Q&A with Laurence Tribe of Harvard Law School

Laurence Tribe of the Harvard Law School has been for 40 years one of the nation's preeminent constitutional scholars. He's known as a great teacher, compelling writer, and appellate advocate of great distinction. When it comes to the U.S. Supreme Court, there is no better informed commentator. Here he tells us what he thinks about the Supreme Court, from a variety of angles.

William Domnarski: You've argued 36 cases before the Supreme Court. It must have been great fun arguing with or presenting arguments to really sharp people who were prepared.

Larry Tribe: I suppose "fun" is one word for it. "Terrifying" is another. Oddly, I never cease being nervous for the weeks leading up to any appellate argument, especially one in the Supreme Court. But once I begin with "Mr. Chief Justice and may it please the Court," I find myself in the flow and really start to enjoy myself. The tougher the questions, the better. And you're right, it's the fact that every one of the justices -- and I do literally mean every one -- is totally prepared and extremely smart. The most enjoyable cases to argue have always been those in which the ideological predispositions of the justices aren't clearly fixed in advance. And, of the dozens of cases I've argued, I'd say that was true of the great majority -- cases likeLarkin v. Grendel's Den(invalidating state law delegating power over liquor licenses to nearby churches), andMidkiff v. Hawaii Housing Authority(upholding state law requiring owners of large tracts of land to sell at fair market values set by juries the homes occupied on their land), andPennzoil v. Texaco(protecting state authority to enforce large money judgments from interference by federal courts). As opposed to cases likeBowers v. Hardwick(upholding state power to criminalize same-sex sodomy in private) andRust v. Sullivan(upholding abortion counseling gag rule), where you pretty much knew in advance where each justice was coming from. Most exciting of all, actually, were cases likePennzoil, where it was necessary to cobble together a majority composed of several justices who agreed with one theory I was advancing and several other justices who disagreed strongly with that theory but embraced another rationale for the same result. Being able to generate a 9-0 victory against a highly talented advocate on the other side, David Boies, was especially satisfying -- but only because the two legal theories I advanced, while very different (one focused on federalism, the other on equality and due process), were fully consistent with one another.

WD: Have you ever seen anything amusing when arguing a case? There's the famous story about when Felix Frankfurter, thinking procedure, asked an advocate, who was thinking logistically, how he had gotten to the court and learned that it had been by train. Apparently there was a burst of laughter in the courtroom.

LT: When I was arguingRichmond Newspapers v. Virginia, the case establishing the right of the press and public to attend and observe criminal trials, then-Justice William Rehnquist asked me whether I could tell him where Hanover, Virginia -- the locus of the courthouse involved in the case -- was located, a question that had nothing at all to do with the matter at hand. He had a big map in front of him, opened wide, and he was peering at it as he asked for my help in locating the town involved. My father had died shortly before the argument, so I never got a chance to visit the place, which I would surely have done but for being in mourning and doing all I could to hold it together to get up and argue my first oral appearance before the court. But I didn't want to plead personal tragedy as an excuse for my ignorance, so I did some not-so-clever thinking on my feet and responded, "Well, Justice Rehnquist, it's not very far from Richmond." Rehnquist looked up from the map, raised an eyebrow, and shot back: "Professor Tribe, nothing in Virginia is very far from Richmond." There was some laughter in the courtroom. I wasn't laughing.

WD: Nicholas Katzenbach in his memoir talked about how, when Robert Kennedy was attorney general and argued his only case at the Supreme Court, Kennedy strode up to the lectern and didn't have any notebooks, files, folders, or pens with him. Nothing. Could you ever imagine striding to the lectern naked, so to speak, to start an argument?

LT: Yes. I often argued without any reference to notes, files, folders, or books. And even when I did bring a large sheet of paper up to the podium with me -- I almost never had more than one single sheet, on which I'd scrawled multicolored notes and arrows and diagrams -- I virtually never looked down at that sheet. Making eye contact with the justices, reading their body language, was always important to me. That's why I'm glad never to have had to engage in one of those virtual arguments, conducted entirely by phone during the recent pandemic.

WD: Academic scholars such as yourself have always been distinguished by their objectivity and disinterestedness in their work. Appellate advocates at the Supreme Court or elsewhere hardly feature these characteristics. Is it a contradiction in terms for a scholar to be an appellate advocate, or is there a way to address what at least must be a tension?

LT: Some academics, including some I personally like and admire, have argued that there is a contradiction and have even suggested that my role as a frequent appellate advocate, both as an oralist and, in hundreds of cases over the years, as the author of a merits brief or an amicus brief, must prevent me from being sufficiently objective and disinterested in my work as a scholar, including in writing the several editions of my major treatise on American constitutional law. I have never regarded that charge as applicable to my work. I'm always conscious of the many preconceptions that anybody, judge or advocate or academic, necessarily brings to his or her writing or advocacy. It's those who fool themselves into thinking that they're totally "objective," have no biases or interests inclining them to see things one way rather than another, who are least to be trusted. In my particular case, I make it a point never to make a legal argument that I don't believe in, whether it's in a brief or at the podium or in the classroom or in my academic writings. It's a luxury I have because I feel no pressure or even temptation to accept a legal representation in which I don't believe. The result is that my arguments have a seamless quality, with the briefs I file in court always being as consistent as I can make them with my scholarship. Opposing counsel who think they've caught me in a contradiction and who try to pull a "gotcha" almost invariably regret it.

WD: Some might argue that the imperious Harvard Law School Professor Kingsfield character from the novel and movie "The Paper Chase" profoundly helped shape the way lawyers see themselves. Were there in fact Kingsfield-type law professors at Harvard? Are there any there now? And was it a good thing that the character, who seemed to believe that thinking like a lawyer was the be all and end all of life, so influenced the personality of so many lawyers?

LT: The author of "The Paper Chase," John Jay Osborn Jr., is a friend and was a student of mine. He was a terrific student, by the way. Anyway, he did tell me which of his professors the Kingsfield character was meant to caricature, but I've decided to protect that professor's reputation now that he has passed away. Truth to tell, I think John exaggerated mercilessly in describing the professor in question, who was a curmudgeon but a kindly one. Unfortunately, there used to be professors who did rather sadly fit the picture John painted. Happily, I know of none who fit that picture today, at least at Harvard. It's unfortunate that the character in the novel and movie probably did influence what lots of law students, and eventually lawyers, thought a good lawyer was supposed to mimic.

WD: What's been your most rewarding activity? Teaching, writing, or lawyering?

LT: Without a doubt, teaching. I loved every minute of my time in the classroom, watching my students' eyes light up with sudden recognition of a connection they'd not made before, seeing my students grow, learning from them, then taking pride in the careers they built. Many of my closest friends today are people who were my students years ago. Some of them I'm sure you've never heard of. Other former students of whom I'm especially proud include Barack Obama, Elena Kagan, John Roberts, Jr., Jamie Raskin, Adam Schiff, and Merrick Garland. One of whom I'm not so proud is Ted Cruz. But I guess one must take the bitter with the sweet.

WD: Let's turn to the Supreme Court and its role in our lives. Is it time, or will there ever be a time, for the Supreme Court to acknowledge what so many of us think, that it is first and foremost a political court, so that the nation can move towards coming to terms with this fact?

LT: I doubt it, because the very concept of a "political court" is so easily confused with a "partisan court" or a court that consciously advances a partisan agenda and feels unbound by law and principles of legal reasoning or lacks independence from political influence. When justices protest too loudly that they and the court are nonpolitical, though, they just feed into public cynicism because nearly everyone who studies law and understands its methods comes to realize that the legal and the political aren't neatly separable, and that the toughest legal questions -- like those that occupy most of the Supreme Court's time -- have no demonstrably correct answers, certainly no answers that an AI algorithm could be programmed to provide mechanically. Even a judge dedicated to interpreting and applying statutory and constitutional texts in accord with their "original meaning" or their "ordinary meaning" is bound, in tough cases with invariably ambiguous texts and invariably contestable histories, to recognize that there is room for honest disagreement about what that meaning is and how legal questions are best answered. Whenever such disagreement exists, it's possible and perhaps necessary to describe the disagreement as grounded in different views of the world, views that are in a sense invariably social, cultural, and political. To say that the Supreme Court is a "political court," even in this irreducible sense, is to speak an unavoidable truth. But, at the same time, it's to speak a truth that will not sit comfortably with the role an unelected group of judges plays in resolving contested questions for an entire nation. There are scholars, including a brilliant young colleague of mine, Assistant Professor Nikko Bowie, who make a strong case for the proposition that the inherently undemocratic character of a Supreme Court whose members are politically unaccountable but necessarily hand down politically inflected rulings on highly contested questions of law means that the court should be rendered less powerful and should be stripped of its authority to hold unconstitutional Acts of Congress, whose members also take oaths to uphold the Constitution. I can't say here what I think of that proposition because I'm a member of the President's Commission on the Supreme Court of the United States and am bound by my oath not to forecast outside the work of that commission any position I'm likely to take while serving on it. But I point out Professor Bowie's position, one shared by a number of distinguished senior scholars like Jeremy Waldron and Sam Moyn, simply to inform your readers of the breadth of positions your question brings to the fore.

WD: As an admittedly liberal Supreme Court observer, I ask by what right do Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanagh get to undo, or plan to undo -- openly, no less -- our legal history and pull us in the backward direction they prefer? Can even originalism support such a usurpation? Or is it simply that these justices are merely cultural warriors playing to a reactionary base and with a majority can do whatever they want? Have I got it all wrong?

LT: I'm unsure whether you're asking a question about the proper role of precedent and of the doctrine of stare decisis in Supreme Court adjudication or a question about the specific views of these right-leaning and in some instances far-right justices in particular. If the latter, I assume you know that my views are antithetical to theirs; like you, I think they are deeply wrong, but from a decidedly liberal perspective -- not from a perspective I'm ready to claim is right as a matter of absolute, universal truth. If the former, I'd say that the degree to which any given precedent is binding, and the degree to which those who would reverse it can be described as "pulling us backward in the direction they prefer," depends very much on your point of view. I'm sure you didn't viewBrown v. Board of Educationand related Warren Court decisions as pulling us backward just because they trashed precedents likePlessy v. Fergusonand built an intellectual edifice on the ashes ofDred Scott v. Sandford.

WD: My de rigueur question is about Justice Stephen Breyer and what you think of his apparent refusal to retire to make way for a replacement to carry the liberal torch.

LT: No comment. My friendship with Stephen Breyer, going back decades, and my membership on the President's Commission on the Supreme Court of the United States, combine to require my silence on the merits of that issue. I would say this, however: Those who believe Justice Breyer ought to resign while President Joe Biden can appoint his successor are supremely foolish to think their objective can be advanced by urging the justice to resign, given his public declaration that he believes justices should never succumb to political pressure and should avoid timing their resignations so that presidents of their political party can name their successors. Talk about shooting yourself in the foot!

WD: Who would you like to see on the Supreme Court?

LT: Someone who shares my broad vision of what the court's role should be and how its justices should construe the ambiguous sources of law entrusted to them to interpret and apply.

WD: When is it fair to charge an academic with selling out? It seems from recent headlines that I've seen that this is what you've been charging Alan Dershowtiz with. Is this fair?

LT: I'm frankly tired of discussing Alan Dershowitz. I don't think he deserves nearly as much attention as he attracts, and I suspect that attacking the bizarre and unfounded character of his supposed constitutional views just gives him more of the attention he seems to crave. I don't pretend to understand what makes him tick; why he has been described as a constitutional expert despite his lack of serious academic scholarship in the content, structure, methods, or history of constitutional law and jurisprudence; or why he seems to have taken so many positions that call attention to his eccentricity when he seems to want to be taken seriously. And, because I don't have a sense of what drives him, I'd rather keep any speculations about his inner motives to myself. 