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“Debate and Doubt”

11.1.17

Some Supremes: Former Justice Souter, and Justices Kagan, Kennedy, Roberts (the chief), Breyer, and Gorsuch, plus HLS dean John F. Manning

Photograph by Martha Stewart/Harvard Law School


Some Supremes: Former Justice Souter, and Justices Kagan, Kennedy, Roberts (the chief), Breyer, and Gorsuch, plus HLS dean John F. Manning

Photograph by Martha Stewart/Harvard Law School

At the kick-off of Harvard Law School’s bicentennial celebration last week, Dean John F. Manning took the stage in Sanders Theatre and, in reverse order of their classes at the school, introduced a retired justice and four sitting justices of the Supreme Court: Neil M. Gorsuch, J.D. ’91; Elena Kagan, J.D. ’86; David H. Souter, retired, ’61, L.L.B. ’66, LL.D. 2010; Stephen G. Breyer, LL.B. ’64; and Anthony M. Kennedy, LL.B. ’61. He saved for last John G. Roberts Jr. ’76 and J.D. ’79, chief justice of the United States.

Manning observed that “it’s very easy to take for granted just how exceptional” HLS is, so he shared some facts about the institution that were startling even after he said they would be: of the nation’s 84 attorneys general since 1789, roughly one out of every eight went to HLS; of the 48 solicitors general since 1870, one out of every seven have been alums; and of the 113 justices since 1789, about one in five, or 21, attended the school. Through the appointment of Robert H. Jackson in 1941, more than half of the nation’s justices didn’t go to law school or didn’t graduate from one. Of the 49 justices who graduated from law school, 19 earned HLS degrees: better than one in three. Leading the list are the great justices Oliver Wendell Holmes Jr., A.B. 1861, LL.B. ’66, LL.D. ’95, and Louis D. Brandeis, LL.B. 1877, among the most influential in American history.

The dean introduced each justice with the swelling enthusiasm of a sports announcer, to emphatic, cheerful applause. It was not clear which tradition of Sanders the gathering of the justices would follow: campy events, like the commencement address of Kermit the Frog in 1982 (“As you set sail on the great vacation of life, think of Harvard as your travel agent.”); or solemn ones, like the special 2008 ceremony for Senator Edward M. Kennedy, eight months before he died of brain cancer, where President Drew Faust conferred an honorary degree. It turned out to be both, about Harvard Law School and, perhaps more importantly, about the Court.

The Court and the Partisan Divide

In the month before the celebration in Cambridge, accounts by respected longtime reporters at the Court drew wide attention among Court-watchers. In a CNN piece called “Gorsuch v. Roberts: The rookie takes on the chief,” the network’s legal analyst Joan Biskupic wrote, “Gorsuch, who was confirmed last spring and this week began his first full term, has shaken relations at the high court with actions that show—depending on one's view—a degree of arrogance or independence. Whether personal tensions will ease is an open question. But the larger, more consequential, query is whether the new justice, who has staked out the far right of the bench, will push other conservatives to the left.” In an appearance on the relatively new, already influential podcast “First Mondays,” NPR’s legal correspondent Nina Totenberg said that Gorsuch “ticks off some members of the Court—and I don’t think it’s just the liberals.” She went on, “My surmise, from what I’m hearing, is that Justice Kagan really has taken him on in conference. And that it’s a pretty tough battle and it’s going to get tougher.”

In Slate, the legal writer Mark Joseph Stern commented: “Why is Totenberg’s reporting here so extraordinary? Because it’s astonishing that any reporter would hear details from conference, let alone score some genuinely juicy scuttlebutt. Conference is famously sacrosanct: It’s where the justices gather to cast their votes in the cases of the week, with each explaining his or her reasoning in order of seniority. Nobody else is allowed to attend. If rumors leak about a justice’s behavior in conference—and they basically never do—it is almost certainly a justice who leaked them. And when justices leak—which again, happens very rarely—they do so on purpose. The fact that we know about the ‘battle’ in conference between Gorsuch and Kagan suggests that someone on the court wants us to know.”

When Kagan joined the Court in 2010, for the first time in American history its ideological divide was partisan: Republican presidents had appointed the five conservative justices; Democratic presidents had appointed the four more liberal justices. In the five terms before Justice Antonin G. Scalia’s [LL.B. ’60] death in 2016, which left the vacancy Gorsuch eventually filled, the Court issued the majority of its ideological 5–4 rulings along party lines. Now in its forty-ninth year under a Republican-appointed and conservative chief justice, the Court has moved measurably to the right under each chief, especially under Roberts.

Before the start of the Court’s 2017 Term, Garrett Epps ’72 wrote in the Atlantic Online, “Not since the New Deal crisis of 1937 has the Supreme Court been so clearly revealed to the world as fully enmeshed in the rankest partisan politics.” Pairs of the four current justices who did not graduate from Harvard Law School (Clarence Thomas and Samuel A. Alito Jr., Ruth Bader Ginsburg, LL.D. ’11, and Sonia Sotomayor) mark the right and left flanks of the Court respectively, so the five current justices at the celebration (Roberts, Kennedy, and Gorsuch; Breyer and Kagan) made up a fair representation of the full bench’s right-left split.

Kennedy’s overall voting record is decidedly conservative, but he has often been the Court’s swing voter in major ideological cases. At Sanders, Kennedy twice underscored the potential for the Court to change instantly with a new appointment. The first was inadvertent, when he shuffled slowly across the stage to his seat and his impaired gait called attention to the fact that the justice, in his thirtieth year on the Court, is now 81 years old. The second came when Gorsuch, the first former law clerk to sit on the Court with a justice he worked for, praised Kennedy as “a model of judicial temperament and civility in our profession, in a time when we need both.” In mock reproach, Kennedy responded, “You didn’t always do what I told you to do as my clerk — you’d better start doing it.”

HLS and the Spirit of American Law

In remarks before a discussion with all the justices, Roberts began with a story about HLS’s celebration of its sesquicentennial in 1967, when Justice William J. Brennan Jr., LL.B. ’31, LL.D. ’68, was the only HLS graduate on the Court and three justices were graduates of Yale Law School. Judge Henry J. Friendly ’23, LL.B. ’27, LL.D. ’71, a federal appeals court judge, introduced Brennan. Friendly said, “While the Harvard Law School has furnished many graduates to the Court, it has rarely had many incumbents at any one time.” He added, with the obligatory putdown of Yale, “Unlike another school which today shall be nameless, Harvard does not need numbers to make her influence felt.” In his own voice, Roberts went on, “Now, I am sure that that remains true today.” He paused for effect and, glancing at the other justices sitting on the stage, continued, “But why take a chance?” He got the event’s biggest laugh.

Roberts spoke about why the Harvard justices who preceded those on the stage had an out-sized influence on American law. He focused on four twentieth-century jurists: Holmes, Brandeis, Felix Frankfurter, LL.B. ’06, and Learned Hand, A.B. 1893, A.M. ’94, LL.B. ’96, LL.D. 1939—including Hand, who was a federal trial judge and then appeals court judge in New York City for 52 years yet didn’t serve on the Supreme Court, “because he should have.” While the four were “different in many ways,” Roberts said, they each embraced two related themes: “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.”


Roberts, Breyer, and Gorsuch: leaning right, left, and farther right
Photograph by Martha Stewart/Harvard Law School

About free expression, Roberts quoted from Holmes: “We should be eternally vigilant against attempts to check the expression of opinions that we loathe.” About humility, he continued, “That is perhaps not the first word you think about when you’re talking about the Harvard Law School.” But it was “intellectual humility” he was focusing on, which Hand captured when he famously said, “The spirit of liberty is the spirit which is not too sure that it is right.”

The chief justice summarized, “Debate and doubt, not doctrine, are what our school at its best teaches.” He observed, “It is hard not to believe that the shared educational experience of Holmes, Brandeis, Frankfurter, and Hand, just near-by, contributed significantly to their shared belief in free debate and intellectual humility.”

“I am happy to report,” Roberts said, “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 the spirit of collegiality, and sufficient doubt about our own infallibility to make those discussions pertinent to the decision process.” Shifting from the descriptive to the hortatory, he added, “It takes restraint to listen rather than speak, to consider rather than dismiss, to follow new wisdom rather than familiar doctrine.”

Civil Wars

It was hard not to believe that Roberts was speaking to the reports about the discord on the Court, but also to the current discord in the country, documented to be worse than at any time since the Civil War. Memorial Hall, housing Sanders Theatre, is a monument to Harvard graduates who fought for the Union, including Justice Holmes. (He was shot three times, at the battles of Ball’s Bluff, Antietam, and Chancellorsville. His father, a respected poet as well as doctor, wrote a hymn for the ceremony when the hall’s cornerstone was laid in 1870.)

A generation ago, the law school experienced its own civil war. In a report on this turmoil, The New Yorker quoted an unnamed faculty member on what distinguished HLS then among American law schools: “Well,” he said, “this is the unhappiest place.” Faculty members who engaged in Critical Legal Studies provoked what the magazine called “a struggle for the soul of this institution.” They contended that law is defined by the political and moral views of judges and other law-makers, not by legal principles, and generally reflects who holds the most power.

For this anniversary, a third-year student published a book-length polemic called “Our Bicentennial Crisis,” sounding an alarm that the school​ is now “​overtaken​ ​by​ ​corporate​ ​interests​ ​and​ ​losing​ ​relevance​ ​to​ ​the​ ​average​ ​American;”​ “​largely​ ​asleep​ ​as​ ​the​ ​institutions​ ​of​ ​the​ ​rule​ ​of​ ​law​ ​and​ ​equal​ ​justice​ ​under​ ​law​ ​are​ ​under​ ​siege;” ​and “​​has​ ​lost​ ​track​ ​of​ ​its​ ​declared​ ​mission​ ​to​ ‘​educate​ ​ leaders​ ​ who​ ​ contribute to​ ​ the​ ​ advancement​ ​ of​ ​ justice​ ​ and​ ​ the​ ​ well-being​ ​ of​ ​ society.​’” In its bicentennial issue, the Harvard Law Review published an article by Kimberlé Williams Crenshaw, who graduated in 1984 during HLS’s time of troubles and is a law professor at Columbia University and at UCLA. She argues that “the need for reform and the critical orientation” is “as salient as ever,” elsewhere in the country but especially at HLS and especially about race.

These challenges are acute and unsettling, but they are also continuations of what has defined the school since it was founded in 1817, according to On the Battlefield of Merit, a recent history of the school’s first century by Daniel R. Coquillette and Bruce A. Kimball. They recount a long history of factions at war for the soul of the institution. None was more profound than the battle between Holmes and Christopher Columbus Langdell, who joined the faculty in 1870 and developed the approach to learning known as the Socratic method, which transformed the school into the leader it remains. In the bicentennial issue of the law review, Jeannie Suk Gersen, who graduated in 2002 and is now Watson professor of law, reminds, “This method of questioning required students in class to analyze particular cases’ reasoning, rather than having the professor state general propositions of law for students to ingest.” She reports, “By the early 1900s, it would become the common teaching method at law schools all over the country.”

Coquillette and Kimball write that Langdell had “the radical idea that the way to elevate and legitimate legal practice and the legal profession was through demanding legal education” and a scientific study of law known as formalism. In his classic 1881 book The Common Law, Holmes famously retorted, “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” To Holmes, Langdell neglected these “forces outside” the law. In the nineteenth century, they were called fairness and convenience. Today they are politics and justice.

The Improbable School in a Politicized Era

“HLS in the World,” as the school called the two days of speeches, panel discussions, and other events celebrating its anniversary, was a widely impressive, often inspiring tribute to the results of its effort to resolve the turmoil of a generation ago. In his remarks in Sanders before he introduced the justices, Manning said, “Harvard has done something really improbable. For many, many, many years, it has been able to be truly grand in scope, truly excellent, and really diverse, among 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.’” (Laughter, applause.) He continued, “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.”

That is the precept of HLS today: Let a garden full of brilliant flowers bloom, to get “closer to reason and closer to justice,” as President Faust put it in her tribute at Sanders, “aspirations of the law that are among civilization’s most precious gifts.”

But this bountiful estate doesn’t provide a solution to the problem of a Supreme Court riven by political as much as legal disagreement.

One of the final events of the celebration, in the school’s Ames Courtroom, was a reenactment of the 1803 argument before the Supreme Court in the foundational case of Marbury v. Madison. Chief Judge Merrick B. Garland ’74, J.D. ’77, of the U.S. Court of Appeals for the District of Columbia Circuit, splendidly played the part of America’s greatest chief justice, John Marshall. His presence was a reminder that, rather than accept President Barack Obama’s [J.D. ’91] nomination of him to the Supreme Court as a supremely qualified, uniformly respected moderate, in the spirit of compromise with the Republican majority, Republican Senate leaders made political party the sole criterion for a justice. They refused even to consider Garland’s nomination during the final 10 months of the Democratic presidential administration.

When Manning asked the six justices the justice with whom they never served who they particularly admire, both Kennedy and Roberts picked John Marshall. Kennedy said, “He had a vision of a country that would be unified by this magnificent Constitution, a Constitution that can endure and that must endure for ages.” The subtitle of the main biography about Marshall by Jean Edward Smith is Definer of a Nation, Roberts added, “which is exactly what he was. He was certainly the most significant figure in our history who was not president.”

Marbury v. Madison established the distinctive role of the Supreme Court in the American system of governance as the final arbiter of the Constitution’s meaning. Famously, Marshall’s opinion in the case declared, “It is emphatically the duty of the Judicial Department to say what the law is.” He articulated the awesome power of the Court. Still, from the vantage point of the twenty-first century, he, too, left unresolved the enormous challenge to the American constitutional system of a Court whose major rulings often seem better explained by politics than law.

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