Harvard Law Professor Laurence Tribe, in Exclusive Interview, Discusses New Book on the Roberts Court

The following interview of Harvard Law School Professor Laurence Tribe about his book Uncertain Justice: The Roberts Court and the Constitution (Laurence Tribe and Joshua Matz, Henry Holt and Co., 2014, ISBN 978-0-8050-9909-6) took place in the Ohio Room of the Capitol Hilton in Washington, D.C. on June 20 during the 2014 Convention of the American Constitution Society. The Interviewer is Frank Housh of the Housh Law Offices, PLLC, in Buffalo New York, Chair of the ACS WNY Lawyer Group and a member of the National Book Critics Circle.

Interviewer

Your book seems to consciously avoid some of the characteristics of books written for the legal profession, such as voluminous footnotes and block quotes.  Was this a book meant for the general public?

Laurence Tribe

It wasn't so much that I consciously was not writing a book for lawyers. I was consciously not writing a book only for lawyers. I definitely want the legal community to get a better understanding than it seems to have displayed about what makes the Supreme Court operate the way it does, what drives the decisions, why the standard sort of press accounts are such oversimplified caricatures. At the same time, I certainly wanted to speak to my own colleagues and the people who teach constitutional law with fresh insights. So I didn't want it to be only for non-lawyers, but I wanted it to be very broadly accessible. So that for me, as soon as someone like Doris Kearns Goodwin said that she thought everybody would enjoy my book it, find it thrilling and fascinating, that's what I was aiming for—because I think that lawyers too often speak only to one another and judges and there's a kind of clique and almost a sort of inside mentality of the high priesthood of the law that I wanted to break through.

Interviewer

I guess that's what I meant by the question. It seems that you were constantly trying to avoid legal speak, legalese, that often accompanies writing by lawyers for lawyers.

Laurence Tribe

Right. And all the talk of levels of scrutiny and intermediate review and so on, things that are substitutes for thought very often, and that are pigeon holes, but very few birds are pigeons.

Interviewer

I interpreted your book, especially the Prologue and Epilogue, as an attempt to write a historical perspective on the Roberts Court during its existence. Is that a fair statement?

Laurence Tribe

It's not a retrospective view as it would be if I was writing about the Hughes, Taft, Stone,  Warren, or Burger Courts. It’s a Court in process; it's a Court that's ongoing. We're living through it and the world that we're living through is being constantly reshaped in profound and dramatic ways in respect to issues of personal anonymity, issues of whom you can marry, who can carry a gun, who can vote, what kinds of government action can be based on race and in what way, and what are the limits of the President's powers. It is really a book about things that are very much in the news and that affect all of us, but that most of us in a society that is self-governing understand far too little about. So I wanted to do my bit in overcoming that knowledge gap, that understanding gap.

Interviewer

I got the sense in reading your book that you were seeking to frame the decisions of the Roberts Court thus far in kind of a historical perspective that is often impossible when we're in the midst of it, talking past one another about issues without our own sort of ideological biases. Is that what you were trying to do, and if so, why is that so important?

Laurence Tribe

I think because the Court is an ongoing institution, even though it changes dramatically and the whole tenor and chemistry of the Court changes even when just one of the nine members changes, it is still an ongoing institution.  It has its traditions, it has precedents that it doesn't always follow but which serve to frame the discussion, and it has grappled with problems that themselves have a very deep history: problems of race, which is central to the first chapter of the book, which deals with race and gender and sexual equality and equality for gays, is a problem that goes back to the founding of the republic.

Race is, if anything, our original sin. It's our compromise with slavery—we never fully solved that problem. That's why the subtitle of that chapter goes to the question of history. Chapter 1 is called Equality: Are We There Yet? It's a very different way of looking at the history of our country and how far we've come. Some people think we've basically overcome our problem of racial prejudice and that all we need to do, as the Chief Justice put it rather concisely, “the way to stop discrimination on the basis of race is to stop discriminating on the basis on race.” QED.  As if it was that simple.  [note: the previous quote is the concluding sentence of Chief Justice Roberts’ plurality opinion in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)] .

There are other justices who think that only someone who is blind to our past and insensitive to our present could view the world that way and that we have miles to go before we sleep.  Both sides have some valid arguments to make. I think it's a terrible thing that people get so dug into their positions that they either think that the conservatives on the issue of race - who are not always conservative on issues of privacy, or guns, or speech, or religion - have to be either dishonest with themselves, or dishonest with us and they can't have a legitimate point of view.  And I think that's wrong.

You'll never get past the divisions and the impasse if you don't get inside the other side's head and try to see the world through their eyes. And, likewise, for many of them, the idea that somebody should be willing to use race in order to overcome racism, in order to encourage racial integration and diversity, is deeply wrong. I mean, someone like Justice Thomas who believes that you do racial minorities no favors when you put a thumb on the scale based on race that permanently marks them with a stigma and makes people think they haven't deserved the things that they achieve.  Justice Sotomayor sees the world very differently. Unless one looks at that history and the experiences of the individual justices to get past the demonizing of both sides and stereotyping and caricaturing of both sides, we are not going to understand where the Court has come from and therefore will have very little sense of where it will go next.

Interviewer

That's an interesting observation. I am reminded of the conversation that we saw last night with Justice Sotomayor [June 19, 2014 ACS Convention, A Conversation Between US Supreme Court Justice Sonia Sotomayor and Professor Theodore M. Shaw, click here for video]. So often, what is written about the Court are psychological analyses of the Justices. An example is Justice Clarence Thomas.  Writers have speculated that his opinions somehow reflect a trauma and anger related to his background and his relationship to affirmative action. While I don't agree with a great deal of what Justice Thomas says, I don't think it’s fair to him to suggest that what he writes and believes is a merely a function of his individual experiences. Justice Sotomayor said, "I am who I am," but first and foremost, she's a lawyer.

Laurence Tribe

Right, and I think the attempt to subject Justices to armchair psychoanalysis, especially amateur armchair psychoanalysis, isn't likely to get us very far. But at the same time, the attempt to understand where they're coming from without having a very rich sense of where they've been and what they say about what they've experienced, which is often very revealing—it was revealing with Justice Sotomayor, it's been revealing with Justice Thomas—and without it, it's not likely to get us very far. When Justice Sotomayor says "I am who I am," her experiences and the way she has assimilated and internalized them shaped her understanding of the world, she is simply being more self-conscious and candid than some people are, who seem to think they can approach the world as though their mind is a blank slate, as though they were just computers programmed by some intelligent designer, which I think is self-deception.

On the other hand, each of these Justices is trying to remain faithful to a set of traditions and fundamentally to the law. But none of them regards the law as simply a nuisance to be kicked aside when it's inconvenient, or a play-thing to be manipulated at will, although outsiders who are unsympathetic with the views they don't agree with often tend to accuse Justices of acting that way.

Interviewer

As we speak, professor, they're having a discussion on the Convention floor about the Windsor decision. Many people have tried to explain the comparative speed that the LGBT community has had in earning certain civil rights compared to minorities and people of color. I am reminded of the portion of the book where you discuss the Justices watching pornographic movies in the basement (Chapter 4, page 121). And some of the Justices just could not relate to it on a fundamental, human level. Do you that think it's possible that's one of the reasons that Windsor came, perhaps earlier than many expected, because when more gay people publicly declared their sexuality it became part of our shared experience?

Laurence Tribe

I think there's no doubt that recognizing that the sky didn't fall when some people discovered their own children or their good friends, were gay and that their lives were not reducible to a particular sex act was a moment of understanding.  Similarly, when people of the same sex got married in Massachusetts, the state’s highest court was inspired to render its decision in the Goodridge case (note: Goodridge v. Department of Health, is a 2003 decision by the Massachusetts Supreme Court holding that denying marriage licenses based on sexual orientation violated the Massachusetts Constitution) principally by Justice Kennedy's opinion in Lawrence v. Texas, saying that it was an unconstitutional denigration of the equal liberty and dignity of gays and lesbians and bisexuals for the state to criminalize sodomy. Even if it did that on a supposedly gender neutral basis, it was a way of signaling the second-class status of gays and lesbians.

When the Supreme Court did that in Lawrence v. Texas in 2003, the dominoes began to fall: Massachusetts recognized gay marriage—lots of people said that would be terrible, the institution of marriage would disintegrate, but nothing of the sort happened. Children who were already living with same-sex parents were much better off. They were no longer confused about why their parents were not married and the parents of their friends were.  State after state began moving in that direction.

The next dramatic step was the one that the Supreme Court took in Windsor, again led by Justice Kennedy, when the Court said that at least in those states that have come to recognize that same-sex marriage is on equal footing with opposite-sex marriage, the federal government has to treat the married couples in those states not like second class citizens, but as fully married people. And that made a difference to lots of and lots of benefits that otherwise would've been denied.

When that happened, and when Justice Scalia claimed in dissent that it is inevitable that states will conclude and courts will conclude that same sex marriage is now required by our Constitution even though the majority in Windsor didn't go so far as to actually say so, I think he was making an accurate prediction -- and to some extent a self-fulfilling prophecy -- because unanimously, every lower court that has considered the issue has now said there's no conceivable basis for treating same sex couples less well.

I think Justice Ginsburg's image, which didn't make it into any of the opinions, about civil unions as "skim milk marriage" began to catch hold. That, coupled with generational change, now means that everyone recognizes the inevitability of a federal Supreme Court holding that no state can constitutionally discriminate against same-sex couples by denying them marriage licenses.

Interviewer

I've always agreed with the proposition that the objections to gay marriage were maybe exactly the same as the objections to the miscegenation laws, that blacks and whites can't marry because it will harm the institution. My wife and I were joking that in New York we've had gay marriage since 2011 we're waiting for the denigrating effect on our own marriage.   It is an absurd proposition, but it was used as a justification against miscegenation and gay marriage.

Laurence Tribe

You know, it feels absurd to me too. But, I think we have to recognize that there are still lots of people who, for reasons they can't fully articulate, think that the very essence of marriage is a man and a woman. They are people who would say when the man and the woman are of different races, that doesn't matter, although, as you point out, a generation or two ago, that mattered to a lot of people. But you have to persuade people ultimately that it shouldn't matter.

You can't simply look at them and say "you're evil," or "you're bigoted," and that's why there are some aspects of the Windsor opinion that I think Justice Scalia may have criticized justly, because the opinion was written in a way that made it seem as though the people who favored the Defense of Marriage Act – an act that, after all, included the Congress that passed it and President Bill Clinton who signed it - had to be fundamentally homophones and bigots. They have been people who were uncomfortable with gays and lesbians, but to accuse them of being sick in the same way that some straight people accuse gay people of being sick I think isn't a way of advancing the dialogue.

Interviewer

That's certainly a fair point, professor, but isn't it fair to say that individuals who advocated for an anti-miscegenation law and individuals who still object to the marriage of people of the same sex, that they do have a prejudice and  bias?

Laurence Tribe

I think that's almost by definition true. They are biased against same-sex marriage, against same-sex sexual activity. They're biased against it because they think it's wrong, they think it's evil. In many cases their religion teaches them that it's evil. Now I may say, and I do say, that I don't agree with that teaching, but I have to respect that that's their view.

But I think the Court's position ultimately should be that you're entitled to that view privately and no one is making you marry someone of the same sex. But, unless you can show that someone is hurt in some way when people are allowed to marry those they love regardless of sex, you just can't allow your personal views to carry the day. That's why the issue is in so many ways easier than abortion. With respect to abortion, at least some people genuinely believe that an abortion kills an innocent human being and you really can’t respond to that argument by saying “Oh, it’s just a piece of protoplasm. Get over it.” That is a deeply divisive issue that will continue to divide the country as long as we have natural pregnancy and as long as basically half the human race is required to gestate the entire human race.

Interviewer

Let me ask you about the books’s discussion of Citizens United (Chapter 3 - Follow the Money).

Laurence Tribe

Look, I think it’s one of the more interesting and challenging chapters in the book. When people accuse the Supreme Court’s decision in Citizens United of being incomprehensible other than as an expression of some bizarre view that corporations are human beings and that it’s perfectly alright that money should dominate our politics, I think they completely misunderstand where the Court was coming from.

The Court’s decision didn’t depend upon the view that corporations are persons. It was relying on the fact that the First Amendment protects speech and not just speakers.

The court is particularly suspicious of government action that regulates the source or the magnitude of speech. That suspicion is not so hard to understand when the government is regulating campaign speech which may be a form of self-dealing on the part of politicians who may be making it harder for challengers to unseat them with sources of money from the right or from the left. Being suspicious of that is perfectly understandable. And being suspicious of any attempt by government to orchestrate the appropriate amounts of speech or influence from various sources is understandable.  So that’s why Citizens United was such a hard case. It was a hard case because there are powerful constitutional values on both sides.

Interviewer

In my mind, the area with the potential for self-dealing by elected officials isn’t campaign finance, but redistricting.

Laurence Tribe

I completely agree. I think the problem of political gerrymandering is one of the sources, not the only source, but one of the sources of severe political dysfunction. Demographic changes have tended to cluster people of similar views in similar areas, has also helped to polarize the political system. And I think when the Supreme Court - and this is before Robert became Chief – decided that political gerrymandering is simply beyond the capacity of the Supreme Court as an institution, it made a very fundamental mistake that I hope it will rectify at some point.

Interviewer

Another observation—in New York where the state constitution specifically invests the Legislature with the right to do their own districts and state districts, they’ve simply been unable to come to a consensus, so a federal judge in Brooklyn, formulated the districts which I think were, by all accounts, very fair.

Laurence Tribe

It might be good if we had a less political system for drawing district lines - something we could delegate to a computer, not something where human judgment is necessarily required.  The benefits could be sufficient to outweigh the dangers. And I do agree that if we ask what are the sources of political dysfunction, they’re not simply decisions like Citizens United.

One of the reasons I think it’s hard to get the Supreme Court to uphold any particular version of campaign finance control is that every version before it was loophole-ridden.  The idea that legislative reform would sufficiently enhance American democracy to justify the compromise of First Amendment values that occurs when the Court lets the government decide who may speak is quite unrealistic.

Interviewer

Perhaps a corollary to that is the near-forgotten fact that the broadcast airwaves are owned by the public.  Do the individuals who broadcast on the airwaves owe a duty to the public to give all the players in a political dialogue a voice even if one party can pay for all of the ads?

Laurence Tribe

That’s another very hard issue in which giving the government the power to decide whether the government is being sufficiently fair and equal is itself very dangerous.  The Supreme Court in the famous Red Lion Case (or maybe I should say the infamous  Red Lion Case), Red Lion vs FCC, held that, even though newspapers cannot be forced to run a reply to an attack or to give balanced coverage, that those who get a license to broadcast are in a different category.  But the FCC got rid of that rule partly because of all of the problems it caused. Many people now believe the rule would and should be held unconstitutional today, not because the airwaves are not public but because giving the government the power to control who can use which frequency and in what way and when an attack deserves a response and when you have given fair and equal response time and whether you are really being fair and balanced, is putting the government in the position of the grand censor.

Interviewer

If the government can’t make those decisions, then who? As a democracy, isn't it incumbent on the government, despite all of its failings and potential for self-dealing?

Laurence Tribe

You could say that about all speech. If the government is not to decide which speech is acceptable and which speech is dangerous—who is to decide? The answer is: the speaker. If a hundred people want to contribute whatever they can afford to propagating a message, whether it's an anti-Hillary message, or an anti-Sarah Palin message or an anti-McCain message, if they want to do it in a corporate form, or in the form of an association, I think the answer to, "if not the government, who?" is: the people themselves.

Interviewer

Which Justice said "the appropriate response to objectionable speech" is more speech?

Laurence Tribe

Well, so many Justices...Brandeis, Holmes, Black, Douglas. It's right. It is, however, a slight oversimplification in this context. That is, the values of free speech are bound up in the values of self-government. When the Supreme Court went as far as it did in Citizens United and said "there's no problem of corruption here," then it was really overstating and oversimplifying.

It may not be “corruption” in the sense of “under the table” bribery, but everyone knows that people who bundle huge amounts of money either personally or through Super PACS, on behalf of politicians get their phone calls answered more quickly, they have more access, they have more influence.  That in itself is corrosive to democracy. That's not healthy. The trouble is that the cure may be worse than the disease. Giving the government the power to say "Well we're going fine-tune this in order to make democracy work better," is in itself terribly dangerous.

Interviewer

My final question, professor, is what do you hope your readers will take from your book?

Laurence Tribe

First of all, I hope they'll enjoy it. Doris Kearns Goodwin says they'll find the baseball stories fascinating. Jeff Toobin says they'll learn a lot. People who are much more conservative than I am on many issues like Ted Olsen say it's even-handed. Novelists say it's fun. So the first thing I hope they'll learn is that learning about the Constitution is not a painful pill to take and to swallow in order to become a better citizen. It turns out that becoming better informed and better educated can be enjoyable. But on top of that, it can be useful—because in the end, so many of these decisions depend on the individual views of nine human beings.

ACS Staff Members Stephanie Rydell and Rachael Hancock contributed to the preparation of this interview.

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