Transcripts For CSPAN Justice John Paul Stevens Legacy 20240711

Served on the Supreme Court for 35 years, hear a panel of judges and attorneys, all former Supreme Court law clerks talk about his legacy. The Bar Association of San Francisco hosted the event. High everyone, good evening, thank you so much for coming to a nice program the impact of Justice John Paul stevens. I am an appellate lawyer here in thefrancisco, i am also chairman of the appellate section of the Bar Association of San Francisco which organized this event. I would like to extend a warm welcome to members of a few groups who are cosponsoring tonights program, the ninth judicial the federal Bar Association, Northern District of california chapter and the American Constitution Society bay area chapter. I would also like to welcome cspan which is broadcasting the discussion tonight. I find that exciting, because in 10 years or so but i have been putting on programs like this, this is the first time cspan has come, so i have made it. It is some of the most awful programming when congress is out of session so i recommend you check it out if you have not already. Before we can begin i would like to ask everyone to put their phones on vibrate. The next program we are putting on on january 28 is on settling cases in the ninth circuit. If that interests you, be sure to sign up. We are going to save time at the end of the program for questions. If any questions occur to you well our panelists are discussing, write them down so you do not forget them. Will introduce tonights panelists. To my left is leondra kruger, associate justice of the california Supreme Court since 2014. Prior to her judicial tenure, she served in the offices of Legal Counsel in the u. S. Department of justice and before that, she was the acting solicitor acting deputy solicitor for president obama. Argued 12t time she cases in the united state Supreme Court and see also twice received the attorney generals award for Exceptional Service which is the highest award for employee performance. Graduate of Harvard College and yell law. Sheik lurched for judge cable for the d. C. Circuit judge then to Justice Stevens. You are left is jeff fisher, a professor of law and codirector of the Supreme Court litigation clinic at hanford law. Leadingone of the authorities on Supreme Court practice and he has argued over three dozen cases in that court. He was the winning advocate in crawford v. Washington. Involving the hearsay exception in criminal prosecutions. In riley against california on smartphone Privacy Protection rights. And he was one of the plaintiffs counsel in obergefell versus hudson. Jeff is a graduate of duke and michigan law and he clerked for the late Stephen Reinhardt on the court of appeals and for Justice Stevens. To his left is kathleen hartman. A partner in law 4 she has a private practice representing clayton and that plaintiffs and defendants and highstakes litigation. During the Obama Administration and theas Deputy Department of justice. She is a graduate of Harvard College and law school and andked for Merrick Garland as you may have guessed also for Justice Stevens. Finally on the far left of the panel which is not a phrase he will hear very often is daniel breasts brass. Who is nominated and confirmed to the u. S. Court of appeals for the ninth circuit, finally getting through the hazing. He was a partner at he attended law school himself. After law school he worked for jay Harvey Wilkinson on the Fourth Circuit court of appeals and in the late Justice Antonin Scalia on the u. S. Supreme court. Lets get the ball rolling with Justice Kruger who will discuss some of Justice Stevens approaches to judging. Jus. Kruger thank you, ben, and thank you for the opportunity to participate in this wonderful event remembering and celebrating the legacy of Justice John Paul stevens i think others tonight will address other aspects of the justice, his remarkable service, has 35 years on the u. S. Supreme court and the impact that his work had on the substance of the courts jurisprudence, on judicial philosophy. I am instead going to focus more on how i best knew the justice inch was as his law clerk the 20032004 term. And what i observe from watching him about not the substance of his approach to deciding cases, but the day to day judging. It is one of the great values of a clerkship. Of go through three years law school, you spend all your time reading Supreme Court opinions, deciding what arguments you find persuasive and what you dont. Unless you happen to know a Supreme Court justice in real life, you have no idea how the job is done. How do they decide the most difficult questions that can arise in our country . Who do they listen to, how do they talk about what they do . Looking back on it now that i may judge myself, i have feel fortunate to have learned to those things from Justice Stevens. I knew before i started the clerkship that my job was going that offferent from some of my colleagues. I knew i would be writing separate opinions. Justice stevens was even at that time by for the leader in number of separate opinions written. I knew that unlike some of my colleagues down the hall, i would be reading fully one fourth of all of the petitions for review that came into the court because Justice Stevens did not participate in this pool. I knew that we would be going our own way frequently. I did not know exactly the reason why until i started the clerkship did i learned over time listening to the way he talked about cases and talked about each of these things that it was not because he was so enamored of his own voice, it was not because he did not know how to get along with others, it was because he felt it was important for him at a very fundamental level to decide each case according to his judgment about what the law commanded. Whether others agreed with him and whether they did not was not his eye mary concern and he knew that his job was to do not what the crowd wanted him to do whether the crowd to be the majority of his colleagues, rented whether the crowd be the crowds of politically powerful people in the system, whether it be the wishes of the public. He knew his job was to do what he felt was right under the law. Not only that but to be transparent and honest about his best understanding of what the law commanded. He was, i think, sort of famously resistant to labels like liberal or conservative. It was not because he misunderstood what people meant when they used them, but he found them misleading and partnerships. In part because he understood he understood what his job was was fundamentally different from politics. It was a running joke around his clerks that we had no idea what his politics were even though he had been a lifelong republican and he was appointed by a republican president. We didnt have the first clue of who had voted for in the past several elections. It was a point of pride he told us that when he was born best sworn in to the Supreme Court he was sworn in at the spring court and not the white house. That was in part because it was important the symbolism was important to him to demonstrate that once he took the oath of office, he was not beholden to the president who appointed him or to any particular political force, that he was there to serve people of all parties and to do equal justice under the law. We were actually surprised to discover that he had accepted an invitation to attend a stated dinner at the white house given his general antipathy towards anything political. We were hoping he would come back with juicy insights into his political leanings. It was a time people talked about politics lost. A lot. It was not long after bush v. Gore and the start of the iraq war. We were sorely disappointed. When he came in the next day, the most he told us was the president is very attractive. That was the single most political commentary we got from him the entire year. It is hard to talk about Justice Stevens without mentioning his famous humility. Which sounds like a patronizing word to use to describe a Supreme Court justice, but there is no other way to describe it for somebody who is as brilliant as he was who was as experienced as he was, who had a position of such incredible responsibility and public trust. He wore all of these things incredibly lightly and had a way of drawing even his lowly law clerks into his circle in a way that felt warm and welcoming and that extended equal respect to all. This was apparent nowhere quite much as oral arguments where of hangingmous habit back until the latter half of the advocates argument been and then waiting for a gap in the barrage of questioning and preface by saying counsel, may i ask just one question . As someone who had seen this happen dozens of times, i knew this is what he did, i knew that it was coming, and all the same to be sort of facing this barrage of questions and have this gentle voice asked for permission is a little bit disconcerting. The answer is of course, youre a Supreme Court justice, you can ask whatever question you want. He was not actually asking permission when he prefaced his questions. It was his way of signaling respect for the advocate as a partner in the endeavor of finding the answers to the difficult answers that became before the court. That sense of humility and modesty and treating others as partners in this endeavor was something that pervaded his approach to working on cases all the way through. Forhe time that i clerked him, Justice Stevens had already been a member of the u. S. Supreme court for almost 30 years which was longer than i had been alive, so he knew a thing or two about the law. We used to joke among ourselves whenever he picked up a new case, about half the time you would be reading the relevant precedents and discover the justice had answered the precise question presented in the case 20 years earlier in a two page separate opinion written on a only semirelated subject. Even though Justice Stevens had been around a long time and seen a lot of the laws developments, he had been a central player and a lot of the relevant development, he always remained open to rethinking his views. He did the work and read the brief carefully, read the cases again. He was open to changing his mind. It did not happen very often, nine times out of 10 we would talk about the case, he would look at the separate opinion he had written 20 years earlier and say i think we were dead right. Dead right was a big phrase for him. He was willing to do the work and had the humility to consider and reconsider his views to make sure he was getting the law as right as it was possible to get it. The last thing i will mention is his approach to writing opinions which is emblematic of the diligence and humility with which he approached the work. Justice stevens unlike many of his colleagues wrote the first draft of each opinion. It is a habit he acquired as a in clerk to Wiley Rutledge the 1940s and the reason he did hewas not so much because was especially concerned about the particular way that words or phrases appeared in his ultimate opinion, although he was concerned about that also, but it was a performed disciplining function for him, his way of ensuring that the vote he had cast based on his review and study of the case was actually correct and so he wrote down as much as he needed to write in order to ensure that he was actually thinking the case all the way through and sometimes he would discover in writing out that first draft that the opinion would not write and when he discovered that, he did not hesitate to change his mind to let his colleagues know he would not be writing the majority opinion after all. It was that openness and the diligence that it takes to reflect and drill down as deeply as necessary in order to ensure that you are doing the right of the mosthink one important lessons that i has a law clerk learned from Justice Stevens i will finish with a reflection on how i think Justice Stevens himself would have described himself as a judge. Last year in may as it turns out, two years before his passing, his former law clerks gathered in florida near his home to celebrate with him his 99th birthday and the release of his memoir. We had the opportunity at a dinner with the justice to ask him questions including questions reflecting on his life and his legacy and one of the questions was, you have lived such a full and remarkable life, what advice do you have for those of us who would like to follow in your footsteps . I am projecting, but i think we were all hungry for the answer. I do not know exactly what i was expecting, but some kind of a prescription would have been nice like eat a grapefruit a day bridge, or walk 10,000 steps each day. His answer was nothing so prescriptive, it was not fit his fitness oriented. His answer was just always work hard and do your best. I thought about that often because in part Justice Stevens wasnt the kind of person who dispensed advice readily. I think he thought it was a little bit presumptuous to tell other people what they should or should not be doing, but it is as good a summary i think of his record on the Supreme Court as any other i can think of. , he worked asars hard as he could in the service of the public to render impartial and fair justice and he always did his best. Only be our hope that we are as successful as he was in that endeavor. Ben thank you, Justice Kruger. Jeff fisher . Will you please tell us a little about Justice Stevens incredible law in criminal law . Prof. Fisher i would be glad to. Thank you. Thanks for having this event. Thanks to the Bar Association for hosting it. Just hearing Justice Krugers remarks starts a series of memories floating. Flowing. It is a neat opportunity to spend time reflecting on the justice in a way like this, so thank you. I am going to try to pick up on a couple of the trends Justice Kruger just talked about in terms of justice is a way of deciding cases and run them through what he called in his his mosterhaps significant majority opinion he ever authored on the Supreme Court. It is a case called up randy versus new jersey and it is a case that probably most laypeople and indeed most lawyers would not even know by name. I want to talk about that. Himself singlece that out. I also want to try to weave together a bit of a story about picking up on Justice Krugers theme about his interaction with the work and his colleagues. I wholeheartedly agree that one of the defining features of justice the evens was his fierce independence not just as a judge in general, but as a member of the court in terms of his own views and expressing them when he felt like there was they were not otherwise given voice on the court. Also byhe same time, the time i clerked for the late justice in the late 90s, he was the lead associate justice on the court, the one with the most seeing seniority. We found ourselves in a position to sign opinions or perhaps build a coalition. I want to talk about that. I think it is wonderful to have judge breasts about theeople know really special relationship Justice Scalia and Justice Ginsburg had on a personal level and on the court, but Justice Stevens and Justice Scalia also had a special relationship in many ways. I remember one day when i was clerking and the justice came back from conference and he was telling us as he would, here is how we voted and here is how the opinions look like they are going to be assigned and he described a case where he was going to write the majority opinion. Then he told us at he would say, he said nino is going to do the dissent. I remember the clerks, we sat back knowing what a fierce pen Justice Scalia would have in dissent. I think Justice Stevens saw that body language from us and said it is ok, i can take his heat. [laughter] whether they were agreeing or disagreeing, they had a neat relationship with each other. The apprendi doctrine i want to talk about in criminal law deals with the defendants right not to be punished any more severely than the jurys verdict allows. Sense is ane in a great way to talk about Justice Stephen stevens independence to start with. After he joined the court, many state legislatures and ultimately congress started to pass a new sentencing law which took ordinary crimes that would increase a defendants punishment or require mandatory minimum punishment like using a gun was found or harming a victim in a particular way. The way these laws were written typically left that to the judge after the jury had found a verdict of guilty on the regular crime. This issue first came to the court in 1986. In a case that dealt with a mandatory minium of five years in prison. The court wrote an eight justice decision saying this did not diet ash violate the defendants due process rights. Lone dissenter was Justice Stevens. He said if this is ok, legislatures can have a broad crime like assault and have people punished far more severely if the judge finds not beyond a reasonable doubt, but rather by preponderance of the evidence that somebody was injured in a particular way or the defendant used a gun or dangerous weapon, or any number of facts. That, he thought, was too big an incursion on the defendants liberty and not being punished any more than he thought the jury should be allowed. He wrote that lone dissent, then again found himself alone in dissent in 1990 when the court dealt with a similar issue under arizonas Death Penalty law. Justice stevens going to paraphrase, it is Something Like this it is not too late in the day for us to recognize the constitution has something to say about a fact that increases somebodys punishment. In that case, it is not just increasing punishment in terms of prison, it is actually allowing somebody to be sentenced by death for a particular crime. Justice stevens wrote a solo again in 1990 on that issue but it was an able to move his colleagues. From 1990 two 2000 and this is when the apprendi case comes up. It was another one of these basic situations where a particular fact here was committing a crime, a hate crime was something that would expose the defendant to esther punishment, five extra years of punishment. In that 10 year period, Justice Stevens managed to persuade his colleagues including Justice Scalia who had been in the majority of those prior instances that the constitution was in fact violated if a judge found a fact or herself that increased a defendants sentence. That apply the same principle to various sentencing guideline regimes at the state level and at the federal level omma creating a revolution in criminal sentencing practice in this country. And i think what is so extraordinary about that is at a time where we watched the everchanging membership of the court and we have so much conversation about whether when one justice is replaced with another, will that tilt the balance on an issue, will that cause the court to reconsider some prior precedent . Here it is not the changing membership in the court at least not alone that change the outcome of these cases, it was Justice Stevens own persuasiveness in the building. He brought Justice Scalia around, he brought other justices around who are not on the bench at the time of those decisions but also were not necessarily inclined to vote with him including Justice Thomas who joined in the majority in a apprendi in a 54 decision. What does that tell us about Justice Stevens legacy . I dont want to suggest that Justice Stevens was lockstep with his colleagues when it came to how they thought about this. In particular he did think about it a little bit differently than justices scalia and thomas even though they reach to the same bottom line, i think Justice Stevens took his guidance differently in this area from the impact on the individual, and the stigma and punishment at stake for the individual whereas i think Justice Scalia and Justice Thomas in this area have taken their cues from separation of powers perspective and the importance of the jurys participation in our criminal justice process and not having an end run around the jury. You find Justice Stevens finding a way to bring different perspectives together on the court to reach a majority and not by vote trading or haggling , but by reason. I think not just while stevens , was on the court, i think apprendi has had ripple affects not just in criminal sentencing but in several other areas of the Supreme Courts docket. Even today without either of them on the court. Look back to last term, there was a case last term where Justice Gorsuch and Justice Thomas joined three democratic appointees to apply the doctrine and new circumstance, so that lives on through other people. Also there are other areas of law like the right to confrontation, the requirement criminal laws be written with sufficient specificity so the populace can understand what they mean and it be on fair notice as to what violates them. In all these areas, in a sense the majority of that Justice Stevens forged from different perspectives on the criminal law lives on today and all these other areas and i think in ways that his legacy i think he was proud even when he stepped off the bench and he would have been proud at the end of the last term as well. Fascinating, ok kathleen can you tell us a little bit about your views of Justice Stevens . Thank you for the opportunity to be here and i am enjoying my colleagues friends and stories recollections, some of my thoughts dovetail with what you remember because i think we all have the honor of clerking for him to draw these life lessons that we continue to practice with to this day. I clerked for Justice Stevens in the october term of 2001, the year after bushby gore bush v gore. It is hard to believe that is 20 years ago, so i thought what i would try to do is bring some ught to how kind of dead dovetailing with the judging side of it but more of a Legal Practice side of it. In my mind especially as i am in private practice and have been in parts of my career, i think he brought a practice of the law sensibility, a kind of litigation and someone who is enjoying the art and practice of law to work on it even though he had these great contributions to the doctrine and deeper thought that is now studied obviously throughout the profession. Andink his practicalities is something that struck me and is some of it will continue to inspire me as they approach cases. To whatthis is similar Justice Krueger was saying, even though he was on the bench for so long and cared about aspects of legal doctrine like. New line \ he took each case is a new case before him and he had thoughts about how this could relate to Child Development that i have that remembers of when he would we had the merits case and he cracked open the race and it was time to start the case, i think that kind of when you get a new case file in your job or entire practice or not, theres something about being a lower where if you are in litigation you have this new matter, each matter presents its own facts and be excited to learn those facts and figure out not just how to apply some scheme i had and make the facts fit into what i want, but what is this case about . There is a genuine excitement for that. I think this kind of enjoyment of having a new case and seeing each as its own to be valued, not a tool to be used to achieve some trial. It was reflected in us as Justice Kruger pointed out, we split them up three or four ways depending on how many clerks there were. I carried mine around in my gym bag and he wanted noel to know what we thought. Our direction was to prepare them carefully, to give our candidate and independent view. At the end of the day it was his decision, but that is a great part of the job because he wanted us to take the petition just as seriously as the thick one from the private practitioners so that was a serious part of our job and one that meant every case mattered. We did not do bench memos. That would occasionally get some blowback that we had a cushy clerkship compared to others. What he likes to do is read the briefs, i remember coming back from florida he would spend some of time of his time at his own florida and he would take the stand out. He had to excuse himself as we sat around a conference table and talked through the issues. That is a memory i have of how the practice of law should be engaging and fun. It is not just a job, it is a privilege. I think this also dovetails with the duty i think he saw in directing his own first draft of the opinion. Sometimes it would be short, sometimes longer. It was for the reasons Justice Kruger said. I think he did that out of duty and also out of enjoyment. I am always struck by the memory of a case i worked on in my term, we had some cases even though we were the year after but i managed to not end up working on them. Every case made my clerkship fun even though they were not the most highprofile ones. One in particular i remember was this case where the federal Energy Regulatory commission which i had managed to not have to write opinions about when i was working on the circuit came back to me when i was in my clerkship with Justice Stevens. It was interesting about the power of agency to order electric companies to share blinds with other electric companies. In any event, the point of the story is he was doing his first draft and he kept coming in every morning. I was ready to get the draft and then pour over it, he said i am sorry, it is really interesting, i am taking longer than i thought. I look i to get it to you as soon as possible. I remember saying that is totally great. Thank you so much. It was clear he was not only trying to make sure he understood the facts, he was delighting in it, the notion of how energy has sold before, why congress enacted a law to change it. This was not just to try to this was fun, so he made work fun and jimenez all learned that again, this is a job that is not just a job, it is a privilege. It was kind of this notion of humility involved in that. That is something i try to bring into practice. And i think is just an important lesson for all of us, as we rise up in our practice, just not be above rolling your sleeves up, writing the first draft, making sure your reasoning in your arguments make sense, and not being above putting out your opinion and ending it editing it. Another thing that strikes me, i definitely, he was notorious for remembering the clerks for the opinion they had written together. The clerk failed to remember they worked on that case, but he would identify you as that and he was always right about that. A final note about how much case he saw was important in its own right in mattering was, a flip side, his ability to move on from cases. The clerk works on the case, and he did concern about the issues, which opinion you are working on, the dissent, this kind of thing. It could get heated at times. The year before mine the most so, but he had the ability he could not possibly care about each case individually and bring to it everything and also hang on to all of them. I learned from him a healthy way of really giving it your all, doing your best with the one in front of you and finding a way to let it go and move forward and not let that paralyze you. That is something i really admired about him. As he wrote some of his beyond the court writings after he was off the bench, clearly some of the cases he had a harder time letting go. I was happy to see he was also a human being because we had a hard time letting go. But he obviously cared a lot and there were some that stayed with him. As a practitioner, this is something i see as related to what do i draw from him as i learned about the law practice generally, this is related to the writing separately point Justice Kruger, i think you gave a very good explanation of how that was not only for the purity of thought, which i think it was, where he believed he had a responsibility to explain publicly his view, and if he could not somehow to get the group vote to come with him, he had no problem explaining that by himself. But also a strategic point, the separate writings could be the basis of something further. Of docket in my year of cases that may not have been on the front page, i recall really strong memories of working on two separate opinions for him that year. Not like there was no reason to write the opinion, but it was to him. It goes back to doing his job well and caring about each case and seeing each as mattering and being worth it. One of the cases was about a private right of action. It was a case called cons i called gonzaga v. Doe. I think with Justice Ginsburg, i worked with Justice Stevens and Justice Ginsburg. There was a question whether there could be implied rights of action. Those were slowly going away through a series of cases where it was not seen as a proper way by the majority of the court. Even though the writing was on the wall at this point, we give gave it the dissenting opinion and explained why we applied asnk it much. He thought that was the right answer and the public deserved to know. One that really sticks with me is the case on the Death Penalty which i do think is an important area of his contributions and it is tied to the humility to no one being above the law, and the sense of ensuring the fair consideration of every case, regardless of how challenging it can be. We had an 81 opinion, another highlight of my term where we were the one. It was a Death Penalty case where a vietnam veteran had been convicted of murder and sentenced to death, and his counsel at the Death Penalty hearing failed to put on any mitigation evidence and then failed to make a Closing Argument on behalf of the defendant. And the defendant was sentenced to death. Again, 81 is not where you want to be, but it was important to him to not only to articulate not just the facts of the crime, which are important and the facts of the trial, but there was explanations being given for not doing that, that it was a strategic move. So looking back through my memories of the term, i was reading the opinion, i had forgotten we attached a transcript where the defense counsel was trying to justify what he did as strategy. It is clear when you read the transcript that it is hard to see it as that. I just recall the time and effort and went into the slowly 81 into this lowly opinion to make the Public Record clear about what happened in this trial and why even though it was a perfect circumstance, there was something fundamentally wrong about it to the justice. The case came back several years later in 2009. At that point there had been withheld evidence. And he was able to at that point, with a fivemember majority was able to reverse the conviction and went back for further proceedings. This was a case of whether it was barred. That was Justice Stevens in the majority actually removing a death sentence. A case i have not looked back on and assumed that the person had been executed. Another example of a minor case, trends,some internal but the case that got its full writing the first time and havent come back to really matter. I will leave on one personal note. My year we went through Justice Rutledges papers. If anyone is in d. C. With some free time, they are quite interesting. My clerks and i went up to see if we could find anything interesting he had written his justice. See if there was something we could leave him with. Just a funny story you might not otherwise know because they were in these papers. But he apparently thanked the justice with a note by saying thank you for my clerkship. Im very excited to come. There is a note on top of his initial note where he thought he was coming for one year and he was supposed to be doing two years. So there is a note in the file where he apparently mustve been corrected by somebody in chambers he should be coming for two years. I will read you this final paragraph. I just think it sums up his humility. He was a lawyer practicing law at the Supreme Court. He was a judge, not a justice. He writes, if you decide you would like to have me stay for a second year, i shall be happy to do so. Frankly, my personal preference would be to stay for one year, but this is by no means Strong Enough to cause me to reconsider. [laughter] whether it be for one year or two, you can be sure i will do my utmost to do the kind of work that will persuade you to keep me for two. I just think that sums him up more than i could during commentary. Ben tell us a little bit about the relationship between Justice Stevens and Justice Scalia. Yes. I want to start by first thanking you for inviting me. Thank you to the Bar Association. Glad to see so many people interested in this topic and here to honor the legacy of a justice who served the court for many years and added so much to Public Discourse about the law. I will say, i did not clerk for Justice Stevens. I am sort of the joe sixpack of this group here. And i can offer comments that are much less informed than theirs. But let me begin by offering some personal recollections from my time clerking on the Supreme Court having seen Justice Stevens in action. One thing that i think really stood out is just the civility and the humility, the way in which he carried himself and the kindness he showed to everybody. Whether they were a law clerk or a justice. I think the Supreme Court is a small building. If you work there, you start to learn the names and realize it is a very tight community. Justice stevens was very much a part of that. I think he was unfailingly polite. I never saw him at any point utter a negative word or look in a negative way at anyone. He always had a respect for the people who appeared before him and to the people who worked at the court and his fellow colleagues. That was something i always admired about him. I will say too, the legacy of a justice in some ways carries on by the people who have been given the good fortune to clerk for her or him. I think it is great to have three former stevens clerks here who have accomplished so much in their careers. And i can tell you, so many clerks who clerked for Justice Stevens are now out in the world , in academia, judging in private practice. It is such a credit to the justice and what he brought to the law. It is an honor to be here with all of you. I was personally such good friends with the stevens clerks. My year, i enjoyed very much getting to know them and run down to the Lincoln Memorial and back and having great spirited discussions. Within the court, to me, the most striking thing about the way Justice Stevens ran his chambers was his nonparticipation in the circle. And it is really interesting to hear the comments, for you having been on that side. For those of us on the other side, at the time, he was the only justice who did not participate. And this, it is a significant part of the work especially for the law clerks whose justices participated in it. The effect this had for those of pool, were working in the we never quite what the stevens chambers was thinking about different cases. For those of us who were not in the chambers, it could be more of a black box. When you got a memo from another it,ices law clerk who read you had the understanding of kind of who you were working with and the other justice clerks were and in some sense, the justices themselves, even though the clerks recommendations and comments did not always necessarily reflect the view of the justice. That was not the case of the stevens chambers. And i think it had a very interesting effect in terms of the dynamic of the court. And i think it speaks to some of the comments you have heard earlier about the independent streak that Justice Stevens had. I think with respect to the relationship between Justice Stevens and Justice Scalia, i was interested in this having clerked for Justice Scalia, but i was also interested because in some ways for the period of time in the 1990s and 2000, they were the dominant voices in the court on two different sides and many different issues. I spent some time looking at the areas of disagreement and the areas of agreement. Unsurprisingly, the disagreements are more and frequent than the agreements. And i think it is sort of helpful. I was thinking, what cases really started to get at the differences and a different approaches that the two of them had . There of course are the blockbusters, and we all know on many big issues, they were on opposite sides. In some ways, i think they were each their own favorite sparring partner. Justice scalia loved to write opposite Justice Stevens. I dont know if Justice Stevens liked that too, but i got the sense that he did, and in some of the opinions you are able to see. There was a case my term which was not a blockbuster case. It was called Zuni Public School district versus the department of education. It was a highly, highly technical statutory interpretation, chevron case, i will not even go into the details of it because it is not it almost cannot even be discussed, the case is so technical. [laughter] but i did write down what it turned on. It turned on the phrase, quote, disregard per pupil expenditures above the 95th or below 95th percentile of such expenditures. It was a case in which a classic statutory interpretation case where the plain language of the statute seemed to produce to some an unworkable and unintended result. And i think it was to my mind the closest interpretation case of all time. It came up from the 10th circuit, it was 21 in the 10th circuit in favor of the department of education. The 10th circuit took it on, then divided it 66 by dividing it into firms. It came to the Supreme Court where it was 54 in favor of the department of education finding the statute was ambiguous. The majority interesting lineup. Breyer who wrote the majority, ginsburg andns, alito. And then in dissent, scalia, thomas and suitor. The case had numerous opinions reflecting the full range of statutory interpretation. Justice kennedy wrote a concurrent in which Justice Alito joined saying the status was ambiguous, but would have reversed the order of the opinion and discussed the text first and the purpose of the statute second. He had a line in there that he wrote, we must give deference to the author of the opinion in matters of expedition. When that came around, Justice Scalia said you better save that. I may need that line. Scalia wrote a classic scalia dissent. The language is unambiguous, citing the return, the holy trinity, a choice he has always pointed to as a case of elevation of statutory purpose over intent. It was the full scalia, it was applesauce, it was everything. And Justice Stevens wrote to specifically respond to Justice Scalia. And it was a concurrency he wrote, it was only his. There were a couple, there were two passages. If you read the two opinions, you get a flavor of the differences. This one i thought really, really hit it home. Justice scalias argument today rests on the incorrect premise that every policy driven interpretation implements a judges personal view of sound policy rather than a faithful attempt to carry out the will of the legislature. Quite the contrary is true of the work of the judges with whom i have worked for many years. If we presume our judges are intellectually honest, as i do, re is no need to fear he added, given the clarity of the evidence of congress intention, i would affirm this even if i thought the petitioners literal reading was correct. And i think this opinion among many others really starts to get at some of the core differences in the approaches. Obviously there were different methodological commitments with statutory interpretation, there were different starting points when it came to constitutional interpretation. But i think in addition to that, there were different views on the fallibility of judges and the trusting of judicial power. And i think the sense i have from stevens concurrents, based on experience that he had developed, he was more trusting. I think it was something Justice Scalia was more distrustful of. And i think the rule of judicial experience is something you see in some other of stevens writings. Something i have always found fascinating. His concurrents maybe it was the dissent in the lethal injection case in which he wrote separately to indicate his view that he felt that the Death Penalty was unconstitutional. Very striking part of that opinion, i will read it again, i have relied on my own experience in reaching the conclusion that the imposition of the Death Penalty represents the pointless and needless extinction of life with only marginal contribution to any discernible public services. And i think the thing i respect a good deal about Justice Stevens opinions is they were quite candid. And i think the canned door in the opinions is very helpful to try and get at what are the real issues people are focused on and what may have been motivating him in any given case. But i think at the end of the day when you look at the disagreements between the two, the disagreements were quite fundamental, and i think both of them did a very able job in laying out for the rest of the court and for the lawconsuming public what their views were on the top issues of the day. When it comes to areas of agreement, they are hard to find, but they seem to be mostly in the area of criminal law which jeff alluded to. Jeff spoke about apprendi. In his memoirs he regarded it as perhaps his most important majority opinion. Of course that itself i think that she has so many important majority opinions, chevron, apprendi. We could go on and on about some of the greatest hits. It was interesting that he featured that one is what he thought was the most important. In some ways in terms of the impact it has had in a particular area of law, it may well be that it is his most important. It wasnt just apprendi. Notable was the coming together in the confrontation clause context, as jeff mentioned. Caseay remember hondi, a about a u. S. Citizen who was held in the United States who had been picked up and had been, himgovernment had declared an enemy combatant. The question was the level of due process he was entitled to. And it was actually Justice Stevens and Justice Scalia together who were the only justices who joined in opinion saying essentially that he either needed to be charged with treason, for Congress Needed to expend habeas corpus but couldnt be detained in another world with enemy combatants. What is the explanation for the coming together in areas of criminal law . I am not an expert on this. Jack actually is. It could be that it was just persuasion in front of the Supreme Court on many of these cases. But i think i do not think it is a case that Justice Stevens in this area sort of came to see the light of original is on. And of originalism. And i dont think it was Justice Scalias moment in which he has d certain concerns of fairness, of jurisprudence. I think they came at it from different perspectives and ended up in the same place on it. And it is really interesting that they did. Because i think it really did require the two of them to bring about substantial change in the law in both criminal sentencing and confrontational clause jurisprudence. The two areas we can say this is a great legacy of Justice Stevens. But if this was a panel about Justice Scalia, we would be saying the same thing about him , and in particular these two areas as well. There was a warm friendship. There was a funny anecdote in the making of a justice. It is Justice Stevens book. I encourage you to read this. I feel like i am selling this book here. It was a good read. [laughter] he talked about how at one of his daughters weddings, Justice Scalia was bumming cigarettes from one of the stevens children. It was a warm friendship, and iowas rumor Justice Scalia walking with Justice Stevens, and i always remember Justice Scalia walking with Justice Stevens, and you could tell they were enjoyed the time they spent together, which is always great, as a law clerk, when you see your justice or your judge interacting in a friendly way with another judge or justice. And when you know that they dont see eye to eye on many things and when you see the friendship or that report, i think it gives confidence to the collective undertaking that is any kind of judicial body. So, it is really great to be here. And i have learned a lot just sitting here. Ben thank you so much. So, we are going to move to some questions from the audience. When we do this, there is a boom mic that they will pass around. So, wait for the mic to get to you. And also, we will repeat the question also for technological reasons, i have been told. To make sure it gets on the recording. So give us a second to do that, and then we will go ahead and answer. If anyone has a question or something in mind they want to ask, go ahead and raise your hand. When you think about that, i guess i will start with something to get the ball rolling. Judge, you mentioned situations in which Justice Stevens and Justice Scalia got to the same result from different perspectives. And that led me to think about a time they got to different results coming from the same perspective, and thats the heller opinion. I think that is very interesting because you had majority and dissent that were both original list and got to different types of originalism. In one way or another they got to different types of originalism. I am wondering if you have thoughts about the way originalism may have played into, or perhaps grown in interest to Justice Stevens if it did, and then perhaps we can also ask the former stevens clerks if they have thoughts on that. Judge bress just me . Ben sure. I dont want to spring it on your. Judge bress i dont think Justice Stevens ever described himself as an originalist. He seemed averse to labels but he would be particularly averse to that one. I think the opinion in heller, to me, was an effort to show in his view, originalism could produce different results. It did not necessarily yield a definite result. Perhaps in his view it could be subject to i think in Justice Stevens view, like any approach to constitutional interpretation, there was room for disagreement within originalism itself. Justice scalia said i dont think there is a view of the Second Amendment that is accurate as a matter of the original understanding. But i do not think the heller decision indicated on Justice Stevens part any commitment to any particular form of interpretation so much as to show i can take your form and come up with a different view. Ben i saw you nod. Do you think that is maybe accurate . Ms. Hartnett it was an interesting observation. How he was able to let things go during my term, but reading his postjudicial writings, how it seems less so. Maybe a slightly different mode of playing a game that would not be how he would write the opinion if it was 10 years prior to that. So i am just speculating. But when it is threeplus decades of working with these same people, trying to see if you can beat them at their own game in an opinion is not what i would have expected in my term but i can understand where that might have come from. So, a very interesting observation. Ben do we have any questions from folks in the audience . No questions . I have got one question here. Ok. Hi. Thank you so much for being here. I am actually from the ninth circuit judicial historical society. The director worked with ben to put this together, so thank you so much. My question is what aspects does stevens mentorship have you brought into your own mentorship . Bress, whatge you can share about your own mentorship . Ben to repeat the question, it is perhaps what aspect of the relationship, i suppose, between the judge and either the law clerk, as you were law clerks, and other folks who are not judges, students or ones younger, the younger folks in the Legal Profession who you work with, from your experience with Justice Stevens, what about that have you incorporated into your own approaches, and then perhaps for judge bress, his relationship with Justice Scalia. Justice cooper, you have law clerks. What do you think . I do have law clerks. As they say, Justice Stevens wasnt a person who offered a lot of overt advice. He wasnt sort of one of these people who says never do this or never do that. And nevertheless, the clerkship with him was one of the most significant learning experiences ive ever had, and much of that learning just happened through the process of sitting down around the leather armchair he used to sit in in the Clerks Office and just talking through a case and hearing his observations about the how he thought about the lawyers arguments, what worked for him argument, what didnt work for him in oral argument, is sort of unique take on how to think through sort of the extensive, you know, heavily footnoted arguments that we had just read in the briefs. And the writing process, i think, was a particularly educational experience, because even though, as i say, he wrote the first draft of his opinions, they were often not very elaborate drafts. They were he wrote as much as he felt he needed to, to ensure that he had thought about the case in the right way. But then at that point he would hand the draft off to the clerk , or to be more accurate, in my day, he would just sort of shoot it into your email and youd have a surprise waiting for you when you came back from lunch, and sort leave it to the clerk to give his or her best take on how to sort of fully flesh out an opinion that made sense of the difficult issues before the court and sort of fully explain the justices thinking about the case. And then at that point you would trade drafts back and forth, and that process of creating of trading drafts back and forth, seeing his reaction to some of your initial choices that you might have made about how to explain what the law was in this area was incredibly instructive. So it was really just a sort of question of learning by watching and by example. And that is certainly something that i hope to do in my own relationship with my law clerks, because its such a valuable experience i think on both sides, to have that open dialogue, and to have that exchange of ideas, and for both of us to learn through that process of conversation. You mentioned his felicity with email, which of course as some people know, is varying degrees of skill among the Supreme Court justices. And i recall when i was on the law review at northwestern many years ago, Justice Stevens wrote an article for the law review that year, and the editor in chief was particularly surprised at how good he was with the track changes function in microsoft word, which i still sometimes get messed up, and this was years ago. So, he certainly seemed to have that skill set from even on the outside to folks he worked with. Jeff, do you have any thoughts on Justice Stevens as a mentor to you, or what kind of boss he was . Well, i think Justice Kruger covered so much of that so well, so i dont want to retread all the ground. Ill just share a couple of things. One is, i remember, just picking up on those comments, every time he would come in from the chambers, just a few offices strung together by open doors or passageways, and he would leave his office and walk into the law clerks to talk about a case, i think almost every time he would come up and say, do you mind if i interrupt a little bit . It was kind of like the lawyers, right . Like, yes, i think thats ok, i work for you, youre the justice, if you want to talk about something, thats ok. But i think it was just another one of those examples of the respect and the civility that he showed within his chambers, to his colleagues, to lawyers on the bench. And so as a law professor, ive tried to take that a little bit into my own interactions with my students, if im working with them on a project and coming in, ill sometimes steal his line. Do you mind if i cold call you . [laughter] and i think the other thing that maybe this is just crystalizing Something Else people have been talking about, maybe picking up on the heller conversation a little bit, but my take on his dissent in heller was not that much of a surprise. I mean, i think that he never thought history wasnt important. I think that he thought history was important along with lots of other things. And i think that was the way he judged, and i think maybe some people might have criticized him by not having a theory that you could label, or that you could easily identify of a mode of interpretation, and i think thats something that were talking about with Justice Scalia today, and thats something Justice Scalia did a brilliant job of, in a sense branding his approach to constitutional interpretation, and just stevens resisted that, and i think that one thing that ive taken from that, right or wrong, but i think the one thing ive taken from that is, you have to be careful not to make things too easy on yourself. And i think Justice Stevens was always worried that if he looked only at the text of the statute and nothing else, or if he looked only at the history and nothing else, hed, in a sense, make the case too easy, and i think he thought he had to consider everything, and even if that meant reaching a really hard decision where the scales were nearly balanced, i think he felt that responsibility. And so, when i work through legal problems sometimes, i feel like i try to channel sometimes Justice Stevens lesson that he taught me there, which is dont let yourself off the hook. You have to think through every aspect of the problem before you kind of reach a position. I think, if i could just add to that, i think it was his resistance to particular easily labeled methodologies, to some extent, of a pice with his sense of judicial modesty. And i think in this way, i think Justice Stevens and Justice Scalia were very similar in that judicial modesty and restraint was very important to both of them. They just said, again, had different ways of thinking that those values were best served. But he, i think throughout his career, i think sort of made this clear in various ways that he thought that sort of easy formulas not easy, but sort of simple, straightforward formulas for deciding cases, could be misleading, could sort of send a judge off track and to sort of counterintuitively increase the judges power insert his or her own personal preferences as opposed to a sort of broader, more all Things Considered kind of approach that sort of takes each case as it comes and considers all of the relevant factors and sort of in a sort of more holistic way. I think that that was, in his mind, sort of more consistent with a more modest, sort of commonlaw approach than a sort of more systematic, consistent methodology. I have a question back there. I was thinking also about the legacy of Justice Stevens impact on kind of the current court, not practicewise. It was mentioned he was the sole person outside of the justice pool, you had gorsuch now is outside the pool. I dont know if hes credited Justice Stevens as the cause of that. But are there any other sort of practices that Justice Stevens had on the court that either any of the justices have sort of picked up where he left off . Just to repeat the question. I think the question is really, what impact on the court as an institution, i suppose, in some ways, do you see Justice Stevens having . Not in jurisprudence, but in terms of the way the court functions, or the way justices interact with thier clerks, if any. Use of computers by the justices . That might have happened on its own. Use of computers by the justices. Maybe he pushed them to use computers because he was so good at computers, apparently . Any thoughts . Judge bress, any thoughts of how Justice Stevens might have impacted the way Justice Scalia approached what he did, if at all . I dont know. It is a good question, and i dont know that i know what the answer to it is. But i suspect there are ways. The thing that comes to mind to me, if anything, would be oral argument. Because i think that Justice Stevens was a powerful force in oral argument. I think he was somebody who asked very penetrating questions. He didnt necessarily ask the most questions. He often asked the best questions, or some of the best questions, and i think that perhaps he refined the practice of oral argument a little bit, those who argue in the Supreme Court probably have a better view on this than i do, but thats just maybe one area. Ok, weve got maybe time for one more question. This is a question about the panelists own perspective as opposed to Justice Stevens perspective, just because we have so many experienced and accomplished litigators here with such a unique perspective, having clerked on the Supreme Court. I wonder how they would say how the practice of law differs at the federal appellate or trial levels versus the Supreme Court, from a litigators perspective. The question is sort a general one, so i think probably a lot of different ways to answer it, but what makes practice in front of the u. S. Supreme court unique as compared to practice in front of other Appellate Courts . Perhaps one way to start, Justice Kruger, is what do you think makes practice at the u. S. Supreme court different, if anything, from practice in your court from the advocates who appear and argue in your court . Sure. The first question actually may be a little bit more straightforward to answer. Sure, go with that, yeah. Lets do that. We will start there. I think its sort of the fundamental difference is that the u. S. Supreme court, like the california Supreme Court, in matters of state law, is a court of last resort. And it has mostly discretionary control over its docket. Its primary purpose isnt to correct mistakes that happened in the lower courts, its primary purpose is to ensure the integrity and uniformity of the law across the entire United States, and where there are questions that have come up that have confused the people in the trenches, applying laws in the lower courts, the United States Supreme Courts job is to help provide answers and advance the understanding and development of the law. And what that means practically from a practitioners perspective is that you can be pretty sure when you walk into the United States Supreme Court that the answer to the question in your case isnt going to be dictated clearly by careful review of any existing precedent. Thats sort of the baseline. As we understand, this is a difficult question that is going to require us to resolve, sort of poorly understood gap in the case laws that exist today, or to resolve maybe conflict between two threads of cases. As they have developed. And in approaching those questions, instead of sort of arguing primarily from precedent, the nature of the argument tends to be more sort of going back to first principles. So, as a practitioner writing a brief in the Supreme Court, sort of each sentence that you write, each plank in your argument, you sort of have to ask yourself, not only what is the rule, but why does this rule exist, and sort of assure yourself and assure the court that the rules that you are sort of building on, in order to answer these unresolved questions, are ones that make sense, that are consistent with the precedent as we understand it, that are workable, that are administratorable, that comport with the justices best sense of what the law is. And so thats how i would describe the basic difference between appellate practice in general and practice in the Supreme Court. Kathleen, do you want to Say Something . Yeah, i think your question and the prior question prompted me to think about also how Justice Stevens might think about that, and one thing he did say at times was that the constitution basically when people would inadvertently call a justice a judge, he would say the constitution makes the same mistake. And so i do think there was interest i think its important that it wasnt he saw the task as error correction or he misunderstood he was not a Supreme Court justice and with the appropriate role, but there was just a humility and a sense that a judge is a person thats a fair arbiter of the matter before him subject to the proper whatever the task is being asked to find facts to hold a trial, to conduct a kind of principle s review of a constitutional question, was it necessary. So i think that kind of connects to your question about kind of what did he bring to the court more broadly, and i do think there was that sense of the modesty that were trying to kind of infuse at least those conversations he had with people that he was having direct conversations with of kind of judicial modesty to the point of lets talk about this as a judge would and not with some notion of yourself as a Supreme Court justice above it all. But i also think the sense of history that he brought to the court, which is why this is just so important to kind of keep that conversation going, because not only was he on the court for so long, but he had actually clerked for the court in the 1940s, and so it was almost like you were talking to someone that was out of another time when you got to speak with him. He was this continuity on the court, not just in terms of he read the book about it and was kind of trying to recreate it, but that he had lived it. And so the sense of what it meant to go through periods of our nations time, i was looking back through here where there was an opinion he was working on with Justice Rutledge in the 1940s about prebrown segregation case and whether to flow that through to another case. And so just that sense of history, and i think as the court membership changes, it was just a special connection to the true past and the lived past of the court and the nation that i think hopefully events like this will continue to kind of make sure we dont lose sight of those things when were judging, because i think he brought all those experiences to bear when he was judging a case in the modern era. I think thats a great note in which to finish our program tonight. Thank you so much for coming. Lets give a round of applause to our terrific panelists. [applause] [captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] announcer the president ial Election Results and transfer of power dominated the discussion on the sunday news programs. Here is a look at what lawmakers in the house and senate had to say, starting with delaware senator chris coons. Sen. Coons i think that joe biden, as president elect, and forgive me, it still makes me smile to say that, that joe is going to be able to pull together leaders in congress to deliver the relief we need and deserve, and one way that President Trump can show some graciousness in the next 73 days during the transition is to publicly support a significant pandemic relief bill. We have had record new cases all this past week. It is past time for us to come together and deliver the relief the American People are waiting for. Are you concerned at all that if a smaller package is passed during the lameduck session, it would make it more difficult to