Excerpts from my commencement address to the graduating class of the University of Nebraska College of Law, in Lincoln on May 7.
Today I am especially delighted to join you and those who have helped you come so far – and, for some of you, footed the bill. This is such a splendid day for you. Realizing how many emotions are crowding your minds and hearts, a sensible speaker will take a cue from Shakespeare’s Polonius, remembering that brevity is the soul of wit.
One could also usefully recall what one listener said of the platform style of President Warren Harding. “His speeches,” it was said, “leave the impression of an army of pompous phrases moving over the landscape in search of an idea. Sometimes these meandering words would actually capture a struggling thought and bear it in triumphantly, a prisoner in their midst until it died of servitude and overwork.”
The dean’s office, I assure you, has taken steps to avoid such a labored exhibition before you this afternoon.
I come to speak about the law – but not as a lawyer. My relationship with the law is somewhat like Winston Churchill’s with the Church of England. He was, he said, “a flying buttress – supporting the Church from the outside.”
Justice Potter Stewart once referred to the journalists who cover the work of the courts as “strangers in the courthouse.” He was right about that. For myself, I like to think that for these several decades, I have been operating – so to speak — just outside the law. There are, of course, several meanings to that phrase. What I mean is that I have observed the law by looking in, curiously, from the sidelines.
What I have observed, from that perspective, is that judges and lawyers are not just mechanics – adjusting the law, or applying it, this way or that. For me, they have been actors in a continuously unfolding drama of history.
When we mesh current legal controversy with lessons drawn from history, we make better sense of each. I’m with George Santayana in taking seriously the teachings of the past. He said, you will recall, that “those who cannot remember the past are condemned to repeat it.”
The history of law that was, or historic events that have shaped the law along the way, are, I believe, a perfect antidote in our troublesome time, when deep partisan polarization leads so easily to the conclusion that law, too, is just a political exercise, and its results are either to be grandly praised for advancing or roundly condemned for retarding some narrow, self-serving, agenda.
Think, in that regard, about a few Supreme Court decisions: Bush v. Gore, Citizens United, the Heller decision, the Guantanamo cases, the Obamacare decisions, abortion and same-sex marriage. As one ponders how those have played out in political discourse, they swiftly became mere talking points, and some remain so.
There are, in fact, ways to understand each of those, before rushing to turn them into partisan propaganda – if each is judged by the influence that history played in them. One need not either romanticize or manipulate history to see each in this larger, more disinterested context.
Why introduce such a somber thought on this happy occasion? Because in you, as new lawyers, lies a hope that you will not too soon be dragged along by the galloping politicization of the law and legal institutions – including the courts at literally every level. Politics has, bit by bit, almost ruined the process of choosing judges, at every level. And now it is shaping, more and more, what the public thinks of those who put on robes to do justice.
Why else would it be that the chairman of the Judiciary Committee of the United States Senate blames members of the Supreme Court appointed by Republican presidents for failing to “advance conservative policy”? Since when does the Court – or any court — deal in policy? Didn’t the Founders create two other branches to do that?
And, why would the chairman blame the work of the Chief Justice and other Justices for the political impasse that will keep a vacancy on the Supreme Court unfilled for maybe another year or more? (That vacancy, I say with certainty, IS already affecting the Court.) The accusations of the chairman do no credit to the Senate, to the Committee, to the senator, or to the state he represents.
If that were all, it would be sad enough. But that senator also has suggested that the congressional elections of 2014 actually nullified the result of the presidential balloting in 2012, so that another election needs to be held – this year – to see who gets to fill that vacancy on the Court. Mind you, I do not underestimate the importance of that vacant seat. It is not so much that Justice Antonin Scalia dominated the Court from that seat; actually, he did not. Rather, it is that its next occupant may hold the balance of authority on the Court for years, maybe decades, to come.
This controversy, too, I suppose, will pass. But there may well be a lesson for you in this. Let me look to the place you as law graduates will take on the dramatic stage of the law, in Nebraska or elsewhere. There, be skeptical of the notion that the courts are peopled by mere politicians operating under different rules. Do what you can to resist that destructive fiction. Conduct your own practice so that it is not so much an extension of your private political choices as it is a demonstration of the law in its greater majesty, with integrity, vision and generosity of spirit.
When something controversial emerges from the judiciary, look first to understanding it before dishing out plaudits or calumny. You know how to read law, and, as lawyers, the public will pay attention to what you say.
Let me offer an example of what I am saying – an example pulled, as they say in TV drama, from the headlines of the day. Consider the FBI’s demand that Apple find a way to break the encryption code on one of its smartphones – the device used by the terrorists in San Bernardino. I am sure that, from most people’s perspective, the right thing to do — in this age of unimaginable terror — was to give in. The logic of national security would seem to support that view. But, remembering that Holmes advised that “a page of history is worth a volume of logic,” could that controversy be viewed in another way?
It might be helpful to think about this from the vantage of, say, 1761. That would take us back to James Otis, and his courtroom challenge to the British writs of assistance – those open-ended grants of authority to search the colonists’ private property. Otis’ bold gesture, John Adams would later say, was “the birth of the child Independence.”
In our time, when the FBI wanted access to the digital memory of an Apple smartphone, there literally was no specific law to apply, so the Justice Department reached into the U.S. Code and found a really open-ended grant of authority — the All Writs Act. Is that Act really different from the writs of assistance? At least, would Apple’s lawyers have been entitled to see that demand as less about national security than about government over-reaching?
For a further illustration, let me pick out one of those Supreme Court decisions that I mentioned that have been co-opted for crass political gain.
Bush v. Gore, in 2000 and still today, is perceived by many as nothing more than five unelected judges throwing an election to one party’s candidate, and perceived by others of a different persuasion as nothing but a necessary corrective for a hopelessly mismanaged vote-counting system.
Actually, what I saw at the time, and still hold to be true, was that the Court was most concerned, over those remarkable 36 days, about finding a way to avoid a replay of the Tilden-Hayes debacle of 1877, when America got a new president only on the eve of inauguration, and then only by a tawdry political expedient, putting Rutherford Hayes in the White House as a swap for the Confederacy’s plea to withdraw federal troops from the South. Not a bargain made among angels.
In Bush v. Gore, the Court’s majority believed it was averting a new constitutional crisis, precisely because it was aware of that very history. Its ultimate decision may have turned out to be a bit clumsy, but it was driven by history, not by partisan choice.
Deep knowledge of history has a way of opening our eyes to how profound legal controversies develop, how they are viewed and how they get explained. As lawyers, you will be better at that mode of analysis than most, perhaps all, other observers. You have learned well how to use the instruments of the law, but you also have been trained to think like a lawyer, how to see out to far horizons.
You have the superb example of Louis Brandeis to guide you. As a lawyer, he taught all who would follow him in the profession the need to look well beyond the mechanisms of the law – the cases and the statute books. The idea of the “Brandeis brief” was not to belittle black-letter law, but rather to enliven and enrich it with a wider social, cultural and economic perspective.
Of course, not all of you will be writing briefs. But all of you, as you live your professional careers, can imitate Brandeis, in a wider sense. Look beyond the specifics of your legal task, and see how it might be enriched. And, I am hoping, you will look now and then for history’s parallels – and, yes, for its contradictions – and how that bears upon your practice. You will not be sorting among the tattered relics of what has been, but looking for the vibrant legacies of prior wisdom, or for the correctable wrongs of our ancestors.
That, I suggest, will help you experience the law as a truly noble calling, making your family proud, and making you, too, justly proud – perhaps even more proud than you are today with your achievements so far!
Thank you, so much, and congratulations!