:04 to people in a way that they'll understand it at the time
00:04:08 and in a way that will also stick.
00:04:11 So that when they look back later,
00:04:12 whether it's for studying for the exam
00:04:14 or whether it's years later, they'll remember something
00:04:17 of what you told them.
00:04:18 And I think you develop certain habits, good teachers do.
00:04:24 I like to think I was a good teacher of how to do that,
00:04:27 how to explain things to people in a way that will
00:04:29 be understandable and sticky.
00:04:31 And I try to think of that when I write opinions.
00:04:35 And so I'm very much sort of approaching my opinion writing
00:04:39 task as a teacher, which is, of course,
00:04:41 what I did in two law schools.
00:04:45 Yeah, but you were also a dean.
00:04:47 And as a dean, I'm wondering if you learned anything
00:04:49 about judging from that job.
00:04:54 Whether I learned anything about judging from being a dean,
00:04:57 I mean, I think a dean, I think you think about an institution
00:05:02 as a dean.
00:05:03 And if I wasn't already, being a dean
00:05:05 made me into an institutionalist.
00:05:07 I care about the future of the institution that I'm in.
00:05:12 I try hard to do what I can among the nine of us
00:05:18 to make the institution work better.
00:05:21 I try hard to pay attention to relationships in the way
00:05:25 that deans have to pay attention to relationships.
00:05:30 Maybe the small p politics of institutions,
00:05:35 which I think all institutions have,
00:05:36 is a thing that I hope I'm attentive to because
00:05:39 of that deanship experience.
00:05:41 I mean, that only takes you so far.
00:05:45 But I like to think of myself as an institutionalist that
00:05:52 wants to make--
00:05:54 the court is a multi-member body and wants
00:05:57 to make it work as a multi-member body where
00:06:03 we can reach good decisions, where we can achieve consensus
00:06:08 as far as we can, where we can make principled compromises
00:06:14 as far as we can, consistent with our obligation
00:06:18 to interpret and expound the law as we see it.
00:06:23 And I think that those instincts, which I hope I have,
00:06:28 are ones that maybe were important as a dean.
00:06:32 Does that make sense as a dean?
00:06:34 Well, it does.
00:06:37 So in addition to being an academic and a dean,
00:06:42 you were also the Solicitor General of the United States,
00:06:45 what we sometimes in law refer to as the 10th justice.
00:06:49 Can you say a little bit about what that experience taught you
00:06:52 and how that might guide you on the court?
00:06:56 Yeah, it's the coolest job in the world.
00:06:59 And honestly, if you could really plan out your career,
00:07:03 I would have loved to have spent a few more years there.
00:07:06 But when the president calls and says
00:07:09 he's ready to appoint you to the Supreme Court,
00:07:12 I think it's the wrong answer to say
00:07:13 I'd really like to be Solicitor General for a few more years.
00:07:16 [LAUGHTER]
00:07:19 It's why when you said you're the only one who
00:07:23 wasn't a judge, which is true--
00:07:26 it used to be the case, by the way,
00:07:28 that the court was full of people, lawyers
00:07:33 who hadn't been judges.
00:07:36 So for example, if you look back to the Brown v. Board Court,
00:07:39 the Brown v. Board Court did not have a single justice on it
00:07:43 who had been a judge previously.
00:07:46 Chief Justice Rehnquist had never been a judge previously,
00:07:50 as you said.
00:07:53 And we've gotten away from that.
00:07:55 I think we've gotten away from it mostly
00:07:57 because of the nomination and confirmation process
00:08:00 that people, presidents, very much
00:08:04 want to know what their nominees are going to do.
00:08:07 And the court has become a little bit more, or a lot more,
00:08:11 something that presidents want to make sure
00:08:13 that their nominees are not going to surprise them.
00:08:17 And the best way for a nominee not to surprise them
00:08:19 is to have an extensive judicial record
00:08:21 so that the president can look at that and say,
00:08:25 ah, that's what they're going to be like as a judge.
00:08:28 But from the standpoint of the court,
00:08:32 I'm not sure that the court did very well for many years
00:08:39 without everybody being a judge before.
00:08:42 It's not rocket science.
00:08:44 If you're a good lawyer and you're engaged in the law
00:08:48 and you have judicial temperament
00:08:52 and you have a proper understanding of what
00:08:54 the judicial role is, then I think
00:08:58 you're going to be a good judge.
00:09:00 But to the extent that there were experiences
00:09:04 about serving on a court that I didn't have,
00:09:10 which there were--
00:09:10 I mean, my first year was very much a learning experience.
00:09:14 The learning curve was high.
00:09:16 But I will say that the experience of being solicitor
00:09:18 general was superb preparation for being on the court itself.
00:09:25 Because what the solicitor general does,
00:09:27 those who don't know, when I said
00:09:29 it's the coolest job in the world, it really is.
00:09:31 It's the person in the Justice Department
00:09:34 who basically has responsibility for all the appellate
00:09:38 work of the United States.
00:09:40 So the solicitor general decides what to appeal,
00:09:46 what trial judgments to appeal on behalf of the United States.
00:09:51 And then the solicitor general also
00:09:53 decides what cases to take to the Supreme Court.
00:09:57 And some of the cases that the solicitor general
00:09:59 and her office engages in are cases where the United States
00:10:03 is a party.
00:10:04 But in addition, in the Supreme Court
00:10:06 and to some extent in appellate courts,
00:10:09 the United States functions as an amicus, which
00:10:12 means a friend of the court, and essentially
00:10:15 is there to represent the US government's interests,
00:10:19 even in cases in which they are not directly participating.
00:10:24 So if you assume that the Supreme Court, for example,
00:10:28 has 60 cases a year, probably the solicitor general
00:10:33 in one capacity or another, either as a party
00:10:36 or as an amicus, will take part in 45 of them, 50 of them,
00:10:44 the great majority.
00:10:47 So what the solicitor general does
00:10:49 is make all these appellate decisions--
00:10:52 and that's a fun part of the job,
00:10:54 deciding which cases to appeal and what arguments
00:10:57 you're going to bring forward.
00:10:59 But in particular, in the Supreme Court,
00:11:05 your office is arguing a substantial majority
00:11:10 of the cases.
00:11:11 And you're arguing some of those.
00:11:14 And so every month, the solicitor general
00:11:16 goes up to the Supreme Court and gets at the podium
00:11:19 and argues whatever the most important case of the month is.
00:11:22 And also, all the briefs flow through the solicitor general
00:11:27 so that she's responsible for thinking
00:11:32 about how to argue all these cases before the court, what
00:11:36 arguments are going to be presented.
00:11:39 And so all my job, basically, was
00:11:43 trying to figure out how to convince
00:11:46 these nine people of the United States'
00:11:48 position on various matters.
00:11:50 So I guess the job was first to decide, often,
00:11:54 what the US position was, and then
00:11:56 to think how you were going to persuade the court to adopt it.
00:11:59 So when I got to the court, I used
00:12:01 to think, well, the job really hasn't changed.
00:12:03 Because before, I was trying to persuade nine people.
00:12:06 And now I'm just trying to persuade eight people.
00:12:09 But it was the same basic job.
00:12:12 And by the time I finished my tenure as solicitor general,
00:12:17 I knew all about the court's procedures.
00:12:19 And I knew a lot about the court's personalities.
00:12:23 And I had seen the court in action
00:12:25 and really had been focused in my thinking on the court
00:12:29 and what made a tick and what was likely to persuade it
00:12:32 and what was likely not to.
00:12:35 And so when I got to the court, again, there
00:12:38 were lots of things I had to learn.
00:12:40 But it felt like very good preparation.
00:12:42 Oh, great.
00:12:44 You mentioned the confirmation process.
00:12:48 And in your confirmation hearings in 2010,
00:12:52 you famously said, we're all originalists.
00:12:56 Can you explain what you meant by that?
00:12:58 And is it still true?
00:13:00 Yeah, so I actually didn't--
00:13:03 that's only part of the sentence.
00:13:07 And since everybody knows that part,
00:13:12 it's nice that you gave me the opportunity
00:13:15 to tell you the other part and what it meant.
00:13:19 The sentence goes, so in that sense,
00:13:25 we're all originalists now.
00:13:28 Well, you can tell from that in that sense
00:13:30 that it was a more complicated statement.
00:13:34 It came after a long discussion about why
00:13:37 I was not an originalist in the conventional understanding
00:13:41 of that term, but instead why I thought
00:13:45 that constitutional meaning evolved, developed over time,
00:13:51 and why that was consistent with,
00:13:53 consonant with what the framers wanted
00:13:58 and consistent with the documents that they gave us.
00:14:06 And so the "in that sense" was like, no, I'm not
00:14:09 an originalist as some people would define it.
00:14:12 But in fact, my view that constitutional meaning evolves
00:14:17 is consistent with the actual original understanding
00:14:22 of what the document was meant to do
00:14:24 and how it was meant to work.
00:14:26 So with that off the table, that stupid soundbite
00:14:30 that has been hanging over my head for a while--
00:14:33 [LAUGHTER]
00:14:35 I'll tell you why I think that the Constitution evolves
00:14:38 and how it does and why that is consonant
00:14:42 with what they thought would happen.
00:14:44 Take a document, and there are some parts of the Constitution
00:14:53 that are very specific.
00:14:54 So it says, nobody under 35 can be president.
00:14:58 Well, everybody agrees on something like that,
00:15:01 that, well, if you're not 35, you can't be president.
00:15:04 And nobody goes any further than that,
00:15:06 and everybody is willing to accept that.
00:15:08 And nobody says, 35 was something different then
00:15:12 than it is now, and maybe it should be 50.
00:15:16 OK, but a lot of the Constitution
00:15:18 is nothing like that.
00:15:20 A lot of the Constitution is these broad, general phrases.
00:15:24 So for example, if you look at the 14th Amendment, which
00:15:27 is where a lot of the constitutional law
00:15:30 that people care about comes from,
00:15:33 the 14th Amendment says that people
00:15:34 shall be granted due process of law.
00:15:37 And it says that people shall be granted
00:15:39 equal protection of the laws.
00:15:41 And so the question becomes, how do we interpret those phrases,
00:15:44 and how do we decide what those phrases mean?
00:15:48 Now, the originalist position, there
00:15:51 are different forms of originalism,
00:15:53 and everything's very complicated,
00:15:54 and I don't want to simplify too much.
00:15:58 But in essence, the originalist position
00:16:02 is, we look at what those phrases meant at the time.
00:16:06 So there it was in the late 1860s,
00:16:09 we look at what people thought it
00:16:11 meant to have equal protection of the laws,
00:16:13 or to have due process of law.
00:16:15 And those set of applications, if you will,
00:16:20 are the applications that we should continue,
00:16:23 and nothing else.
00:16:26 But the first thing about that is that it's
00:16:29 really hard to figure that out.
00:16:31 I mean, lawyers, judges, are not historians.
00:16:35 History is hard.
00:16:37 And that kind of constitutional history,
00:16:40 trying to figure out what words meant to people,
00:16:44 as to what the words applied to, and what the words didn't,
00:16:48 that kind of, I don't know, even intellectual history,
00:16:51 let's call it, is a pretty impossible task.
00:16:54 And you see this, honestly, in the court's opinions
00:16:57 in the originalist vein.
00:16:59 Because one person's history has a historical argument
00:17:04 saying A, and another person has a historical argument
00:17:08 saying not A. And both of them are
00:17:10 seeming to pick and choose from the historical record,
00:17:14 sort of to cherry pick.
00:17:15 Justice Scalia called it picking out your friends in a crowd
00:17:19 when he talked about legislative history.
00:17:22 And so the history is hard.
00:17:25 It's rare in these cases that we can know with any certainty
00:17:32 how these particular words were understood,
00:17:35 and what they required, and what they did not require
00:17:40 at the exact time in question.
00:17:42 But maybe the even more important point,
00:17:44 and the thing that I was trying to say in that nomination
00:17:48 hearing, is that I don't think that the framers thought,
00:17:54 and I don't think we should think,
00:17:56 that that's the question.
00:17:58 What did equal protection of the laws mean in 1868?
00:18:02 I mean, nobody would have used phrases like that
00:18:06 if they had just meant to codify a particular set of practices.
00:18:13 They would have codified a particular set of practices.
00:18:16 These people, they were speaking for the ages, and they knew it.
00:18:20 And they were speaking--
00:18:21 all of these people, people in the original founding period,
00:18:24 and then after the Civil War.
00:18:27 I mean, if there was anybody who understood
00:18:30 how the world changes, it was those people.
00:18:33 How societies change, how governments change,
00:18:36 how people change.
00:18:37 They had brought on a revolution.
00:18:39 They had lived a civil war.
00:18:41 They had no doubt that societies changed,
00:18:45 and understandings changed.
00:18:48 And they spoke in those phrases because they
00:18:50 wanted the Constitution to be fit to govern a people
00:18:57 as that people lived over time.
00:19:00 Now, that doesn't mean that there are no moorings,
00:19:04 there are no bearings.
00:19:06 Quite the opposite.
00:19:07 The original understanding is important.
00:19:09 So too is the broader structure of our history.
00:19:13 So too is the particular precedents
00:19:16 that the court has used.
00:19:18 So you always have to think about anchoring and not
00:19:24 going off on just saying, well, if we don't,
00:19:28 we can just make it up.
00:19:29 We can't just make it up.
00:19:31 Judges have to be disciplined.
00:19:33 Judges have to be constrained.
00:19:35 But the project is not to figure out what they thought--
00:19:40 and this, again, is an example, but it's an important one--
00:19:43 equal protection of the laws meant in 1868.
00:19:46 That wasn't the founders' own project.
00:19:49 And they were right about that.
00:19:51 I mean, think about the kinds of rules
00:19:54 that we would have to live under if that were the project.
00:19:57 I mean, I've got to tell you, Dean, the two of us
00:19:59 would not be sitting up here having
00:20:01 this conversation in 1868.
00:20:04 So I mean, just to take a couple of concrete examples,
00:20:11 there was nobody that thought that in 1868
00:20:14 that equal protection of the laws
00:20:18 prohibited segregated schools.
00:20:20 I mean, there have been some arguments in this vein.
00:20:22 They're not convincing.
00:20:25 As Brown itself made very clear, there
00:20:33 is not an originalist argument for the prohibition
00:20:38 of segregation in education, or not a good one at least.
00:20:43 And similarly, that equal protection clause,
00:20:46 that so didn't apply to women.
00:20:48 Women wanted themselves to be protected
00:20:52 in the equal protection clause.
00:20:54 And there was a specific decision
00:20:56 made not to have anything about women,
00:21:00 and indeed sort of to suggest that this really
00:21:03 didn't have anything, because people did want
00:21:06 it to be entirely race-focused.
00:21:08 So if you just looked at 1868, women
00:21:13 have no legal rights emerging from the equal protection
00:21:17 clause.
00:21:17 So I don't think--
00:21:18 I could go on and on about different things
00:21:21 that are accepted by pretty much everybody now,
00:21:27 that we would have to ditch if we really were true to this,
00:21:35 like, no, we just do it the way they did it
00:21:38 in the founding period.
00:21:40 I don't think that we could live with that.
00:21:43 I don't think the framers wanted us to live with that.
00:21:46 Again, that doesn't mean that you can do anything you want.
00:21:50 Constraint and discipline and incrementalism,
00:21:53 what we might call minimalism, are really
00:21:56 important judicial values.
00:21:58 And the reason originalism caught on
00:22:05 was really because of that, because people
00:22:08 thought that judges were kind of making it up.
00:22:11 Judges were imposing their own personal preferences.
00:22:14 And that is a totally legitimate concern.
00:22:17 And you have to figure out ways to prevent that from happening.
00:22:22 But I think, as I say, a more multivarious approach,
00:22:26 an approach which thinks about law as it develops over time,
00:22:32 thinks about sticking close to precedent,
00:22:35 thinks about a certain kind of incrementalism
00:22:39 in judicial decision-making, that's
00:22:41 the way to be truly constrained.
00:22:44 - So you mentioned precedent as a way to discipline courts.
00:22:49 And you've been a steadfast defender of stare decisis,
00:22:53 most notably in your majority opinion
00:22:57 in Kimball versus Marvel.
00:22:59 And in the recent decisions in Dobbs and Students
00:23:04 for Fair Admissions, a majority of the court
00:23:08 voted to overrule precedent.
00:23:11 Is precedent and stare decisis becoming
00:23:14 an ideological dividing line in the court?
00:23:17 - Well, I surely hope not.
00:23:21 And you are right that there have been times recently where
00:23:32 there have been ideological divides with one-side overturn
00:23:36 and precedent.
00:23:40 I don't think-- I'm hopeful that it won't have that year
00:23:47 after year, case after case.
00:23:49 At least it shouldn't.
00:23:51 Because the idea of precedent is of incredible importance
00:23:55 to the development of law.
00:23:57 And maybe I'll say a few words about why that's so.
00:24:00 So the idea of precedent, it's a kind of counterintuitive idea,
00:24:06 really.
00:24:07 It says that because the court did something
00:24:09 in the past, it should continue to do the same thing,
00:24:14 even if that thing was wrong in its original formulation.
00:24:19 Because if it was right in its original formulation,
00:24:21 of course, precedent does no work.
00:24:23 You don't need precedent.
00:24:25 Where the idea of stare decisis comes in
00:24:28 is saying, even if you think it may have been wrong,
00:24:32 or even if you think it was wrong,
00:24:36 there is still value in sticking to the course that
00:24:39 was laid out.
00:24:40 So people say, well, why would you do that?
00:24:42 If you think it may have been wrong, or if it was wrong,
00:24:45 why not just change it?
00:24:46 And there are a few reasons for that.
00:24:48 I mean, one reason is just humility.
00:24:51 Stare decisis is a doctrine of humility.
00:24:54 It basically says, I'm one judge at one time.
00:24:58 And if there have been many other judges
00:25:00 over a course of many years, then I
00:25:03 owe those people some deference, some respect,
00:25:06 because I might be wrong.
00:25:08 So stare decisis-- humility is a good value in the law.
00:25:12 The judges don't think that they know everything
00:25:14 and can do everything.
00:25:16 And stare decisis is basically a doctrine of humility.
00:25:19 It's also a doctrine of stability and of reliance.
00:25:27 So it keeps law stable.
00:25:30 And it means that people who relied
00:25:33 on a particular legal rule or principle
00:25:36 don't have the rug pulled out from under them.
00:25:39 So it's not like you have a right one day,
00:25:41 and then you don't have the right the next day.
00:25:43 It's not like you own a piece of property one day,
00:25:46 and then you don't own a piece of property the next day.
00:25:50 So stability and attention to reliance interests
00:25:55 are of crucial importance in the law.
00:25:58 And then finally, I would say, precedent is important.
00:26:04 Adherence to precedent is important,
00:26:05 because it prevents the court from looking
00:26:08 like a political actor, like an ideologically driven actor.
00:26:13 And the reason is because I think
00:26:16 what happens when courts just overrule things willy nilly,
00:26:22 it's usually because--
00:26:25 or sometimes it's because new judges have come on the scene.
00:26:29 And then they say, we never liked this rule.
00:26:32 We were not part of creating this rule,
00:26:33 and we never liked it.
00:26:35 So we're going to overturn it.
00:26:37 But when that happens, the court looks
00:26:40 as though it's just a matter of who's on the court, you know?
00:26:44 What judges happen to be there on any given day?
00:26:47 And that doesn't look very law-like to people.
00:26:50 And it's a crucial thing about our legal institutions
00:26:54 that the public have confidence in them,
00:26:56 and that that confidence is of a particular kind.
00:27:00 I think people have no right to expect
00:27:02 that they're going to agree with all the decisions
00:27:05 that courts make.
00:27:06 I mean, quite the contrary.
00:27:08 Very often, courts have to do things
00:27:10 which a majority of the public doesn't like.
00:27:13 But people do want courts and have a right
00:27:16 to expect that courts act like courts,
00:27:20 and that they don't look like other political actors,
00:27:24 or they don't look like the other parts of our government
00:27:28 which are made up of political actors,
00:27:30 that they look as though they're doing something different.
00:27:33 When the court kind of goes back and forth--
00:27:36 and our law about precedent talks about this quite a lot.
00:27:41 It makes people think that courts are just
00:27:43 sort of making it up on the fly.
00:27:45 And that's an extremely damaging thing for the judicial system
00:27:49 and a thing for our country.
00:27:52 I'd like to ask about the court's role with regard
00:27:56 to our political and democratic processes.
00:28:01 So in Brnovich versus the Democratic National Committee,
00:28:06 your dissent defended the Voting Rights Act
00:28:09 against Arizona's out-of-precinct law,
00:28:12 where you argued that minority voters were disproportionately
00:28:17 likely to have their votes thrown out by that law.
00:28:20 Do you think that the Voting Rights Act
00:28:22 ought to be read more liberally to afford special protections
00:28:27 to minority voters?
00:28:28 I don't think the Voting Rights Act ought to be read more
00:28:31 liberally than what it was actually written as.
00:28:34 In other words, there are some people that sometimes they say,
00:28:37 well, you should give some kinds of statutes a liberal reading.
00:28:42 I don't think that that's the case generally.
00:28:46 And I don't think that it's the case with the Voting Rights Act.
00:28:48 What you should do is you should read statutes fairly.
00:28:51 That's the reason why the court got it wrong
00:28:54 was not because it didn't put a thumb on the scales,
00:28:57 was not because it didn't read the Voting Rights Act liberally.
00:29:01 It was because it didn't read the Voting Rights Act fairly.
00:29:04 It didn't understand that the Voting Rights Act was
00:29:07 one of the most expansive, broad, far-reaching pieces
00:29:12 of legislation that Congress has ever passed in this country.
00:29:16 What it did was give a kind of crabbed reading
00:29:18 to the Voting Rights Act.
00:29:20 It unnaturally restricted, constricted it.
00:29:27 If the Voting Rights Act was read fairly,
00:29:30 that decision, I said in my dissent,
00:29:33 would have come out the other way.
00:29:34 That decision, you know, was pretty--
00:29:37 the Voting Rights Act was pretty clear that what it was doing
00:29:41 was ensuring that everybody had an equivalent right to vote
00:29:49 and that everybody's vote counted in the same way
00:29:52 so that impediments to voting, obstacles to voting,
00:29:56 schemes that diluted some people's votes as compared
00:30:01 to other people's votes on the basis of race were forbidden.
00:30:05 And, you know, that responded to a very dire, horrible history
00:30:12 in this country of preventing black Americans especially
00:30:17 from accessing the polls and from having their vote count
00:30:21 in the same way as white Americans vote.
00:30:25 And the Voting Rights Act was passed by Congress
00:30:31 as a very powerful indictment of that practice.
00:30:34 And, you know, in my view, read in the way
00:30:39 it was written, which is to say read fairly,
00:30:42 read as they wrote it, it would have prohibited
00:30:46 the practices in that case.
00:30:48 Let's talk about another practice that
00:30:50 affects democracy, and that's gerrymandering.
00:30:54 In a case, Rucho v. Common Cause,
00:30:58 your dissent lamented the court's refusal
00:31:01 to remedy the constitutional violation
00:31:04 of partisan gerrymandering that, in your words,
00:31:08 deprived citizens of the most fundamental
00:31:10 of their constitutional rights, the rights
00:31:13 to participate equally in the political process,
00:31:17 and that the gerrymandering in that case
00:31:19 debased and dishonored our democracy.
00:31:23 The majority in that case held that the gerrymanders involved
00:31:28 political questions beyond the reach of federal courts.
00:31:32 If that's true, then what's the role of courts
00:31:35 in policing the democratic process?
00:31:38 Yeah, I think the point of the dissent
00:31:41 was that it's not true, that courts indeed can play a role
00:31:47 and have a role in this process.
00:31:52 So let me tell you a little bit about why,
00:31:54 and then as to what else can we do.
00:31:56 I mean, it is still the case that state courts,
00:31:59 using state constitutions, can try
00:32:02 to prevent partisan gerrymanders, and many of them
00:32:06 have and do.
00:32:08 But with respect to that opinion, which
00:32:10 was about courts under the federal Constitution,
00:32:17 I mean, what was striking about that case
00:32:19 was it was a case in which everybody
00:32:21 agreed that the gerrymandering involved
00:32:23 did violate the Constitution.
00:32:25 There was really no argument that it
00:32:27 didn't violate the Constitution.
00:32:29 So these were cases in which--
00:32:31 you know, it could be--
00:32:32 I mean, you can imagine different kinds
00:32:34 of gerrymanders.
00:32:35 You know, you take a place, a state,
00:32:37 let's say, where people are roughly divided,
00:32:41 you know, some half like Republicans,
00:32:46 half like Democrats.
00:32:47 But then the district lines are drawn
00:32:51 so that it's wildly out of proportion.
00:32:53 And you know, of 13 seats, 10 go to one party,
00:32:58 and the three go to the other.
00:33:01 That was one of the gerrymanders that was involved in this case.
00:33:04 Another of the gerrymanders was basically--
00:33:07 it was in a state where there were many more
00:33:09 Democrats than Republicans, but it deprived Republicans
00:33:13 of any ability to elect even one representative
00:33:18 in the entire state.
00:33:20 So they can work in different ways.
00:33:21 But essentially what they do-- and we had before us
00:33:25 one Republican gerrymander and one Democratic gerrymander.
00:33:28 So the shoe was on both feet.
00:33:31 And what the legislatures had tried to do
00:33:34 was just to prevent people who supported the opposite party
00:33:40 from really having any fair shot to get representatives
00:33:46 of their choice elected in the appropriate number
00:33:52 of districts.
00:33:53 Now, what is the appropriate number of districts
00:33:55 is a hard call.
00:33:56 And the Chief Justice, who wrote the majority opinion,
00:33:59 made a persuasive case--
00:34:01 I agree with it--
00:34:02 that you can't have courts looking
00:34:05 at every single district line and figuring out,
00:34:09 should this be a 6-7 gerrymander?
00:34:13 Should this be a 6-7 split?
00:34:15 Or should it be an 8-5 split?
00:34:22 But there was no need to do that in this case,
00:34:24 because what the courts below had done
00:34:26 was basically create a series of mechanisms
00:34:30 to prevent extreme gerrymanders.
00:34:32 So there was a lot of room around the edges
00:34:34 for the political process to work.
00:34:36 There was a lot of room for politicians
00:34:40 to engage in the kind of age-old practice of drawing lines
00:34:45 and of making political judgments about how
00:34:48 districting should operate.
00:34:50 But there were these mechanisms to prevent
00:34:52 completely extreme gerrymanders.
00:34:55 And the majority opinion said, you know,
00:34:59 even that is too much for courts.
00:35:01 The courts just shouldn't be involved in it.
00:35:04 And I thought that that was a wrong decision,
00:35:06 that many of the lower courts had
00:35:09 shown that it was really possible to separate out
00:35:13 the really bad gerrymanders from others.
00:35:17 And what is striking about the opinion
00:35:19 is that it allows what everybody understands
00:35:23 as a constitutional violation to go forward because
00:35:27 of a judgment that courts can't do anything about it.
00:35:31 I think that that's wrong.
00:35:32 And I'll just say--
00:35:33 and you're asking me these questions, I guess,
00:35:38 because it's about the future of democracy.
00:35:41 I think if there's one thing that courts appropriately do--
00:35:46 I mean, I think that there are so many things where courts
00:35:49 should stay their hand, where courts should be restrained,
00:35:52 where courts should say, we want to let
00:35:54 the political process work.
00:35:55 We want to leave this to actors who are
00:36:01 elected by the American people.
00:36:03 But the one place where the court has most responsibility
00:36:06 is to actually protect the mechanisms of democracy itself.
00:36:11 So that if the democratic system is structured in a fair way,
00:36:14 if the rules are fair--
00:36:16 and primarily, that means if everybody's vote is counted
00:36:23 and is relatively equal to every other person's vote--
00:36:27 then you let the democratic process work.
00:36:30 And whatever outcomes it produces, it produces.
00:36:33 But the necessary thing is to make sure
00:36:35 that the rules of the democratic process
00:36:38 aren't completely skewed from the outset.
00:36:40 Because if the rules are skewed from the outset,
00:36:43 well, then the results are going to be skewed
00:36:47 and, indeed, illegitimate.
00:36:49 So if there's one place where the court has a role,
00:36:52 that the court should not be embarrassed about taking,
00:36:56 it is to protect the institutions
00:36:58 of representative government.
00:36:59 And that's why-- I mean, I honestly
00:37:01 thought that this dissent was the most important one I've ever
00:37:06 written.
00:37:08 And the decision made me very sad.
00:37:18 I want to ask you about another case.
00:37:21 And that's the recent student loan forgiveness case,
00:37:25 Biden versus Nebraska.
00:37:27 In that case, Chief Justice Roberts
00:37:30 ends the majority opinion, striking down
00:37:34 the Biden administration's student loan forgiveness
00:37:36 program, by referring to your dissent as follows.
00:37:42 "It has become a disturbing feature of some recent opinions
00:37:46 to criticize the decisions with which they disagree
00:37:50 as going beyond the proper role of the judiciary.
00:37:54 We've employed the traditional tools
00:37:55 of judicial decision making in doing so.
00:37:58 Reasonable minds may disagree with our analysis.
00:38:01 And in fact, at least three do.
00:38:05 We do not mistake this plainly heartfelt disagreement
00:38:07 for disparagement.
00:38:09 It is important that the public not be misled either.
00:38:13 Any misperception would be harmful to this institution
00:38:16 and our country."
00:38:17 And then you respond to the Chief Justice
00:38:21 by writing, "From the first page to the last,
00:38:24 today's opinion departs from the demands of judicial restraint.
00:38:28 At the behest of a party that has suffered no injury,
00:38:32 the majority decides a contested public policy issue properly
00:38:37 belonging to the politically accountable branches
00:38:40 and the people they represent.
00:38:41 In saying so, and saying so strongly,
00:38:44 I do not at all disparage those who disagree.
00:38:48 The majority is right to make that point,
00:38:50 as well as to say reasonable minds are found
00:38:53 on both sides of this case.
00:38:55 And there is surely nothing personal in the dispute here.
00:38:58 But justices throughout history have raised the alarm
00:39:01 when the Court has overreached, when
00:39:03 it has exceeded its proper or limited role
00:39:06 in our nation's governance.
00:39:07 It would not have been disturbing and indeed damaging
00:39:10 if they had not."
00:39:11 I mean, it would have been disturbing and indeed damaging
00:39:14 if they had not.
00:39:15 The same is true in our own day.
00:39:17 I don't think I have ever read such an exchange
00:39:20 between a majority opinion and a dissent
00:39:22 before with the majority criticizing the mode
00:39:26 of criticism of the dissent.
00:39:29 Is there some unspoken concern here
00:39:32 that prompted this exchange?
00:39:35 Was either of you worried that the public
00:39:37 might misunderstand the disagreement
00:39:40 or the tone of either opinion?
00:39:43 Well, I feel like to provide a full answer to that question,
00:39:46 we should have the Chief Justice here beside me.
00:39:51 We could both give our respective answers
00:39:53 for our respective parts of the exchange.
00:39:56 Here's what I would say.
00:40:03 I would say I agree with one of the things
00:40:08 that the Chief Justice said, and I disagree with the other.
00:40:11 So I'll start with the disagreement.
00:40:14 Read me the first sentence of the Chief Justice's opinion
00:40:16 again.
00:40:17 He says, "It's become a disturbing feature
00:40:20 of some recent opinions to criticize the decisions
00:40:23 with which they disagree as -- "
00:40:26 Oh, go ahead.
00:40:26 "As going -- "
00:40:27 Oh, I'm sorry.
00:40:28 "As going beyond the proper role of the judiciary."
00:40:31 Yeah.
00:40:31 Disturbing to criticize decisions
00:40:33 as going beyond the proper role of the judiciary.
00:40:36 I don't think that that's disturbing at all.
00:40:38 As I said, I think it would be disturbing of a dissent that
00:40:41 thought that the court had gone beyond the proper role
00:40:44 of the judiciary.
00:40:46 It would be disturbing if you didn't say that,
00:40:48 if you pulled your punches, if you said,
00:40:51 we're going to look the other way, if you said,
00:40:54 I believe that the court has gone
00:40:56 beyond the proper role of the judiciary,
00:40:58 has trespassed on other institutions' prerogatives,
00:41:02 has been a court that has not acted like a court,
00:41:06 and yet I'm not going to say anything.
00:41:08 I think that that's what would be disturbing,
00:41:10 is pulling your punches in that way.
00:41:13 I do think, I mean, on the other hand,
00:41:16 here's what I do agree with the Chief Justice on.
00:41:18 I mean, I do think, yes, to the extent that he was concerned.
00:41:23 Look, this was -- I wrote a strong dissent.
00:41:25 You know, it was a strongly worded dissent.
00:41:28 This is what I thought about that case.
00:41:30 It's a little bit summarized in that passage that you read.
00:41:33 I thought the case should never have been before the court.
00:41:36 We have rules called standing rules,
00:41:38 which require that people who come to the court
00:41:42 with constitutional complaints
00:41:44 have themselves suffered injury of some kind.
00:41:47 The plaintiffs before us, I thought,
00:41:49 had not suffered a constitutional injury.
00:41:52 They were states who were complaining
00:41:55 about the Biden administration's loan forgiveness program.
00:42:00 And, you know, the fact that a lot of students
00:42:04 or former students had gotten more money
00:42:06 might be bad policy, it might be good policy,
00:42:09 but it was really hard to see
00:42:11 how the states were injured by that.
00:42:14 These were policy preferences by the state.
00:42:17 They thought it was bad policy.
00:42:19 So they came in and they brought a suit.
00:42:22 But we're not supposed to allow that to happen,
00:42:24 to allow policy disagreements to become legal cases.
00:42:31 And I also thought, even putting that aside,
00:42:34 that the decision was wrong substantively,
00:42:37 that if you looked at the statute,
00:42:38 the statute gave the Department of Education
00:42:43 the ability to make these kinds of calls
00:42:46 when emergencies occurred,
00:42:48 that the Department of Education had used that authority
00:42:53 just as Congress had expected it might be used.
00:42:57 And so we were wrong as a substantive matter as well.
00:42:59 So I really thought that the court was wrong
00:43:02 to allow the case in the first place,
00:43:04 and then that the court had basically trespassed
00:43:08 on the prerogatives of the politically accountable branches
00:43:12 to make policy.
00:43:14 And again, the policy may have been stupid policy,
00:43:17 but it wasn't our role to say that
00:43:20 if that's what the politically accountable branches
00:43:23 had done by way of a statute and then an administrative rule.
00:43:28 So I said that the court had not acted like a court.
00:43:31 Now, it's not a pleasant thing to be told that.
00:43:34 I mean, when I'm told that by other justices,
00:43:36 I don't like it either.
00:43:38 And so, you know,
00:43:41 but that's sort of the nature of the business
00:43:44 is that in our judicial system,
00:43:47 there are judicial systems where there are no dissents,
00:43:50 that once somebody loses, they just pack up and go home.
00:43:54 Our judicial system has followed a different course,
00:43:57 and I think rightly so.
00:43:58 Our judicial system says we want to hold
00:44:01 majorities to account.
00:44:02 We want to allow people to express their disagreement
00:44:07 so that maybe when the next case comes along,
00:44:09 the same mistakes are not made,
00:44:11 so that maybe when the, you know, in years to come,
00:44:15 the court can, the law can go in a different direction,
00:44:19 and that's why dissents are important.
00:44:22 And so again, like, I just disagree
00:44:26 that it's not in the nature of dissents.
00:44:28 Some of the most important dissents of our country's history
00:44:32 have been about why the court has overstepped its role.
00:44:35 What I do agree with the Chief Justice on
00:44:39 is that nobody should take that as personal in any way.
00:44:43 I mean, I admire the Chief Justice enormously.
00:44:46 I admire him as a person.
00:44:48 I admire him as a judge.
00:44:49 I admire him as the institutional leader of the court.
00:44:55 So this was, there was nothing personal about this,
00:44:58 and there was no, I think his word was,
00:45:00 disparagement about this.
00:45:01 And, you know, I mean, to the extent that he thought,
00:45:07 well, people don't understand when they read
00:45:10 a point, counterpoint like this,
00:45:13 that you can say both those things,
00:45:15 that, you know, I vigorously disagree
00:45:17 with the decision he reached,
00:45:19 but that I admire him as a judge.
00:45:21 People don't understand this,
00:45:22 and I'm trying to suggest that both of those things
00:45:25 can be true.
00:45:27 I agree with that.
00:45:28 I mean, both of those things can be true,
00:45:30 and people should understand that as well.
00:45:33 - So I wanna talk about that a little bit more.
00:45:35 So there's a lot of focus on disagreements like that
00:45:38 in the court, and in the press in particular,
00:45:42 there's this picture of an ideologically
00:45:45 or politically divided court,
00:45:48 but there are a lot of opinions where
00:45:51 there are 9-0 opinions, where you're all in agreement,
00:45:55 and there are a lot of other opinions where
00:45:57 it's not clear that you could see
00:46:02 any particular ideological divide between the justices.
00:46:07 Can you give an example of cases where
00:46:11 you can't really predict how the justices would come out
00:46:17 on the basis of who appointed them,
00:46:20 and why don't those cases get more attention from the press?
00:46:24 - Yeah, I mean, for sure there are cases like that.
00:46:28 I mean, first off, we probably do 30, 40%,
00:46:32 it varies by the year, but 30, 40% of opinions unanimously,
00:46:36 so where we all agree across every divide
00:46:39 that you can come up with.
00:46:41 And then there are cases where
00:46:43 we're sort of scrambled up in unpredictable
00:46:48 and hard to explain ways.
00:46:50 I was preparing for our first conference of the year
00:46:55 the other day, and I noticed that there were some petitions
00:47:00 that have to do with how to understand
00:47:02 the confrontation clause, which is the clause
00:47:05 that allows a criminal defendant
00:47:08 to confront the witnesses against him.
00:47:12 And it turns out that justices on the court
00:47:16 have been all over the map on that,
00:47:17 and not in any kind of ways that would strike a person
00:47:22 as like, oh, of course, it's six to three
00:47:25 or something like that.
00:47:26 I mean, just like everything's scrambled up,
00:47:29 usual allies aren't allies, usual people across the V
00:47:34 are on the same side of the V.
00:47:36 So there definitely are things like that,
00:47:39 and perhaps people don't notice them quite as much
00:47:44 as the more easy to explain,
00:47:48 used to be five, four, now six, three opinions.
00:47:51 Occasionally people notice them.
00:47:55 I'll just say Justice Sotomayor got into a very,
00:47:58 Justice Sotomayor and I got into a very vigorous
00:48:01 back and forth in a case about an Andy Warhol silk screen
00:48:06 and whether it was constituted fair use
00:48:09 or whether the Andy Warhol Foundation
00:48:12 had to pay a photographer whose photograph he had used.
00:48:16 And it got an enormous amount of press.
00:48:20 And partly it's because it was kind of a fun case
00:48:24 involving art, but partly I think it was because,
00:48:28 oh, like here are these two women
00:48:30 who often agree with each other fighting.
00:48:32 So sometimes that, and we fought pretty vigorously,
00:48:38 you know, so sometimes that exact like,
00:48:41 oh, the usual allies aren't doing what the,
00:48:44 I mean, there are plenty of cases
00:48:46 where Justice Sotomayor and I disagree,
00:48:49 but it was like, oh, let's watch them catfight
00:48:52 or something like that.
00:48:53 (audience laughing)
00:48:56 But you know, as to why maybe those cases
00:48:59 usually get less attention, I mean, I think,
00:49:02 you know, to be completely honest,
00:49:04 I mean, it has to be said that some of the more important
00:49:07 cases do fall along pretty predictable lines
00:49:12 and not all of them, but when, you know,
00:49:17 in the course of a couple of years,
00:49:20 you have a case in just like last year,
00:49:25 a case prohibiting the use of affirmative action,
00:49:30 an important case involving LBGTQ rights,
00:49:36 the student loan case, the prior year,
00:49:40 you had the right to abortion overturned,
00:49:45 you had a very important case about climate change
00:49:51 and the ability of the government to combat climate change.
00:49:56 And when all of these are falling six to three,
00:50:01 you know, it doesn't strike me as surprising
00:50:05 that people would talk about that.
00:50:08 - So I wanna ask about, we're here at Notre Dame,
00:50:13 a faith-based institution, I wanna ask about the role
00:50:17 of faith in your life and in your professional career.
00:50:22 Tell us a little bit.
00:50:23 - Well, it's truly important in my life, I'm Jewish,
00:50:27 I'm, you know, a practicing Jew,
00:50:31 it's important to me religiously and culturally
00:50:35 and I'm steeped in, you know, I was from an early age,
00:50:40 steeped in the history of the Jewish people
00:50:43 and I went to Hebrew school for a lot, a lot of years
00:50:48 and continued to go to synagogue on many occasions
00:50:54 and you're catching me now in,
00:50:58 so last weekend I spent all weekend in synagogue
00:51:02 and after I go, after I'm here and I go to your football game
00:51:06 this coming week, Sunday, Sunday and Monday,
00:51:12 I'll spend all those days in synagogue.
00:51:16 This is the most holy day of the Jewish year,
00:51:19 they're called the days of awe,
00:51:21 which is the opportunity for Jews to reflect and repent
00:51:26 and get square with, you know,
00:51:29 get your relationship right with God
00:51:31 and get your relationship right with other human beings
00:51:35 and it's a time when I reflect a lot
00:51:38 about my religious life and my religious practice
00:51:42 and how it can help me to be a better person.
00:51:47 So, you know, my Judaism is important to me
00:51:54 as a human being.
00:51:59 I try not to make it important to me as a judge.
00:52:02 I try to keep the one thing separate from the other.
00:52:07 You know, when you think about what religions are
00:52:09 and what they do, you know, they're systems of morality,
00:52:13 they're codes of morality, certainly the Jewish religion
00:52:15 is full of moral and ethical precepts
00:52:18 and, but those precepts of morality, just like any others,
00:52:23 I think, you know, that's personal morality
00:52:28 and it would be improper for me
00:52:30 to substitute my personal morality
00:52:33 for the legal rules that I'm supposed to enforce,
00:52:36 for the provisions of law that I'm supposed to interpret.
00:52:40 So being Jewish is super important to my life,
00:52:45 but I hope that being Jewish
00:52:47 is of no importance to my judging.
00:52:50 - So you mentioned codes of morality, codes of ethics,
00:52:55 and right now we see in the press, certainly,
00:53:00 there's a lot of talk and conversation
00:53:02 about a code of ethics for the courts and the justices
00:53:07 and there's scrutiny over the justices' relationships
00:53:12 with particular parties or even with law schools
00:53:19 and law school teaching.
00:53:22 Do we need a code of ethics for the court?
00:53:25 - Well, look, you know, this is,
00:53:29 as a number of people have discussed recently,
00:53:32 been a subject of conversation in the court.
00:53:35 The Chief Justice recently gave a speech
00:53:38 in which he said that the Supreme Court, you know,
00:53:41 had to be held and he was committed to making sure it was
00:53:46 to the highest standards of conduct, that's gotta be right.
00:53:51 And right now we're in a situation where we've committed
00:53:56 to following certain kinds of ethical rules,
00:54:00 respecting judges, but have said
00:54:03 we will only be guided by others.
00:54:06 So, you know, we've committed to following the gift rules
00:54:10 that other judges follow and the outside income rules
00:54:15 that other judges follow,
00:54:17 but other judges have a very extensive code of ethics
00:54:21 that governs everything that they do
00:54:23 and there's been some concern
00:54:25 and I think it's legitimate concern
00:54:28 that the Supreme Court is an unusual kind of court
00:54:33 in certain respects and that some of the rules
00:54:37 do not fit quite as well at the Supreme Court level
00:54:40 than they do at the level of lower courts.
00:54:44 But of course what we could do is just adapt
00:54:48 the code of conduct that the other court systems have
00:54:52 in order to reflect those slight or certain differences
00:54:57 and I think it would be a good thing
00:55:00 for the court to do that.
00:55:03 It would, you know, help in our own compliance
00:55:08 with the rules and it would, I think, go far
00:55:13 in persuading other people that we were adhering
00:55:18 to the highest standards of conduct.
00:55:20 So, you know, I hope we can make progress.
00:55:24 I know Justice Kavanaugh was recently at an event
00:55:27 where he said he thought we would
00:55:31 and, you know, soon,
00:55:35 not exactly sure how he phrased it,
00:55:39 but, you know, I hope that that's true.
00:55:44 - Can you tell us who the holdup is?
00:55:47 - No.
00:55:48 (audience laughing)
00:55:49 No, what goes on in the conference room
00:55:53 goes on in the conference room.
00:55:55 You know, and I don't wanna suggest
00:55:57 that there's like one holdout.
00:55:58 I mean, this is, you know, for various reasons
00:56:01 having to do with certain differences
00:56:03 between the Supreme Court and other courts
00:56:05 and there are complicated issues here.
00:56:08 There are, you know, totally good faith disagreements
00:56:12 or concerns, if you will.
00:56:14 There are some things to be worked out.
00:56:16 You know, I hope we can get them worked out.
00:56:19 - I withdraw the question.
00:56:21 (audience laughing)
00:56:23 So you're arguably one of the best writers on the court.
00:56:27 I think a lot of lawyers agree that that's the case.
00:56:30 Do you have any tips for young lawyers,
00:56:32 law students and young lawyers
00:56:35 as to how they can write better?
00:56:37 - Well, first of all, thank you.
00:56:39 So thank you very much for that compliment.
00:56:42 Whether or not it's true.
00:56:43 First rule is edit, edit, edit.
00:56:48 I mean, there are really, really very few people,
00:56:51 I'm certainly not one of them,
00:56:53 whose first draft is a gift.
00:56:57 You know, first drafts were meant to be succeeded
00:57:01 by second drafts, which were meant to be succeeded
00:57:04 by third drafts and eventually things come into shape.
00:57:07 So edit yourself, find good people to edit you.
00:57:10 My clerks form a very important part of my writing process
00:57:15 by editing my drafts.
00:57:17 And I know that they get better
00:57:20 because there are outside readers going,
00:57:23 this doesn't work, it doesn't work structurally
00:57:26 or substantively or the word choice is wrong
00:57:29 and provide me with all those kinds of criticism
00:57:31 and drafts get better over time.
00:57:33 So that's the first piece of advice.
00:57:35 I guess the second piece of advice is read well.
00:57:39 I'm a big believer in the fact that people
00:57:41 who read good writing are more likely to sort of absorb
00:57:46 what that sounds like, what it feels like
00:57:48 to write well themselves.
00:57:51 It also works conversely.
00:57:52 There are sometimes I pick up briefs
00:57:55 and I think every minute I spend with this brief,
00:57:58 I become a worse writer.
00:57:59 (laughing)
00:58:01 But sometimes I pick up briefs and it's the opposite.
00:58:06 So read well.
00:58:11 And I don't know, I think those are the two big things.
00:58:15 - Well, I know you're an avid reader
00:58:17 and I know that you're a fan of Jane Austen novels,
00:58:20 but can you tell us what you might be reading now
00:58:22 and tell us anything about--
00:58:24 - Yeah, so oddly enough, and I have to admit
00:58:29 that I told the Dean this, which may have led
00:58:33 to that question.
00:58:34 So I'm on the plane and I'm reading this sort
00:58:38 of popular history book called "Fever in the Heartland,"
00:58:43 which is a book about the Ku Klux Klan
00:58:45 in the Midwest in the 1920s, and particularly in Indiana,
00:58:49 where the Ku Klux Klan was very powerful in the 1920s,
00:58:54 and in fact, almost captured the State House.
00:58:57 And there I am on the plane and it's like page 140
00:59:01 and there we are in South Bend.
00:59:03 And you probably know this story,
00:59:06 but I'll just tell it to whichever ones of you
00:59:08 don't know this, really quite great moment
00:59:11 in the university's history, which is the Ku Klux Klan
00:59:16 of Indiana comes to South Bend to sort of put Notre Dame
00:59:20 in its place to make it clear that this Catholic institution
00:59:24 should be wiped off the face of the earth.
00:59:26 And the students kind of organize against it.
00:59:33 And there's this big kind of like what we would think
00:59:36 of now as like a little bit of a demonstration
00:59:38 and a counter demonstration.
00:59:40 And the students basically route the Ku Klux Klan,
00:59:44 send them back out of South Bend.
00:59:47 And this is the days of Newt Romney and the Four Horsemen.
00:59:52 And there's this part of the book which says
00:59:54 that the quarterback of Notre Dame takes,
00:59:57 they had a, instead of a burning cross,
01:00:00 the Ku Klux Klan had put up this cross
01:00:02 with like red electric bulbs, you know.
01:00:06 And the quarterback of Notre Dame starts throwing stones
01:00:10 and just knocking out the bulbs one by one.
01:00:15 And the students of Notre Dame send them packing.
01:00:20 - We're that guy when we need them now.
01:00:22 (audience applauding)
01:00:25 That's a great story.
01:00:32 So you spent a lot of years as a dean at Harvard.
01:00:37 And one of the things that's happening
01:00:40 that we've seen happen around college campuses in America
01:00:45 is the rise of cancel culture.
01:00:46 And with cancel culture, we've got a rise
01:00:51 in self-censorship.
01:00:54 What do you see as ways that we can as law schools
01:00:58 or even as undergraduate institutions
01:01:01 combat cancel culture and create an environment
01:01:05 where people feel free to speak their minds?
01:01:07 And I often get asked by students,
01:01:10 how do they take a free exchange culture
01:01:14 out into the workplace with them?
01:01:15 - Yeah, well, I know what the goal is.
01:01:18 And the goal is exactly the one that you suggested.
01:01:21 I mean, there's too much disrupting speakers,
01:01:25 there's too much banning books,
01:01:26 there's too much trying to insulate yourself
01:01:30 from ideas with which you disagree all around us.
01:01:35 And it exists on both sides of the political spectrum.
01:01:38 And it's wrong and it's counterproductive
01:01:43 for our democracy and our society.
01:01:45 I mean, for our democracy, this nation can't work
01:01:51 and can't do the things that it needs to do
01:01:55 unless people can talk with each other
01:01:57 and can really try to understand each other
01:02:01 and learn from each other and try to put their heads
01:02:04 together and work for a common good,
01:02:07 which presumably we all want this nation to prosper.
01:02:12 And it's not gonna happen unless people work together
01:02:16 across various disagreements, profound as they might be.
01:02:22 And I think it's especially important
01:02:25 in educational institutions.
01:02:27 Educational institutions are supposed to be about learning
01:02:31 and about exchange and about engagement with ideas,
01:02:35 including ideas you don't like.
01:02:38 And if nothing else, nobody has ever managed
01:02:41 to persuade a person who they don't understand.
01:02:45 So put yourself in another person's shoes
01:02:47 and try to figure out where that other person
01:02:50 is coming from and why she thinks what she thinks.
01:02:53 If nothing else, in order to persuade that person,
01:02:56 but you might also learn from that person.
01:02:58 And you might share something
01:03:00 that you didn't realize you shared.
01:03:02 And that sort of exchange is what universities,
01:03:07 other educational institutions are all about.
01:03:10 And I should say, maybe especially law schools.
01:03:13 I mean, Stanford Law School recently had a very bad episode
01:03:19 with respect to one of these things.
01:03:21 But one good thing that came out of that bad episode
01:03:24 where a judge was disrupted and prevented
01:03:28 from speaking, a conservative judge.
01:03:30 One good thing that came out of that episode
01:03:33 was I think a former colleague of yours wrote this letter
01:03:35 to her student body.
01:03:38 And the letter is really quite eloquent
01:03:41 about how law, especially as an institution,
01:03:46 it's all about confronting different points of view.
01:03:49 And how are you going to do your job as a lawyer
01:03:52 if you close your mind and close your ears
01:03:55 to different ideas?
01:03:59 And ideas that you might find enormously objectionable,
01:04:04 but you can't operate well as a lawyer
01:04:08 unless you can engage those ideas,
01:04:11 unless you understand them,
01:04:12 unless you try to figure out why they're held by people.
01:04:17 And then you can go about trying to counter them.
01:04:22 So, education, law and democracy in general,
01:04:32 I think so much depend on this process of mutual engagement,
01:04:37 of learning from each other, of listening to each other,
01:04:42 of a kind of active engagement and persuasion
01:04:48 that really does depend on thinking
01:04:51 that other people are operating in good faith
01:04:54 and that there's something to be learned
01:04:59 from engaging with them.
01:05:04 - I'm wondering if you could either confirm or deny
01:05:07 a rumor that has been running rampant
01:05:10 on this campus this week.
01:05:13 As you may know, ESPN College Game Day is here tomorrow.
01:05:17 And some people think that you might be
01:05:21 the guest celebrity picker.
01:05:23 - I think I'll deny.
01:05:28 I'm also aware, by the way, that I've ruined the wrong color
01:05:33 (audience laughing)
01:05:36 I realized that, you know, you come with what you come with.
01:05:46 And I came with a red jacket
01:05:48 and somebody pointed this out to me,
01:05:51 I felt very bad about it.
01:05:52 Then the person said, "Just tell them your heart is green."
01:05:57 So, okay, my heart's green.
01:06:02 (audience applauding)
01:06:05 - If it's not, we've supplied you
01:06:10 with plenty of green clothing for tomorrow.
01:06:12 - But not over the gift limit.
01:06:15 (audience laughing)
01:06:19 - Yes, okay, so I have one last question for you.
01:06:27 Ohio State or Notre Dame?
01:06:31 - Well, I think I've already said Notre Dame.
01:06:35 (audience applauding)
01:06:38 Leave some clapping.
01:06:44 - Just for that, I have a special gift for you.
01:06:49 - Also not over the gift limit.
01:06:51 (audience laughing)
01:06:54 - Thank you so much.
01:06:56 I'm gonna move this out of the way.
01:06:59 (audience applauding)
01:07:02 Thank you so much for being here.
01:07:07 - That is so great.
01:07:09 - Thank you so much for joining us.
01:07:11 - This is going up in my office.
01:07:14 - I hope so.
01:07:14 Thank you.
01:07:16 (audience applauding)
01:07:20 (Applause)