[APPLAUSE] RICHARD LAZARUS: It
is my great pleasure to welcome everyone
to Sanders Theater for opening event of this
bicentennial celebration. Mr. Chief Justice, Justice
Kennedy, Justice Breyer, Justice Kagan, Justice
Gorsuch and Justice Souter, President Faust, Dean Manning,
faculty colleagues, alums, current students. With a special shout out,
of course, to section 5. 200 years is indeed a
long time by any measure. Here are a few that
underscore its length. When Harvard Law
School was founded, the President of
the United States was James Monroe, having
just succeeded James Madison a few months before. The Chief Justice
was John Marshall. Henry Clay was the Speaker
of the House presiding over the 14th Congress, which
did not meet in the capitol because the British had
burned it into a ruin in 1814. There were only 19 states
in the United States. Indiana was the far west. Abraham Lincoln
and Charles Darwin were both eight years old. And neither Thomas Edison
nor Alexander Graham Bell had been born. In 1817, Harvard
Law School was not the only radical experiment. So, too, was the United
States, including its constitution and the
aspirations of its framers for a more just society. When in 1817 Harvard Law
School opens its doors, which was actually just a
few hundred yards away from this beautiful spot
here in Sanders Theater, it boasted six students
and two faculty. Approximately 59,998
graduates later-- and I counted-- there are at
Harvard Law School just shy of 2,000 students in
attendance from 76 nations, including 1,700 JD students. There are more than 100
full-time tenure/tenure track faculty, joined by
professors from practice, clinical faculty, teaching
Fellows, lecturers, and visiting professors. More than 300 teaching
faculty overall, offering each year more
than 550 different courses. While much has changed,
one fact happily has not. In 1829, one justice
on the Supreme Court served simultaneously on the
Harvard Law School faculty. Justice Joseph Story, who
taught five courses here. Today, too, we can
proudly claim one justice on our faculty, our
former colleague and spectacular former
dean, Justice Elena Kagan-- [APPLAUSE] --who offers a course each fall. Of course, if others
are interested, I expect we can make it happen. [LAUGHTER] It is now my privilege
and great pleasure to introduce another
historic figure. Not only a teacher and
brilliant scholar of history, but someone who
herself made history. The most wonderful, the most
extraordinary 28th president of Harvard University,
Drew Faust. [APPLAUSE] DREW FAUST: Thank you, Richard. And thank you for
all the work that has gone into planning
this extraordinary day and this extraordinary
Bicentennial. What a pleasure it is to
mark Harvard Law School's 200th year. Thank you all for this and
deeply inspiring and meaningful celebration. Now, as I look out on this
distinguished gathering, it is hard to
picture an afternoon two centuries ago when
Harvard Law School was that bold new experiment
with a grand total of three rooms, two
professors, and six students. Or to imagine that 10 years
later, that experiment had yielded one
remaining faculty member and a single student. The direction was
not encouraging. But things got better,
sometimes in unforeseeable ways. A few weeks ago, we launched
this bicentennial celebration by memorializing some 60
enslaved laborers, whose work enabled the founding
donation for the first Harvard Law professorship. Who among them could have
pictured abolitionist Charles Sumner, class of 1834? Or Barack Obama, class of 1991? And who, in 1944,
could have predicted that the same institution
that denied admission to the brilliant
Pauline Murray-- not because she was black,
but because she was female-- would in 2017 elect a female
and African-American law review president and the law review's
first female majority? [APPLAUSE] Justice Oliver
Wendell Holmes, Jr. said it is never easy to
be a stronghold of ideals, to keep the faith that
sets us to an endless task. Especially in the law,
where-- as he put it-- we may wear our hearts out
after the unattainable. Yet from its earliest
days, Harvard Law School was impelled by a new idea
of what the law could be. Not simply a craft, but a
broadly and deeply educated profession. When Chief Justice Story arrived
in 1829 to rescue the young law school, he told his students
that the perfect lawyer must make himself familiar
with every subject of study. He must search the human heart. Of course, they're
all hes at this point. Explore every emotion, from
the sources of sympathy and benevolence to the
cunning arts of the hypocrite. He must understand history
and literature and policy and religion and nature. Nothing was irrelevant. Over time, story
told his students the lawyer would come to
know humanity as it is. And while learning
to trust men less, a lawyer might also learn to
love men more and become-- and I quote him again-- more wise, more candid, more
forgiving, more disinterested. This last quality especially
animates Harvard Law School. Disinterested to Justice
Story, of course, did not mean indifferent
or lacking in passion. Quite the opposite. Disinterestedness
is the quality that allows us to engage fully, to
argue forcefully, and listen generously without
taking offense. To come alive through
the clash of ideas and find friendship
and even common purpose over divergent views. The law teaches us
how to disagree. As Justice Scalia
often commented, if you take it
personally, you're in the wrong line of work. Or as Chief Justice Roberts
quipped in a unanimous Supreme Court decision, FCC
v. AT&T, I hope AT&T doesn't take this personally. That line, the closing sentence
of a 12 page opinion on why corporations as persons
nonetheless cannot take things personally. That line is further evidence
that Harvard produces not only the greatest
number of Supreme Court justices, but the most
thoroughly entertaining ones. Now, if the law represents
a disinterested intellectual search for solutions
to complex problems, it is also a moral quest
to promote equality, expose corruption, advance
fairness, preserve liberty, check the arrogance of power,
and defend unalienable rights. Today we celebrate that
public spirit and its legacy. Harvard Law School is
unsurpassed in educating leaders in the highest
echelons of public life across the United States
and around the world. It has trained heads of state,
legislators, business leaders, educators, not to mention its
share of generals, novelists, spies, artists, producers,
musicians, and Olympians. And that in addition
to educating six sitting US Supreme Court
justices, so many of whom are here with us today. We celebrate an institution,
not only for its preeminence but as a powerful
force for change. The place where Louis Brandeis
shaped a constitutional right to privacy. Where Charles Hamilton
Houston prepared to do battle against
racial segregation. And where a whole host of
people, beginning in the 1980s, helped to lay the
groundwork for what is now a constitutional
right to same sex marriage. We celebrate a
remarkable faculty that, over the course
of two centuries, has dominated American
legal literature and developed whole new
forms of legal education. A faculty that takes on
society's most confounding legal and moral challenges and
leads and inspires students in 31 clinical programs, from
criminal justice to cyber law. And we celebrate the students,
who master their coursework while running
influential journals and contributing
hundreds of thousands of hours of pro
bono work each year. They help low
income clients close to home and around the world in
the nation's oldest student-run Legal Aid Bureau. They defend human
rights and advocate for tenants and
refugees, students and religious
minorities, and thousands of returning veterans. They fight for economic justice
and humanitarian disarmament, including a nuclear
weapons ban with a partner organization that has just
won the Nobel Peace Prize. No school can accomplish all
this without great leadership. The former deans
here with us today-- Deans Clark and
Kagan and Minow-- are a testament to a
remarkable succession. And I want especially to
thank Martha Minow, who just last June completed eight
years of outstanding service that brought
Harvard Law School-- [APPLAUSE] There she is. [APPLAUSE] Martha's deanship
brought the law school into its 200th year a stronger,
more diverse, and more public spirited place. Which brings me to
the dean who is now leading Harvard Law
School into its next 200 years, John Manning. As I'm sure you know
by now, Dean Manning exudes a warmth
and kindness that might even soften the veneer
of Professor Kingsfield. [LAUGHTER] He often beams as if on the
verge of discovery or delight. An eminent scholar,
he's known for not taking himself too seriously. He recently told an
entering class of 2020 that when he was a 1L, and a 3L
asked a group of new students if they wanted to
become litigators, he sat there wondering
what a litigator was. Beyond his openness and
his magnetic enthusiasm for the law, he's a
great collaborator. As a teacher he is encouraging,
eager to be challenged, striding the length and
breadth of the classroom to involve everyone. In his ability to connect
the diverse voices so vital to advancing the law, in
his commitment to innovative teaching and a wide range
of perspectives and methods, I cannot imagine in a fractious
and often frightening world a more timely leader in the law. But before I give
you Dean Manning, I'd like to make one
final observation. When Justice Holmes was
in his 80s, and still an Associate Justice
on the Supreme Court, he commented in a letter to a
friend that age is relative. 90, he wrote, was old. But at age 87, he avowed
that he was only nearly old. Now, a law school
we know perhaps can't take things personally
any more than can a corporation. But on this auspicious
anniversary, the notion of being
nearly old would seem a useful perspective. As novelist Rachel
Cusk recently put it, I don't feel I'm getting
older, I'm getting closer. Let us celebrate Harvard Law
School not for getting older, but for getting closer. Closer to reason,
closer to justice. Aspirations of the law that
are among civilizations' most precious gifts. Thank you very much. [APPLAUSE] JOHN F. MANNING: Thank
you, President Faust. Thank you for your unwavering
support of our law school. And thank you for all that
you've done over the past 11 years to make us one Harvard,
to make this university intellectually livelier,
more entrepreneurial, more inclusive, and even more
exceptional than it was. That was a very tall order. And you've done splendidly. And we're very, very grateful. So, thank you. [APPLAUSE] I also want to acknowledge
and thank my dear friends and predecessors. Dean Clark-- [APPLAUSE] Dean-- I guess
now we're supposed to call her Justice Kagan. [APPLAUSE] And my dear friend, Dean Minow. [APPLAUSE] All of them did
amazing work to make a great law school even better. And let me say a special
thanks to Dean Minow, Professor Lazarus, Nancy Boccia,
and all of the members of the Bicentennial committee
and the Bicentennial staff for planning a truly splendid
bicentennial celebration. So thanks to all of you. [APPLAUSE] Now, I want to say something
at the outset, which is I am acutely
aware of the fact that I am all that is
standing between you and the Chief Justice of
the United States and five other alumni who also happen
to be Supreme Court justices. So I will be brief. I'm just going to
take a moment here to talk about the alma mater. Now I don't like to brag, but
I do love this law school. And if there's
ever a moment when it's OK to wear
the crimson pride, this is it, on our bicentennial,
our 200th birthday. In fact, in a funny
way, I think it's especially important to indulge
that impulse in this crowd. Because if you've been
associated with Harvard Law School long enough, it's
very easy to take for granted just how exceptional
this place is. So perhaps you've noticed that
we have here in the audience six Supreme Court
justices who graduated from the Harvard Law School. What you may not know
is that more than one in every six people who ever
sat on the Supreme Court attended Harvard Law School. And that includes some
folks named Holmes and Brandeis and Frankfurter. Now add to that roughly
one out of every eight attorneys general and about one
in seven solicitors general. And remember for that
about the first 100 years, these folks didn't
even go to law school. And so, that number is
even more impressive. And then throw in, for good
measure, countless cabinet officers, senators,
representatives, governors, mayors, diplomats, judges
on state and federal courts. And you may want to
remember also a couple of presidents and a first lady. And that's just
the United States. Add to them the heads of
state, ministers of justice, judges, legislators
throughout the entire world. And then there are the
great innovators here and around the globe in private
practice, public interest, entrepreneurship, finance,
tech, nonprofits, education, and even the arts. Our alumni are leaders in area
after area, field after field, year after year. And now we can say,
century after century. And then, don't
forget the many ways in which this law school
has contributed to the sum total of human knowledge. Don't forget the
very, very big ideas that have been generated here. If you account for our
graduates and our faculty, Harvard has played a pioneering
role in little things like the idea of judicial
restraint, the field of federal courts,
the legal process movement, critical
legal studies, even modern textualism. [LAUGHTER] That was not supposed
to be a laugh line. [LAUGHTER] What's so cool about all of
this is that if you step back, you'll quickly see that Harvard
lawyers are often the leading voice on all sides of
the important issues that the society
and the world face. This is true, by the way,
in scholarly debates, in judicial debates,
and sometimes, even in presidential debates. If you just think about
the century alone, our graduates have
been on the tickets of not only the Democratic
and Republican parties, but also the Green Party. And if you're willing to count
vice presidential nominees-- and I think we should-- the Libertarian Party, too. You've really just
gotta love it, right? So so how do you
explain all this? So one possibility is this. Maybe because of the history
and tradition of this place. Our students, our
faculty, and our staff feel that sense of mission. I know that our
students come here with very high
expectations of themselves. They are ambitious in
the very best sense. It's in the air as
soon as they get here. They want to do something big
and important with their lives. So they think deeper, they read
more, they stretch themselves, they take risks. They just plain work harder. On any given Saturday
night, you will still see the reading room in
Langdell full of our students. Our students want
to change the world. They want to pursue the best
ideals of law and of justice. And that's what they do. OK, here's maybe
a second factor. Harvard has done something
really improbable for many, many, many years. It has been able to be
very grand in scope, truly excellent,
and really diverse along many, many dimensions. As Dean Kagan used to say-- I think to the chagrin
of Bostonians-- Harvard is the New York
City of law schools. A lot of New Yorkers here today. OK! [LAUGHTER] And it's true. If you come here, you'll
find every subject, approach, methodology,
ideology, and perspective. You are sure to find really
smart, really committed people who disagree with you,
who look at the world differently from you, and who
challenge your assumptions about everything. Our entire profession is
based on the idea that hearing all sides,
that confronting the very best
arguments against you will make you a
better lawyer and will bring us all closer to truth
and knowledge and understanding. And for that reason,
there is no better place on earth than Harvard
Law School to learn to be a great lawyer
and a great leader. [APPLAUSE] Now, I promised to be brief. And so, I'll close here. And I want to close
on a personal note. The reason I love Harvard Law
School, really love it, is I bet the same reason
that many of you do. I was the first in my immediate
family to graduate from college and the first to
go to law school. And Harvard Law
School has enabled me to live dreams that
neither of my parents, nor their parents, nor theirs
ever could even have imagined. And that is something
very special that this law school
does for our students, year in and year out,
generation after generation. And it is our job,
our obligation, our duty in the next century
to make sure that continues. May it always be so. And now, the fun part. I'm going to introduce the six
justices of the Supreme Court who are present. And I'm going to introduce them
by their Harvard Law School class. So we will begin with
Harvard Law School class of 1991, Justice Neil Gorsuch. Please come on up. [APPLAUSE] Harvard Law School class
of 1986, my friend-- and I still think
of you as my dean-- Justice Elena Kagan. [APPLAUSE] Harvard Law School class of
1966, Justice David Souter. [APPLAUSE] Justice, thank you so
much for being here. JUSTICE SOUTER: No hugs? [LAUGHTER] JOHN F. MANNING: It's
OK, Justice Breyer. [LAUGHTER] I have regained my composure. Harvard Law School class of
1964, Justice Stephen Breyer. [APPLAUSE] Harvard Law School class of
1961, Justice Anthony Kennedy. [APPLAUSE] And now, it is
with great pleasure that I introduce my dear
friend and former boss, whom I've known for many years,
who has been a dear, dear friend and a mentor to me. He is a spectacular lawyer and
a modest and careful judge. He is Harvard Law
School class of 1979, the Chief Justice of the United
States, John G Roberts, Jr. [APPLAUSE] CHIEF JUSTICE ROBERTS:
Thank you, President Faust and Dean Manning and
Professor Lazarus for welcoming and extending
a great, gracious welcome to the Supreme Court
of the United States. A minority of my colleagues
send their regrets. [APPLAUSE] We have come a long way
since the sesquicentennial celebration of the founding
of the Harvard Law School. At the gathering to commemorate
that 150th anniversary, one of the jewels in
the school's crown, Judge Henry J. Friendly,
introduced another jewel, Justice William Brennan. Justice Brennan
was, at that time, the only Harvard graduate
on the Supreme Court. Judge Friendly pointed out
that fact, noting, quote, "while the Harvard Law School
has furnished many graduates to the court, it has
rarely had many incumbents at any one time." He added, "unlike
another school, which today shall
be nameless, Harvard does not need numbers to
make her influence felt." Now, I am sure that
that remains true today. But why take a chance? [LAUGHTER] [APPLAUSE] The Harvard justices who
preceded those on this stage-- from Joseph Story
to Antonin Scalia-- have had an oversized
influence on the law. Consider the great 20th century
Harvard jurists, Holmes, Brandeis, Frankfurter,
Learned Hand. I include Hand, even though he
did not serve on the Supreme Court, because he should have. These great jurists were
different in many ways, but when you examine their
judicial and extrajudicial writings, two common related
themes come to the fore. The central importance
of the free exchange of ideas to both
democracy and law and the need for intellectual
humility to ensure the exchange is meaningful. First, the free
exchange of ideas. It was Holmes who said, we
should be eternally vigilant against attempts to check
the expression of opinions that we loathed. Brandeis, that public
discussion is a political duty. Frankfurter, that truth cannot
be pursued in an atmosphere hostile to the endeavor. And Hand, that the mutual
confidence on which all else depends can be maintained only
by an open mind and a brave reliance on discussion. You could jumble up the
quotes and the speakers, few listeners
would be the wiser, and none meaningfully misled. Second, humility. That is perhaps
not the first word you think about
when you're talking about the Harvard Law School. But as for
intellectual humility, it was Holmes who
said that, to have doubted one's own
first principles is the mark of a civilized man. Brandeis, that one bows to
the lessons of experience and the force of
better reasoning in the judicial function. Frankfurter, that the
indispensable judicial requisite is
intellectual humility. And Hand, famously, that
the spirit of liberty is the spirit which is
not too sure it is right. It is the spirit which seeks
to understand the minds of other men and women. Debate and doubt,
not doctrine, are what our school, at
its best, teaches. It is also how it teaches. Again, at least, at its best. What is the Socratic method,
after all, but discussion designed to sow doubt
in order to develop insight and understanding? It is hard not to
believe that the shared educational experience of
Holmes, Brandeis, Frankfurter, and Hand, just nearby,
contributed significantly to their shared belief in
the value of free debate and intellectual humility. I am happy to report that these
values characterize the work of the current Supreme Court. We go about our business
with a full reservoir of mutual respect,
a uniform commitment to discussing the
cases in conference in a spirit of collegiality,
and sufficient doubt about our own
infallibility to make those discussions pertinent
to the decision process. It takes restraint to
listen rather than speak, to consider rather than dismiss,
to follow new wisdom rather than familiar doctrine. But we know from the words
presidents of Harvard use in conferring law degrees
that wise restraints can make men free. It is reasonable to expect that
the Harvard Law School will be around in another 100 years. That will be cause
for celebration if the school remains
faithful to its core values of debate and doubt. Thank you very much. [APPLAUSE] Thank you, Steve. Thank you. JOHN F. MANNING: Thank
you, Chief Justice Roberts. So now, we come to the
question and answer period of our afternoon. And so, here's how I
thought we would do it. Since there are
six of you, I think I'm not going to ask
all of you to respond to each one of these questions. But I might pose a question
and ask one or two of you to respond. And if others of
you want to jump in, because you find it
particularly interesting, enticing to answer this
question, please jump in. I'm going to cover
three rough areas. And then we're going to
have a lightning round. And so, the three areas
are your legal education, and then the next is your
professional development, and then life on the court. And then the lightning round is
what I hope will be fun facts. OK, so we're going to start-- as we should-- with question 1. [LAUGHTER] JUSTICE KAGAN: Good idea. JOHN F. MANNING: So
here's question 1. So there are many one
else in the audience and many people who were
1Ls, including all of you. So what was 1L like for you? Did you like it? How did you feel about being
called on, Socratic method, any thoughts? All right, so, Justice Kennedy? JUSTICE KENNEDY: Well,
law professors say, we teach you how to think. My wife was a third
grade teacher, she teaches people how to think. Law school teaches you to
think about ordinary things in a formal way. And after two
weeks of contracts, I went down to Cambridge Square
and Harvard Square and it said, apples, $0.10. So I gave the guy a dime
and took two apples. And he said, no, no, no. I said, well it said apples. He said, are you
a law school guy? [LAUGHTER] JOHN F. MANNING: Sounds
like textualism to me. [LAUGHTER] Thank you. Thank you, Justice Kennedy. Justice Gorsuch, you were most
recently a 1L of any of us on the stage. JUSTICE GORSUCH:
Sitting here today brings back memories
of the first day of 1L. I don't know whether
it's still done, but the dean addressed the
first class in this very room. JOHN F. MANNING:
It's still done. JUSTICE GORSUCH: Still done. Dean Vorenberg at
the time, followed by Dean Clark, who served
when I was at law school. And I remember that day
very vividly right now. It's amazing how
quickly the years pass. I was scared to death. JOHN F. MANNING: And how
long did that stay with you? JUSTICE GORSUCH:
I'll let you know. JOHN F. MANNING: Anyone
else have memories of 1L? JUSTICE KAGAN: I got called
on my very first class. I was the first
person in my section who was called on
by Abe Shays, who raked me over the coals some. And, of course, I came out
and I thought, oh my gosh, I was terrible. And now everybody
knows I'm terrible. But it was the best thing that
happened to me, because it just got it over with quickly,
that feeling of, OK, the worst has happened. And now I can sit back
and relax a little bit. No, I won't be called on in that
class at least for a few days. But mostly I just feel as
though there was just-- there was nothing
to dread anymore. JOHN F. MANNING:
And were you right? [LAUGHTER] OK, I'm going to move
on to the second-- [LAUGHTER] I'm going to move
on to question 2. So I hope this is not
a compound question. Was there a professor or a
course at Harvard Law School that you particularly loved
or that you found particularly inspirational? Justice Breyer? JUSTICE BREYER: Legal process. JOHN F. MANNING: I knew it! JUSTICE BREYER: Al Sacks. There it is. I mean, people say that,
you want to know what a justice of our court thinks? Ask who his professors were. I found in that course,
that's the way it is. Have I changed my mind since? Never. JOHN F. MANNING:
Was it the course or the professor or both? JUSTICE BREYER: No,
it's the course. And it is the course,
reasoned elaboration on the common law side,
the reasonable legislator a construct on the
interpretive side. And there it is. I mean, I have to list-- as
a professor combined with course-- Jack Dawson, Contracts. Great course. Abe Shays was pretty good! He gave me the best question
I ever asked in class. Want to know what it is? CHIEF JUSTICE ROBERTS:
On the last day! You see what we go through? JUSTICE BREYER: OK, at the--
in my anti-trust class, I think, I was teaching. He had his daughter,
she was seven. And Chloe came into
the back of the class, it was a pretty big class. So we were preparing
for the exam and I was asking some questions
that might be on the exam, might not. And finally, I
said, well, what was the-- it was a case involving
restraints on alienation, I think from 1782. And I said, what was the
year that was decided? Of course nobody knew. I said, you're not--
you're prepared for class and you don't know what
year that case was decided? My God, that's an easy question. A child of seven could
answer that question. Is there a child of seven here? Chloe, I'm a child of seven! 1782! And I left the class. That was [INAUDIBLE]. [LAUGHTER] There we are, that was
law school in those days. I mean, that was a-- JUSTICE KAGAN: Can I just say
who my favorite professor was? It was my anti-trust
professor, because you just heard from him. [LAUGHTER] [APPLAUSE] JUSTICE KENNEDY: I had Professor
Henry Hart at 12 o'clock. We called it darkness at noon. [LAUGHTER] He was he was a very popular
professor, but very difficult. He'd say, and now
that principal-- no, that can't be. And we'd sit waiting. JOHN F. MANNING:
Mr. Chief Justice? CHIEF JUSTICE ROBERTS:
Well, Contracts was my favorite course,
because Phil Areeda taught it and he was my
favorite professor. He was a master of
the Socratic method. Not in the way-- the paper chase, grilling
students or embarrassing them. But he really would engage
you firmly, not gently. But for the purpose of
getting information out. And he would bring the
whole class into it. It wasn't picking on one
person for the whole day, but was jumping around. And it was invigorating. So I think he was a
master of that craft. And it was not an
easy craft to master. JOHN F. MANNING: Justice Souter? JUSTICE SOUTER: I guess I
would give a two part answer. The first year, my first year
was also the first year-- and respectively, I
think the third year-- for two absolutely
superb teachers who are still teaching. One was Charles Fried and
one was Frank Michelman. [APPLAUSE] We knew what we had
with the two of those. The reason it's a two part
question and two part answer is that there's a
separate category, and that is the category
of the old timers and the stellar old
timer in my law school years with Paul Freund. [APPLAUSE] I had actually taken a course
with him in the college and I knew that I wanted to
take another course with him. And one of my great
disappointments was that when I
got second year, I did not get in his
constitutional law class. But I had better
luck the third year, because I got accepted into his
seminar, a year-long seminar on constitutional litigation. And I did not see it
necessarily-- or at all, for that matter-- as sort
of a presage to the future, but it kind of
turned out that way. But he was basically a
source of general culture, as well as the subjects
that he was teaching. I mean, you heard as much from
Wallace Stevens and Shakespeare as you did from some judge. And he used to teach by telling
the most wonderful stories. And when you brought
that question up, I thought, gee, I'd like to--
can I tell one of the stories? JOHN F. MANNING: Of course. JUSTICE SOUTER:
It's not too long. I don't remember what
the occasion for this was in the seminar,
but he told a story about William Howard Taft. And he reminded us or told
us that between the time the Taft was
president and the time that he became Chief Justice
of the United States, he taught at Yale Law School. And Taft was a was a was a
great lover of college football. And whenever there was a-- Yale was playing in New
Haven, he was there. He had a season ticket,
or actually more. And Mrs. Taft didn't share his
pleasure, but he went alone. But he, at that time, I
think weighed 340 pounds and he couldn't
fit into his seat. So because he was a fair
man, he bought two tickets, because he was
occupying two seats. Mr. Freund told the
story of Taft's arrival for the game one
day in New Haven. And he got to his section
and he handed the two tickets to the student usher. And the usher was perplexed. And he said, but you've
given me two tickets, sir. He was looking around. And Taft said, well,
yes that's right. He said, the reason is that
I, in fact, occupy two seats. And I think it's only fair
that I should pay for them. And the usher said,
but sir, these are on opposite sides of the aisle. And at that point,
Paul Freund took over. He said, I would like to think
that with Chief Justice Taft's great negotiating
ability, that he would have resolved the
problem by turning first to his neighbor on the
right and convincing him to use the left hand
seat during the first half. And during the half
time break, that he would have turned to
his neighbor on the left and persuaded him to occupy
the seat on the right. He said, that way, you see,
everyone could see the game. And each one would see it
from a different perspective. And he said, difference in
perspective and the capacity to appreciate it
is very important. [LAUGHTER] [APPLAUSE] JOHN F. MANNING: So
apart from the fact that you're all
Supreme Court Justices, you've had very
interesting careers. So, many of you
were circuit judges. One of you was a state
Supreme Court Justice. Several of you worked in
the Justice Department. A couple of you worked
in the White House. Several of you worked
in private practice. One of you was chief counsel
of a Senate committee. Lots and lots of different
kinds of experience. So what was the
professional experience that you had that best prepared
you for the Supreme Court? Justice Breyer? JUSTICE BREYER: I don't
know if this prepares you for the Supreme Court. But I think the thing it
does-- nothing prepares you for the Supreme Court. Harry Blackmon said,
you're going to find this an unusual assignment. But the thing that I
thought in life, when I worked for Senator Kennedy-- in professional life-- I learned a lot from him. And I'd say the thing that
sticks most is you often have a choice in life. Do you want the credit or
do you want the result? And he would say,
credit is a weapon. And listen. And when you see somebody saying
something that you can use, listen. What a good idea you have. And then you get together. And then, something happens. And if it it's good, there's
plenty of credit to go around. And if it's bad,
who wants it, OK? That's what he said. And therefore, it
was the other senator that he'd push out
to the newspaper. That's right. And therefore, he
got the result. And I think whatever
your profession, whatever your profession, if you're going
to work with other people, that was something I
learned and I thought was valuable in whatever
my future career was. JOHN F. MANNING: Thank you. [APPLAUSE] Justice Kagan? JUSTICE KENNEDY: We used to be
called attorneys and counselors at law. When we graduated from the
bar, we shook each other's hand and said, counselor, counselor. Sounds maybe like a
youthful pomposity. But I was a solo practitioner,
had people that had never been to an attorney before. Did some criminal work. And it was fascinating
to me how important the counseling function was. I still miss it. I can still-- and it taught me
that behind all these cases, there's a real person. And it seems to
me it's very, very important for us to remember. All those law books, Holmes
said that the law books are the story of our moral life. And behind every one of those
cases, there's a real person. My office was not far from the
Capitol Park in Sacramento, one the most beautiful
parks in the country. Sometimes clients would come. And the question is, what would
we do with a criminal charge or with a business problem? And we'd go through it and
say, well, what should I do? I'd say take a walk in the park. Come back a half hour later
and tell me what to do. And a few years ago, back in
Sacramento, somebody still came up to me, said, I still
remember that walk in the park. So we have to remember that
the law relates to people. And that's, it seems to me, what
helps me think about the law. [APPLAUSE] JOHN F. MANNING: Justice
Kagan, what was your-- JUSTICE KAGAN: Well,
I guess the job I had that most
obviously prepared me for the court was the job I had
right before the court, which was Solicitor General. Because all that the
Solicitor General does is think about the court. And the court's procedures,
the court's docket, the way the court
makes decisions, who's on the court, how they
think, how they interact. So sometimes it did
seem as though all you did as Solicitor General was try
to figure out how to persuade the nine justices of the court. And now I think about how
to persuade eight justices. [LAUGHTER] JOHN F. MANNING:
You're wasting four. [LAUGHTER] JUSTICE KAGAN: But in
a less obvious way, I will say that I think that the
thing that I think about most, in terms of my own
professional background, is actually teaching. Not deaning, not
scholarship, but teaching. Because a lot of what
we do when we sit down and we craft opinions,
what we're trying to do is explain really
complicated things to people who are interested,
who want to understand them but don't necessarily have that
knowledge right then and there. And these are really
complicated concepts often. And how do you explain
something to people who want to learn
about it, who want to understand why the court
is doing what it's doing? I think it's a lot like what I
used to do when I would think about preparing for a class. I would come into my
office and I would think, there are going to be 100
students sitting out there. And they're smart and they're
eager and they're interested, but they don't know a whole lot. And how do I explain all these
complicated things to them? And what I learned when I
tried to do that at Harvard was also what I try to do
on the Court when I sit down and write. JUSTICE KENNEDY: We write in
order to inspire allegiance to the result. JOHN F. MANNING:
Chief Justice Roberts? CHIEF JUSTICE ROBERTS:
Arguing in the court. Not so much for the
solicitor general's office, but for private clients. I argued about half of my
cases for the government, half for private clients. And I was very proud to
argue for the government, in essence to stand up in
the Supreme Court and say, I speak for my country. But it was when I was
representing a private party that, frankly, I truly came to
understand what the rule of law was. Because to my right, where the
Solicitor General always was, was the representative of
the most powerful force in the world, the government
of the United States. And I had a client,
whether it was an individual, an
association, a company, and that most powerful
force in the world wanted to do
something my client. And all I had to do was
convince five lawyers that the government did not
have the right to do that. And I won. And it just struck me
that that is amazing, that being able to convince
five lawyers and the most powerful force in the
world would receive. And that's where
I get a real sense of what people mean when they
talk about the rule of law. JOHN F. MANNING: Justice
Gorsuch, you spent a fair bit of time in private practice. What was the most influential
pre-Court piece of your career? JUSTICE GORSUCH: Can I
go a little sideways? JOHN F. MANNING: Sure. JUSTICE GORSUCH: I want
to associate myself with Justice Souter
and recognize Professor Fried as a major influence. I don't know where he is. [APPLAUSE] He was a generous
teacher, a demanding one, full of stories
of public service. Inspiring in that way. And also a beautiful
philosopher. His book, Right and Wrong,
stands the test of time for me. I assigned it every year
to my students in ethics at the University of Colorado. So The Lawyer as Friend
captures the spirit of our profession to me as
well as anything I'd ever read. So to answer your question,
it's very hard for me to isolate any one
portion of my career, whether it's having been
an appellate judge for 10 years, which is a little
bit like this job, though as Justice
Breyer said, this is the most unusual assignment. Private practice,
very important, too. And Department of Justice,
all of those things. But if I were to
single out one thing, there is a friend
of mine who teaches at the Oklahoma City
University, he's the dean there. He's a professional
responsibility scholar as well. He did a study and found
that most young people-- everything you learn
is great in law school. And it's very important. But we often
imprint very heavily and get our professional
sense of responsibility from the first boss we have. And we take on a lot
of what we learn. And in that, I am the
luckiest man I know. The luckiest man I know. Not only did I have Byron
White, I had Anthony Kennedy. [APPLAUSE] He is rightly regarded as a
model of judicial temperament and civility in our profession,
in a time when we need both. And I am very, very lucky
to have started there. So that's my answer
to your question. JOHN F. MANNING:
That's a good answer! [APPLAUSE] JUSTICE KENNEDY:
You didn't always do what I told you to do
when you were my clerk, you better start doing it. [LAUGHTER] JOHN F. MANNING: Justice
Souter, you are-- you were the only member of
the panel who served as a state Supreme Court justice. Do you think your service on
a state court shaped the way you think about-- have thought about your
role as a federal judge, as a Supreme Court Justice? JUSTICE SOUTER: I
think the answer is yes, but not probably in
the sense that you had in mind. I think the most
valuable experience that I had as a
state court justice-- and, for that matter, maybe
the most valuable experience preparatory to being on
the US Supreme Court-- was the five years that I
spent as a state trial judge. And as a judge,
you have a capacity to learn not only about
the parties in a case, but the jurors in
a case, in a way that a trial lawyer
simply doesn't have. And one of the things-- I'll just stick to one point. One of the things that I learned
in the course of those five years was the
inestimable moral value of the jurors, judged in the
way they went about their work. I can remember being
it at bar meetings and a lawyer would say, apropos
of criminal cases, well, you say beyond reasonable
doubt, but they're going to do what they're going to do. And I found out that was wrong. And one of the things
that I did invariably, with only one or two
exceptions in five years, was to talk to the jurors after
they had decided the case. And I wouldn't tell them whether
I agreed with them or not. But I would answer
questions from them. And I would learn a lot in
the course of doing that. And I can remember
a number of times in which I would go
into that jury room after the jurors had acquitted
someone in a criminal case. And someone would say, hey,
don't get us wrong judge. We think he did it, but
beyond a reasonable doubt? Nah. They took their
jobs very seriously. And I also had experience with
a grand jury that absolutely refused to indict someone
who was absolutely guilty, because they
believed there was some kind of a political
hanky panky going on between the state attorney
general and the county prosecutor. And they didn't
know what it was, but they were not going to
put somebody in the jeopardy of a criminal case if
there was something they should know but they didn't. And it was both the
independence of the jurors and their truly punctilious
conscientiousness to follow the
instructions that kept me from ever falling into that kind
of cynicism that I described. And that certainly had
its effect on my judgment in cases that came
before me when I was on the Supreme Court. You may remember back
during the earlier stages of the war on
drugs, one of the tactics was to try to make every
significant possible issue in a drug possession
case into a sentencing factor, rather than an
element that had to be proven. And ultimately, this issue
got put before the Court. I know perfectly well,
because I was conscious of it at the time, that my respect
for the conscientiousness of the jury-- and my recognition
that they really did stand between the
power of the government and themselves, the
defendant, rather-- that the most important
consideration was not to allow anything, as a matter
of practice, to creep in that was going to dilute the value of
the guarantee of a jury trial. I wouldn't have
been that sensitive without that experience. So what I'm saying
boils down to the fact that my most valuable
experiences, for purposes of my time on the
Supreme Court, were the experiences in the
trenches as a trial judge. Seeing how things worked. JOHN F. MANNING: Thank you. All right, so here's a little
bit of an odd question. It's a little counter-factual. If you had not become
a lawyer, what do you think you would be doing today? Justice Gorsuch. JUSTICE GORSUCH: So, I cheated. I looked at these questions
before I showed up. And I had to think about
this one for a minute, John. JOHN F. MANNING: I
have no plan B, myself. JUSTICE GORSUCH: Right, right. But then it came
really obvious to me. I just thought, who do I envy? I envy fly fishing guides
and ski instructors. And better yet, somebody
who does one in the summer and the other in the winter. And I know people like that. And I really like their office
and their work environment. JOHN F. MANNING: OK, very good. Fly fishing guide, excellent. [APPLAUSE] Chief Justice Roberts? CHIEF JUSTICE ROBERTS:
Well, I would probably be hounding President
Faust to see if I could get a position
in the history department. I went to law school
because there were no jobs in any history department. And it was only after
about near the end of the first year of law
school that I decided it might be a better option anyway. But I think studying history. JOHN F. MANNING:
What kind of history? CHIEF JUSTICE ROBERTS: European. Modern European
history, which is what I spent as much time in
college studying as I could. It's not as much
fun as fly fishing. JOHN F. MANNING: Justice Kagan? JUSTICE KENNEDY: Well, the
only problem is, Chief Justice, you couldn't get into the
president's office, because I would be there
first, saying that I want to teach in
English literature and or political thought. JOHN F. MANNING: Justice Kagan? JUSTICE KAGAN: Well,
that's so funny. It's three in a row
who say we'd like to be university professors. I also majored in history. And I would have been a
history professor, I think. When I went to law
school, it was, should I go to history
graduate school? Should I go to law school? Should I go to history
graduate school? JOHN F. MANNING: And
what tipped the balance? JUSTICE KAGAN:
Possibly a little bit of what the Chief Justice said. It seemed a much
more practical route. But I think also a sense that-- JOHN F. MANNING: I think
President Faust did OK. JUSTICE KAGAN: I think
also a sense maybe that I would have found sitting
in the archives all day-- there was a sense in which I
wanted what I did to matter. And to matter in the world,
to matter to other people. And law seemed, on the one
hand, incredibly intellectually challenging. But also a way to
make a difference, which I wasn't sure being
a history professor would. JOHN F. MANNING: Anyone else? JUSTICE SOUTER: I will
just add that the two who wanted to teach
history, unfortunately would have arrived
a little late. Because I would already
have gotten the job. JOHN F. MANNING: The
competition would be very tough! Well, that just leaves
you, Justice Breyer. What would you have done? JUSTICE BREYER: I was thinking
I knew what I wanted to do when I was seven years old. What I wanted to do was
I wanted to be a baseball player in the summer and drive
a garbage truck in the winter. CHIEF JUSTICE ROBERTS:
That's a good answer. JUSTICE BREYER: Yeah! Most of us wanted
to be teachers. We all had. I mean, I had people in these
other departments saying, go to law school. Go to law school. That was a-- anyway. JOHN F. MANNING: All right,
here is a two part question. You may answer--
obviously, since you're Supreme Court Justices--
either, both, or neither. And they may be
the same question, they may be the same answer. Or they may be
different answers. So now I'll ask. So the first part is,
who is the Justice-- with whom you never served-- whom you particularly
or most admire? And who is-- this is
the second part of this, and it may be different. And who is the justice-- with whom you never served-- with whom you most
want to have dinner? Justice Breyer, you seem-- JUSTICE BREYER: First
answer is Brandeis. Practical, interested
in the facts, wants to know the
facts of the situation, understands the
principle, writes clearly, and has decent values. And I admire what
he did, absolutely. Brandeis. Second question, clearly Holmes. Holmes had deep culture. He read a lot. He knew all kinds of things. He knew philosophy. He was in that group,
what it was it? In Philadelphia, you know, with
Purse and James and the others. And he would be very
interesting to talk to on all kinds of subjects. JOHN F. MANNING: Well,
seemed like good choices and they both went to Harvard. [LAUGHTER] Justice Kagan? JUSTICE KAGAN: My first
answer is the same. The only-- you know
those bobbleheads? The only bobblehead I have in
my office is Justice Brandeis. So in addition to everything
that Justice Breyer just said, I'll say that
Justice Brandeis had, I think, this incredible sense
of history of our nation. And brought that to bear in
the way he thought about law. But the person I would
like to have dinner with, I'm going to cheat a little bit. I never served with him, but I
did spend a good deal of time with him, was Justice Marshall,
who is the greatest storyteller I've ever met in my life. The greatest raconteur
I've ever met in my life. If you're going to
have dinner with one person who's ever served in
the Supreme Court, take TM. JUSTICE KENNEDY: Thurgood
had these stories. And when a Justice retires,
we have a dinner for them. And Thurgood got up
to tell his story, and the story was that he'd
been counsel in a capital case and was going to--
in those days, they could argue
an hour per side. And the attorney that hired him
was an attorney from Alabama. And that attorney,
the boss, said that he was going to argue in
the first part of the case, and Thurgood the second. So they sat down at the counsel
table and the case was called. And Hugo Black stands
up and stalks out of the room, which is our polite
way of saying, you're recused. And so, the argument went on. And at the end of the
argument, the attorney said, now, I don't
know why Hugo did that, because he's my cousin. The case, a capital conviction,
was affirmed four to four, equally divided court Thurgood
got to work and spent two years and got the sentence commuted. But we had never
heard that story. None of us-- he was
the great raconteur. A marvelous man, and as you
know, we were very, very close. JOHN F. MANNING: And the
justice with whom you-- JUSTICE KENNEDY: Oh, I would
want to meet John Marshall. He had a vision
of a country that would be unified by this
magnificent Constitution, the Constitution that can endure
and that must endure for ages. We share something in
common, in that both of us told the presidents
we'd rather practice law than serve on the Court. But I would want to
see John Marshall. JOHN F. MANNING: Chief? CHIEF JUSTICE ROBERTS:
Well, Justice Kennedy has stolen a little of my thunder. It would have to
be John Marshall. You know, his main biography,
the biographer's subtitle is Definer of a Nation,
which is exactly what he was. He is certainly the most
significant political figure in our history who
was not president. His decisions really did
shape what the Constitution was going to mean in practice. He had a mind that could see
all of the bounds of the problem at once and then
sort through it. He was a brilliant writer. People don't realize that if
you pick up Marbury v. Madison, it doesn't read like
the late 18th century. There's no whereases
in there or heretofore. You can read it. An intelligent
layperson could read it. And he was an
extraordinary individual. His ability to
exercise influence over the other justices who were
living in the same townhouse to the force of his personality
and the persuasiveness of his reasoning
was extraordinary. JOHN F. MANNING: So
is it the same answer for both dinner and-- CHIEF JUSTICE ROBERTS: No, no. No, no. Dinner is easy. But he was--
Marshall was also, I think it's correct, the largest
individual importer of Madeira in the colonies at that time. And he served a lot of it. And anyway, dinner is easy. David has touched on it. You want to have dinner
with William Howard Taft. Not only-- he's the only
person-- of course, president and Chief Justice. He is extraordinarily
underrated, he because he is fat. And you think he can't really
be a brilliant public servant. And you know you'd get a lot
of food and it would be good. JOHN F. MANNING: Justice Souter? JUSTICE SOUTER: Well, I'm going
to become part of the trend here for saying, let's
have fun at dinner instead of getting
these serious types. And I'm not sure that you can
improve on Holmes as a dinner companion, but a later
example that I think would be pretty safe for
a good bang up dinner would have been Robert Jackson. I mean, he had the most
marvelous sense of humor. He wrote the greatest opinion
in English or American history on the subject of why
he had changed his mind. I changed my mind
once on nude dancing and I borrowed liberally
from his opinion on it. [LAUGHTER] JUSTICE KENNEDY: Keep on, David. Keep on. [LAUGHTER] I don't remember, David, which
direction you went on it. [LAUGHTER] JUSTICE SOUTER: I went in
favor of it, of course. But let's not end with that. Remember, as an example
of Jackson's wit, he was toastmaster, I think,
at a testimonial dinner honoring both Learned Hand
and his cousin Augustus Hand. And he paid great tribute to
Learned Hand's craftsmanship as a writer and to Augustus
Hand's great wisdom and common sense on
matters of substance. And he ended the toast with,
quote Learned and follow Gus. That's the kind of guy to
have at the dinner table. JOHN F. MANNING:
Justice Gorsuch? JUSTICE GORSUCH: Justice Souter
has stolen part of my thunder. I would pick Robert
Jackson instantly, as someone I would have both
loved to have served with and had dinner with. Yeah, remarkable. He didn't graduate from the
Harvard Law School or really any law school, right? JOHN F. MANNING: Then it's OK. [LAUGHTER] JUSTICE GORSUCH:
Practiced for a number of years in upstate New York. And then serves in
every important role in the administration. And then becomes a judge. And then often rules against
the administration he just left as attorney general. And recognized the
difference in function between judge and advocate. And spoke about
that beautifully, as he did what it means
to be and official of the Department of Justice,
that beautiful speech. And then, of course, Nuremberg. I mean, 20th century
life as a judge, I just think it was just such
a pity his time was cut short. And then I'll throw
on another one, because I'd agreed with
so many others that have been mentioned, but maybe
one that hasn't been mentioned was Joseph Story. Really a scholar of
the Constitution. Someone who did do it all, was a
scholar and a thoughtful judge. And the quote we heard from
the President, from his work, gives you a sense of the
man's heart and mind. And just very admirable. Capable of both being
carefully analytical but also understanding
the consequence and the weight of his role. JOHN F. MANNING: Thank you,
those are great answers. JUSTICE KAGAN: John,
I'm going to give away one of the amazing things
about being Dean of Harvard Law School, is you
sit in this office and there are two
desks in the office. And one of them is
Justice Story's desk. JOHN F. MANNING: Right. JUSTICE KAGAN: And the other
is a stand-up writing desk, which is Justice Holmes's desk. JOHN F. MANNING: Well, we now
call it the Story/Kagan desk, actually. JUSTICE KAGAN: If
that doesn't give you a sense of responsibility
and a sense of the importance of this institution and
what it does in the world, I don't know
anything that would. JOHN F. MANNING: Thank
you, Justice Kagan. All right, I'm going to
ask a couple of questions about your work now. So here's one. What qualities make
for a great lawyer, either before your
Court or anywhere? Second is, what are the most
common avoidable mistakes that lawyers make in
briefs and oral arguments? Justice Kagan, you've
been a teacher, a Solicitor General, a Justice. JUSTICE KAGAN: I think there's
no one set of qualities that makes for a great
lawyer, because I think there's so many different
kinds of lawyers in the world. And I think that
the qualities that make somebody a great
lawyer in our Court are very different
from those that make somebody a great trial
lawyer or a great negotiator. So I think that one is all
specific to the situation. What makes for a great
Supreme Court advocate, I'm going to say the Chief
Justice should tell you that, because he was one of
the greatest that ever lived. But I think it's the ability to
really engage in a conversation with the Court. Not to ever run
away from questions, to understand that the
hard questions that they're asking you are the ones that
you have to answer to prevail. To be respectful, but also to
approach the court as an equal. You're explaining
things to them. You probably understand the
case more deeply at that point than they do. To have confidence in
yourself, but always, always, always to listen to what
the judges are asking. And to go with that,
not to give any kind of, I have 10 points in my
pocket that I need to get to. But to listen really
carefully to the bench and where it's at,
because that's who you need to convince. JOHN F. MANNING: Does that sound
right, Chief Justice Roberts? CHIEF JUSTICE ROBERTS:
Well, Justice Kagan, one of the greatest deans
that has ever lived. [LAUGHTER] I agree with pretty much
everything she said. I used I try to sum it up in
saying that the lawyer must be dispassionate. And I think this
is true not only in arguing before the
court, but in negotiation. I don't know as
much about trials. In other words, you have
to have the judge think that you are not just pounding
away zealously for your client. And there are ways to do that. One is that you recognize
the weaknesses in your case. When the judge or justice says,
well, what about this case? You know, don't pretend
that it's not bad for you. You can say, well, that's
not our favorite case, and here's why. But you go on to explain,
so the judge feels that you're part of-- in the same role,
to some extent, with her in the sense of
trying to figure out the case. And once you can establish
that relationship, you can be a much more
effective advocate. JOHN F. MANNING: So it sounds as
if listening, candor, answering questions all work very well. Anybody have a different view? I mean, is that what
you all look for? JUSTICE BREYER: I've not
been really a practicing lawyer, except for
a couple of years in the Justice Department. But over time, I've
met many lawyers. And I admire quite a few. The qualities I admire are
things that you brought out. You're no stronger than
your weakest argument, not your strongest. But the thing I think I
admire, Lloyd Cutler and others who have that, heard it put-- Bill Coleman-- it was a quality
that actually Drew Faust mentioned, a certain
disinterestedness. You're for your client,
but not too much. And that's right. You step back a little. And those I admire
particularly, they spent quite a sum
of their career, anyway, in public service,
not entirely private. You're part of the community. And there's so many ways
to be part of a community. So I like those dollar-a-year
used to be men, now women, too. Or on the library
board or whatever. But the lawyer as
part of the community. The lawyer is representing
his client well, but remember that disinterest. That's a good word. And you're no stronger
than your weakest argument. Make sure you understand that. JOHN F. MANNING: And so, it
sounds like an issue of trust, that the lawyer
needs to build trust. Justice Gorsuch,
what do you say? JUSTICE GORSUCH: Well,
I was, in practice, predominantly a trial lawyer. And I think one thing that-- everything that's
been said remains true for the trial level, as well. But two of the things
I might add to the mix, one is just plain old hard work. It's tough to be a lawyer today. And teaching young
people that those nights in Langdell, that they pay off. They're worth it. To know the law, to be able
to serve your client well requires a certain irreducible
amount of hard work. And the other is ethics,
lawyer as friend. What does it mean to be
a friend to your client? It means giving everything
you've got without giving up yourself, either. And what's essential to you. So your integrity matters a
very great deal in the process. JOHN F. MANNING: Thank you. Anyone else want to-- JUSTICE KENNEDY: Well, sometimes
people at a social occasion say, does oral argument
make a difference? And they stand back like they've
asked you a trick question. Then if you say no, you're
engaging in a charade. And if you say yes,
you're being pushed around by a bunch of lawyers. But of course it
makes a difference. And as my colleagues
have indicated, we are there in order
to make up our minds. And this is-- as Justice Kagan
and Justice Roberts indicated-- a good oral argument,
sometimes we behave well, sometimes we don't. A good oral argument
is a conversation that justices are having among
themselves that the attorney can enter into. And I agree with Justice Kagan. You really want
to help the judge and try to-- or the justice-- and enter into his or her mind. Because that justice is
trying to decide how best to understand your argument. JOHN F. MANNING: Thank you. JUSTICE SOUTER: Can
I add one thing? JOHN F. MANNING: Of course. JUSTICE SOUTER: A bit of detail. As several people have said,
starting with Justice Kagan, listen to what the
court is saying. And try to respond to what is
really on the court's mind. And the one point of detail
that I might add actually to the Chief Justice's follow
up is that a very good way to do that-- which not that many
lawyers, I think, practice-- is to structure your
argument by going back to first year procedure. I don't know whether it's
still taught this way, but it was when
I was first year. We learned the old-- something
about the old forms of action and the old formal
pleas, one of which was a plea in confession
and avoidance. And you say, yeah, everything
that they allege is true. But it does not amount to
an actionable violation or whatnot. And the master of responding to
what is really on the judge's mind, to what the
judge clearly indicates is the stumbling
point, the master of doing that was Rex Lee. And I never heard Rex Lee
when he was Solicitor General, but after he would
resign from that, he argued several cases when
I was still on the Court. And Rex Lee, I don't know
whether he did this consciously or not, but it sounded that way
when you'd see it demonstrated. He was prepared to give a
confession and avoidance answer to the most
devastating question that a judge could ask him. And he seemed to structure
his answer in that way. And I remember one day when-- and by the way, when
I was on the Court, I always sat next
to Justice Scalia. And I remember one day-- I don't remember what case,
but I remember one day when he actually was arguing. And Justice Scalia asked
him the ultimate question. And the case was going to be
won or lost, at least in Justice Scalia's mind, on that. And I happened to watch
Mr. Lee's face as Justice Scalia was asking the question. And he didn't totally suppress
a little flicker of a smile. And I remember when
Justice Scalia finished, Rex Lee pointed at
him with his hand. And he said, you're dead
right, Justice Scalia. And I'll tell you why it
doesn't make a bit of difference in this case. So if there is one pointer that
I would add to the discussion, it's don't forget
confession and avoidance. It's a great way to organize
your capacity to survive the devastating question. CHIEF JUSTICE ROBERTS: Justice
Souter does not remember the losing lawyer in that case. JUSTICE SOUTER: Pardon me? [LAUGHTER] CHIEF JUSTICE ROBERTS:
You're not remembering the losing lawyer in that case. JUSTICE SOUTER: I thought
it was polite not to. [LAUGHTER] CHIEF JUSTICE ROBERTS:
And it was 9 to nothing. Thank you. JOHN F. MANNING: All
right, I think we are down to our last 15 minutes. And I think we have time
only for the lightning round. So I'm going to ask a question. And if you recognize
yourself as the person I am describing,
please raise your hand and say a few words
about this fact. CHIEF JUSTICE ROBERTS: Is
this confession and avoidance? JOHN F. MANNING: I
think that's up to you. All right, ready? First one. JUSTICE KAGAN: What happens
if no one raises their hand? And JOHN F. MANNING: Then I will-- I will call on you. All right, first
one is, one of you was an Eagle Scout
by the age of 12. Eagle Scout by 12. Justice Breyer. Can you tie a knot? Can you tie a knot? JUSTICE GORSUCH: Can
you tie a knot, Stephen? JUSTICE BREYER: Yes. [LAUGHTER] Yes. JUSTICE KAGAN: I
never heard of anybody who was an Eagle Scout at 12. 12? JOHN F. MANNING:
How did it happen? How did you do it? JUSTICE BREYER: I began at 8. JOHN F. MANNING: You began at 8? JUSTICE BREYER: Yeah,
I lied about my age. JOHN F. MANNING: Fair enough. All right, one of you
worked on oil rigs in Canada and Louisiana. Canada and Louisiana oil rigs. Justice Kennedy. JUSTICE KENNEDY: My uncle
was in the oil business. And my first job
in Canada was I had to nail up what we call a
dog house in the oil field business. And I had my new
overalls and my gloves and nailed the boards
up, because the foreman was coming over. And I nailed my
glove to the wall. I couldn't get out. So finally, I tore it out. And I said, don't
worry, I'll get it out. He said, oh, no, you
leave that right here. So all summer long, every
salesman that came out, they had to see the glove. But then I got to
know the oilfields and worked on
drilling rigs to help pay my way through college. JOHN F. MANNING:
Interesting, OK. One of you was a member of
the United Steelworkers. Chief Justice Roberts. CHIEF JUSTICE ROBERTS:
Electrical helper job class 6, I think is what it was. Which meant you walked
around with the electricians. And whenever they
wanted some fun, they'd tell you to tighten
a particular bolt that turned out to be live. [LAUGHTER] And it just never
got old for them. [LAUGHTER] JOHN F. MANNING: All right,
now this is a very good one. One of you engaged
in a mock sword duel during your second year
at Harvard Law School and ended up at University
Health Services. [LAUGHTER] JUSTICE SOUTER: You know, it
was a way to pass the time. By the time I did this
with one of my classmates, I was also proctor in Harvard
Yard, freshman proctor. And so we got the ranking
Assistant Dean of Freshman to referee the duel. And probably most of my freshmen
proctees showed up for it. And everything was going
fine, except for one problem I had with the sword. Mine did not have
one of those guards that goes over your hand. And my friend's saber came
down against the side of mine and smacked right into the
joint in the flesh there. And the thing started bleeding. And my first reaction
was to just let it bleed. But my boss the
dean looked at it and he said-- he
looked at the saber. And he said, the thing
is dirty and rusty. He said, it's probably
crawling with tetanus. You'd better go down and-- go down and get a shot. So the entire entourage traipsed
down to the University Health Services. And while we were waiting
for a doctor to come out, a lot of the freshmen had come. And I began to think, I've got
to be hospitable about this. The UHS, in those
days-- maybe still now-- was right across the street
from Elsie's Restaurant on the corner of Mount Auburn
Street in Mount Holyoke. And Elsie's served a great cream
cheese and caviar sandwich. So I gave some money
to one of the freshmen and said, go over
and get whatever we had at that point, 12 cream
cheese and caviar sandwiches. People can enjoy themselves
while we're waiting. And finally a doctor came out. And he said, well, how
did this happen, sir? And I said, well, I
was fighting this duel. And I think he began to
lose professional interest at that point. And at just about
that moment, the kid arrived with the cream
cheese and caviar sandwiches. And that ended the patience of
the University Health Services. They told everybody
else to get out. And they did give me a
tetanus shot and it worked. JOHN F. MANNING: Justice
Breyer, you have a comment on-- JUSTICE BREYER: These
things happen to him. Honestly! While he was an active
member of our Court, he's walking in the
woods somewhere, a rabbit jumped on his back
and bit him in the neck. [LAUGHTER] That's right. And then, by the way,
when he's in his office, he finds a fox that came
out of the basement. [LAUGHTER] JOHN F. MANNING:
We're learning a lot. JUSTICE KENNEDY:
We miss you, David. [LAUGHTER] JOHN F. MANNING: All
right, next question in the lightning round. One of you has raised
horses, chickens, and goats. Justice Gorsuch. JUSTICE GORSUCH: Yes. No foxes. Yeah, my daughters
were huge into 4-H and I learned how to bathe a
chicken, which is not something I recommend. And raising a goat, I
definitely don't recommend. But we attended more
4-H events than any one should in a lifetime. And I loved every second of it. JOHN F. MANNING: And one
of your former clerks-- I won't identify who-- said that your goat
thought it was a lap dog. JUSTICE GORSUCH: Nibbles. Nibbles the goat, aptly
named, was an escape artist. He would get out of
the corral, proceed to eat most of our
fruit trees bare, and then work his way
in the house and was-- thought he was a lap dog, yes. That is all true. And was vaguely housebroken by
the end of it, but not quite. You don't want a goat. JOHN F. MANNING: OK,
so now we're almost done with the lightning round. Couple of more questions here. One of you uses contractions
only in dissents. [LAUGHTER] Justice Kagan, would you
care to elaborate on that? JUSTICE KAGAN: You know, when
you're writing for the Court, you should be a little
bit formal, in my view. But when you're
writing for dissent, you can let it go
a little bit more. Letting it go here being
equivalent to using contractions. [LAUGHTER] JOHN F. MANNING: All right. One of you was caught by the
Dean of the Harvard Law School at a Red Sox game the
day before a tax exam. [LAUGHTER] JUSTICE KENNEDY: It
was 1960, the last year Ted Williams was going to play. And I was going to California,
so I wanted to see him. And so I told my study mate,
I said, I've got two tickets. I really worked on them
for the Boston Red Sox. He said, well the
tax final's tomorrow. And I said, well, you
bring the revenue code. I'll bring the case book. And we sat down. And I heard this
voice saying, you don't bring the Revenue
Code to the baseball game. [LAUGHTER] And it was Erwin Griswold. And he was shocked. I don't know if he thought
it was a profanation of the code or the game. He would see me 20 years
later in the Court, saying, do you still bring the Revenue
Code to the baseball game? [LAUGHTER] JOHN F. MANNING: All right,
this is a question that has-- for which two of you
need to raise your hands. Two of you have often been
confused for each other at oral argument. And once by an O'Connor clerk. JUSTICE BREYER: And
we don't know why! JUSTICE SOUTER: Actually, it
just happens all the time. And my favorite summation of
the problem we have came-- if I get this wrong, correct me. Came at one of those
lunches that Justice Breyer was having with law clerks
from other chambers. They would invite us
to lunch and so on. And one clerk decided
to broach the subject. And said, as I understand
it, I understand that you and Justice
Souter are often confused. [LAUGHTER] And then, realizing
what he had said, he said, I mean, you
get all mixed up. [LAUGHTER] JUSTICE KAGAN:
But one of you has to tell the story
about the best thing about serving on the Court. JUSTICE BREYER: About the what? JUSTICE KAGAN: The best thing
about serving on the Court. JUSTICE BREYER: I think
it must be exaggerated. I often-- I do get asked. Do you mean I'm a member of
the court and people ask-- CHIEF JUSTICE ROBERTS: No, this
was a great response you had, David, to the confusion. JUSTICE BREYER: Oh, yes! [INTERPOSING VOICES] JUSTICE KAGAN: Do I have
to tell the story for you? [INTERPOSING VOICES] JUSTICE BREYER: It
happened to you. I'd just make it up. CHIEF JUSTICE ROBERTS:
Well, I'll tell it! It's a true story. [LAUGHTER] Someone comes up to
Justice Souter, mistakes him as Justice Breyer,
and asks Justice Breyer what is the best thing about
being on the Supreme Court? And David said, serving
with Justice Souter. [LAUGHTER] JUSTICE SOUTER: That
story, by the way, has been called truthy. [LAUGHTER] JUSTICE KAGAN: It works. JOHN F. MANNING: All right,
last three questions. One of you, as a Harvard Law
student, went to Harvard Square almost every day for 31 flavors. 31 flavors. Chief Justice Roberts,
would you care to elaborate? CHIEF JUSTICE ROBERTS:
It's like the episode of-- episodes of Friends. You'd like to go someplace
where you're known, where they know your name. And the Baskin-Robbins
store, they knew my name. And you would go in and
it advertised 31 flavors, but I always had the same thing. It was a marshmallow sundae
with chocolate chip ice cream. JOHN F. MANNING: Wow. [LAUGHTER] CHIEF JUSTICE
ROBERTS: It's good! JOHN F. MANNING: All
right, the next question. One of you celebrated
the end of the first term of service on the Supreme Court
by not shaving all summer. [LAUGHTER] Justice Gorsuch, how
did that work out? JUSTICE GORSUCH: I
went home to Colorado. I hiked fourteeners,
fished, and did nothing. I haven't had a summer
off since I was 12. It was fantastic. It was wonderful. And I did grow it
out all summer. And then I asked my
daughters whether I could be seen on the bench. And they said, under no
circumstance whatsoever. My wife said, oh, they'll
start reading into it. What does the beard mean? So off it came. But yeah, I did. JOHN F. MANNING: All
right, final question. One of you was voted by
your fellow law clerks to be the clerk most likely
to serve on the Supreme Court. [APPLAUSE] JUSTICE KAGAN: Well, I
know who must have told you that embarrassing fact. Because Professor Stiger-- JOHN F. MANNING: I cannot
confirm or deny that. JUSTICE KAGAN: I'm just going
to say Professor Stiger was my co-clerk. And at the end of the year, we
voted each other all these sort of yearbook categories. Professor Stiger's, she was
going to be a public defender. And she was voted
the last person to make a million dollars. And this was-- mine
was definitely better than being voted the first
person to be indicted. JOHN F. MANNING: I
won't ask who that was. Let's give a big round of
applause for the Justices! [APPLAUSE] This way, we're going this way. AUDIENCE: Picture? Picture? Picture? JOHN F. MANNING: Oh, OK. Oh, maybe I'm not
supposed to be in it. [LAUGHTER] OK. Thank you very much. We're going this way. Thank you. [APPLAUSE]
I don't really have the down time, but that probably won't stop me.
I watched that a year or so ago. It stood out yo me how Souter seemed like an outsider to the group. The chief says that they miss him, and he gives a strained smile.
Bookmarked!