Washington Lawyer - September/October 2024 - 12

FEATURE
So, I ask them, " You mean to say the reason you are overruling Roe is that
it was wrongly decided? Doesn't that permit you to substitute for the law
your own personal view of what the law ought to be? " I agree that neither
of us should substitute our personal view for the law, but the strict
textualist is no better off than a nontextualist with respect to the risk that
he or she will interpret the law to mean what he or she thinks is good.
What the law requires is to look at what Congress said, what its purpose
was with a statute. Look at the consequences of a decision; sometimes
look at the values underlying the Constitution. The Court is looking at
a lot of things, like the consequences, the objectives of the law that is
involved. How do you find out? Well, that's the purpose of a judge, the
purpose of the judge who has experience - to find the ways to get
things right.
In your book you show that an era's defining decisions need public
support, and Dobbs runs against that. How would you characterize
the importance of public support for the cases coming out of the
Supreme Court today?
It is very important. After Bush v. Gore in 2001, [over] which the country
was divided, there were no rocks thrown in the street, there were no riots.
People did accept it. Al Gore in that very case said do not trash the
Court. And George Bush, in a different case, the [2006] Hamdan case, said
[that] although I think the Court was wrong, I will follow it. What they
were saying is, respect the rule of law.
That is what rule of law is [about], following cases you don't like. If you
don't do that, you are back with Andrew Jackson and the Cherokee Indians,
and the Supreme Court with Chief
Justice Marshall and Justice Story
saying northern Georgia belongs
to the Cherokee Indians under
the law, which it clearly did. The
Georgians wanted to grab it because
there was gold there. And
Andrew Jackson sent troops not
to enforce the case but to
drive the Cherokees
out of Georgia
into Oklahoma,
for which they
walked across
the Trail of Tears
and many died.
That is not having
the rule of
law.
But gradually,
over a
long period
of time, the
country
came
around -
it took a
Civil War,
and God
12 WASHINGTON LAWYER
* SEPTEMBER/OCTOBER 2024
only knows what it took after Brown v. Board of Education. It wasn't till the
country, people who are not lawyers, who are not judges, woke up and
understood the importance of keeping to a rule of law.
Now, public opinion is not an easy question. If you have an unpopular
friend who is in a criminal case, the rules have to be the same, whether
your friend is popular or unpopular.
But people believe the law is there to help people . . . help them live together
peacefully and productively. So, there is an overall purpose, not in
every case, not in every law, to law working toward a world and a country
where people will live together peacefully, more peacefully, and productively,
more productively, because they have rule of law. You don't
want to lose that public support.
You have been admitted to practice in D.C. since 1966. What is your
message to D.C. Bar members as to their role in safeguarding rule
of law and democratic values?
Well, explain to people what you do! It is not that tough. Go to [a] high
school on Constitution Day and tell them what you do and what the
Constitution is about. Go to the editorial boards - they are interested in
public service - and make sure those journalists and the editorial board
understand what it is you do . . . The rule of law depends on you explaining
and you participating in public life.
But it doesn't just depend on that - 329 million of our 330 million [people]
are not lawyers and not judges, and they are the ones who have to
understand the importance of the rule of law. When I speak to young
people, like at high schools, they ask me what we should do to keep this
Constitution going. I say, first, it is your Constitution; you're the ones who
are going to live under it.
But I have a few ideas for you. First, at least vote, always vote. And I hope
that you will participate in public life. Maybe be on the library board,
maybe join the school board, maybe you will join a political party. I don't
know, but participate because John Adams thought that this document
will not work unless you participate.
What kinds of pursuits have you been enjoying since being off
the Court?
Well, I am teaching constitutional law, and then in the spring I teach a
reading course along the same lines. I like teaching; it is great, it is fun.
The students - some are liberal, some are conservative - are not
screaming; they are civil, and it's great to be around them. I might also
write another book.
And then with my interest in architecture - I have been for seven years
on the jury for the Pritzker Architecture Prize . . . It is very interesting. For
example, by the year 2050 there may be 5 billion people living in cities.
So, there is a problem there for us. How do we bring decent architecture
to people who will need it to thrive but can afford to spend little on
housing? And there are other big questions, and I have found architecture
involvement very enriching.
Richard Blaustein is a D.C. Bar member and freelance journalist covering
science, the environment, and legal issues.
Washington Lawyer - September/October 2024

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