HLS in the World | A Conversation with Six Justices of the U.S. Supreme Court

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I don't really have the down time, but that probably won't stop me.

👍︎︎ 17 👤︎︎ u/pf3 📅︎︎ Sep 10 2019 🗫︎ replies

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.

👍︎︎ 14 👤︎︎ u/rainbowgeoff 📅︎︎ Sep 10 2019 🗫︎ replies

Bookmarked!

👍︎︎ 3 👤︎︎ u/Month_of_Sundays 📅︎︎ Sep 11 2019 🗫︎ replies
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[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]
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Channel: Harvard Law School
Views: 372,984
Rating: 4.8185525 out of 5
Keywords: Harvard Law School, HLS, Harvard University, HLS in the World, John G. Roberts Jr., Anthony M. Kennedy, Stephen G. Breyer, Elena Kagan, David H. Souter, Neil M. Gorsuch
Id: _EeU6Lo_i7I
Channel Id: undefined
Length: 107min 31sec (6451 seconds)
Published: Fri Oct 27 2017
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