SEPTEMBER 29, 2017
OF ALL THE MYRIAD jokes and epithets hurled at lawyers, the most poignant comes from Shakespeare’s Henry VI, Part 2, because it is so commonly misunderstood: “The first thing we do, let’s kill all the lawyers.”
While often employed as an insult, Shakespeare meant it as the highest compliment. The line is spoken by Dick the Butcher, a follower of the rebel leader Jack Cade, both of whom knew that the lawyers were the guardians of law and justice in society and thus the greatest threat to their criminal undertakings.
Owen Fiss, in his book Pillars of Justice: Lawyers and the Liberal Tradition, chronicles the contributions of 13 eminent lawyers, judges, and law professors who have stood as bulwarks against the Dicks and Jacks of society — the forces of injustice, inequality, and racism during the past half century. A Yale law professor, Fiss tells us that the goal of his book is “to inspire and instruct,” and indeed it does. However, it must be noted that the title of the book is deceptive.
Pillars of Justice is in fact an autobiography. What connects Fiss’s 13 subjects is that he knew them. They are his friends, colleagues, mentors, and former students. Rather than sharing a particular ideology (they don’t), each played a role in Fiss’s life in the law. And what a charmed life it has been! He has every reason to be proud of it, and it is simultaneously modest and boastful that he chooses to tell his story in this way.
Unfortunately, Fiss’s privilege and security have robbed him of passion. He remains ensconced in his ivory tower at Yale Law School (to which this book is also a love letter) dreaming of a return to the “golden age” of the law, which he defines as the years of the Warren Court beginning with the decision in Brown v. Board of Education.
Fiss has a kind of naïve enthusiasm that makes him prone to superlatives and hyperbole — somewhat surprising in a law professor. For instance, in describing his own casebook on procedure, co-authored with Robert Cover and Judith Resnik, he writes: “No casebook ever served a more sublime purpose.” He contends that the “Golden Age of American Law began […] [with] Brown” — without apologies to Mr. Jefferson. He insists that Harry Kalven, a professor at Chicago Law School, was “a genius, a completely original intelligence — probably one of the few the law has ever known,” and a speaker whose “ease, […] grace […] and eloquence […] had no equal in the legal world.” And he has opined that Justice Thurgood Marshall, the subject of his first chapter, was “the most accomplished lawyer of the twentieth century.”
The 13 subjects featured in the book follow the chronology of Fiss’s life, beginning in high school with a visit to the Supreme Court on the day Marshall was arguing a piece of the Brown case. Fiss did not know about or understand much of what he heard but “no one could miss the drama that was then unfolding.” He found the experience “electrifying.” He went on to Dartmouth College, and then to Oxford University where he thought of pursuing philosophy, but turned instead to law. He attended Harvard Law School and obtained a clerkship with Justice Marshall, then sitting on the Second Circuit.
Along with Justice Marshall, the first chapter introduces us to a key theme in Fiss’s story: his obsession (a fair description) with Brown v. Board of Education. Marshall represented the petitioners in Brown and, Fiss writes, spent “almost his entire career on the Supreme Court in battle against the conservative assault on Brown and its progeny.” The “liberal tradition” for Fiss is exemplified by that landmark case whose importance he exalts. He wrote a long law review article on the case at Harvard and claims (unconvincingly) that all his subjects shared a “deep abiding commitment to Brown […] as an extraordinary moment in the life of the law, transforming the law into an instrument for realizing the highest ideals of the nation.” In eloquent terms, which today in our violently fractured political condition sound sadly quaint, Fiss triumphantly asserts:
For those who worked in the American context, the commitment to Brown transcended ordinary political allegiances. Some were Republicans, others Democrats. Some were appointed to high office by Republican presidents, others by Democratic presidents. Some had no political affiliation whatsoever, or at least none of which I knew. What united these lawyers was not politics understood in a narrow, partisan way, but a dedication to the theory of Brown — a willingness, if need be, to move mountains to make certain that we were living up to our very best selves.
It is ironic that much of the book describes and laments the erosion of Brown’s legacy and the continuing efforts of the post-Warren courts to destroy it, or, as Fiss regrets, “to drain that decision of all its generative power.” If Brown was the universally applauded triumph of liberalism Fiss describes, it was, he acknowledges, short-lived.
Clerking for Marshall was “thrilling” for Fiss. His description of Marshall’s unyielding stance on matters of civil rights, especially the rights of the accused in criminal proceedings, is indeed inspiring. Marshall’s judicial boldness was perhaps especially marked for someone who had no ties to the white shoe law firms of Wall Street that appeared before him and from which many of his colleagues on the bench had come. He had not left his 30 years as a civil rights lawyer on the court house steps.
As Fiss’s clerkship was drawing to an end, Marshall got the call from President Johnson to become solicitor general. Fiss was at his swearing-in and the visit to the Oval Office that followed. Two years later, Johnson appointed Marshall to fill Tom C. Clark’s seat on the Supreme Court — a moment Fiss describes as “transcendent […] in the history of the United States.” The joy did not last long. Justice Marshall spent most of his time on the Court in dissent and, although he told his friends he would never retire, in 1991, at 83, he stepped down.
After his clerkship with Marshall, Fiss won a clerkship with Justice William Brennan, the second subject of his book. It was 1965, “the halcyon days of the Warren Court,” and Fiss tells us that an anti-Brown speech at Harvard Law School resulted in Justice Brennan’s decision to end his practice of hiring clerks from his alma mater. While Fiss’s clerkship on the Second Circuit had exposed him largely to criminal prosecutions and complex commercial cases, his year with Brennan focused primarily on cases involving the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Brennan joined the Warren Court in 1956, three years after Warren’s appointment. With Hugo Black and William Douglas, and later Arthur Goldberg, a solid liberal coalition was created that ushered in Fiss’s “golden age” — signaled by the ruling in Brown. “The Court’s ruling in Brown was premised on a conception of law and a set of commitments that would become a broad-based program of constitutional reform.” Justice Brennan was fully devoted to this ideal and was most often assigned the task of writing the opinion for the majority. Brennan and Warren served 13 terms together. They agreed on 89 percent of the 1,400 cases they decided. Fiss, in one of his many outbursts of ardor, describes their relationship as “one of the most extraordinary […] the law has ever known.” Brennan penned many landmark decisions during his tenure, including New York Times Co. v. Sullivan. He was known for his careful analysis and deft reformulation of doctrine, as well as his commitment to minimizing disagreement among the justices.
In 1968, with Warren’s pending resignation and Nixon’s election, a new era on the Court began. Douglas’s resignation in 1975 meant the final dissolution of the liberal majority at the heart of the Warren Court, and particularly, from Fiss’s point of view, the weakening of Brown. The ’70s and ’80s were a difficult period for Justice Brennan, spent largely defending the values of the Warren Court in a profusion of dissents. When Fiss was his clerk in 1965, the justice wrote one dissent; in his last term on the bench, he wrote full dissenting opinions in 23 cases. Fiss believes that in 1989, when Brennan retired, “disaffection with the Court was at a peak, and his departure only nourished it.” And things have only gotten worse despite the efforts of Clinton and Obama.
After his Brennan clerkship, Fiss went to work in the Civil Rights Division of the Department of Justice. He introduces us to John Doar, the assistant attorney general in charge of the division, and his boss, Burke Marshall. Fiss spent three years in the division at a time of great political upheaval on issues of civil rights. Fiss watched from the sidelines. His description of the barbaric murders of Michael Schwerner, James Chaney, and Andrew Goodman as a “painful [incident] of violence,” is a jarring reminder of his personal distance from some of the causes he espouses intellectually, while his heroes passionately engaged.
Doar’s picture adorns the cover of Fiss’s book — a picture taken on June 15, 1963, following the funeral of Medgar Evers, three years before Fiss began working for him. On that day, the 42-year-old Doar stepped between a line of white police officers with drawn weapons and a large group of angry Blacks who had just left the funeral, raised his arms, and said: “My name is John Doar — D-O-A-R. I am from the Department of Justice, and as anybody around here knows, I stand for what is right. Medgar Evers would not want it this way.” The angry crowd melted away. Doar, Marshall, and Fiss would go on to participate in the investigation surrounding the Watergate scandal and the impeachment of Nixon.
In 1968, Fiss joined the faculty at Chicago Law School. He gravitated toward Harry Kalven, a professor whose liberalism was an exception for the Chicago faculty. The next year, Richard Posner joined the faculty, and at the center of the constitutional group was Philip Kurland, who, as Fiss describes, “used his vitriolic pen [in the Harvard Law Review] to excoriate the egalitarianism of the Court that was led by Earl Warren and responsible for Brown.”
Fiss describes his years at Chicago as an apprenticeship to Kalven, who became Fiss’s role model as a professor. He describes Kalven as a man of many passions that “extended to the ideas that defined the liberal tradition, like liberty and equality, both because of the intellectual puzzles they posed and because he believed in their goodness.”
In 1974, Fiss moved to Yale Law School, where he remained until his retirement in 2011. He shares stories of his colleagues and their accomplishments, while providing a primer on the academic fads in legal studies. We learn about the warring factors: law is politics (critical legal studies) versus law is efficiency (Posner et al.). Fiss rejects both. We learn a great deal about the marvels of Yale Law School. Dean Eugene Rostow, for instance, exercised great influence in creating the unique freedom of its faculty to teach what they want, in nurturing its guiding vision that the “[role of the law school is] not to train lawyers, but to study the law,” and in supporting the expectation that its scholars will “craft meditations on the purposes of the law and to produce magical syntheses — always slightly beyond our reach — of the technical and theoretical aspects of legal doctrine.”
The exaltation of the intellect and unbridled (and apparently unending) discussion and collegiality is embraced and cherished by Fiss. In the chapter on Professor Arthur A. Leff, Fiss pays Leff what he clearly considers the highest compliment when he notes, in reference to an article being written by a colleague: “He [Leff] was the only person in the group [of professors who critiqued each other’s work] who read all thirty-two revisions” of the manuscript and “got a kick out of each one.”
In his chapter on his student Catharine MacKinnon, who would become a leader in feminist studies, Fiss recalls his surprise when three of his female students invited him to lunch in 1984 to complain about him and the dynamics in his classroom that had the effect of silencing women. His mea culpas are sincere, if a bit wan, but he proudly announces that two of his women procedure students published an article in the Stanford Law Review in 1988 about their experiences at Yale entitled “The Legal Education of Twenty Women.”
The last chapters of Fiss’s story tell of two foreign lawyers — Carlos Santiago Nino, an advisor to President Raúl Alfonsín of Argentina, and Aharon Barak, a former head of the Supreme Court of Israel — and two other law professors, Robert Cover, with whom Fiss taught procedure at Yale, and Morton Horwitz, a childhood friend and professor at Harvard Law School. Invited to Argentina during the trials of the brutal military junta that had been replaced in 1983 by the government of President Alfonsín, Fiss met Nino. Fiss notes that his own image of a “presidential advisor” was shaped during Watergate when he had personally had to inquire into the activities of two notorious holders of that title — John Ehrlichman and H. R. Haldeman — but his fears were immediately allayed by the warmth, openness, and idealism of Nino, who served as an attentive and fascinating host. Nino wrote extensively on ethics, human rights, and democracy, and he published a chronicle of the junta trials called Radical Evil on Trial. Before his death in 1993, Nino joined Fiss as a visiting professor at Yale.
Justice Barak, a Holocaust survivor with an extraordinarily brilliant legal career that culminated in his appointment to the Israeli Supreme Court at 42, impressed Fiss with his principled jurisprudence that balanced military necessity with the freedom that dignity requires. He made the fight against terrorism accountable to law, unlike what Fiss decries as the American judicial deference to military authorities. “[H]is refusal to defer to the military in the tradeoff of values, his insistence on the least restrictive alternative, and his requirement that the harm to fundamental values not be disproportionate to the gain in security” engendered Fiss’s profound admiration.
Fiss and Robert Cover were both in Washington in 1974. Fiss was working on the Nixon impeachment. Cover taught at Georgetown Law School. Cover had come to Yale in 1972. They agreed to collaborate on a revision of the traditional first year procedure course. They hoped it would be a fresh departure. They decided to build the book around a single case: Goldberg v. Kelly, in which the Supreme Court found a constitutional right to adversarial, trial-like procedures before welfare benefits could be terminated. They ended with 8,000 pages of material that were ultimately reduced to 1,000 and 12 years in the making!
Cover had been a SNCC member in his youth and protested against apartheid. He refused to apply for admission to the New York State Bar because it required a loyalty oath. Unlike Fiss, Cover favored the “law is politics” camp and coined the term “jurispathic” to describe what he termed the “violence” of judges. Shortly before his premature death at 42 in 1986, Cover published an article in the Yale Law Journal titled “Violence and the Word” in which he insisted on the violent nature of the law. Despite Fiss’s fundamental disagreement with Cover’s approach they remained close friends.
Morton Horwitz and Fiss both came from the Bronx and attended Stuyvesant High School together, where they were inseparable. Horwitz was one of the students who visited the Supreme Court with Fiss and heard Justice Marshall. He became a professor at Harvard Law School and an expert in legal history. As Fiss admits: “Disagreement has been at the core of my friendship with Morty” for more than 60 years. Horwitz accused Fiss of harboring sympathy for the elite, but Fiss contends the difference between them is that he works “from the inside out, searching for virtue in the legal craft.” Their friendship is a tribute to them both.
It is fitting that Fiss ends his book with a “coda” that serves as an encomium to Yale Law School (rather than The Liberal Tradition), making appropriate thanks to all the colleagues and students who have made it an Eden for this engaging and admirable professor. But, one feels, by the end of Fiss’s story, somewhat more than bemused by the title. So many pillars of justice supported our Constitution during Fiss’s life, perhaps with greater effect, that his personal choices, while interesting, seem arbitrary, if not, on occasion, quirky.
Dorothy Wolpert is a founding member of Bird Marella Law Firm whose practice includes trial experience in a wide range of cases including copyright infringement, environmental disputes, legal malpractice, probate matters, and entertainment cases.