- Good evening and welcome to all of you.
We are delighted that you can join us
for this year's James Madison Lecture.
The lecture really is a flagship event
here at the law school every year.
It's one of our
longest running programs, lecture series.
It began in 1960,
and the inaugural Madison Lecture
was presented by Justice Hugo Black.
And it was at this lecture where he
famously illustrated his theory
of the absolute protection of free speech
afforded by the First
Amendment to the Constitution.
And in the years since,
the lecture has hosted
justices of the court and judges
of the United States Courts of Appeal
who have addressed a broad
range of issues connecting,
in one way or another, to
the law and public life,
to civil liberties and civil rights.
We are thrilled this year to be welcoming
the Honorable Stephen Higginson
of the U.S. Court of Appeals
for the Fifth Circuit.
Really grateful for Judge Higginson
for being able to join us this evening,
and we're looking forward to his lecture,
whose title is "James
Meredith, Muhammad Ali,
"and Lieutenant William Calley:
"Cases and Controversies
Before the Fifth Circuit."
He'll be introduced by my
colleague Steve Gillers shortly,
but I just wanna say
personally thank you, Judge,
for joining us, and we really are thrilled
that you're here with us this evening.
My colleague Steve Gillers
is now the director
of the Madison Lecture, and he will,
as I say, introduce Judge Higginson.
Professor Gillers is now the director
of the lecture, having
succeeded to that position
from our late colleague Norman Dorsen,
who passed away over the summer.
And I think it's fitting this evening,
this first Madison Lecture
since its very first one,
when Norman Dorsen wasn't a member
of this faculty, to remember Norman Dorsen
and the enormous impact he had
on this school over the course
of many, many decades,
and, indeed, the enormous impact
he had on American law
through many institutions,
this law school,
the ACLU and others.
Norman was, among other things,
director of the Madison Lecture
for 40 years.
And this lecture series bears
his personal imprint in many ways,
and I think that the tradition
that we continue this year is,
in many respects, Norman
Dorsen's tradition.
And so we remember and
celebrate him tonight
as we continue the tradition
in hearing from Judge Higginson.
With that, I will turn things over
to Professor Gillers, and we look forward
to a wonderful lecture.
Thank you.
(audience applauding)
- Thank you, Trevor,
and thank you all for coming.
Norman
was the faculty director
of the Madison Lecture
beginning in 1977.
And his penultimate act, on behalf
of the lecture series,
was to invite Judge Higginson,
or, more accurately,
to recommend that the dean
invite Judge Higginson,
but the dean always
did what Norman wanted,
(audience laughing)
so he invited Judge Higginson.
His ultimate act was last year
at this forum to introduce
Chief Judge Lynch of the First Circuit.
That was the last
Madison lecturer that Norman introduced.
Sylvia Law reminds me that
Norman's introductions were always
a tour de force,
and I will not try to match
what Norman was able to do.
What I did try to do was learn something
about Judge Higginson
that is not on Wikipedia
or the official biography
at the Judicial Conference.
So I did a little reporting.
Now, there are several
relationships operating here.
I will disclose them.
Judge Higginson's law school classmate
was Lewis Liman, who's here.
And my first boss
in practice was the legendary
Arthur Liman, Lewis' father.
And Judge Higginson tells me today
that while in law
school, he spent a summer
working with Arthur Liman
on the Iran-Contra hearings.
So you can see the
little web of connections
that I'm creating.
I wrote to Lewis, since I knew him,
I wrote to him and I asked him,
very innocently, whether
he had something amusing
about Judge Higginson from your law school
time together that he could share.
And he wrote back and he said,
"Let me think about what I can share."
(audience laughing)
And in case there was any ambiguity,
there is then a little smiley face.
(audience laughing)
So at that point, I knew
that I was onto something,
and my investigate reporting heated up.
And so I have another family connection.
My daughter Gillian clerked
for Judge Higginson.
And I tapped into the clerkship pipeline
to see what I could learn about him
from five years of clerkships.
Incidentally, Judge Higginson celebrates
his sixth anniversary on the court
next week, I think, right?
November 2nd.
In any event,
Gillian surveyed the clerks and sent me
lots of interesting stuff.
I'm gonna mention one comment
because I think it's a
wonderful introduction
to our speaker.
Everybody knows that
all clerkships are great,
but some clerkships are more equal
than other clerkships.
And clerking for Judge Higginson
seems to be, certainly is,
from what I've learned,
including from Gillian,
but not only, because
she's very circumspect
and told us nothing,
one of the best.
And so this is from one of the clerks
who responded to Gillian's request
for introductory material.
This is from Hank.
"There are so many wonderful stories
"and anecdotes that we could all share,
"but one of my favorite qualities of his
"is the fact that he always,
"always, always took time
"out of his busy schedule
"to meet the people important to his staff
"and clerks when they came to town.
"During my year, I think
he spent personal time
"with friends and family members
"of every single person
working in chambers.
"When any of us had someone in town,
"he would tell us to
bring them by chambers
"for a quick chat.
"Yet, he would inevitably spent 20,
"30, 60 minutes with us,
"sitting in his chambers around the couch,
"just talking to people
"and learning about their lives.
"And this wasn't a meet and forget.
"For the rest of our time there,
"he would ask about the people
"who came to visit.
"It was such a selfless, caring act
"that any more about his character,
"that said more about his character
"than anything else possibly could."
So I give you Judge Higginson.
(audience applauding)
- It's a delight to be here.
I'm sad Norman Dorsen isn't here.
I'm sad Arthur Liman isn't here.
There are other people that have
been huge influences in my life
that I wish that could be here.
My wife is here
and a lot of law clerks are here
and friends, Gary Katzmann, Lewis Liman,
Lewis' wife, Lisa.
Maybe their daughter Abby.
Is Abby here?
Coming, okay.
Madison said that he wasn't the father
of the Constitution because
it was the "work of many
heads and many hands."
My talk tonight is that
there is truth in that,
that many heads and many hands
continue to write our Constitution
and write the decisions that I issue
and my courts issue.
So largely, my talk tonight is gonna
be about a corrective that I think
I can offer perspective on,
having been a lawyer in front
of our court for 15 years,
and now a judge on the court,
which is that the work lawyers do,
I want to try to make an argument for you,
is indivisibly connected
to the decisions we issue.
If there is any one interpretive method
that explains what judges do,
you just have to peel back
and see who was the
compelling lawyer behind it.
Even though lawyers' attribution
remains largely invisible,
I think that's changing.
The problems come when
there's judicial overreach,
when judicial ego or judicial celebrity
or a single interpretive mindset
resolves a case.
So that's a little insight
to my thesis.
What indisputably was
the work just of Madison,
his own stenographer's work,
was the most complete record we have
of the notes taken in Philadelphia.
He didn't publish those notes until
the other Framers died, at which point
he remarked, "I outlived them,
"and I may be thought to
have outlived myself."
He was 37 in Philadelphia.
I was 37 almost 20 years ago.
Already then, I was what he penned
as an "inferior" executive officer,
in Article II, as a federal prosecutor.
Now, flash forward, I am
on an "inferior court,"
as described by the Constitution,
(audience laughing)
in Article III.
And a lot of my theme is going
to be the importance of
humility from judges,
and the importance of recognition,
both credit and blame, to lawyers.
So I'm mentioning some of these points
not to sorta be falsely modest.
I did then argue in the
court that I now sit on.
Now I know my colleagues as friends.
Before, I had no idea
what made them click.
I actually, before I used to go up
to the podium, like this, in the court,
I promise you the
thought that was the last
in my head was the opening
stage direction to "Macbeth:"
thunder and lightning,
three witches enter.
(audience laughing)
It's just that's what it seemed to me.
And I would wonder what's on their minds?
What are the ingredients they need?
And, in a sense, is it all witchery?
That uncertainty did intrigue me enough
to write a few articles
when I was teaching,
before I got on the bench.
And tonight, finally, I thought
I'd pull together the experience I have
from six years on the bench
to explain to you how I think lawyers
and judges actually interact.
Judging is witchery, to
quote Shakespeare again,
if we kill all the lawyers.
(audience laughing)
But I think we have had a killing field
until almost exactly the
year I got on the bench.
And the reason I say that is about then,
our court, at least, moved from
a hard copy record, and briefs
in hard copy passed by hand to litigants
to judges, to a fully
digitalized court system.
We get 8,000 cases a year.
They're all right here on this iPad
if I wanted to stop and do some work.
They're all a hyperlink away,
the entire record.
So to give you an idea of the sea change
that has occurred, when I used to come up
to the podium, the court would say,
"We've read your briefs,
"we've read the record exits.
"You can assume we
haven't read the record."
And as a lawyer, I thought,
how could you not have read the record?
But it was just the mechanical difficulty.
Now when I read a brief,
every single citation
to the record has a hyperlink
to that point in the record,
so verification is instantaneous.
Now, what that means is that
there doesn't need to be a killing field
in that now, scholars and lawyers
can immediately trace back from decisions
to the lawyer briefing
and the lawyer audio.
On Friday, I think, the D.C. Circuit
heard the Texas teenage abortion case.
Merrick Garland approved that
that would be live audio
telecast nationally.
The Ninth Circuit puts its
arguments up on YouTube.
Oral argument and written argument
is all immediately available.
Nothing that I write as a judge
can be disconnected from the lawyering
that gives it to me.
Only when you don't connect the lawyering
does judging, to me, seem to be
a hellbroth of ingredients
that we just conveniently label.
I'm making an overstatement here,
but we give it labels, like originalism
or pragmatism, as if the judicial ego
is the one making the decision.
That's 'cause we do yearn
for the predictability
and the teachability
and the provocation of these labels.
Those labels also allow
lower court judges,
like myself, when our opinion
isn't embraced by the Supreme Court,
it's sort of the palliative,
which is, well, that's because so and so
decided it with this
interpretive method in mind.
It also, a label like
that doesn't require you
to do what my colleague
Carolyn King recommends
for every case, and I try to do,
which is a deep dive into the record
and the law given by lawyers.
Again, I'm on an
intermediate appellate court.
We have 13 active judges right now.
We get about 8,000 appeals a year.
And my proposition to you
is what is authoritative
is not an interpretive method.
It is whatever authority a lawyer
can give me compellingly.
So in other words, the
boiling bubble of judging
is yours, it's lawyers.
Lawyer Thurgood Marshall.
To try to pick cases that everyone
in this room will know.
In Brown v. Board of Education,
more than Chief Justice Warren
and the unanimous court,
and then lawyer Abe Fortas
in Gideon versus Wainwright,
more than Justice Hugo Black
and that unanimous court,
they wrote our Constitution.
Lawyer Marshall rewrote
the Equal Protection Clause
in Brown, disproving the Plessy equation
that separate is equal.
He said no, and if you know
his oral argument, and if you've read
his brief arguments, which are almost
never given in constitutional
textbooks today,
he was asked in argument,
"Well, what about Plessy?
"Why do we overturn Plessy?"
And in an extended
answer, he basically said,
"Because," and these were his words,
"we've grown up."
And he said, "We fought
two world wars together,
"and you're telling me blacks and whites
"can't go to schools together?"
And when I read that in the transcript,
just as sometimes when
I'm hearing an argument,
you hear a lawyer make a reduced argument,
you know the decision has
been written right there.
Whether the court's
going to acknowledge it
or put some interpretive gloss
and dressing over it, the
outcome has been written.
The clerks know it, the lawyers know it,
my colleagues know it, you feel it.
Abe Fortas did the same thing in
Gideon versus Wainwright.
The question that came to him was,
well, does your client
have a special circumstance
that would require a
lawyer being given to him?
He excoriated the court.
He told them, and I quote,
"If you keep struggling with
your impossible question
"of special circumstances,
you're just forgetting
"the realities of what happens downstairs
"to these poor, indigent people.
"When they're arrested,
they're brought into strange
"and awful circumstances to a court."
And there, he said, "Clarence
Earl Gideon, defend yourself.
"Apply the doctrine of Mapp v. Ohio."
A reduced authority.
"Clarence Earl Gideon,
"apply the doctrine of Mapp v. Ohio."
The absurdity writes the opinion.
Both those lawyers became justices.
I think if they were alive,
they would agree with me, that almost all
good judging comes from good lawyering
if we start peeling back to see
who gets credit.
A year ago, I was on a panel
with Margaret Marshall,
first woman chief justice
of the Massachusetts
Supreme Judicial Court.
She wrote the same-sex marriage case
that was 2003, Goodridge in Massachusetts,
years before the Supreme Court issued it.
She told me about an audience like this
giving her an award, as
judges often get awards.
She saw Mary Bonato, the lawyer,
and she made her stand to get credit.
And that little story
is sort of the theme,
the many heads and many hands
that actually are forever writing
our Constitution because a lawyer
compels a court to change its direction.
Scholars, I do think, are beginning
to realize that, and
integrate work product.
More and more, I had a large case
that came to our court
involving deferred
action, immigration stuff.
You may remember it, Obama
and the executive orders.
At that point, what was happening,
I was asking questions with my panel
to the lawyers.
It's all there on audio.
The very next day, law professor blogs
are lighting up with
law professors saying,
"Well, Higginson asked this question.
"The attorney answered this one.
"This would be a better answer."
I think scholars are beginning
to integrate directly into the advocacy,
not in older forms, like amicus briefs,
but even in their blogs
that then are accessible.
And there's beginning to be a blending
and a permeability of it,
which I can't quite
predict where it'll go,
but I think the corrective
to sort of facile arguments
about judicial ego and
interpretive methods,
and instead now plunging back to see
who convinced a court and why,
is a good realignment,
that granular lawyering.
If that's true, that
that's what's important,
the lawyering is more primary
in writing our Constitution
than the judging,
what you need in judges is the talent
to understand your arguments
and the open-mindedness to consider them.
You do need the work ethic, also,
to get through all that lawyers give us.
Two questions in our
current Senate Questionnaire
to me highlight that.
Question 17 asks anyone who is nominated
to write down the phone
numbers of all lawyers
in the 10 most significant
litigated matters
you have personally handled.
Lawyers, what they think of you.
Opposing counsel.
How revealing to talent and temperament
if we really focused on
their views of candidates.
Interestingly, Madison
records that the Framers
perceived that value, too.
On June 5th, 1787, Madison records
that the Framers were at loggerheads
as to how to select judges.
Wilson had proposed that
Congress would pick.
No, he opposed Congress picking,
saying, "Big bodies are prone
"to intrigue, partiality, concealment."
He said, "We need a
single responsibility."
Then Rutledge says, "No, we can't give
"that power to a single person.
"The people will think that we
"are leaning towards a monarchy."
At that point, Madison
reports that Franklin,
Ben Franklin, interrupted, and he said,
"Let me just tell you
what they do in Scotland.
"There, the nomination proceeds
"from the lawyers, who will always select
"the ablest of the
profession to get rid of him
(audience laughing)
"and share his practice.
(audience laughing)
"Here," he said, "the
interest of the electors
"to make the best choice would align
"with the interests of the country."
The other question that's important
on the nomination form is question 11,
that asks all nominees
about any membership
they've had since law school.
Now, I'm gonna avoid recent controversy
about membership, but let me talk
just through the Framers.
George Washington.
We haven't heeded his farewell advice
to avoid factionalism and
the spirit of revenge.
But before that Farewell Address,
before the Constitution was even written,
some of you will remember
that right around
the Treaty of Paris, he
addressed his officer corps
in a famous address he gave
called the Newburg Address.
It's often remembered
because during that address,
his officers wept because he stopped
and reached for his spectacles
and said, "I apologize.
"I've grown gray in your service
"and now find myself growing blind."
He sympathized with their demands,
but their demands were to have
a military elite actually mutiny
because of Congress not
giving them back pay,
and he denounced that.
He basically, at that point,
ended the immediate crisis,
but it reemerged that spring,
some of you may know, in the form
of a national military society
called the Society of Cincinnati.
Washington again sympathized
with their benevolent purposes,
but he consulted Jefferson.
They spotted the danger,
which was a hereditary clause.
And both of them discussed and realized
it would not be good to create a society
with leverage over, and
blurred lines between,
it and government.
So when I think about judicial selection
and the importance of open-mindedness,
I wish all White House counsel,
now, past, in the future, would pin up
the note that Washington wrote to himself
before he addressed the
first meeting of the society,
which read, "Strike out every word,
"sentence, and clause which
has a political tendency."
He'd written that to himself
to say to them.
After all, what is the
judicial oath we take?
Title 28, USC 453,
gives the statutory one,
which reduces to justice
without respect to persons.
It's a larger mouthful
than the constitutional one
that Madison wrote.
If you know, in the Constitution,
there's the Article VI
federal officer oath
that judges give through 453.
The more famous, celebrated neighbor
is Article II, the presidential oath.
We know the president pledges
to do three things:
protect, preserve and defend.
But Article VI requires
judges to swear to what?
Just one verb, support the Constitution.
So I was thinking about
that and I looked it up,
and it's what's called a contronym.
Its two primary meanings are to bear
the weight of and to give assistance to.
Before I explore how lawyers and judges
bear the weight of and give assistance to
the Constitution, I'll give you a quick
Fifth Circuit frolic relating
to the other presidential oath.
Irving Goldberg was on
our court for 31 years.
Before that, he was a tax lawyer.
He had the good fortune of having
a client named Lyndon Johnson.
So when Kennedy was shot, Lyndon Johnson,
this has been told to me by my colleagues,
called Goldberg and said,
"Have I become president?"
And Goldberg, very nimble, said,
"You are president right now,
"but it might be advisable
to memorialize that."
Lyndon Johnson said,
"Who could do the job?"
He said, "Anyone who can take an oath."
And Goldberg remembered to say,
"But whoever you get better have
"a copy of the Constitution
to read the oath."
Back to my oath, support the Constitution,
as in bear its weight,
I was taught at Yale
by the late Bob Cover.
I can't give you a better book to read
about bearing the weight
of the Constitution
than his book, "Justice Accused:
"Antislavery and the Judicial Process,"
which described judges and all their
different reactions to whether they
would follow their conscience
or follow the Fugitive Slave Act
and return slaves.
To support the Constitution,
as in assisting it,
well, these stories that we all learn.
Chief Justice Marshall assisted Article I,
giving Congress implied powers
in McCulloch versus Maryland.
Then he assisted Article III,
confirming that the
judiciary has the power
of judicial review.
But tonight in this room,
how many of you could name the lawyer
who prevailed in
McCulloch versus Maryland,
who represented the Bank of Maryland?
Because in my mind, that lawyer,
indivisibly with the
court, wrote that decision.
After all, the lawyer
argued for nine days.
The court wrote the
decision three days later.
No briefs.
How can you not say that lawyer
wrote that decision?
His name was Daniel Webster.
Can anyone in this room name
the two lawyers that argued
Marbury versus Madison,
February 11, 1803?
If we can't, something's wrong.
At the end of an article that I wrote,
I quoted Emily Dickinson:
"To fill a gap, insert
the thing that caused it."
The thing is the lawyer.
Just focusing on NYU, getting
ready to speak to you,
consider Tony Amsterdam.
Is he here today?
No, okay.
Well, you all know Furman v. Georgia.
The court gets credit, 1972 decision.
How many of us have gone back
and listened to Tony Amsterdam's argument?
If you listen to that argument
and read his briefs,
he writes the decision.
I'll just describe a few moments
of what I call Constitution writing,
not constitutional advocacy.
First, right before he sits down,
he brings up the distant past.
He says, "Lord Ellenborough,
in the House of Lords
"in 1813, wondered if
without the death penalty
"for commercial theft, trade would stop."
And Amsterdam reminds the justices
that Parliament did repeal that law,
and England, quote, "did not fall."
Amsterdam, in rebuttal, stands back up
and he wants to make a point
about the present tense.
And these tense things will be important
in a few minutes.
The facts of his case, and I'll quote him.
"It was a regular,
"garden-variety burglary,
murder, unintended.
"Somebody shot through the door."
"There are thousands of these,"
he told the justices.
"The jury comes back with death.
"The defendant is black,
the victim is white.
"It is all the aggravation in the case."
Such powerful present-tensed
fact advocacy.
And then, right before he sits down,
he shifts to the future, which drives
the court's ultimate decision.
And he warns the court if you allow
these statutes to stand, there will be
"rare arbitrary, usually discriminatory,
"but provably undiscriminatory infliction
"of a punishment that
escapes all other kinds
"of constitutional control."
How eloquent.
Think of how much he's packed into that.
The decision in Furman
is a one-page per curium,
it's one paragraph, two sentences long.
Who wrote that decision?
Tony Amsterdam writes the decision.
If you read the hundreds of pages
of conferences, Tony
Amsterdam's past appears.
There's Lord Ellenborough, for precisely
the proposition he offered.
There is heavy emphasis by the justices
that the fatal shot was
through a closed door.
And turning to the future, of course,
the court mostly says we
have a freakish system.
It's arbitrary who gets
it and who doesn't,
in all ways other than race.
That's the court's decision.
He's written it.
Another colleague you have,
Professor Neuborne.
He recently wrote a book that I received,
"Madison's Music," and
many of my colleagues
have complimented it.
He argued at least the
2000 Supreme Court decision
Legal Services versus Velazquez,
invalidating funding restrictions
to the Legal Services Corporation.
Most of his argument time is consumed
by the four dissenters, but he manages
to get in two exchanges, at least,
with Kennedy, who will be the author
for the court in 5-4.
He quickly goes to the past.
He says, "It's not a decision called Rust.
"It is your decision, Justice Kennedy,
"Arkansas Public Television."
Interestingly, Rehnquist had written Rust,
and Rehnquist, therefore, attacks
his distinguishing of
it over and over again.
Neuborne, I haven't met him in person,
but you can see how eager I would be
to have a lawyer like that
in front of me (laughs)
because he shifts instantly
and he injects humor,
very self-deprecating, gentle humor.
He says to Rehnquist,
"That'll teach me to do that,"
meaning to distinguish his case too much.
He then gives a limiting principle
that speaks to the future, again addressed
to Kennedy, to my memory.
You can read his brief, you can read
the oral argument, and you can decide
if he, indivisibly with the court,
changed our Constitution
and the First Amendment.
A last, extraordinarily spontaneous moment
that he attained, that
you do see lawyers attain.
At one point, Stevens and I think Souter
ask him the same question simultaneously.
And without missing a beat, he says,
"Ya know, I have to admit,
"I've always had a fantasy
"of one Supreme Court justice calling me
"on the phone, and I
get to put them on hold
"and take the other one."
(audience laughing)
That just comes out.
Lawyers that are that good and convincing,
they enhance their credibility
and the points they're making.
I could go on, but there
are other Madisons,
other heads and hands.
Arthur Miller, Bob Bauer,
the late Norman Dorsen
all argued in front of courts, my court.
Extraordinarily convincing in huge cases.
And if you do peel back, the same skeleton
that the courts announced were the ones
the compelling lawyer gave them.
Consider what's been called
the most famous footnote in the history
of the Supreme Court.
I haven't found the
briefs or the transcript
for the 1938 Carolene Products case.
And Professor Lusky has said
it was a law clerk inspiration,
working with Justice Stone.
I can't disprove that.
We'll give one justice credit.
For the footnote that
most of you will know,
footnote four, telling judges like me
there needs to be
searching judicial scrutiny
to protect discrete and insular minorities
when prejudice "tends to seriously curtail
"the operation of political processes."
But undoubtedly with that accelerant,
it has been lawyers that have ignited
the firestorm that has
changed our Constitution.
Think Baker v. Carr, Reynolds v. Sims.
Start with Baker.
Reargued in October of 1961
Listen back.
Who was the solicitor general?
Archibald Cox.
Felix Frankfurter starts testing him.
They have this wonderful exchange
about whether President Jackson
ever did or didn't say,
"John Marshall has made his decision.
"Now let him enforce it."
But at the end of that, Cox comes back,
and I think this statement
writes the decision
in Baker v. Carr.
The court was concerned, can
we mandamus a legislature?
Can we do this much of an intrusion?
And Cox answers something.
He answers as follows.
"I think, by and large,
the people in this country
"recognize that a representative democracy
"depends upon voluntary
compliance with the law,
"and that once this court or another court
"focuses its attention on what the law is,
"the chances are the
legislature and public officials
"will comply with it.
"Those chances are very great,
"much greater than they are
"while the issue remains undecided."
So if Daniel Webster,
indivisibly with the court,
gave Congress implied powers;
if Thurgood Marshall,
indivisibly with the court,
revised our equal
protection for all of us;
if Tony Amsterdam,
indivisibly with the court,
stopped executions
across the United States;
if Archibald Cox,
indivisibly with the court,
gave us one person, one vote.
I could go on.
There are other Constitution writers.
You may have never heard their names.
Some of you might.
This man, born in New
York, moved to Louisiana.
Richard Sobol.
Hands?
Some of you, yes?
Okay, good.
Well, these are the people
writing our Constitution.
The rest of you will know him
as soon as I tell you
who his client was: Gary Duncan.
Gary Duncan in Plaquemines, Louisiana.
It was alleged that he slapped
a white teenager's elbow.
He wanted a jury, he didn't get a jury.
Duncan versus Louisiana goes
up to the Supreme Court.
Richard Sobol argues it.
Listen to the oral argument.
Two points about that oral argument.
Not only was he extraordinary
and it largely maps onto the decision,
buts sometimes the losing lawyer
writes the decision as compellingly
as the succeeding lawyer.
The assistant attorney
general from Louisiana
in that case, laughingly, said, quote,
"Magna Carta did not guarantee
"jury trial to anybody."
And that went over with the same sort
of thud of silence
(audience laughing)
until a justice remarked, I think I have
"a pretty good idea
what Magna Carta says."
Is it surprising that when Byron White,
who had a wry sense of humor,
writes the court's decision?
He writes that jury trial
has existed for 10 centuries
with "impressive
credentials traced by many."
Not all, maybe not one,
(audience laughing)
"to the Magna Carta."
(audience laughing)
Heart of Atlanta Motel, another famous
commerce clause case.
Isn't it lost when attorney Rolleston,
a staunch segregationist,
ignored Hugo Black
and just announced and yelled,
"There are 43 million
white people in the South.
"I'll say it for all of them so loud
"Congress can hear me, 'Please don't do us
"'any more favors.'"
Lawyers lose as compellingly as they win.
I wanna play for you, thanks to Oyez,
a lawyer who I think is quite remarkable.
He's an atheist, a father, a doctor.
His name was Newdow.
He argued the case Elk Grove.
His argument was the phrase "under God"
in the Pledge of Allegiance
couldn't be there.
I'm gonna play for you his argument.
I want you to hear what I think of
as a Carolene Products
footnote for a moment.
I don't need to explain it more
'cause he does it
extraordinarily compellingly.
- [Michael] The Pledge of
Allegiance did absolutely fine,
and it's got us through two world wars,
got us through the Depression,
got us through everything without God,
and Congress stuck God in there
for that particular reason.
And the idea that it's not divisive,
I think, is somewhat, you know,
shown to be questionable,
at least by what happened
in the result of the
Ninth Circuit's opinion.
The country went berserk
because people were so upset
that God was going to be taken out
of the Pledge of Allegiance.
- [William] Do we know what the vote
was in Congress
apropos of divisiveness
to adopt the under God phrase?
- [Michael] In 1954?
- Yes.
- [Michael] It was apparently unanimous.
There was no objection.
There's no--
- [William] Well, that
doesn't sound divisive.
(people laughing)
- [Michael] It doesn't sound divisive if.
That's only because no
atheist can get elected
to public office.
(audience laughing)
The studies show that
48% of the population
cannot get elected.
(people applauding)
- [William] The courtroom will be cleared
if there's any more clapping.
(audience laughing)
Proceed, Mr. Newdow.
- [Michael] Thank you.
There are right now in eight states,
in their constitutions,
provisions that say things like
South Carolina's Constitution,
"No person who denies the existence
"of a supreme being shall hold any office
"under this Constitution."
Among those eight states, there's 1,328,
I believe, the number of legislators,
not one of which has tried to get that,
those phrases out of
their state constitutions
because they know, should they do that,
they'll never get reelected
'cause nobody likes somebody
who stands up for atheists.
And that's one of the key problems,
and we perpetuate that every day
when we say, "Okay, class,
including Newdow's daughter,
"stand up, put your hand on your heart
"and pledge, affirm
that we are a nation--"
- [Ruth] We have free
exercise, right, to get
at those laws, wouldn't
you, that you recited,
that said atheists can't run for office,
atheists can't do this or that?
That would be plainly unconstitutional,
would it not?
- [Michael] That would be, yes.
Those clauses are clearly
nullities at this time,
in view of Torcaso v. Watkins.
However, they still exist.
And the fact that those clauses, I mean,
we saw what happened
when the Confederate flag
was over the statehouse in South Carolina.
They had a big, you know,
everyone got, you know,
very upset and said, "Let's get that out."
That was a flag that can
mean anything to anyone.
Could we imagine a clause
in the South Carolina Constitution
that said "no African American
"shall hold any office
under this constitution,
"no Jew shall hold any office
under this constitution?"
That would be there for two seconds maybe.
But no atheists?
Hey, let it stick around.
It's been there,
(audience laughing)
today in 2000.
- The point for that
is who's giving the jolt?
It's the lawyer that's giving the jolt.
It's the lawyer that compels the court
to assist and bear the
burden of the Constitution.
Cox in Baker, Cox again in Sims.
New York City's lawyer,
the civil rights lawyer
William Kunstler, twice, 5-4,
making sure the government
can't criminalize
the burning of the flag.
His partner, Arthur Kinoy,
gives us Dombrowski,
Powell v. McCormack, telling Congress
that the Qualifications Clause means
they can't expel someone the people elect.
Heller, we all know Heller.
What a jolt.
We know Lopez, right?
A jolt for states' rights again.
We think Scalia, we think Rehnquist, 5-4.
But did they write those decisions?
I don't think so.
Look at who was arguing in Heller,
Walter Dellinger, Paul Clement,
Alan Gura.
Paul Clement and Alan Gura
both reappear in McDonald.
Interestingly, on my
point about attribution
and being thorough with traceability
to see who should get credit or blame
for where our Constitution is today,
Lopez, go back to the Fifth Circuit
and look at the lawyers who won there
'cause all the court
did in the Supreme Court
was affirm Lopez.
Who wrote it?
My colleague Will Garwood,
a famous and well-respected,
not ideologically perceived, judge.
Interestingly, Heller.
Not many people know
scholars debate Heller
is an originalist decision by Scalia,
the blizzard of historical citations.
How many people have even traced back
seven years that a case,
U.S. versus Emerson,
was written in the Fifth Circuit?
Norman Dorsen was an amicus lawyer in it.
Will Garwood writes it,
uses the exact headings
that Justice Scalia.
It is a blueprint for Heller.
So you can say it's originalism
and it's Scalia.
It almost never is.
It's almost always lurking
in a lawyer's work product that convinced
or didn't convince this
court, or lower courts.
So our job is to support
the adversary process,
but also to make it less invisible.
We have nothing else to support, judges.
There's no person, there's no president,
there's no party, there's no philosophy,
there's no membership in a society.
There's certainly not judicial celebrity.
If I'm correct that lawyers are writing
the constitutional law
much more than judges,
all, again, you need from judges
is open-mindedness,
talent and a work ethic.
And if I had to compress the qualities
to one, I would borrow
one from Alvin Rubin,
who was a very respected
judge on my court.
And this was what he thought and praised.
He wrote over 2,000 circuit
and district court opinions,
over 50 law review articles.
The gem I cherish most is he said,
"A judge should be
self-consciously eclectic.
"Where the text is not itself decisive,
"he should consider its
historical background
"and the future implications
of all possible decisions.
"He should enrich his
reasoning as much as possible
"by all information
relevant to a just result."
Imagine saying self-consciously eclectic
in a confirmation hearing today.
(audience laughing)
Now, all the Madison
Lectures have been collected,
and mine gets to end up in a little book.
They started out "Great Rights,"
the first collection, then
"Evolving Constitution,"
then "Unpredictable Constitution."
Most recently, "Embattled."
It's like a wilt downwards.
(audience laughing)
So I'm really hopeful we have lawyers here
that are gonna rebound the Constitution.
And a good title for the next one
might be "Our Eclectic Constitution."
(audience laughing)
That's my first large correction,
which is that lawyers have written
and continue to write the Constitution.
Now I'm gonna try to be
a little more granular,
and I promise in the latter 1/3,
I'm gonna get to those three cases
from my court to try
to illustrate my point.
But lawyer primacy.
Now I wanna be a reductionist.
In six years, plus the 20 that I practice,
I'm gonna try to tell you what I see
is the way lawyers get me
to write their decisions.
Again, the theme being
many heads, many hands.
Lawyers are writing our Constitution.
When I was 37, I was flush
with executive inferiority.
I could indict,
checked only by Madison,
who put in the Presentment
Clause to grand juries.
The point I wanna make
is lawyers have the power
of initiative to start a case,
judges receive them.
Yes, in many cases, we
say, "Not you or not yet."
Last spring, I heard a case involving
the taking down of the
Confederate monuments in New Orleans.
And in the next session,
I heard an attack on Mississippi's flag,
the last to have the Confederate
battle flag insignia.
Each time, we did say,
"Not you or not yet,
"no legally cognizable."
So, of, courts can stop,
but they can't initiate.
Recall Newdow.
I just described his
argument to you, but he lost.
Why?
He wasn't the custodial parent.
So on standing, the court stopped.
Now, assuming we have
a case in controversy,
how do lawyers then still control judges?
They sculpt the case, issue preclusion.
The year that Lewis and Paul Engelmayer
and I clerked, the court heard Mistretta.
It was the first constitutional attack
on the sentencing guidelines.
Think of the constellation of lawyers.
Who would be the best
you could name in 1998?
They were all there.
Alan Morrison, Paul Bator, Charles Fried.
The lower courts had splintered all over
on a million theories as to why
the guidelines might have infirmities,
and there was a question
from a justice, too.
It was Morrison, arguing
on behalf of Mistretta.
How did you pick
non-delegation as the problem?
Well, that is what he picked, and he lost.
And it took, what, 15
or 17 years for different lawyers to say,
"No, the attack is the Sixth Amendment."
And we get Booker/Fanfan.
The court responds to the lawyers
that are compelling and (mumbles),
and that invalidates mandatory guidelines.
Issue selection.
But assume we have a case,
assume we have talented ones
that pick the best argument.
How does a lawyer win?
How do they get me to write?
Well, when I have a question,
a concern, an inclination, which I do
all the time, and I scribble in the notes
question mark, that's what I'm gonna ask
and I'll talk to law clerks.
I think the lawyers that win are the ones
that give me authority from the past,
the present and the future.
And remember, I tried
to describe Amsterdam
and Neuborne doing that.
I don't know if they think that way,
but what is vital and what's kept me up
at night when I was a lawyer
was am I gonna be able to
(snaps fingers) immediately
classify the question?
As Karl Llewellyn wrote
almost a century ago,
law professors are, quote, "lopsided men."
He said but that's good for students
because judges are, too.
So the difficulty for a lawyer, I think,
standing before judges is you've got
to know where they're lopsided
and you've gotta go lopsided with them.
And my advice to students, and before that
to Department of Justice lawyers,
and I think now I've
proven to myself it's true,
is that the key is listen for tense.
What is the tense
that the inquiring judge is using?
Some judges focus on the past.
So if we know Phillip Bobbitt's book
"Constitutional Fate,"
and his colored pencils
that correspond to different
interpretive methods,
that would be textualism,
historicism, doctrinalism.
The law, as written in the past,
what does it compel the answer to be?
But other judges, colleagues
of mine and myself,
sometimes we're most
concerned about the present,
the facts of this controversy.
Was the issue preserved?
Is it harmless?
Is there plain error?
What's the unfairness,
to borrow from Posner?
What's the right the wrong victimhood
that we want, that
present this controversy?
Who should win?
Other judges, you'll hear it in the tense
of the question to you as a lawyer,
the question is a future.
How does the future say the problem
has to be answered, right?
They're looking for a rule that will apply
fairly to future.
As Alvin Rubin put it,
"They don't want to issue a decision
"that is an ad hoc
railway ticket decision,
"good only for this day and station."
The lawyer who assembles
compelling authority
to answer each of those tenses,
or usually even two of
three, will prevail.
Car Talk, right,
the Click and Clack brothers.
They're off the air now,
but listen to that and how they blend
to diagnose a car's
malfunction with their callers.
The joking, the probing, the questions.
Judging at its best, at
least in oral argument,
when I face a lawyer, is like that, right?
I'm doing error correction on my court,
that's what we do.
We try to see if there's an error.
That only happens well when I'm engaging
with the lawyers, usually in these
three time dimensions.
The reason I came to this view,
this classification, is I was asked
to teach con law, but as Lewis knows,
I took con law at Yale with Charlie Black,
and we started and finished
with the Ninth Amendment.
We never did anything else.
(audience laughing)
So when I was asked to teach,
I really didn't.
I call Chemerinsky.
I said, "Can I have your case book,
"could I have all your notes,
can I have your lecture?"
And it was just very
intimidating, what he sent me.
It just was too intimidating.
So I did what I tend to do as a judge.
I understand when things are written
in paper decisions or briefs,
when they're impregnable,
I see the nuance better if I can
back up into how the lawyers clash.
So I'll go back to the
district court hearing.
Well, for me to teach con law,
I needed to hear what the lawyers had said
in all these famous cases I'd be teaching.
I called Jerry Goldman.
If ya don't know him, you should.
He's the one behind Oyez.
Jerry Goldman gave me
super user access to Oyez.
I could get behind cases
and do searchability
that you can all do now.
And I listened to every single case
that was in the Chemerinsky case book
that I could get.
At that point, I had this moment.
I said, "I haven't heard a single question
"that isn't a past or present or future."
Every question a lawyer will get
will be one of those tenses.
Certainly, in six years, I haven't heard
colleagues ask one.
They are different questions.
You can classify them quickly.
Rubin said, again, "The best brief
"is like a good song.
"It plays a melody the judge will remember
"and hum when he writes the opinion."
By present, I mean how do you use
the facts, the victimhood, in the case?
Let's hear Jerry Goldman.
This is Brown v. Louisiana, 1965.
Louisiana's in the Supreme Court,
where you would think fact
advocacy wouldn't prevail.
You tell me if the lawyer doesn't lose
the case with poor command of facts.
Louisiana's trying to explain
that its libraries are not segregated.
- [Abe] Occurs to me is
the State of Louisiana
telling us that in this parish,
library facilities are not segregated.
That is to say that a Negro
can get service
from any library facility,
any public library
facility in this parish.
- [Richard] Yes, I
would say that they can.
- [Abe] Is that the representation
of the State of Louisiana?
- [Richard] Well, that's
the representation
of the State of Louisiana which I make
and which I certainly stand by it.
Of course, they only have (crosstalk).
- [Abe] These library cards.
As I recall in the record,
there is testimony to the effect
that the library card issued
to a Negro is stamped Negro.
(crosstalk)
Any dispute about that?
- [Richard] No, there's
no dispute about that.
- [Abe] Does that practice continue?
- [Richard] I just
couldn't answer that, sir.
- [William] Well, if
there is a blue bookmobile
for the Negroes and the red ones
(speaks too low to hear)?
- [Richard] In other words, (crosstalk).
- [Abe] How can you say
it's not segregated?
- [Richard] Well, I
say it's not segregated
because if a white person wants to use
that blue bookmobile,
they would let him use it.
If a colored person wanted to use
the red bookmobile, I may
have my colors wrong there,
but I believe that's right,
they certainly wouldn't be able
to refuse them service.
- [Abe] The record says quite
the contrary, doesn't it?
Is there any testimony
in the record to support
what you have just said?
- [Richard] I believe it is.
I believe (crosstalk).
I believe it is.
(mumbles) Before.
- [Abe] Well, it sure is (mumbles).
- [Richard] Sir?
- [Abe] I said it's up
now, and I want to ask you
about the last statement that you made.
Is there anything in the record
to the effect
that a Negro
who wants to get a book
from the red bookmobile
can't do so?
There is a testimony of some woman
that used to work with the library,
I've forgotten her name,
to the precise officer.
- [Richard] Well, I do not believe
that that would be--
- [William] I think
Justice Fortas is referring
to the testimony of Mrs. Laura Spears
on page 136, 137 of the record.
- [Richard] Yes, sir.
I believe--
- To 138.
- [Richard] I believe
she did testify that--
- [William] Well, she
said, "The only person
"who will use the blue
bookmobile is Negroes,
"and the blue bookmobile
serves the three parishes
"for all Negroes, and
occasionally if a white person
"would come to the blue bookmobile,
"I'd give him the schedule telling him
"when the red bookmobile would come."
- [Richard] I believe that would be
the only testimony that's in the record.
- [William] That looks like
a segregated library system.
(audience laughing)
- [Richard] I often get confused
when you say segregated system
or integrated system because
in Clinton, Louisiana,
well, I've always felt like we had
more integration than probably any place
in the United States, I mean,
just with the way people live.
Segregation and integration seems
to mean different things
in different parts of the country.
- [Earl] Prior to this incident,
had Negroes ever gone into that library?
- [Richard] You mean to get a book?
(audience laughing)
- That's present-tense fact advocacy.
Just a statement that's false.
Deny the blue bookmobile.
And at the Supreme Court,
that's gonna write the decision.
Future-tense advocacy.
You may not know the case Kyllo.
It's the case whether the government
could aim a thermal imager at a house.
Did they need a warrant for that or not?
Now, the counsel who won
had to propose a rule.
This is the future tense.
And it's gonna be obvious to you
when you hear it how judges probe
in questions about future tense.
So first, a lawyer will establish a rule,
and then judges will probe that rule,
and then they'll adopt it.
Here's his rule.
You need to get a warrant if.
- [Kenneth] I think
anytime that the government
is seeking to capture information
from a private place, like the home,
and they cannot do it with their own
unaided human senses, then
they may not use technology
to do the same thing.
- Okay, now what happens once that,
as soon as he makes that statement?
- [Antonin] Is it unconstitutional
to use binoculars to look into a window
that's left unclosed?
But eyeglasses are okay?
- [Kenneth] Eyeglasses are fine.
- [Antonin] Okay, but not binoculars?
Suppose the police had
rented a house next door,
and they lean out the second floor window
with a long pole with a thermometer on it
(mumbles)
(audience laughing)
fence?
- [Man] Now, if thermal imaging becomes.
- Oh, no, sorry.
Sorry, sorry.
- [Man] And every school kid.
- Justice O'Connor jumps in.
- [Sandra] What about a dog sniff?
How about a dog sniff?
- All future tense questions.
Has the lawyer thought of a rule
that will work
appropriately in the future?
If not, that future will collapse.
A more famous case, to go
back to Kunstler, right?
Texas v. Johnson.
I want you to listen to two things.
You tell me if the case gets written,
the 5-4 decision gets written because
one lawyer's constitutional
future collapses,
or whether the decision is written,
as people often describe,
because of originalism.
Because if you conclude it's the latter
and that that's an interpretive method
that one judge just
had and prevailed with,
well, that's intentioned with my thesis,
that almost every case we can look to,
if you peel back and
study what was argued,
one lawyer won and one lawyer didn't win.
So I'm gonna play two clips
from Texas v. Johnson.
One is the future tense,
and the other one is,
well, you'll see.
- [Anthony] Upheld the
statute in every other state,
it would have the same, right?
- [Kathi] Yes, Your Honor.
- [Anthony] So your category for one flag
is now expanded to 51.
- [Kathi] The statute does say
a state or national flag.
That is correct.
And we (mumbles).
And I think that a similar interest
would be for sister states.
But it does say a state or national flag.
- [Sandra] Texas prohibit the burning
of copies of the Constitution?
- [Kathi] Not to my knowledge, Your Honor.
- [Sandra] There wouldn't be the same
symbolism of that?
- [Kathi] No, Your Honor, it
would not be the same interest,
I don't believe.
- [Antonin] Why not?
Why is that?
I was going to ask about the state flower.
(mumbles)
(audience laughing)
- [Kathi] There is
legislation, Your Honor,
which does establish the blue bonnet
as the state flower.
It does not seek to protect it.
- [Antonin] Well, how do you pick out
what to protect?
I mean, you know, if I had to pick between
the Constitution and the flag,
I might well go with the Constitution.
- They're probing with the future tense.
Does your rule work?
Hypothetical questions.
Now, they will probe in the past.
What was the intention of the Framers,
in this case.
I think Sandra Day
O'Connor asks the question.
- [Sandra] Patrick Henry and any
of the Founding Fathers ever
showed disrespect to the Union Jack?
- [Kathi] Quite possibly, Your Honor.
- [Sandra] You think they had in mind,
then, in drafting the First Amendment
that it should be
(speaks too low to hear)?
- [Kathi] Of course, Your
Honor, one has no way of knowing
whether it would be or not.
- [Antonin] I think your response
is that they were willing to go to jail,
just as they were when they
signed the Declaration.
They were hoping they wouldn't get caught.
(people laughing)
- So, again, on that case,
originalism, like most
interpretive glosses,
I think cuts both ways at best.
What's much more convincing, what I think
predicts the outcome,
what writes the decision
is that a lawyer was
unable to answer questions
as to how would we distinguish between
various symbols and sacred events.
So present-tense advocacy,
future articulating a rule.
And then judges will ask about the past,
and we talked a little bit about that.
Lawyers are finally
trained to use the past.
Present-tense advocacy,
find the bookmobile,
blue bookmobile, establish it.
Future tense, you have to be nimble.
You've got to be able to
do cost-benefit analysis,
compare blue bonnets to constitutions.
Past tense, some of you
may know Bryan Garner
issued a big compendium, 700 pages long,
called "The Law of Judicial Precedent."
He had many co-authors for that.
I won't repeat any of that,
but he concludes with this sentence:
"Good judges, like good lawyers,"
and if I were writing it, it would be
good judges because of good lawyers,
"must mine all relevant
sources for guidance,
"ought to be grateful when they find it."
Mine and be mindful of precedent.
Yes.
All I'll say about past advocacy here
is much more sort of edgy advocacy.
When lawyers can turn past case law
upside down for their benefit
and get us to follow them,
or when lawyers can actually tell judges
to do what judges always
say they won't do,
which is to reject controlling precedent.
Let's start with that 'cause
that's judicial heresy.
Stare decisis.
We have to show unflinching obedience
to higher authority.
Well, here I'm gonna
quote not Professor Ruben,
but Judge Alvin Rubin.
This is from a decision of his.
"When today's vibrant principle
"is obviously in conflict
"with yesterday's sterile precedent,
"courts need not follow outgrown dogma."
And with that sentence, he overturned
Louisiana's exclusion
of women from juries,
despite a Supreme Court decision
12 years earlier that it upheld
the exact same exclusion.
He called the Supreme Court decision,
this is Alvin Rubin, "outgrown dogma."
Now, you know my thesis here.
My interest is, well, who was the lawyer
that got Alvin Rubin
to be so insubordinate?
I'll just tell you her initials, RBG.
(audience laughing)
Abe Fortas again, Gideon.
The Supreme Court had Betts as precedent.
As great lawyers can do,
he compelled the court
to realize that Betts
had been a dead end.
That we should rewind
the constitutional clock
to Powell v. Alabama, the Scottsboro boy.
The Supreme Court, when it wrote Betts,
saying, "Well, yes, capital defendants
"like the Scottsboro boys,
"and also other defendants
"who have special circumstances."
They thought they were following
the pull of federalism.
We won't make states pay
for all indigents, just these.
That was a hard precedent
for Fortas to deal with.
But like great lawyers,
he takes his adversary's best authority
and makes it his own.
So he said, "Betts is
the federalism injury."
He said, "I've read every case
"you've written since Betts.
"You've overturned every
state highest court.
"You always see a special circumstance."
They never did.
That's the corrosion.
Betts is my best authority.
You've proved how wrong it is.
It was the federalism injury.
And then he convinces the court
to write Gideon versus Wainwright.
Now, there is another lawyer
that should get credit.
There was a Minnesota attorney general,
a young lawyer.
Florida was desperately
looking for amicus support.
They sent letters around to
attorney generals all over.
A young lawyer in
Minnesota got the letter,
realized how wrong the position was.
He started a counter amicus brief
that got many more states.
His name was Walter Mondale.
Lawyers write our Constitution every day
when they compel judges like me,
and especially the Supreme Court,
to write the decisions
that generally, then,
people just stop and say,
"Well, that's this justice or this court,
"and it's this interpretive method."
Okay, now I'm gonna get to the three cases
you've been waiting for.
And I'm gonna try to show you
that lawyers, again,
decided these three cases.
In fact, in two of the three,
when judges tried to go beyond
the lawyer controversy,
poor errors, injustice occurred.
The first one, 1975, my court wrote about
a massacre that occurred, took place
around the world on March 16th, 1968.
American soldiers shot hundreds
of unarmed civilians in a
town called My Lai, Vietnam.
There was a coverup.
Luckily, it was exposed
because one soldier,
named Ron Ridenhour, and we should pause
over names like this.
But for him, none of this
would have come to light.
He wrote letters to the Pentagon,
the president, to Congress, saying,
"What happened there is not
"what they're saying happened."
Well, they didn't listen,
they didn't respond.
So bravely, he found a young journalist
named Seymour Hersh,
who wrote six articles.
There was a public outcry.
The Army had to do an inquiry.
The Peers Commission concluded that,
I think, 28 officers should be charged.
14 were.
And however you wanna look at it,
sadly, only one gets convicted
and court-martialed,
Lieutenant William Calley.
Calley's case was exceptional in its day.
Professor Belknap has written about it.
There was intense sympathy for Calley,
both from hawks and doves, who though he
was being scapegoated.
To give you a sense of that fury,
my library went to the National Archives
to find all the ephemera and letters
that were written to our court,
telling us we better free Calley.
Here's one.
"I am disgusted, angry, frustrated
"because that fighter," my second case,
"that black loud mouth Cassius Clay
"could pay a few hundred thousand dollars
"to courts to stay home.
"Nixon and Kissinger get honored,
"and you treat Calley like a dog.
"Grinning black Cassius
Clay did not even go."
That fury reverberated
up to the White House.
We know from Haldeman's notes
that Nixon wanted damage control
above all else 'cause of
the war effort at the time.
He approved, and I'm
quoting, "dirty tricks"
to discredit one witness.
This was a different
witness, another soldier.
Hugh Thompson was flying a helicopter
over My Lai at the time.
And he saw what was happening,
and he landed his helicopter
between advancing troops
and unarmed Vietnamese.
He was gonna be the
government's star witness.
Nixon wanted him discredited
because when he got out of the helicopter,
he did point a weapon, or it
was contended that he did,
at the advancing troops, his own people.
Nixon felt that the American public
would never credit anything he said
if that would have been shown.
But ultimately, the
court-martial came down
to whether the jury would believe
Calley or his company
commander, Captain Medina.
Had Medina ordered the soldiers
to shoot unarmed people?
Calley's attorney was a
man named George Latimer.
He was outmatched.
He lost at every single
portion of the court mistrial.
He couldn't decide whether he wanted
to dispute the massacre had occurred,
or yes, it had occurred, but
Calley wasn't responsible.
He wasn't 'cause he was
psychologically unfit,
or because he had the
defense of superior orders.
Medina testified consistently always
he had never gave the orders.
Who was his lawyer?
Famed Boston lawyer F. Lee Bailey.
He immediately took him
out to get a polygraph,
and he answered no truthfully
to the question, did
you intentionally infer
to your men that they were to
kill unarmed noncombatants?
By contrast, Calley, and Paul Meadlo,
who stood with him
shooting women and infants,
were cross-examined as follows.
"What did you do?"
"I held my M16 on them"
"Them?
"They were babies and children?"
"They might have had a loaded grenade."
"Babies?"
"Yes."
"Were the babies in their arms?"
"I guess so."
"And did the babies move to attack?"
"I expected at any moment,
"they would make a counterbalance."
Calley's conviction was affirmed
in military court review,
but on September 25, 1974,
United States District
Judge Robert Elliott
granted him a habeas petition.
And I'll quote from the last
portion of his decision.
It was 68 pages.
He called it obiter.
He cites Plutarch, the Bible
and Carl Sandburg to conclude
with his view of war as follows.
"War is war, and has been
throughout recorded history.
"When Joshua took Jericho,
"in 1565 when Ivan the Terrible
"ordered an entire Jewish
civilian population drowned,
"when Truman bombed Hiroshima,
leaving 80,000 dead,
"most of whom were women and children,
"but he was elected President.
Elliott goes on to
compare General Sherman,
quote, "gloried, idealized,
beautified, sanctified,"
with Calley, quote, "pummeled,
"pilloried by the press,
taunted and tainted
"by television, reproached
and ridiculed by radio."
And then he rules that Calley was denied
even a fair chance for the fair trial.
Hindsight's 20/20.
My point tonight is that
the consequential error,
the travesty that occurred with that
district judge's ruling and his obiter:
giving us his view of war,
not what was litigated in front of him.
Fortunately, it was
corrected because of better
government lawyering in my court.
Our court went en banc.
Judge Ainsworth reinstates
the judge court-martial
in a workmanlike, point-by-point decision.
There's no virtuosity in the opinion.
Footnote-to-record, footnote-to-record
to prove the trial was fair.
The government had proven what it did.
I don't have a larger, bigger lesson,
except to say to you at the conclusion
on this case, I am talking tonight
about lawyer primacy.
The bigger point, of
course, is we don't want,
the court-martial for Calley
led to house arrest.
It's very deflating in that sense.
It pales to the massacre of the victims.
So when I'm talking about lawyer primacy
over judicial ego, you obviously
can't forget the memory of the victims.
And in that sense,
give a claim to Harvard,
the Nuremberg Trial
Project they just finished,
digitalizing the entire Nuremberg Trials.
Extraordinary.
It shows the tenacity
of victims and lawyers
that can somehow bring a little justice
to unimaginable injustice.
So I've focused on lawyers tonight,
but it began with victims in My Lai.
Then it required a
soldier to write letters.
Then, unfortunately, there was a coverup.
Then, fortunately, there
was a stubborn journalist.
Then, unfortunately, there
was a corrupt president
that tried to impugn a star witness.
Fortunately, there were lawyers
that still obtained a court-martial.
Unfortunately, there was a lawyer
who allowed his personal
view of war to interject.
But finally, at least at
the end of my story tonight,
we had lawyers that were
able to establish facts,
the present tense, to
contradict Calley's claim
that he'd just been
following superior orders.
Every case I've written
is indivisibly written
by the lawyers who have compelled me
to write it that way.
It also, invisibly, has victims
and witnesses behind it.
My second case, Clay versus United States,
came from the same Vietnam maelstrom.
Involved the world's most
famous athlete celebrity.
June 20, 1967, Muhammad Ali,
the heavyweight boxing
champion of the world,
he's convicted for refusing induction
in the U.S. military.
His prosecution was headlined everywhere.
The statement that people
remember, as he said,
"I ain't got no quarrel
with them Vietcong."
He got five years in prison,
the maximum for draft evasion.
Very few people know that case
even came through my court, the old Fifth.
It did because his habeas petition.
No, I'm sorry, it did because Georgia
was the district court that affirmed,
and was in the old Fifth.
I think that's right, you will know.
Jonathan Eig, you may know, has written
a 600-page biography recently.
Outstanding, doesn't mention
the Fifth Circuit once.
And that's not a flaw of his.
Our decision is unforgettable
and should be forgotten
because of one footnote.
Our court affirmed his conviction.
And footnote 16 in that decision states,
and I'll quote, it discredits the, quote,
"beliefs of Black Muslims,"
saying that those beliefs
are racial and political,
fueled by a hatred of the white race.
And authority given by our court
in footnote 16 is quoting Malcolm X,
for the proposition that he
prays for plane accidents
with white victims.
Chauncey Eskridge was Ali's
attorney in the Supreme Court.
He would tell the court,
"I sense a prejudice
"against so-called Black Muslims,
"against this defendant,
"who was the heavyweight
champion of the world,
"who announced that he was Muslim."
The Supreme Court reversed us unanimously.
Originally, apparently,
the court voted to affirm,
but the law clerk for Justice Harlan
said, "Ali is sincere,
and the religious beliefs
"of Muslims are true.
"It is not just hatred of whites,
"it is not just political,
"they have religious views."
Harlan changes his mind,
it makes the vote 4-4.
Justice Stone decides that he needs
to come up with a compromise that can get
a unanimous court.
He then invokes the Stromberg doctrine,
and they perceive that
in the lower court ruling
as to why exemption was
granted, they couldn't tell.
Was it because Ali was insincere,
as the Fifth Circuit had said,
or was it some other reason?
And if you don't know the
basis for a conviction,
if any one of them is legally invalid,
you have to overturn the conviction.
The interesting thing that's decisive,
the lawyering that's decisive,
is read Solicitor General Erwin Griswold.
He truly acts as the 10th
justice in this case.
He, of course, is
defending the conviction,
but he refuses and disavows
over and over again
my court's personalization of its ruling.
He concedes several times Ali was sincere
and the Muslim faith is real.
He, therefore, has to
retreat from the facts
that my court had distorted,
and he returns to the past.
And there was a doctrine,
and he argued it,
that Muslims do believe
in some wars, jihads.
And, therefore, they have selective views,
and the law then wouldn't allow selective.
But the court didn't
find it very difficult
to be unanimous, to say, "We don't know
"if that was the basis."
The Fifth Circuit didn't
suggest so in footnote 16.
So to sum up, my court's error against Ali
was like Judge Elliott's error for Calley.
Both courts injected their personal view
of an outcome, belief or disbelief,
and each time, the correction came
from unremarkable opinions.
The Supreme Court's Harlan called it
a, quote, "pee wee"
ruling, minimal application
of established law.
Now, you can say that,
and I mean no pun by this,
but what it did dodge was frontally saying
the world's greatest
fighter couldn't fight,
which would have been
awkward for the court,
and it also dodged saying
all black Muslims are exempt.
So in fact, it was a
somewhat inspired decision.
But to me, it's written
by the solicitor general,
who will not defend the overreach
my court had done.
So each time, you have
judicial overreach error
that needs to be corrected
by ethical lawyers or by good lawyers
using fact advocacy,
or in the second case,
using past-tense doctrinal advocacy.
My last case for tonight,
U.S. versus Barnett.
James Meredith was an Air Force veteran.
He wanted to get into the
University of Mississippi,
known as Ole Miss.
This was a full-scale
constitutional crisis.
Most of you are familiar
with the outline of the case.
If you're not, Jack Bass wrote
a spectacular book
called "Unlikely Heroes:
"The Dramatic Story of the Southern Judges
"of the Fifth Circuit who Translated
"the Supreme Court's Brown Decision
"Into a Revolution for Equality."
Another great book, firsthand,
is NYU graduate Constance
Baker Motley's book,
as she was Meredith's lawyer,
called "Equal Justice Under Law."
As for lawyer primacy,
this is, to me, I won't
articulate it well,
but it's exquisite.
You have Thurgood Marshall back in Brown,
prevailing, a new dawn for
the Equal Protection Clause,
giving himself the key that years later,
the client that comes to LFD, him,
he can give the keys and
get them into Ole Miss.
The lawyer creates the law,
and then he can apply it years later.
And Motley describes how Marshall
came to her office and he threw a letter
on the desk, saying, "This
man's gotta be crazy"
to wanna get into Ole Miss.
(audience laughing)
And she writes, "And that meant
"it would be my case if I wanted it."
(audience laughing)
The rest is history,
except a district judge,
Judge Mize, over and over again,
accepts Mississippi's arguments.
Oh, this decorated airman
must be a troublemaker.
It's not his race.
He's a troublemaker, he's not qualified.
And Mize, over and over again,
denied that there was a
policy of segregation.
Even though the University of Mississippi,
after Brown, had instituted a requirement
that required five
alumni letters to get in,
but there were no black alumni.
(audience laughing)
Mize ruled that way again and again.
And Judge Brown, on my court,
he would later remember,
I quote, "We would set aside Mize's order.
"Judge Cameron, a segregationist
on the Fifth Circuit,
"would set aside our order
"setting aside Mize's order.
"And we would set aside Cameron's order,
"which would set aside our order
"setting aside Mize's order."
(audience laughing)
Charles Eagle, in his book
"The Price of Defiance,"
gives you more vivid an
understanding of this.
When Mississippi Attorney
General Patterson
heard the Department of Justice,
Burke Marshall, Robert
Kennedy, were coming in
because the Fifth Circuit
had these warring orders,
injunctive orders, this is what
the attorney general of Mississippi said.
"Robert Kennedy criticizing a judge
"of Judge Cameron's
stature is like a jackass
"looking into the sky and baying
"at the great American
eagle as it soars above."
(audience laughing)
And when Governor Barnett heard
that Justice Hugo Black, circuit justice,
had interceded to vacate Cameron's stays,
making my court's mandate that Meredith
would get in, Barnett said the following.
That Black's ruling is, quote,
"just as illegal as if the Supreme Court
"of Kansas had issued it."
Now, what's less known is that the issue
that gets to the Supreme Court
is not Meredith getting in.
There was a riot, he gets in.
It's whether Governor Barnett,
who stayed defiant to the end,
became the registrar himself
and physically blocked Meredith,
would get a jury in his contempt trial.
The case became U.S.-Barnett.
The companion case at the same time,
a little earlier, was desegregation
of New Orleans schools.
We know who the judge was handling that,
a very different principled
judge, Skelly Wright.
But my view to you is
that the desegregation
in that case and the
desegregation in Meredith
occurred because of the
same advocacy moment.
Let me read how Bass describes it
in the desegregation case in New Orleans
that came first.
Louisiana Attorney General Gremillion
stormed out of Wright's
court, saying, quote,
"I'm not gonna stay in
this den of iniquity."
He spat on two black women
and bellowed about being
in a kangaroo court.
Thurgood Marshall there
immediately perceived
his opportunity, that now he could align
past and present with future.
And he told Skelly Wright,
"This is no longer a
case of Negro children
"seeking constitutional rights.
"This is now a challenge by officials
"to the State of Louisiana
to the sovereignty
"of the United States.
"The duty of this court is clear."
Skelly Wright phones Burke Marshall.
He phones Attorney General Robert Kennedy.
The judge wants to hear
from the government lawyers.
Will the government back up my order?
They would, the threat of contempt
is what brought Louisiana into compliance.
Now, Skelly Wright was a unique man.
Right place, right time.
He didn't see his job to assist
and bear the Constitution
as very difficult.
Quote, "I did what I did
"because the Supreme Court had said it.
"There wasn't any way
out except subterfuge.
"Other judges were using subterfuge
"to get around the Supreme Court,
"delays and so on, but I grew up
"around federal courts and
I had respect for them,
"and I tried to carry out that tradition."
The present, at that time, had bogged down
in abject segregation, in violence
and "Alice in Wonderland" type delays.
The past, some of the blame
can be on the Supreme Court.
Brown II had been very
opaque about implementation.
So lawyer Marshall understood his advocacy
had to switch to the future,
that this was an affront to the judiciary.
Like Wright, my court
interrupted its hearings
to be certain the federal government
would come in.
Judge Brown later described this
in his oral history.
"Judge Tuttle, sitting
very firm and erect,
"as always, addressed Burke Marshall
"and said, 'If we issue orders,
"'will the executive department
"'of the United States enforce them?'
"We have no police power.
"We have nothing but orders.
"They gave us assurances
that they would carry it out.
"At that time, President Kennedy
"went on national television.
"They brought in a great
number of marshals.
"It did lead to the only real bloodshed
"that ever occurred in the Fifth Circuit,
"in this revolutionary
effort to assure blacks
"equal protection of the law."
The decisional moment comes to a head
in a very tense en banc hearing
in September of 1962.
The two opposing attorneys,
you have Charles Clark
and you have Jim Coleman
representing the Board of
Regents from Mississippi.
You have Motley representing
her client, Meredith.
You have Burke Marshall there.
It starts at noon, it goes 'til dark.
About dark, Clark and
Coleman ask the court
for a 20-minute recess.
"Can we talk to our clients?"
They take a 20-minute recess.
They come back.
The Board of Regents, many of them
appointed by Governor Barnett,
agree to adhere to the rule of law
and avoid contempt.
Clark and Coleman,
the lawyers for Mississippi.
And later, maybe not surprisingly,
both men, like Motley,
the first black female
federal judge anywhere,
like Thurgood Marshall,
all of the lawyers end
up on federal courts.
How wonderful.
And, in fact, Wisdom wrote
the strongest endorsement
for Clark, who had been the
attorney defending segregation.
He said, "Charles Clark emerged
"as a shining star.
"He represented a lost cause with flair.
"He argued vigorously, made
the best of a bad case.
"He was deferential to the court.
"He acted with dignity and grace,
"and conducted himself in every way
"according to the highest
tradition of advocacy.
"He won my respect then, and the respect
"of all the judges of our court."
Wisdom and Brown's histories confirm
that Coleman and Clark, with Motley,
were decisive in resolving Meredith's case
in that recess, convincing their clients.
That isolated Barnett.
He was alone at that point.
Now, he stayed defiant.
That's why his contempt case goes up.
And I'll finish with discussion of that,
and then my conclusion.
Was he entitled to a jury?
Our court divided
equally on that question.
We certified it to the Supreme Court.
That was heard October 1963.
Solicitor General Archibald Cox,
with Leon Jaworski, an interesting lawyer.
I think I'm correct that he refused
to go be a lawyer in the Nuremberg Trials
'cause he didn't think that crimes
against humanity had been crimes
that could have been known,
and he didn't wanna be part of that.
Again, a lawyer with
immense subtlety and talent.
Here they are teamed up,
opposed by Charles Clark, who would become
chief judge of my court,
in the Supreme Court.
Cox uses every tense a lawyer can use.
He starts with the present tense,
these describing Barnett's
intransigence, his demagoguery.
And he says Barnett "arranged against us
"everything he could in
the State of Mississippi,
"the entire process
"of constitutional
adjudication was assaulted."
He shifts to the past.
He traces back the discretionary power
of courts to impose contempt to Madison
and the Judiciary Act of 1789,
but he mostly goes to the future.
He warns, "If you allow
Barnett's nullification
"to challenge the power of the court
"to act as a court."
Leon Jaworski steps up
in a rebuttal argument,
and he asks rhetorical
questions to the judges.
Now, very few lawyers will turn
and ask a judge this question.
He asked, "If court
decrees are to be evaded,"
as Barnett had done,
"what is the right to trial by jury worth?
"If court decrees are not to be evaded,
"may it please the court,
"what is the Constitution worth?"
In my opinion, Cox and Jaworski
write the opinion, what Clark
would later write in the opinion.
You can read the decision.
Quote, "A court without the power
"to effectually protect itself
"against the assaults of the lawless,
"or enforce its orders
against recusant parties
"before it, would be a
stigma upon the age."
They prevailed.
Now, it's true, courts take back
in footnotes what they give you in text.
In footnote 12, the court wrote what Clark
would later claim was his victory.
It's an interesting footnote.
"In view of the impending
contempt hearing,"
against Barnett, "effective administration
"of justice requires that this dictum
"be added: Some members of the court
"are of the view that, without regard
"to the seriousness of the offense,
"punishment by summary
trial without a jury
"would be constitutionally limited
"to that penalty provided
for petty offenses."
It comes back to our court.
The four judges that had
always stood together, divided.
Brown, Wisdom, Tuttle said,
"We have to prosecute Barnett.
"He's broken the rule of law.
"Two people died."
But Rives broke with them.
Rives said, "Meredith's in.
"All we can get him
from is a petty offense.
"We're just gonna make him a martyr."
Without Rives' vote, the
matter was dismissed.
Contempt proceedings weren't pursued.
Now, of course, 50 years later,
the law that those lawyers explored,
both sides, is relevant again.
I think I'm correct, Sheriff Arpaio,
that was his claim.
"I need a lawyer."
Well, it traces back to
United States versus Barnett,
much more to the lawyering
than anything the judges wrote.
The last point I'll make about this third
and final case, and then my conclusion,
is that if you actually
look at the lawyer argument,
there are extraordinary what I'll call
constitutional offshoots that never end up
in the decision.
Here's what Cox argues at one point.
He doesn't just intimate footnote four
of Carolene Products, he
puts it front and center.
Listen to him and listen carefully.
"If I may put it this way.
"So long as one thinks, it appears to me,
"of the court, the government
"as oppressing people,
then the power of the jury
"to intervene is an important safeguard.
"But as soon as one
begins to think of the law
"as an instrument for protecting the weak
"or the oppressed, as an instrument
"for securing constitutional rights
"of a minority, of
protecting us," he says,
"if you will, our better
selves against our worst self,
"then there is a difficult
"and more complicated problem."
There's a lawyer who happens
to be the solicitor general,
who's saying, "Well, the jury
trial's right's important
"when the government is oppressing,
"but in cases where the government
"is vindicating the oppressed,
"we shouldn't intercede the jury."
Well, that's an eclectic proposition.
It's a powerful lawyer.
If the court doesn't grab it,
it's a constitutional offshoot.
In that case, the court
doesn't articulate.
Tonight, I hope I've encouraged
more heads and more hands
to keep writing our decisions,
my decisions, the Constitution.
First, to scholars, I would say
if you're not appearing in front of us,
Neuborne, Amsterdam, Miller, Bauer,
fantastic professors that have changed
our constitutional destiny,
then write articles
that trace back and attribute
good or bad results to the lawyers
that compelled courts to get them.
Don't stop with judges and their ego
and their interpretive methods.
Trace back to see who argued what.
Second, to soon-to-be lawyers here,
be expectant, right?
Throw deep, be eclectic.
The law is written
at least indivisibly with you.
Until today, at least mostly invisibly.
Third, to lawyers now, be vigilant
against judicial overreach.
Use past, present and future advocacy
to check us when we disconnect
from the arguments lawyers present.
To think that we have a footnote 16
that knows that black
Muslims aren't sincere.
Or we're like Judge Elliott in obiter,
counterfactually saying Lieutenant Calley
was just doing what soldiers in war do.
Or like Judge Mize,
counterfactually saying
that Meredith was a troublemaker.
Fourth, pro se litigants
recently spotlighted,
Seventh Circuit discussion.
They aren't here in
this audience. (laughs)
I hope not.
They are at a disadvantage.
And it's the reason that projects
like Arthur Liman, helping public service,
or like Robert Katzmann, pro bono projects
for representing aliens, are so vital
because my whole discourse has been
how indispensable, what the
revelations are from lawyers.
So then what happens to overworked
or ineffective lawyers, or especially
pro se litigants?
Fifth, to judges like me,
those here, cherish public engagement.
That is to say that
lawyer dialogue brings.
Order oral argument.
How sad, how sad.
The American Academy of Appellate Lawyers
this summer issued a report
that oral argument in circuits
across the country are at historic lows,
20% or less
in merit-based decisions.
A very wonderful luminary,
New York Law School graduate, I think,
Professor Judy Resnik,
has written about this
problem extensively.
We've privatized disputes.
Argument in public with judges
and lawyers is diminishing.
On the criminal side, plea bargaining
with appeal waivers.
Much less of this vital process
I've described is occurring.
I have written, for six years,
decisions that are written indivisibly
with the work product that I
can hyperlink to.
My decisions are mostly quiet ones.
I'm gonna finish with
some really wonderful
loud ones that profoundly
affected our Constitution.
Go back 40 years, Roe versus Wade.
Listen to the indivisibility
of Thurgood Marshall.
This is an issue we think
divides us permanently.
Here's Justice Marshall with Jay Floyd.
Who was Jay Floyd?
He's the attorney trying to prosecute
for Texas Norma McCorvey.
You would think they'd be at loggerheads.
Marshall asked Floyd, "Define for me
"the line between life and no life."
Floyd says, "Impregnation."
Marshall says, "Is there scientific data
"to support that?"
Floyd answers, "There are
unanswerable questions
"in this field."
Marshall says, "I appreciate that."
Floyd apologizes, "Have I
made an artless statement?"
Marshall dignifies him and says,
"I withdraw my question."
Floyd says, "Thank you."
And then he says, "When does the soul
"come into the unborn, if
you believe in the soul?
"I don't know."
To me, there's a startling moment
of interactivity and respect
between lawyer and judge.
Candor may not have decided that issue.
Or better known, what better exchange
between a lawyer and a former judge
than the one that
occurred on June 9, 1954?
And who was present?
Who was present, June 9, 1954?
First Senate hearing nationally televised.
- Who was president?
- Who was present, present there?
- [Woman] Norman.
- Norman Dorsen.
- Ah, oh.
- Out of law school.
You all know what happened.
Senator McCarthy had
just accused Fred Fisher,
a young lawyer who was working
in the firm Hale and Dorr,
that Army lawyer Joseph Welch had.
Welch interrupts him.
"Give me your attention."
How wonderful.
Lawyers can do that.
Arthur Liman could do that.
"Give me your attention."
McCarthy, talking to Roy
Cohn, his chief counsel,
parries insultingly, "I can listen
"with one ear and talk."
Welch interrupts.
"This time, I want you
to listen with both."
(audience laughing)
Again, the brilliance
of cross-examination,
lawyer's strength.
Trying to evade,
McCarthy accused Welch of baiting Cohn.
Again, an adept lawyer, Army lawyer
Joseph Welch, turns to Cohn right away.
Ignores McCarthy.
"Did I do you any personal injury?"
"No, sir."
"I meant to do you no injury?"
"No, sir."
Nails down that fact.
That's when he turns back to McCarthy
and says, "Senator, you've done enough.
"Have you no sense of
decency, sir, at long last?
"Have you no sense of decency?"
Okay, go back much
further, three times, 1776.
Wasn't the question
do we sever from England?
We can all practically
recite, as if it's poetry,
our forebears' answer.
Yes, present-tense advocacy.
We can all recite it.
"Let the facts be submitted
to a candid world.
"Here are the injuries and usurpations
"that equal tyranny."
They use present-tense advocacy.
We know the list of injustices.
12 years later, 1787.
What's the first question
that Madison records
that the Framers focused
on in Philadelphia?
Can we rewrite,
or do we just have to revise?
The Continental Congress
commission was explicit.
You are there "for the sole
"and express purpose to revise."
But the Framers, adept
lawyers as they were,
they seized on an antecedent past,
the legal axiom, and
it's in Madison's notes,
that we're free to, quote,
"conclude nothing, propose anything."
Clever lawyers, and that's when they
proposed the national government,
transmitted that by
letter back to Congress.
Finally, November 19, 1863.
Our country's greatest lawyer
giving homage to the
carnage at Gettysburg.
He asks all of us, "How can a nation
"dedicated to the proposition that all
"are created equal, long endure?"
What pathos he must have felt,
asking that question where 50,000 soldiers
had died in what is
still the largest battle
ever in this continent.
He says, "The future has the answer,
"so that government of,
by and for the people
"shall not perish."
But if you look at his three paragraphs,
each one is advocacy in a different tense.
The first one, he begins with the past.
"Our fathers brought forth
"on this new nation, conceived in liberty,
"dedicated to the proposition."
Then the second paragraph,
the anguished present.
He's a lawyer using all three tenses.
"Now we are engaged in a great civil war,
"met on a great battlefield
"where soldiers gave their lives."
And finally, the future.
"We have unfinished work.
"The great task remaining before us
"is to give increased
devotion to the cause
"for which they here gave
their last full measure
"of devotion, that these dead shall not
"have died in vain, so that our government
"stays one of, by and for the people."
This says that I'll talk
about Judith Shklar.
(laughs)
And I will, because like Arthur Liman,
when I'm invited to talk at a law school,
I'm always gonna finish giving credit
to the people that taught me.
So to express my gratitude,
many of you won't know
who Judith Shklar is,
and I won't tell you
much, except to tease you.
Well, I like to quote
"Breakfast at Tiffany's."
Audrey Hepburn says,
"Anyone who ever gave you confidence,
"you owe them a lot."
Well, she gave me confidence.
Judith Shklar is someone
who survived World War II.
She fled across Russia
and became the first woman
head of the Government
Department at Harvard.
And I was fortunate to
write my thesis with her.
All I'll tell you is
she wrote a little essay
I hope you all read.
The essay's entitled
"Putting Cruelty First."
And she asks the question, "Why don't we?"
Now, you have to read her essay
to understand her sophistication
and her personal answer to why
we don't put cruelty first.
But the answer I've tried
to offer you tonight,
especially teachers at a school
like NYU, is that we do put cruelty first
when we train lawyers to use the past,
the present and the future
to write the decisions that judges write,
and to continue to write our Constitution.
When you train lawyers that can do that,
the Constitution will stay eclectic,
stay strong and keep growing.
And we also put cruelty first
when we train lawyers to be able
to stop cruelty the way
that Army lawyer Welch
stopped Senator McCarthy.
Thank you.
(audience applauding)
(Steve speaks too low to hear)
- So there's a reception.
Judge Higginson has given
us a lot to think about.
We can think about it again
because it's on YouTube.
(audience laughing)
At this point, Norman would say
who the next speaker is next year,
and it is Bernice Donald
of the Sixth Circuit
will be our Madison lecturer next year.
Thank you all for coming.
(audience applauding)
