Now in Legal Rebels:
Posted Sep 01, 2012 07:51 am CDT
G: What is your very first memory of writing?
K: My first memory of writing is actually having my writing torn apart by my mother.
K: I don’t know how old I was, in elementary school or junior high school. But my mother became a teacher. I guess I was in seventh grade when she went back to the classroom. But before that all her teacher qualities were focused on her kids. And she was a fine writer. She thought it was important that her children be as good writers as they could be. She spent a lot of time going over each sentence in any report that we wrote. That’s my first memory of writing: going over each sentence of anything I ever wrote in my early years of school with my mother.
G: So do you think she taught you as much about writing as anyone?
K: I suspect she did. I guess there are two people who taught me a tremendous amount about writing. One is my mother in my childhood years. The second was a college professor of mine. He was my thesis adviser—a man named Sean Wilentz, who is a very fine historian and teaches American history at Princeton. He was young then—it was just his first or second year at Princeton—and he was thrilled to have students who cared about his subject and were trying to do decent work in it. He spent so much time not just trying to teach me how to be a good historian but really trying to teach me to be a good writer. He would mark up my thesis during my senior year at Princeton.
G: Undergrad senior thesis?
K: Undergrad senior thesis. Princeton demands a very lengthy kind of project in your last year of college. It was 100 pages—150 pages, or something like that—and Sean Wilentz, my adviser, must have read every sentence of it at least three times in different drafts, constantly critiquing my work and my writing. That experience was probably the first time in my life when somebody who himself was a fabulous writer spent so much time, sentence by sentence, telling me what I could do better.
G: Some people consider the kind of severity that you’re describing with your mother to turn them off to writing altogether. How did you overcome that?
K: It wasn’t all severity. But she was serious about it. And she was an extraordinary teacher. I’ve heard so much from students about her. She had very high standards, so if having high standards is some form of severity, then yes, I guess she was severe. But I learned a lot from her and can count many years’ worth of students who learned a lot from her. And when I think back about it, I’m glad she did that. I don’t know how good a writer I am, but I’m sure I’m much better now than I would’ve been had she not thought of this as something that was important.
G: Is she still alive?
K: She’s not. She passed away about five years ago.
G: I’m sorry. What about your progress as a public speaker? You had a lot of practice over the years in public speaking. How did you progress there?
K: I had the most practice when I became dean at Harvard Law School. I don’t think I had done a whole lot of public speaking until that time. But as dean of a major law school, I would say every day I found myself in some occasion where I just had to stand up and speak—sometimes more informally than other times. But at some point every day, I had to stand up and speak to a group of people. Even before that, I had done classroom teaching, which is obviously a kind of public speaking…
K: … although I think somewhat of a different kind. But as dean, every day I was talking to some audience or another. I did that for about six years. And over the course of those years, I became comfortable with getting up at a podium, looking out into the crowd, and saying a few things that made sense at the time.
G: Had you done very many oral arguments before you became Solicitor General?
K: I had not. I had not done any appellate arguments.
K: No, I had done district-court arguments in my early days.
G: At Williams and Connolly?
K: At Williams and Connolly. But that had been 15 or 20 years earlier. So I was thrown into the deep end of the pool, shall we say.
G: Was your very first oral argument in the U.S. Supreme Court?
K: My very first appellate argument was in the U.S. Supreme Court.
G: Wow! That’s incredible!
K: It was even worse than that really: it was in the U.S. Supreme Court and it was the Citizens United case.
G: That was your first oral argument?
K: It was my first oral argument. It was an important argument. For those who don’t know, it was a case that had been argued the prior term. The Court had decided to re-argue it and had set a couple of questions for re-argument on whether the Court should reverse its precedents in a couple of important cases. It was pretty clear to people that the Court was ready to do something significant—to reverse those cases. So it was nerve racking to do an argument of that importance for my first one. But every time I got too nervous about it, I would say it’s okay because we know which way this is going to come out. You’re going to lose. They basically announced that by re-arguing the case in this way. But that said, it was a nervous-making kind of argument.
G: I’ll bet! Who was the most active questioner?
K: Gosh, I got it from all over. As you know, when you come to the Court these days, you do get it from all over. But I would say Justice Scalia was a very active questioner. If I recall it right, I opened my mouth and maybe I got a sentence and a half out. And then Justice Scalia said something like, “No! No! No!”—which if you know Justice Scalia, probably doesn’t strike you as completely out of character for him. But I loved being questioned by Justice Scalia because you always knew where he was coming from, and he always told you what he thought was the matter with your position. But he also gave you an opportunity to answer him, so he never tried to monopolize the floor. He told you where he felt you had gone wrong, but he let you say your piece back. But I think he was a very active questioner at that argument. Certainly the Chief Justice was a very active questioner, and I remember some questions from Justice Kennedy and from Justice Stevens. Those are the ones I recall the best.
G: How many arguments did you end up having as Solicitor General?
K: I did six over the course of the year, starting with Citizens United, and then basically one a month—except I didn’t do it my last month because I was getting ready to be nominated.
G: I see. And what was your overall record?
K: Well, it depends how you count. In the S.G.’s office we counted in several ways. But no, I don’t know. Every year the S.G.’s office calculates statistics, with maybe some creative counting that perhaps goes on. But 4–2, I’ll say. Three clear wins, and one case which was actually dismissed as improvidently granted, which we counted as a win because we told the Court not to take this case. We thought that that was a good outcome. And two losses. One bad loss: the Citizens United case. And one good loss, which is a loss but as good a loss as one can get—a loss on a very narrow ground.
G: Well that’s fascinating. What do you like to read in your spare time?
K: I do a fair amount of reading, and I read all kinds of things. I read a lot of history.
G: What kind of history?
K: Mostly American history. Sometimes I read other kinds of history: European history and history from other parts of the world. And I also read a lot of novels: some detective fiction, crime fiction, a little bit of science. I try to be broad, and if I pick up a good book review or a friend of mine says I have to read this book, I try not to say, “Oh, I’m sorry, I don’t read in that area.” So I read a mix of fiction and nonfiction.
G: Who are your favorite historians?
K: Well, I’ll say Sean Wilentz, who is my personal favorite historian. He wrote this wonderful book recently about the rise of democracy in America. It’s principally about the Jacksonian period, but it stretches a little bit backwards and a little bit forwards as well. But some of my other favorites: Richard Hofstadter was great. He wrote some years ago—some decades ago at this point—but was an extraordinary historian. And in American history, Edmund Morgan in the colonial period; and then the great historian of the revolutionary and early republic period is in my mind Gordon Wood. I just love his work.
G: Do you find it somewhat wrenching to go from, on the one hand, reading all this first-rate nonfiction and fiction, to the briefs you’re having to read?
K: Well, they’re sometimes not as good. But I like reading briefs too. It’s just a different kind of reading. And if you don’t like reading briefs then you shouldn’t be in this job. The briefs are your avenue into really important, really challenging legal issues, and that’s what makes reading briefs fun. And occasionally, very occasionally, you’ll read a brief that is just a masterwork of brief-writing, and you’ll just enjoy it for that reason alone. But for the most part reading briefs is interesting because the cases are fascinating, and the legal considerations are fascinating. And the briefs are your way—you know, another way—of trying to figure them out and make sense of them.
G: How often do you read one that you think is a masterwork?
K: Well a masterwork is a very high standard.
G: Well it is. Once a term, twice a term?
K: I would say more often than that. Once a sitting I’ll say, “Boy this person did just a fabulous job on this brief. You kind of can’t imagine it getting any better.”
G: Do you think you have a very good sense of the quality of the briefing nationwide in the circuit courts, as opposed to briefing in the Supreme Court?
K: I don’t think I do. We live in a rarefied environment here, both with respect to brief-writing and with respect to oral advocacy. And that’s because over the last 20 years a Supreme Court bar has developed. So there’s a group of very specialized, very experienced lawyers who appear before us again and again. They appear at the podium, and they’re also the principal names on the brief. And they work with exceptional young associates. These are mostly appellate practices, and particularly Supreme Court practices, in a number of firms around town. And I think the lawyering is really a lot better than the lawyering that a lot of appellate courts and district courts around the country see. It’s easy to forget that. We get kind of spoiled, but I think truly we have something of a different experience from what other judges have. One that we should appreciate.
G: If there were one thing about brief-writing you could reform, what would it be?
K: Well, I think everybody would say the same thing: that the most important thing in a brief is clarity. If there’s one thing about brief-writing you could reform, it’s confusing briefs—briefs where you’re working too hard to try to figure out what the point is and to figure out how the argument goes. There are two really important things about brief-writing. One is you have to know your best arguments. Second, you have to say those arguments clearly. Sometimes it’s frustrating, because you’ll be reading a brief and there will be good arguments there, but it’s just so hard to get them out of this brief. You have to do so much work by yourself or with clerks to do that. It’s a disservice to the real arguments that are there.
G: That’s true to some extent even in the Supreme Court?
K: Yes, to some extent. As I say, we see a quality of brief that is better than your average bear. But there’s a certain amount of unevenness. There are people who are not represented by the kind of fancy, great lawyers in town who are repeat players before the Supreme Court. So you do see a variety of kinds of briefs.
G: What did you learn about brief-writing as Solicitor General?
K: How hard it is sometimes to make things clear, because so many of the cases we hear are extremely complicated. I’m thinking especially of some of the statutory cases and the administrative cases. These aren’t the glamour cases that appear on the front pages of the newspapers, but cases about statutes like ERISA, where the statutory scheme can be incredibly complex. The procedural background of a given case can add another set of layers of complication. And altogether it’s hard to lay things out in a clear manner—what the issues are, what the statute says—and then to provide your best arguments. It’s hard but it’s worth it.
G: It’s hard in a judicial opinion as well, of course. Do you think we’d be better off with shorter Supreme Court opinions?
K: I think generally yes. But I found last year that this is hard to do. I do think there are some considerations on the other side. But generally yes, because the more expansive an opinion is, there’s so much in it nobody is really quite sure what matters. One of the most important things that a judge can do in an opinion is to make sure the reader knows what matters and knows what the governing rule is. Certainly the reader must know the reasoning that lies behind the governing rule, so that there’s not a whole lot of stuff that just confuses people. All that points toward short. On the other hand, I do think that lawyers deserve to have their arguments responded to, and parties deserve to have their arguments responded to. People have engaged in litigation that takes many years. They come to the Supreme Court of the United States to say their piece. The lawyers have worked hard, the parties have often struggled hard to present their case, and they’re deserving of some kind of response. So I don’t like it when it’s all made to seem extremely easy, as if there isn’t any real response or serious grappling with the arguments on both sides. And so I think that that’s a principle that pushes me toward greater length: the feeling that it’s only fair to respond to a party’s arguments.
G: There was a case some years ago in which Justice Stevens wrote a five-paragraph opinion, five short paragraphs in McLaughlin v. United States. Do you think, given the current culture of the Court, that this would be possible today?
K: I’ve not managed that.
G: With the law clerks, would the Justices even recognize that opportunity today?
K: I’m not sure it’s the law clerks that are responsible. To the extent that opinions have gotten longer, you should blame the judges, not the law clerks. But in fact I agree with you, Bryan, that it does seem hard to think that very many opinions would come out of any of our chambers like that. And again, I guess I’m of a mixed mind when you say that opinions need to be that simple and that clear and that straightforward. These are all good things. On the other hand, it’s also a good thing to make sure that people understand the reasoning behind an opinion and to make sure that counterarguments are responded to. One of the great glories of the judicial system is that it’s not just edicts from on high. It’s not just “you win, you lose, now we all get to go home.” A single-page opinion is something that gives you a result—“You win, you lose”—that’s really clear and really simple and really straightforward, and no one will ever be confused. But on the other hand, you haven’t told people why. One of the things that the American legal system wants to do, and generally does do pretty well, is to say this is an enterprise that’s all about reasoning, and we’re going to tell you why. If you win and you lose, the disposition is important. But it’s also important that everybody understand we’ve considered your arguments, and here are the ones we thought were stronger than the others. That kind of reason-giving is an important element of the judicial process.