A punch in the stomach

Fall-2015-Bulletin-coverThe hagiographic photo of Justice Roberts on the cover of the Fall 2015 Bulletin felt like a punch in the stomach. Roberts has been as much, or more, a radically conservative judicial activist as any justice in the Court’s history. Under his tenure, and with his fifth vote, the Court has about ruined our Constitution and what Lincoln called God’s “almost chosen country.” He was appointed because he was a conservative political hack—the effusiveness of the praise for his intellect is as florid as it is unsupported by any objective evidence—and has led the Court as if he is the personal assistant for the Koch brothers. He has been as wrong on the important issues of the last decade as often as another HLS graduate, President Obama, has been right. The problem is, his vote gets to say who wins. And the country has lost. Time and again.

The acid test for a manager

I was struck by Dean Martha Minow’s perceptive analysis of John Roberts as a manager. There is a big difference between thinking of yourself as primus inter pares and recognizing that you are a manager. The piece demonstrates how John Roberts understands that difference. “Manager” is a very unglamorous title compared with “leader,” but it better expresses the prodding, the maneuvering, and the stepping up to make a difficult decision that is the daily work of a leader. The acid test for a manager is whether he or she leaves the institution stronger. Based on the evidence in your tribute, my guess is that the verdict on Roberts will be, “Yes.” In today’s polarized world, that’s remarkable. When looking at those whose terms overlapped with Roberts’, could we say the same of today’s congressional leadership? Clearly not. Or of the president’s? The jury is out and history will decide.

I appreciate this very thoughtful piece and Dean Minow’s own remarkable stewardship of a great institution.

Tribute ignores Roberts’ impact on the laws of this nation

By focusing on Justice Roberts’ “mastery and deft management,” the article manages to ignore his major impact on the substantive law of this nation. Years from now, I doubt that he will be remembered for his “poetic” annual reports or the “impartiality” of his opinions. Rather I suspect he will be remembered for a number of very controversial decisions. These include allowing unlimited “independent” spending on federal elections (Citizens United) and ending federal pre-clearance of election rules in states with a history of discriminatory election rules (Shelby County).

Professor Minow’s one-sided “tribute” is, unfortunately, just that.

Don’t tarnish his reputation

I read with interest your premature “eulogy” of the Chief Justice. I didn’t expect your piece to be balanced but hardly anticipated a total whitewash of a very controversial jurist, at least in regions not bounded by the East Coast of the USA.

Not wishing to take up too much space, I will restrict my focus to the first (2012) Obamacare case. Mr. Roberts clearly believed that single-payer health insurance was the way to go and worked backward to reach the desired result. Crucial to his reasons was the imaginative finding that the statutory word “penalty” didn’t mean what it says but can connote a “tax” which government can impose without constitutional constraint. Never mind that the proposed levy (on folks who don’t obtain health insurance) was, by any reasonable reading, a penalty; never mind that Obama, himself, had publicly hotly denied that it was a tax; never mind that seizing on this argument was obviously a “way out” for someone who had already made up his mind.

John Roberts is a good judge who makes mistakes, like all judges; don’t tarnish his reputation by making him out to be a Judicial Saint!

Roberts tribute is uplifting

Your article on Chief Justice Roberts is both insightful and uplifting. At Harvard Law, we are very proud of our Dean.

When it comes to courtroom argumentation, humans still have the upper hand

I am a former lawyer with trial court experience, and I have some comments about the “Laws of Adaptation” article in the fall issue. It warns that the legal profession “as we’ve known it” is doomed unless it adapts. Adapts to what?

Adapation Illustration HLB Fall 2015

Credit: Oliver Munday

One of the things that the author of this article believes poses a threat to lawyering is artificial intelligence as embodied in computers able to select choices after sorting through large amounts of complex information. The article mentions IBM’s Watson project in this regard.

There are many tasks that lawyers perform, and many of them lend themselves to computerization. However, there is at least one function that lawyers perform that I doubt will ever be wholly replaced by computers exercising artificial intelligence, and that is arguing disputed facts and their disputed consequences in ambiguous circumstances and the ability to shape them in a way that persuades human beings. Unlike winning at a game of chess, whose rules are fixed and lead to predictable outcomes if followed, skillful argumentation by a lawyer, shaped to appeal to a particular audience, is not an art that can be replicated by programming.