Transcripts For CSPAN Justice John Paul Stevens Legacy 20240712

The federal Bar Association, Northern District of california chapter and the American Constitution Society bay area chapter. I looked welcome cspan which is broadcasting the discussion. In 10 years or so but i have been putting on that i have been putting on programs like this, cspan is here so i have made it. It is some of the most awful programming on television when congress is out of session. Onthoughtful programming television when congress is out of session. The next on january 28 is on settling cases in the ninth circuit. We are going to save time at the end of the program for questions. If any of her to you, howard panelists areour discussing, write them down so you dont forget. ,o my left is Leondra Kruger associate justice of the California Supreme Court since 2014. Prior to her tenure, she served in the u. S. Department of justice and before that she was the acting deputy solicitor general for president obama. She argued 12 cases in the United States Supreme Court and twice received the attorney generals award for exceptional service, the highest award. She is a graduate of Harvard College and gail law. Yale law. She clerked with Justice Stevens. To her left is jeff fisher, besser of law and codirector of the jeff is one of the leading authorities on Supreme Court practice and has argued over three dozen cases. He was the winning advocate in crawford v. Washington. And riley against california on smartphone Privacy Protection rights. He was one of the plaintiffs counsel on obergefell versus hudson. He is a graduate of michigan law. Reinhardtwith justice and Justice Stevens. O his left is Kathleen Hartman she has a private practice representing defendants in highstakes litigation. During the Obama Administration she served as harvard graduate of college and law school and clerked firm merrick garland. Also for Justice Stevens. Finally on the far left of the panel which is not a phrase he will hear often is daniel press who is nominated and confirmed to the u. S. Court of appeals for the ninth circuit, finally getting through the hazing. As a partner at himself. Ed law school he clerked for jay Harvie Wilkinson on the Fourth Circuit court of appeals in late justice antonin scalia. Lets get the ball rolling with Justice Kruger who will discuss some of Justice Stevens approaches to judging. Ben, ander thank you, thank you for the opportunity to participate in this event remembering and celebrating the legacy of Justice John Paul stevens. Others will address other aspects of the justices remarkable service, the impact that his work had on the substance of the jurisprudence, judicial philosophy. I will focus on how i best new the justice, knew which was the 2003, 2004 term. What i observed from watching not just the substance for deciding cases but the day today habits of judging day to day habits of judging. It is one of the values of a clerkship. You spend all of your time reading Supreme Court opinions, deciding what arguments you find persuasive and what you dont. Unless you happen to know one in real life, you have no idea how the job is done. How do they decide the most difficult questions in our country . How do they talk about what they do . Looking back on it now i am a judge myself, i have feel fortunate to have learned to those things from Justice Stevens. I knew before i started my job was going to be different from that of 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 unlike my colleagues down the hall, i would be reading fully one fourth of the petitions for review that came into the court because Justice Stevens did not produce of it in this ownew we would be going our way frequently. I did not know the reason why until i started the clerkship. I learned when he talked about cases and each of these things, it was not because he was so enamored with his own voice. It was not because he didnt know how to get along with others. It was because he felt it was important for him at a fundamental level to decide each case according to his judgment about what the law commanded. Whether others agreed with him or whether they didnt was not his concern. He knew his job was to do not what the crowd wanted him to do, whether the crowd be a majority of his colleagues, whether it be the desires of politically powerful people with their 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 understanding of what the law commanded. He was 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 perdition is. He understood what his job was, fundamentally different from politics. It was a running joke we had no idea what his politics were, even though he had been a lifelong republican and was appointed by a republican president. We didnt have the first clue who he had diverted had voted for. It was a point of pride for us, he was sworn in at the Supreme Court itself and not at the white house as some of his colleagues had done. That was important, the symbolism to demonstrate that once he took the oath of office he was not beholden to the president who appointed him or any force, that he was there to serve people of all parties and to do equal justice under the law. We were surprised to discover he had accepted an invitation for a state dinner at the white house, given his 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. 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 said was the president is very attractive for that was the most political commentary we got the entire year. It is hard to talk about Justice Stevens without mentioning his frameless famous humility. There is no other way to describe it. Even though Justice Stevens had been around a long time and seen he had been a central player in a lot of the 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. Didnt happen very often. Nine times out of 10, look back at the separate opinion he had written 20 years earlier and say i think we were dead right. That 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 himself. It was a habit he had acquired as a law clerk to Riley Rutledge Wiley Rutledge in the 1940s. The reason he did it was not so much he was especially concerned about the way words or phrases appeared in his opinions, although he was, but it was a performed discipline function. Thats his way of ensuring based on his review and study of the case it was correct. He wrote down as much as he needed to write in order to ensure he was actually thinking the case all the way through. Sometimes he would discover in writing out that first draft, the opinion would not write. He discovered that and did not hesitate to change his mind to let them know he would not be atg the opinion as all. The diligence it takes to reflect and drill down as deeply as necessary to ensure you are , i think right thing what of the most important lessons i have learned from Justice Stevens. Reflection onh a how i think Justice Stevens would have described himself as a judge. Last year in may, two years 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 to ask him questions including reflecting on his life and legacy. 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 think i am projecting, but we were all hungry for the answer. I dont know what i was expecting but sometimes prescriptions are nice like eat a grapefruit a day, take up bridge, walk 10,000 steps. His answer was nothing so prescriptive or for fitness oriented. 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. He thought it was presumptuous to tell other people what they should or should not be doing. Summary ofs good a his record on the Supreme Court as any other i can think of. For 35 years, he worked as hard as he could in the service of the public to render impartial and fair justice, and he always did his best. It can always be our hope that we are successful as he was in that endeavor. Ben thank you, Justice Kruger. Jeff fisher . 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. It floating. Thank you. I am going to try to pick up on a few of the threads Justice Kruger talked about and run them through what he called in his memoirs perhaps his most significant majority opinion he ever authored. It was called printing versus new jersey. It was a case that most laypeople, many lawyers would not know by name. I want to talk about that. The justice itself singled that out. I want to weave together the story of justices, the justices approach to the work and interaction with his colleagues. I wholeheartedly agree one of the defining features of Justice Stevens was his peers independence fierce in terms of his own views and expressing them when they were not otherwise given voice on the court. By the time i clerked for the late justice, he was the lead associate justice with the most than yours he and found himself in a position to do things like a sign opinions or build a coalition. I want to talk about that. Thisentral character in story is Justice Scalia. Thet of people know about special relationship Justice Scalia and Justice Ginsburg had, but Justice Stevens and Justice Scalia also had one in many ways. I remember one day when i was clerking and the justice came back from conference. He said here is how we voted and here is how the opinions look like they will be assigned. Looked like he was going to write the majority opinion. Goinge told us, nino is to do the dissent. I remember the clerks, we sat back knowing what a fierce pen Justice Scalia would have in dissent. It would ok, i can take his heat. Whether agreeing or disagreeing they had a neat relationship with each other. The apprendi doctrine i want to talk about deals with the defendants right not to be punished any more severely than s verdictn jury allows. This is a great way to talk stevenstice independence. When he joined the court in the 1980s, many state legislators on 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. These laws were written left it to the judge after the jury found them guilty. This issue first came to the court in 1986. A mandatory minimum of five years in prison. An eight justice decision saying this to not violate the defendants due process rights. The loan dissenter was Justice Stevens. He said if this is ok, legislatures can have a broad crime like assault and have people punished more severely if the judge finds not beyond a reasonable doubt but by preponderance of the evidence someone was injured in a particular way, someone used a gun or dangerous weapon, any number of facts. That was too big an incursion on and notndants liberty being punished any more than he thought the jury should be allowed. Dissent, thenlone again 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. It was not just in terms of prison. It was allowing somebody to be sentenced by death for a particular crime. Justice stevens wrote a solo insent again in one to 90 1990 but was unable to move his colleagues. Fast forward to 2000 when the apprendi case comes up. It was another one of these basic situations where a basic fact, committing a crime, a hate crime was something that would expose the defendant to extra punishment. Five extra years. Od justice year peri stevens managed to persuade his colleagues including Justice Scalia that the constitution was in fact violated if a judge found a fact or herself that increased independents a defendants sentence. Tot apply the same principle various citizen guideline regimes the state level and federal level, creating a revolution in sentencing practice in this country. And i think what is so extraordinary about that is at a time where we watch the everchanging membership of the court and we have so much conversation when one justice is replaced with another, will that cause the court to reconsider some prior precedent . It was not the changing membership in the court that changed the outcome. It was Justice Stevens own persuasiveness in the building. He brought Justice Scalia and others around. Also were not necessarily inclined to vote with him including Justice Thomas who joined in the majority in a in ay in a in apprendi 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. He did it differently. 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 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 it run around the jury. You find Justice Stevens finding to bring different perspectives together on the court to reach a majority and not by vote trading or haggling but by reason. Court,tevens was on the had ripplerendi has affects not just in criminal sentencing but other areas of the Supreme Courts docket. Even today when 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 on throughlives other people. Also there are other areas of law like the right to confrontation, the requirement criminal laws be written with me and is something that will continue to inspire people as they approach cases. I would say this is similar thoughts about how this could relate, but i had that remembrance when he would, especially with the merits case. It was there in front of you and lets take this front to back. I think that, like when you get a new case file in your job or private practice or not there is something about being a lawyer where you have this new matter, each presents its own facts and being able to learn those not how i applied some scheme and make it the fact spin to what i want but what is this case about . There is genuine excitement. 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 final and, it was reflected in us as , weice kruger pointed out split them up three or four ways depending on how many clerks there were. He wanted to know what we thought. Our direction was to prepare them carefully, to give our candidate and independent view. It was his decision. That was a great art of the job theuse he wanted us to take decision 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. We like he liked to read the brief. I remember coming back from florida. He would spend time at his home in florida and say he was shaking the sand out. 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. The duty iils with think he saw in drafting his first draft. Sometimes it would be short, sometimes longer. It was for the reasons Justice Kruger said. He did it out of enjoyment. Memoryways struck by the of a case, we had some cases even though we were the year after but i managed to not end up working on them. Clerkship fune my even though they were not the most highprofile ones. One was the federal Regulatory Commission which i managed to not have to write opinions about came back to me during my clerkship with Justice Stevens. It was interesting about the power of agency to order electric companies to share blinds with other electric companies. The point of the story is he was doing his first draft and he kept coming in every morning. I would get the draft, then go over it. He said i am sorry. I willeally interesting, try to get it to you as soon as possible. I remember saying that is totally great. 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. Learne it fun and made us this is a job 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. Practice, up in our just not be above rolling your sleeves up writing the first draft, making sure your reasoning makes sense and putting up the opinion, editing it. Me, ir thing that strikes definitely, he was notorious for remembering the clerks for the opinion they had worked on. The clerk failed to remember but herked on that case, would identify you as that and was always right. A final note about how much case he saw was important in its own right 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, 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 and hang on to all of them. 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 know. That is something i admired about him. Beyondrote some of his the court writings after he was off the bench. Some of the cases he had a harder time letting go. He was also a human being because we had a hard time letting go. He cared a lot. There were some that stayed with him. As a practitioner, this is something i see as related to what do i draw from him, this is related to the writing separately point Justice Kruger, i think you gave a good explanation of how that was not only for the. She of thought which was where he believed he had a responsibility to explain publicly his view, and if he could not get the vote to come in he had no problem explaining that by himself but also a strategic point, the separate writings could be the basis of something further. In my docket of cases that may not have been on the front page, i recall strong memories of working on separate opinions for him. 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. Ginsburg, i justice worked with Justice Stevens and Justice Ginsburg. There was a question whether there could be implied rights of action. Those were going away through a series of cases where it was not seen by the majority of the court. Even though the writing was on the wall at this point, we give it the dissenting opinion and explained why we thought it did not apply as much. He thought that was the right answer and the public deserved to know. One that sticks with me is the case on the Death Penalty which 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. 1 opinion area we were the one. It was a Death Penalty case where a vietnam veteran had been sentenced to death, and his counsel at the hearing failed to put on any mitigation evidence and then failed to make a Closing Argument on behalf of the defendant. The defendant was sentenced to death. Want to be,here you but it was important to him 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. Looking back, reading the opinion, i had forgotten we attached a transcript where the defense counsel was trying to justify what he did in strategy. It is clear when you read the transcript it is hard to see it as that. I remember the time and effort that went to this 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. Point, with a fivemember majority was able to resource reverse and went back. This was a case of whether it was barred. That was Justice Stevens in the majority are moving a death sentence. A case i have not looked back on that the person had been executed. Another example of a minor case, part of some trends but really got us writing the first time. I will leave on one personal note. My year we went through justice papers. s they are quite interesting. We went up to see if we could find anything interesting he had written as justice. See if there was something we could leave him with. A funny story you might not otherwise know because they were in these papers. He said thank you for my clerkship. Im very excited. 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. He apparently mustve been corrected by somebody in chambers he should be coming for two years. I will read you the final paragraph. T sums up his humility he was a lawyer practicing law at the Supreme Court. He writes, if you decide you would like to have me stay for a second year i will be happy to do so. My preference would be to stay for one year but this is by no means Strong Enough to cause me to reconsider. Orther it be for one year two, you can be sure i will do my utmost to do the kind of work to persuade you to keep me furnishing. Keep me for two. Ben tell us a little bit about the relationship between Justice Stevens and Justice Scalia. I want to start by first of theg legacy justice who served the court for many years and added to Public Discourse about the law. I did not clerk for Justice Stevens. I am sort of the joe sixpack of this group here. I can offer comments that are much less informed than theirs. Let me begin by offering personal clerking on the Supreme Court having seen Justice Stevens in action. One thing that stood out is the civility and the military, the way in which he carried himself and the kindness he showed to everybody. Athink the Supreme Court is small building. If you work there, you learn the names and realize it is a tight community. Justice stevens was a part of that. Polite. Utstandingly i never saw him sort of utter a negative word or look in a negative way at anyone. He had a respect for the people who appeared before him and those who worked at the court and his fellow colleagues. I will say the legacy of a ontice in some ways carries by the people who have been fortunate to clerk for her or him. It is great to have three former stevens clerks here who have accomplished so much in their careers. I can tell you so many clerks who clerked for Justice Stevens are now out in the world judging, in private practice. We are 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. I enjoyed getting to know them and run down to the Lincoln Memorial and back and having spirited discussions. The most striking thing about the way Justice Stevens ran his chambers was his nonparticipation in the circle. It is interesting to hear the comments. For those of us on the other side, he was the only justice who did not participate. , it is a significant part of the work especially for the law clerks. The effect this had for those of us working for the who were in the we never knew quite what the stevens chambers was thinking about different cases. For those of us not in the chambers it could be more of a black box. When you had a memo from another justices firm, you read it and 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 didnt always reflect the view of the justice. That was not the case of the stevens chambers. I think it speaks to some of the comments you have heard earlier about the independent streak Justice Stevens had. I think with respect to the relationship between Justice Stevens and Justice Scalia, i was interested in this having clerked, but i was also interested because in some ways the 1990s and 2000, they were the dominant voices in the court on the two different sides and many issues. I spent some time looking at the areas of disagreement and agreement. Not surprisingly the disagreements are more and frequent than the agreements. It is helpful. I was thinking what cases really started to get at differences the two of them had . They are the blockbusters, and issues,now on the big they were on opposite sides. In some ways they were each their own favorite sparring partner. Justice scalia liked to write opposite Justice Stevens. I dont know if Justice Stevens liked that, but i got the sense that he did in the opinions. There was a case my term which was not a blockbuster case. It was called Zuni Public School district. It was a highly technical statutory interpretation, chevron case, i will not go into details because it is not the case is so technical. I did write down what it turned on. It turned on the phrase disregard for pupil expenditures above the 95th or below the fifth percentile of such expenditures. A classicase in which statutory interpretation case where the plain language of the statute seemed to produce to unworkable and unintended results. It was to my mind to 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. They took it on, divided it 66 by dividing it into firms. In the Supreme Court it was 54 in favor of the department of education finding the statute was ambiguous. It was a prior who wrote them who wrote the majority, and then in dissent, scalia, the caseisorder had numerous opinions reflecting the full range of statutory interpretation. Justice kennedy wrote a concurrent in which Justice Alito said if you join this, it was ambiguous but would have reversed the order of the this discussion and the purpose of the statute. He had a line in there that he wrote, we must give deference to the opinion in matters of expedition. He 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, elevation of statutory purpose over intent. It was the full scalia, applesauce, it was everything. Justice stevens wrote to respond to Justice Scalia. The concurrency wrote, it was only his. There were a couple, two passages. If you read the opinions, you get a flavor of the differences. This one really hit it home. Justice scalias argument today rests on the interact premise every policy driven interpretation implements a judges personal view of sound policy rather than a faithful will ofto carry out the the legislature. Quite the contrary is true with the judges with whom i have worked for many years. With we present the are honest, if we presume they are honest, there is no need for absent congress. He said given the clarity of the evidence of Congress Attention affirm this even if i thought the petitioners literal reading was correct. I think this opinion among many others starts to get at the differences in the approaches. There were different methodological commitments with statutory interpretation, different starting points when it came to constitutional interpretation. In addition to that there were different views on the fallibility of judges and the trust of judicial power. I think the dissents i have from the stevens concurrents, based on experience he had developed, he was more trusting. It was something Justice Scalia was more distrustful of. The role of experience is something you see in other stevens writings. Maybe it was the legal injection case in which he wrote separately to indicate his view was unconstitutional. Striking part of that opinion, i will read it again, i have relied on my own experience in reaching the conclusion the imposition of the Death Penalty represents the pointless and needless extinction of life with marginal i think the thing i respect a good deal about Justice Steven opinions is they were quite candid. That is very helpful to get at what are the real issues people are focused on and what may have been motivating him in any given case. At the end of the day when you look at the disagreements between the two, they were quite fundamental and both of them did a very able job in laying out for the rest of the court and the law consuming public what their views on the top things of the day. When it comes to areas of agreement, they are hard to find, but they seem to be in the area of criminal law which just alluded to. Printing bout a spoke about apprendi v. He regarded it as his most majority important majority opinion. He has so many important majority opinions, chevron, apprendi. It was interesting he featured that one as what it may well be that it is. T wasnt just apprendi v notable was the coming together that he referenced. Remember the case about u. S. Citizen who was held in the United States who had been picked up and had been, the government declared enemy combatant. The question was the level of due process he was entitled to. It was actually Justice Stevens and Justice Scalia together who were the only justices who joined in opinion saying he either needed to be charged with treason or to suspend the writ of habeas corpus but couldnt be detained in another world with enemy combatants. What is the explanation for coming together in areas of criminal law . It could be that it was justs that, i dontink dig it is the case Justice Stevens in this area sort of came to see the light. I dont think it was justice he hass moment in which sort of certain concerns of fairness, i think they came at it from different perspectives and ended up in the same place on it. It is really interesting that they did. It really did require the two of them to bring about substantial change in the law in criminal sentencing and confrontation clause. The two areas we can say this is a great legacy of Justice Stevens. If this is a panel about Justice Scalia, we would be saying the same thing about him in these areas. There was a warm friendship, funny anecdote in the making of a justice. I encourage you to read this. I am selling this book here. It was agreed a good read. Talked about how at one of his daughters weddings, Justice Scalia was bombing cigarettes from one of the bumming cigarettes from one of the stevens children. Enjoyedd tell they were 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. When you know they dont see eye to eye on many things and you see the friendship, i think it gives confidence to the collective undertaking that is any kind of judicial body. It is great to be here. I have learned a lot just sitting here. Ben thank you so much. We are going to move to some questions from the audience. When we do this, there is a microphone they will pass around. Wait for the microphone to get to you. Alsoll repeat the question for technological reasons i have been told. To make sure it gets on the recording. We will go ahead and answer. If anyone has a question or something in mind they want to ask, raise your hand. I guess i will start with something to get the ball rolling. Situations in which Justice Stevens and Justice Scalia got to the same results from different perspectives. That led me to think about a time they got to different results coming from the same perspective, the heller opinion. You had majority and dissent that were both original list and got to different types of originalism. I am wondering if you have thoughts about the way originalism may have played into or grown in interest to Justice Stevens if it did and also ask the former stevens clerks if they have thoughts on that. Me . Bress ben sure. I dont want to spring it on your. Judge bress i dont think Justice Stevens described himself as he seemed averse to labels but he would be averse to that one. Heller the opinion in was an effort to show in this view original ism could produce different results. It did not yield a different result. Perhaps in his view it could be like in Justice Stevens view, like any approach to constitutional interpretation, there was room for disagreement in it as self. Justice scalia said i dont think there is a view of the Second Amendment that is accurate as a matter of the original understanding. I dont think the decision stevens on justice part any commitment to any particular form so much as to show i can take your form and come up with a different view. Nod. I saw you do you think it is accurate . Ms. Hartnett it was interesting. How he was able to let things go during my term but reading his post to judicial writings, how it seems less so. Maybe a different mode of playing a game that would be how he would write the opinion if it was 10 years prior various speculating but it does interesting. Working withes of the same people, trying to see if you can beat them at their own played a lot of not what i would have expected in my term but i can understand where that might have come from. Do we have any questions from folks in the audience . No questions . I have got one question here. Thank you so much for being here. I am from the ninth circuit judicial historical society. Thank you so much. My question is what aspects does brought youtor ship into your own, and then judge share. Bress can ben what aspect of the relationship, i sporks between the judge i suppose, between the judge and either the claw clerk, as you were 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, 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 every had, and much of that learning just happened through the process of sitting durent leather armchair he used to sit in in the Clerks Office and just talking through a case and hearing his observation about the how he thought about the lawyers arguments, what worked for him in oral arguable, what didnt work for him in oral argument, his sort unique take on how to think through sort of the extensive, you know, heavily footnoted arguments we had just read in the briefs. The writing process, i think, was particularly educational experience, because even though, as i say, he wrote the first draft of his opinions, they were often not very elaborate drafts. 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 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 he 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 demonstrating 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. That is certainly something 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, to have that exchange of ideas, and for both of us, to learn through that process of conversation. Fallicity oned his with email, which 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 ord, which i still sometimes get messd up, and this was years ago. They 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 groufpblet 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 day, a case, almost every he would come up and say, do you mind if i interrupt a little bit . It was kind of like the lawyers, right . 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 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, if im coming in, ill sometimes steal his line. Do you mind if i cold call you . [laughter] and i think the other thing 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 you could easily identify of a mode of interpretation, and i think thats something were talking about with Justice Scalia today, and thats something he 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. I think Justice Stevens was always worried that if he looked only to the text of the statute and nothing else, or if he looked only at the history and nothing else, hed, in a sernings 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. Whoy 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 particularly easily labeled methodologies, to some extent accident at peace with his sevens hue hit, 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, straight forward formulas for deciding cases, could be misleading, could sort of send a judge off track and to sort of counter ininto actively increase the judges four 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 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. The question back there . I was thinking also about the legacy of Justice Stevens, his impact on kind of the current court, not practicewise. It was medgesd he was the sole person outside of the justice pal, you had gorsuch is outside the pool. 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, but the way justices, anything, the 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 . Any thoughts of how Justice Stevens might have impacted the way Justice Scalia approached what he did, if at all . I dont know, little a good question, and i dont know that answer to it is. The thing that comes to mind to me, if anything, would be oral argument. I think Justice Stevens was a powerful force in oral argument. I think he was somebody who asked very penetrating questions. He didnt necessarily asked the most questions. He often asked the best questions, or some of the best questions, and i think that perhaps he would find the practice of oral argument a little bit, those who arg night Supreme Court probably have a better view on this than i do, but thats just maybe one area. Ok, weve got 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 experience and had 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 trial levels versus the Supreme Court, from all litigator perspective. The question is sort a general one, so i think probably a lot of different ays 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, 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. 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, flying 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. What that means practically from a practitioners perspective is that you can be patriot sure when you walk into the United States Supreme Court that the answer to the question 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 gap of poorly understood in the case laws that exist today or solve a conflict between two threads of cases. And in approaching those questions, instead of sort of arguable 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 real 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. Thats how i would describe the basic difference between appellate practice in general and practice in the Supreme Court. Kathleen . 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 inadvertently call a justice a judge, he would say the constitution makes the same mistake. I think there was interest i think its important 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 of being asked to find facts to hold a trial, to conduct a kind of principle 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 a sense of the modesty that were trying to kind of infukes at least those conversations he had with people that he was having direct conversations with of kind of judicial moderate ey to the point of lets talk about this as a judge would and not with a notion of yourself as a Supreme Court justice above it all. The sevens 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 trying to recreate it, but he had lived it. So the sense of what it meant to go through periods of our nations time, i was looking back through 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. 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 live 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. [captioning performed by national captioning institute] [captions Copyright National cable satellite corp. 2020] you know, when you read the things that were said about thomas jefferson, you know, that he was an infidel, an agent of the french government, sounds a little reminiscent, doesnt it . The things that were said about abraham lincoln, the things that were said about f. D. R. , that he wanted to be a dictator. So it does kind of come with the territory, but i think in trumps case, at least in the modern political era, postworld war ii, ive never seen anything like it. Today at noon eastern on in depth, our live twohour conversation with author and faith and Freedom Coalition founder ralph reed, whose books include awakening, active faith, and for god and country. Join us, watch book tvs in depth, today at noon eastern n cspan2. Former white house chiefs of staff talked about how they dealt with crises during their administrations. Well hear from mack mclarty, ained card, denis mcdonough, and mick mulvaney. Theyll talk about their experiences handling the attacks on 9 11, the 2012 u. S. Embassy attack in benghazi, ebola, the 2008 financial crisis, and the current coronavirus. Georgetown university hosted this event. I wanted to thank everyone for tuning in