Last week, the National Constitution Center traveled to Washington, DC to host Clerks at 100 — a celebration of the 100th anniversary of the federal statute instituting Supreme Court clerkships that brought together hundreds of former clerks. Supreme Court clerks assist the justices with researching and drafting opinions and other work critical to the function of the Court. The day before the reunion, the NCC hosted a symposium in partnership with the George Washington Law Review at GW Law School featuring former clerks to discuss that special experience. This episode features NCC President Jeffrey Rosen’s conversation with Judges Diane Wood and Jeff Sutton, who shared how their clerkship experience affected them personally and professionally and shaped their methods of interpreting the Constitution. Judge Wood clerked for Justice Harry Blackmun and serves as Chief Judge on the U.S. Court of Appeals for the 7th Circuit and Judge Sutton, who sits on the 6th Circuit, clerked for retired Justice Lewis Powell and Justice Antonin Scalia.
The Honorable Diane Wood clerked for Justice Harry Blackmun on the Supreme Court and has been a judge on the US Court of Appeals for the 7th Circuit since 1995. She is Senior Lecturer in Law at the University of Chicago where she previously served as a professor of international legal studies and associate dean. She has worked in the State Department, in the Justice Department as the deputy assistant attorney general in the Antitrust Division, and in private practice. Judge Wood is the author of numerous books on antitrust law and trade regulation.
The Honorable Jeffrey Sutton clerked for retired Justice Lewis Franklin Powell and Justice Antonin Scalia. He has served on the US Court of Appeals for the Sixth Circuit since 2003, is an adjunct professor at The Ohio State University College of Law, and teaches a class on state constitutions at Harvard Law School. He previously served as the State Solicitor of Ohio and was a partner at Jones Day in Columbus. Judge Sutton is the author of 51 Imperfect Solutions: States and the Making of American Constitutional Law as well as several casebooks.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- “Our 18th Century Constitution in the 21st Century World” by Judge Diane Wood, Madison Lecture published in the NYU Law Review (2005)
- 51 Imperfect Solutions: States and the Making of American Constitutional Law by Judge Jeffrey Sutton (2018)
- Citizens United v. Federal Election Commission (2010)
- District of Columbia v. Heller (2008)
- Shelby County v. Holder (2013)
- Roe v. Wade (1973)
This episode was engineered by David Stotz with editing by Jackie McDermott, and produced by Jackie McDermott, Tanaya Tauber, and Lana Ulrich. Research was provided by Robert Black and Lana Ulrich. Special thanks to Professor Brad Clark of George Washington Law School and Taylor Dowd of the George Washington Law Review for partnering with us on this event.
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. Last week, the National Constitution Center traveled to Washington, DC to host Clerks at 100, a celebration of the hundredth anniversary of the Supreme Court clerkships.
We hosted a symposium featuring panelists who've worked as clerks for Supreme Court Justices and I had the wonderful opportunity to sit down with two of America's greatest judges, Diane Wood and Jeffrey Sutton. Judge Diane Wood is Chief Judge of the US Court of Appeals for the Seventh Circuit. She clerked for Justice Harry Blackmun. Judge Jeffrey Sutton sits on the Sixth Circuit. He clerked for Justice Lewis Powell and Justice Antonin Scalia. In the conversation that follows, Judge Wood and Judge Sutton share how their time working for their justices influenced their approach to judging and to interpreting the Constitution.
The conversation was hosted at George Washington Law School in partnership with the GW Law Review. Here are Judges Wood and Sutton, live from DC.
Welcome to the third of our panels in this rich and Illuminating day-long discussion celebrating the hundredth anniversary of the Supreme Court clerkships.
Once again, for those who are just tuning in, I'm Jeffrey Rosen, the head of the National Constitution Center in Philadelphia and a law professor here at George Washington University. The Constitution Center is so honored to convene former Supreme Court clerks to discuss how their clerkships influenced their lives, and I am so honored and thrilled to sit here with two of America's greatest appellate judges, two distinguished legal intellectuals and jurists who I just had the pleasure of getting to know and discuss the law with at the Constitution Center, and over the years both were Supreme Court clerks. Both are acclaimed across America for their opinions and their rigor and their approach to the Constitution, and I just can't wait to ask them how their clerkships influenced their approach to judging and to the Constitution.
So that's just what I'm going to do and I'll briefly introduce them by saying that Judge Jeffrey Sutton sits on the US Court of Appeals for the Sixth Circuit. He is the author of such an important book; he came to the Constitution Center to discuss it, and I want you all to read it because it will transform your view of the Constitution: 51 Imperfect Solutions: States and the Making of American Constitutional Law. Among many other important works and he clerked both for Justice Powell and for Justice Scalia.
And Judge Diane Wood is Chief Judge of the US Court of Appeals for the Seventh Circuit.
She has transformed the law with her judicial opinions, which are regarded as definitive on so many of the areas she writes and teaches in at the University of Chicago Law School, including antitrust, federal civil procedure, and international trade and business, and she clerked for Justice Harry Blackmun.
Judge Sutton, I'll begin with you. You clerked for both Justice Powell and for Justice Scalia, who took different approaches to the Constitution. How do those two clerkships influence your view of being a judge?
Judge Jeffrey Sutton: [00:03:42] So it was such a blessing. Well, first of all, Jeff, thank you for doing this, and thank you for all your leadership with the National Constitution Center. The country's really lucky and you've been amazing for that. It's really helpful to all of us who care about the Court, the constitutions, all 51 of them. But thank you. So I was - I really was lucky in so many ways to have these clerkships. I'd gone to Ohio State. It was not a traditional path from Ohio State, so that was very lucky to start, but the greatest thing for me that year was working for two people that spoke entirely different languages about the Constitution.
Justice Powell came to the court as a practitioner. He was a pragmatic in many ways. He was very much a forerunner of Justice Kennedy: cared a lot about civility, case by case, embraced totality of the circumstances tests, incremental judging. And Justice Scalia was very much not that, you know, his key article is, The Rule of Law as a Law of Rules, which kind of gives it away. And it was so remarkable that year to be dealing with two people that I, you know, it was like my mother and father; I love them both, but they disagree on everything. How does that work? When my mother and father—they got divorced actually, so it is really quite parallel—but I really adored them both, and it was just so interesting to be thinking about cases and wondering, wow, I think Justice Powell would really thought about this differently, and I'd be in conferences with Justice Scalia and he'd be critiquing a Powell opinion that had this balancing test that was utterly unpredictable.
So as a young lawyer, that was just so striking to me, to see people that I just really adored, admired at so many levels, speaking utterly different languages. And so the great gift for me was to come out of this experience, certainly not knowing how to speak those languages fluently, but being very interested in mastering how to speak them fluently. And that really influenced me first as an advocate and then as a judge, which is, you know, so I've been influenced a lot of different ways by all of them, or both of them. But I really do in my opinions try to speak all languages, and try to write an opinion that is not just going to be convincing to somebody who believes in textualism or originalism, which happens to be my preference. But I can see it a lot of different ways and that's been really healthy. You know, I suppose it makes me a little ambiguous sometimes as to what I'm really thinking, but you know as a Court of Appeals judge, in many ways that is the best training because half the opinions—the Constitutional opinions of the court—are more originalist in nature, and half of them aren't. So I actually think it's really good training for a Court of Appeals judge, because we're supposed to be able to honor both sets.
Rosen: [00:06:36] That's so striking that you took from Justices Powell and Scalia an ability to speak all of the constitutional methodologies, and I have here your opinion in the marriage equality case that became Obergefell, where you do exactly that: you run through all of the constitutional methodologies and explain why the result that you chose, you felt was compelled by all of them. So interesting to trace -
Judge Sutton: [00:06:59] That perhaps explains why it was reversed, but not for lack of speaking all the languages. I spoke all the languages.
Rosen: [00:07:07] You did.
Judge Sutton: [00:07:07] Just not one of them well enough.
Rosen: [00:07:10] Not at all. Judge Wood, what did you learn about the art of judging for clerking from the famously detail-oriented and particular Justice Harry Blackmun?
Judge Diane Wood: [00:07:21] I've learned a great deal of course, both from clerking for Justice Blackmun and also from seeing the different approaches around the Court. Now, I will say that at the time I clerked at the Supreme Court, the so-called originalism plain meeting approach had not yet carried the day with as many people; it wasn't really until Justice Scalia came or so when that became more popular.
My observation of Justice Blackmun actually goes all the way back to the fact that he came to the law as a mathematics major. Remember, his undergraduate degree from Harvard was in math. He was a summa cum laude awarder of that degree - awardee of that degree. And I think that it carried over into his approach to law, and it's something that I've thought a lot about. He was very comfortable with the scientific method.
He was very comfortable with working from the ground up, from the facts up, and coming up with a rule of law that was solidly based in the facts. He did not like a top-down, “I've already figured out what all the categories are and I'm going to shove this case into one or I'm going to shove it into the other.”
Now at the Supreme Court, there is some virtue in a fact-based approach, but because it's the final court, you lose some certainty when you don't have a clear theoretical construct that your opinion is going to fit into, because you're speaking for the entire country and I actually think of that—it's not the whole country, but it's three states—when I'm writing opinions. You owe it to everyone: you owe it to the parties, you owe it to the people who live in your circuit, you owe it to the business community, you owe it to individuals, to be clear. You know, “this is why this person won, this is why this person lost,” and we're going to make it possible for you to follow these precepts in the future.
The famous Justice Powell balancing tests, to which Jeff has referred, are actually not my favorite either. I find them impossible to do anything with.
Rosen: [00:09:46] Be nice to him.
Judge Wood: [00:09:47] I'm being nice to him. When they're weighted, then you can begin to work with them. But if you just say, “here are the following ten factors, balance them,” as a lower court judge looking at a Supreme Court instruction, you know, I can maybe chat about all 10 of them, but you're not really going to know why one of them was important and the other should prevail over the other.
So working for the court at the time, I did, you know, I thought a lot about the importance of theoretical constructs, the importance of the underlying facts. And I felt less critical of Justice Blackmun for his reliance on those facts because face it: there are areas, especially in constitutional law I would say, where it behooves the Court to move slowly, it behooves the Court to move incrementally, to make sure that the path they're charting for themselves is in fact the right path, and they haven't overlooked some major qualification that we just didn't know about; you thought it was all clear at the time of the opinion, but it turns out not to be so clear.
Rosen: [00:10:54] I wrote many pieces as a young, overconfident journalist that have proved to be wrong, but one about Justice Blackmun was called, “The Emotional Jurisprudence of Harry Blackmun,” and talked about his famous opinion in the DeShaney case, “poor Joshua.” I have to tell that after I wrote that a clerk that same term said he had just been working on a case called Schmuck v. United States.
It was glad that it wasn't Poor Schmuck. But yeah, but you're saying that that really was wrong, that Justice Blackmun was not primarily top-down, emotionless, but was driven from bottom-up, from the facts.
Judge Wood: [00:11:30] That was what I saw.
Rosen: [00:11:33] And that influenced you. Jeff, you've heard the clerks on the previous panel give particular examples of either personal encounters with the justices or especially Illuminating moments that really changed their philosophy. You emerge from your clerkship preferring Justice Scalia's textualism and originalism to balancing, although you combine them both. But can you share with us a moment or two with either of those justices that helped push you in that direction?
Judge Sutton: [00:11:59] Yeah. So I mean it's, you know, I really I was just - it was so much fun to listen to this last panel and just try to think a little more than I usually do about the roots of where I am and my problems. I think I took half for me of both of them. So, Justice Powell's a good Virginian, and he believed in federalism. I mean, you know, that was really a key theme of his jurisprudence, and that became a key theme of my advocacy. I'm sure it was a reason I was excited about working for the state of Ohio as the solicitor and did a bunch of those Section 5 Commerce Clause cases, and that's really been the interest I've had in terms of writing. It is true. And that's not Justice Scalia by the way, Justice Scalia was definitely a creature of the Beltway by the time he was on the court, and so I don't think he had the same sympathy. So in that sense, I rejected Scalia a little bit and followed Powell, but it is true on methods of interpretation. I'm very much more of a textualist and originalist. And that, you know, that grows out a little bit of the influence of Scalia for sure.
What it really grows out of is something I think all of us would share from this day: you come to love the Court as an institution. It's just really hard to work there and not leave it saying, I just I care so much about this place. I love every feature of it. I love every employee. I come back to argue, they'd all remember your name, and you just, you always felt like they were rooting for you. Like they were rooting for every advocate. They couldn't of course, they were both, one's going to lose.
But it's just, I just love the Court as an institution, and I think one reason I've really embraced textualism and originalism, perhaps people will disagree with me, but I do think it's more likely to protect the Court as an institution and help us get away from the politicizing of it. So that has influenced me.
You know, in terms of experiences with them, I mean, there're just so many but you know, one with Justice Powell—which of course has nothing to do with law, although in a way maybe it does eventually—he was 85 at the time. You know, if you're a retired Supreme Court Justice, a little warning to you. If you're going that route, people don't invite you to lunch anymore. So he was stuck having lunch with his law clerk. He had one law clerk retire, Justices get just one, and we'd have lunch once or twice a week at The Monocle. It's this great Washington Watering Hole. He treated me every time. He'd every day, same thing, he'd get a cheeseburger; he'd eat like an eighth of it. He'd get a glass of Kendall Jackson Chardonnay, he would drink all of that, but just one, and then he treat me to whatever.
But here's the most interesting part of it. You would have thought during that year we would have spent all this time talking about Bakke, and his great cases in the Court, and interpretation. I had to pull him kicking and screaming to those topics. He wanted to talk about winning the war, Richmond, the Richmond School Board, Hunton & Williams and above all his family. It was really, it was my first experience talking to someone I cared about and hearing them thinking about challenges with raising children and grandchildren. It was so striking to me to see it: all-powerful, retired Justice of the US Supreme Court talking about, well gosh I'm really sad my child's getting a divorce, or something. And he was stuck with me as the person to talk to about it. And that was really powerful, kind of putting it all in perspective. And you know, then our first child was born the night of the State of the Union that January. Justice Scalia had to stay, back then a lot of them went to those things.
And so the Justice said, “Jeff, do you want to come—you want to go for a run?” Well I shouldn't have done that, my wife was in labor. It's a pretty selfish thing to do, but she approved it. So we go on this run. He knows we're about to have our first child, and he spends the whole run saying, “Jeff, you know raising kids is so important and you know, you really got to make sure you have balance in your life.” And I didn't have a lot of self-esteem then, so I thought he was just saying, “Jeff you're not going to be a good lawyer. At least you can try to be a good father.”
I don't think that's what he meant. I really think he was making just a good balance point. And so there's a lot of - we'll come back to other ways of influencing, but I don't want to lose track of the the personal side of it, which was the theme of some of the earlier panels.
I mean that's - you really adore someone, you so respect them, you so want to be like them, and then you hear them talking about things that have nothing to do with interpreting constitutions, statutes, or courts. And so it resonates perhaps a little more than it would be if it was just your buddy or your uncle.
Rosen: [00:16:46] Thanks for that. Judge Wood, some personal encounters with Justice Blackmun where you got some life lessons that influenced you.
Judge Wood: [00:16:54] Wow, life lessons. I mean, he was very generous with his time with us, and he had certain things. People think of Justice Blackmun, as we heard in an earlier panel, as this monster who required 35-page bench memos and marking up all the cert memos and writing writing writing. And I will say, I'm a really fast writer and I'm an amazing typist, because this was a time before the Court had computers. It's that many years ago. So it was an actual typewriter and you know, the cost of an error was too high. So you just had, you had to be good.
But he would he would—it was a very spontaneous thing—he would just walk through our office where all four of us sat, myself and my three co-clerks, and he'd suddenly say, you know, what do you think about that opinion that—he used initials for everybody—BRW, Byron White, circulated or LFP, or you know, etcetera, JPS. And you had to be, like, on your toes that second, and you had no way of knowing which one was going to suddenly cross his mind.
And he would do the same thing, by the way, at his famous breakfast. I was living in a little dumpy basement apartment on Capitol Hill the year I worked at the Court, and I usually showed up on the dot of when breakfast began, with my hair dripping wet because it was lucky I had actually managed to get out of the shower and get over there.
But you know, you had to sit there and listen to a fair amount of chatter about baseball, which he did love. Everybody may remember, or maybe the students won't, but the famous footnote in Flood v. Kuhn was not forced on his part. He in fact loved baseball that much. I'm an okay baseball person, but I learned to maintain my part of the conversation.
Rosen: [00:18:49] Did you watch games and start following baseball so you could keep up?
Judge Wood: [00:18:53] I read about it. I couldn't -
Rosen: [00:18:57] Did you feign enthusiasm?
Judge Wood: [00:18:58] I feigned enthusiasm, yes. You had to do that at least. But then in the middle of you know, what somebody did in the seventh inning, you know, there'd be, what did you think of this opinion?
And if you thought that he might want to do something different based on what he had said in the past about whatever that issue was, again you just had to be on the spot. I'm not actually a morning person at all. So this was maybe one of the greater challenges of the clerkship, but that was the way he just liked to do it.
And the other thing that really opened a window into not just Justice Blackmun, but the entire Court, was his famous conferences with us after the conference. So the Justices would sit down to discuss whichever the cases were: the Monday cases on Wednesday, or the Tuesday and Wednesday cases on Friday, and then we'd all go into his chambers and he would sit down, Justice by Justice, and give us pretty much - I'm thinking it was practically a transcript. Exactly what those people had said about every case that the Court had heard argument in. You know, “and Justice X said this and Justice Y said that,” and he'd do himself in order, you know, and and what an insight - I mean it was just an amazing insight into the way the Justices were working their way through the different viewpoints. And sometimes it was outcome-determinative; of course, many times it was more, “what's the right reason for this?” You know, is this a statutory case or a constitutional case? Is this a case in which we need to say something grand about the meaning of due process, or is it actually something much more granular? Or at least if you get a majority of the court on a more narrow ruling, is that something you should go with or not? So we had amazing conversations with them about that, and it certainly taught me a tremendous amount, both about the way the justices themselves went about their decision-making and also, of course, in later years how I've done it.
Rosen: [00:21:09] Did that uniquely granular view give you more or less respect for the way the Court functioned as a nonpartisan institution?
Judge Wood: [00:21:16] It gave me tremendous respect for the way the Court functioned, and I'll share that if we now fast forward to the time that I've been on the Seventh Circuit: we happen to have a case, every year we hear maybe four cases en banc, maybe five. It's not very many. But we had heard this particular case en banc, and our practice is to go around the room and everybody talks first, and you're not supposed to vote, even though you can kind of tell how somebody's going to vote. But you are supposed to talk, and then you just kind of crisscross with questions and then you go around the room and vote.
And as we started the voting in this case—it was before I was Chief Judge—I thought, I'm really sorry the public can't see this. I am so proud of this court, you know, people are grappling with these issues. They're hard issues; they're issues on which people at a personal level feel passionately, but everyone's being respectful. Everyone is thinking of the way our law ought to treat those questions, not just the way your personal preference should. We're all acutely aware, you know, that whatever it is, the 23 million people in the Seventh Circuit, didn't elect me to do anything. They trust me to follow the law and I saw that in Justice Blackmun's accounts of the way the justices were handling their discussions and and we certainly strive to do the same.
Rosen: [00:22:47] Jeff, do you feel the same way about the Sixth Circuit as you do about the Supreme Court? The Sixth Circuit, like other circuits, has had times of great division and other times of more collegiality. And what are the differences and similarities among the Sixth Circuit and the Supreme Court that might affect the way it functions as an institution?
Judge Sutton: [00:23:05] I'll say that most of our work is done in three judge panels, so it's intense, but it's just two other people, and that actually makes it a lot easier. I can't imagine having all my work with nine people, that's hard to imagine. I'm not a big fan of the en banc process. I'm a very hard vote on that because I don't enjoy decision-making in a group of 16.
Now I will say it is fun to hear a bunch of us talk about something really difficult, but it's just it's just very hard. You know, you don't have seven hours, which is probably what it would take to really figure out what everyone thinks and account for every perspective.
But, you know, the thing I was going to say about something you see about developing the right answer and what the reasoning was, and it sounds like Justice Scalia was like Justice Blackmun in this respect.
After every argument day, he would pull the clerks in together and we would actually debate the case. So we have an adversarial process as the case is being presented in the courtroom, and then afterwards we'd have very adversarial process back in his chambers. He didn't want to talk to the clerks too much before the argument.
In fact, he asked for—this was a contrast with Justice Blackmun—he'd asked for a bench memo that was no more than two pages. We're like, well, I hope single spaced and no margins, right? So he didn't want a lot of wind up. He was like, I've read this, we're going to talk after. So he didn't he might talk a little before, but not too much.
But then after the argument the clerk whose case it was would present the case to the group and everyone was an equal in that debate. And that was a really striking thing to learn after a couple of these conferences, that he didn't respect you if you didn't push back, he would just ignore you. He didn't want to hear that he was right.
He just didn't interest him. What interested him is why he might be wrong, or why he might need to think about it slightly differently. And those were just unbelievable debates and conferences and you know, so I've, I find that's influenced me more in how I work with my clerks then perhaps it has how I work with my colleagues. You know, we don't we don't debate that much. I mean, we assign, unlike the Seventh Circuit we preassign opinions or responsibility for opinions. Obviously if they pre assigned author ends up in dissent, they don't write a majority. But that means we have a lot of communication in most cases before argument, which means there's less room to talk.
I mean, it's not unhealthy; the California Supreme Court does this, the Ninth Circuit does it, you can see competing arguments on both sides. This was a practice that was there before I got there. But what ends up happening is we really put a premium on those, you know, maybe a bench memo is circulated, maybe a draft opinion is circulated.
There'll be memos back and forth about what's been done. And by the time of argument, most people really have a sense not only of what they think but what their colleagues think and, you know, so it means we usually have shorter conferences, which you know again, I can see both sides of it. It's probably not the approach I would have developed on my own, but on the other hand, I've come to see some virtues of it. It gets opinions out more quickly. It means arguments are unbelievable because everybody's really prepared and really ask questions that really matter. So that of course is not what happens at the US Supreme Court. They do not circulate.
They do not pre assign opinions. They do not circulate bench memos to other chambers, much less opinions. So that's quite a striking difference.
Rosen: [00:26:36] Back to constitutional philosophy. Both of you are unique among appellate judges and among Supreme Court justices in having written powerful and deep accounts of your own constitutional philosophies. And Judge Wood, you gave the Madison lecture at NYU, and yours was called “Our 18th century Constitution in the 21st Century World.” You gave an account of why the Constitution should evolve in light of social and technological change, and you defend that approach against an originalist approach. To what degree did your dynamic approach—how was it influenced by Justice Blackmun? And I think it's much more systematic than Justice Blackmun was, so why don't you describe it and then contrast it with his
Judge Wood: [00:27:21] Right so, that's the title, and I was influenced to write the thing by the fact that there are certainly some parts of the Constitution—everyone thinks of the Eighth Amendment, where the Supreme Court itself has said, and it has never overruled, the notion that our standards of what cruel and unusual punishment means have evolved with the times, and if they were hanging horse thieves in, you know, 1791, we probably don't want to be hanging horse thieves today. And that made a great deal of sense to me, and I think over the year that I worked for Justice Blackmun and observed the work of the Court, I saw so many applications of the broad-ranging language of the Constitution that seemed to me really just contemporary applications of a broad principle.
And my own thinking is probably more contextual at this point. I think that the people who wrote the Constitution were very bright people, and I think when they wanted to be very specific they were very specific.
So they said the president has to be 35 years old. I'm not going to go into some big thing about whether 35 counts the nine months of gestation or not. You know, I'm going to go with 35 as we all understand that term to be. The Titles of Nobility Clause hasn't really occasioned much litigation as far as I'm aware.
So I think when they wanted to be very particular, they could. When they wanted, if you will, to state a standard—equal protection, that comes of course later; but due process is in the Fifth Amendment and obviously the Eighth Amendment. When they wanted a standard, they gave a standard, and I think they fully expected that this would change. Frankly, you know if you want to take a very originalist approach to the 14th Amendment, you would say women weren't included and the Supreme Court crossed that bridge as well. Took em a little while to do it, but they seem to be fairly securely there at this point and I'm glad they are.
And I think that's the right way to interpret the Constitution. It's a very broad principle in there. So I think that some of the most litigated parts of the Constitution are in fact the parts that are just inherently broad and sweeping: due process, equal protection, cruel and unusual punishment, etc. And I would my personal view is it would be unfaithful to the Constitution itself not to give them that kind of flexible meaning.
The other thing I'll say is that part of that lecture—I don't know how well it came out—but part of that lecture was a plea for consistency. Because if you're going to say, for example, that the president's power over foreign relations includes the list of things that we would now put in that list, you can search long and hard in Article II, and you're not going to find those things set forth. You're not going to find, you know, the president's ability to wage war without Congress's permission for some period of time, that now is sitting there in the War Powers Act. So it seemed to me if you really wanted to be a strict constructionist, a lot of things that you think about Article II would have to go out the window. And I'm not advocating they do go out the window.
I mean, it's actually quite consistent with my sense of the interaction among the branches of government; Congress and the president, you know, have their own constitutional responsibilities and that's what they need to carry out. And I am not one just to conclude this who thinks that it's necessary to throw out the administrative state just because that wasn't originally set forth in the Constitution. So I really think the reason our constitution has worked is that we have had a flexible and evolving approach to it.
Rosen: [00:31:38] Judge Sutton, you've set out your distinctive and important philosophy in many places: your state constitutions book, your opinions, and this powerful essay, “The Role of History in Judging Disputes about the Meaning of the Constitution.”
You call yourself a textualist originalist, but I would venture to say that your originalism and textualism is distinct from that of Justice Scalia. So why don't you give the audience a sense of what your approach is, because I think it educates all of us about the Constitution, and how it how it derives from and is different from Justice Scalia and Justice Powell.
Judge Sutton: [00:32:15] I don't think Justice Blackmun influenced me quite as much as Diane. On the other hand if Diane thinks something's true, I'm going to take it very seriously. So I will say that affects me. Let me say something that I'm pretty confident the two of us would agree about; in fact, I think all three of us will agree about it. These labels are really important. They particularly important for students. They're important if you're going to write about something to have labels to describe theories, but I think they're utterly inaccurate in one really important sense in terms of how judges really interpret the Constitution, or for that matter statutes, in that it's not these binary either-or, it's the spectrum.
And the way I'd like to think about it is, every judge who ever lived—Justice Scalia and crew included—when they read the facts section of the brief, has a reaction to it, right? We wouldn't want judges that don't have reactions to fact patterns and I doubt there's been a judge who ever lived that by the time they're done with the fact pattern, they've got some reactions. Like wow, I can't believe this happened to this person, or, maybe it seems pretty even on both sides, or whatever. But you had, how can you not have that reaction.
What really distinguishes judges and when I think well, I think it's better to think of it as a spectrum rather than either-ors, is just what it takes to get off of that reaction to the fact pattern. And I think for some judges and justices, Justice Scalia being a very good example, it just doesn't take much. I mean, if he's got a statute he may be very unhappy about what the statute means as applied to this person or what the Constitution means is applied to this person. It just doesn't take much for him. And I think for others it takes a little more and then I think for some it takes an awful lot to get them off of that reaction. So to me, what illustrates this is if we think of our colleagues on our court, I mean you just wouldn't say, A camp, B camp, you would just say wow, you know that one, this is something that they're very sensitive to, so, I guess I would start with that.
Yes, I but I am an originalist and I you know, I don't think it's a sin. I am proud of it. It's important to ask yourself, why would people say that or think that? And I'm very worried about the role of the courts in deciding the biggest questions in society.
I mean, if I had been a justice in the 60s and the 50s, I strongly suspect I would have been in the majority on a lot of those cases. I'm not saying we don't have serious problems today, but it's not the 50s and 60s. We've also seen what has happened in that time since in terms of the people caring deeply who's on this Court. When our elected representatives, our elected senators, are voting essentially a hundred percent partisan, not just for justices, but all federal judges, you have a real problem that the American people are starting to think, well, I don't care what Chief Justice Roberts or Jeff Sutton or Judge Would says about—there aren't Obama and there aren't Trump judges, or blue robe or red robe judges. If our elected officials are treating it as a perfectly partisan matter, how can they not draw the conclusion that it's a political body.
And if they think it's a political body, why is it have authority to check other political bodies: the president, Congress, states? So that's what has, that really drives me on this. You know, I think if you evolve there's nothing about evolution that says it always goes in the right direction.
So you can give a Framer, I mean, excuse me—can give Justices when they get confirmed a framer's pen that adds allows him to add words to account for evolving norms, but it also implies they have a framer's pen to delete words to account for evolving norms, which is very dangerous in the criminal procedure Arena.
So but let me let me finish by a somewhat of a compromise; in a little humility, maybe I'm wrong about originalism, or maybe there are some imperfections to it. What I think we should all be able to agree about is that if we are going to have times when the Court—because we're mainly talking about the US Supreme Court—is going to evolve the meaning of an individual rights guarantee, one, it ought to be fairly rare. That should not be a normal run-of-the-mill thing or else we're going to completely destroy this crown jewel of American government because it will be seen as purely political.
So if you are going to evolve rights, I borrow from Justice Jackson, you know, who has that great thing in Youngstown Sheet & Tube, when the president has his most power and least: least when Congress says no, middle when they've said nothing, and the most when Congress has directly approved it. If the Court's going to innovate new rights, what I would say adding rights the Constitution, at least wait until a serious majority of state legislatures or state courts interpreting their own constitutions have done it. That to me seems like, if we're going to continue to have that, a fair compromise, and makes it just very problematic to me when the court is evolving and evolving at a time where the states are either completely the other way or still sorting through the issue. And I think that'll really help us in getting rid of some of the resentment, I'd like to think de-politicize the court appointments.
Then I'll say one thing which shows how audacious and foolish I am at the same time. You know, I actually defend Chief Justice Roberts's analogy in his confirmation hearing, using balls and strikes. As he pointed out once, it doesn't seem to appreciate how hard it is to be an umpire. Watch these baseball games; it's very hard to be an umpire. But I would actually think of, there's one thing about it that I've never heard anyone talk about, which is what drives me and maybe this shows my problem.
When the court is calling balls and strikes about the meaning of the Constitution—to keep the analogy we'll call a strike it's within the constitutional zone—they're no longer, it's no longer a game between the Nats and the Dodgers. When they call a strike, when they say the Constitution applies, the referee just became a player in the game. Because the next time this topic comes up, the people will go to the Court. The who decides answer will involve the courts.
So what makes the metaphor so good is you don't come to the game to see the referee, the referees just neutrally call balls and strikes, and you watch to see which team wins; every time the Court, particularly when it involves something evolves a right, to say it's within the Constitutional Strike Zone, there are now three players, not two. And that is something the court should pay attention to. And you know, because that's a power grab. That's saying: it's not the state legislature; it's not the Congress; it's not the president; it's us. Or it's we, as my grammatical wife would say. That's important to remember, and that's changing who decides. And I'm not saying it's a power grab in the sense of that's what motivates them. But please don't deny the reality of what just happened when they constitutionalize something.
And that's of course why the body gets more politicized, because if the people hear that's now up to them [the Court] to decide, the people want a say in who “they” are. It's very legitimate.
Rosen: [00:39:30] Wow. Thank you for that extremely thoughtful defense of originalism as you see it. It's such a privilege to have you both in conversation.
I have to ask you, Judge Wood: what is your response to Judge Sutton's important points?
Judge Sutton: [00:39:41] I'm taking you back to baseball. I heard she didn't like baseball. I thought, I've totally got the upper hand on the baseball.
Rosen: [00:39:49] He was so clear, but he gave us four defenses of originalism: that it keeps the courts out of politics, that it avoids giving a blank check to judges that could go in either direction, that when rights evolve that should be done parsimoniously, and that it puts a third player in the game.
Judge Wood: [00:40:06] Yes, and and I wish those were all right -
Judge Sutton: [00:40:09] I don't think you wish that much. Wish a little harder.
Judge Wood: [00:40:16] Not surprisingly, I don't really see it that way. First of all, I think when the Court applies a constitutional provision to a situation that hasn't come up before, that doesn't mean that the Court is creating a new right when they apply the Equal Protection Clause to the rights of LGBTQ… however many letters, to new people. They are just understanding: here is a new situation. We are applying the same old concepts in the same old word to it. So I really am not at all sure that many of these instances are accurately described as just reaching out and applying new—you're just writing new words into the Constitution.
I mean, we could sit here all afternoon and talk about things that are not specified in the Constitution that are actually rather uncontroversial. It's also, I think, critically important to know that, as Jeff points out, these things go in two directions. When the Supreme Court says in Citizens United that money is speech and that you can't have an effective campaign finance system because it would violate the First Amendment, a whole area of public concern has been removed from the legislature. It has been removed from the state legislatures. It's been removed from the federal legislature. That's a momentous thing to do, and that was something done there. Oh, well, you know the First Amendment must mean money is as well as individual votes.
We came within a hair of that same thing happening in the first of the Affordable Care Act cases, when Justice Roberts wrote his famous opinion saying, well, we can't quite do this under the Commerce Clause; it's only a fifth of the GDP, so that's not enough, and no one can tell me to buy broccoli; but we will do it under the tax clause. And then we've had other things.
Well, suppose Justice Roberts had sided with the other four justices, and the Affordable Care Act was not just called out for being unwise legislation—Congress had passed it, you know, the democratically-elected part of our government had passed it—but if the court had said the Constitution itself forbids this kind of experiment in health care reform. That would have had exactly the kind of paralyzing effect that Judge Sutton is bemoaning. And I actually totally agree with you; I am a big fan of letting things be handled by Congress. If Congress does something colossally stupid, then maybe a later Congress will fix it, and it stays in the political branch and it's subject to adjustment.
I think that the originalist approach that many on the Supreme Court have taken has in fact not left that kind of flexibility. And again, as I said earlier, I think that when we think of… Let's take the Commerce Clause. The people who wrote the Commerce Clause weren't really thinking about Amazon.
They weren't thinking about the internet. They weren't thinking about a lot of things and I don't think that means that we have a practically defunct Commerce Clause. I think it means that we have principles that the Constitution has set out that we apply to current facts.
Rosen: [00:43:57] Judge Sutton you -
Judge Sutton: [00:44:00] Can I respond?
Rosen: [00:44:00] Yes, please. I -
Judge Sutton: [00:44:01] - in a common ground-seeking way.
Rosen: [00:44:03] I want you to know - I'll just set it up by noting that you reached similar conclusions to Chief Justice Roberts, in both the health care case and the Obergefell case. You came out, and you both came out in one case on the so-called conservative side and in the other on the liberal side. But in response to Judge Wood, to what degree are you as concerned about deference as originalism, because Chief Justice Roberts doesn't call himself an originalist, but he does talk about the importance of deferring to Congress as you do, too. So, how does that play into the mix?
Judge Sutton: [00:44:33] Yeah, I mean, thanks for characterizing it as my getting affirmed in the health care case. I was affirmed because I was wrong twice, and in the marriage case I was reversed because I was wrong once, and that was like a deeply philosophical question. Which is better? I don't know. You'd think being wrong once is better. So I'm still struggling through that.
So the deference restraint thing is—I'm sure Diane thinks about this as much as I do—I certainly went on the bench thinking I was a judicial restraint judge. I think Justice Powell thought of himself that way; that was definitely how Justice Scalia thought of himself when I was clerking for him. So that it was very natural to think that way. The more time I've spent as a judge, the more time I find myself thinking: what does that mean?
You know, if Congress and the president are having a fight about, you know, Article I versus Article II, who has this power, what does deference mean? I mean, you don't presumptively defer to the legislature, even though it's Article I, over the president, and vice versa. So it's kind of bothered me how you work through this.
I think what I found myself thinking amounts to still a form of judicial restraint, but one that still honors what the role of the courts is. First of all, I do think originalism counts here. And that article you referred to is saying, you know, if the history doesn't help you—and God knows we judges and we lawyers are not the best historians—if the history doesn't really help you here, then the presumption ought to be that democracy has a role to play. Second point -
Judge Wood: [00:46:08] Can I ask how you apply that to Heller?
Rosen: [00:46:11] Heller is the Second Amendment.
Judge Sutton: [00:46:13] Yeah, so that's sadly too much in my wheelhouse because it's all about state constitutions. There are 43 state constitutions that have a right to bear arms. Before Heller, 41 of the 43, it said it was an individual right.
So to me, that's really powerful evidence, so I actually thought that is pretty clear and not too hard. Now what it means beyond handguns and different weaponry strikes me as slightly different. But the issue in Heller was individual right to bear arms. And that was just - it was 41 to 43 it said so, and the other two had not said the opposite, they just said nothing. So I think Eugene Volokh's article on that is pretty powerful if originalism is the way to think about it. I mean either way -
Rosen: [00:46:56] I can't resist one wonky question. At the founding, only two of the thirteen state constitutions recognized the right to bear arms as an individual, right? How much does that matter?
Judge Sutton: [00:47:06] Well, I think I see what you're referring to is the fact there were only two right to bear arms provisions, not to whether they were individual rights. The other ones, I mean, it just hadn't been decided.
Rosen: [00:47:15] It's the Interactive Constitution, which I've been plugging all day for the National Constitution Center, gives the text to the 13 constitutions. And Vermont and Pennsylvania say the people have a right to bear arms for the defense of themselves or for purposes of killing game; all the others talk about the right of state militias not to be disestablished by the feds.
Judge Sutton: [00:47:31] Yeah, so speaking of upper hand, he has it a little bit because he's just looked at this. But what I'm pretty confident is true, in fact, I'm 100% confident is true as to those early constitutions, is they've all been construed to mean that. And so I think that seems to me pretty powerful.
But you know, if we're going to talk about Heller, why didn't Justice Stevens have something to account for if he's a living constitutionalist? If I'd been writing Heller, I would have said something at the end of Heller along these lines:
okay, fine, you don't agree with originalism? Let's apply living constitutionalism to this debate. Do we think in America circa 2000-whatever-it-was, that the average American doesn't think they have a right to a firearm next to their bed? That Gallup poll would be 80% at least in terms of that right: an individual right to have a gun next to your bed.
So to the extent living constitutionalism is the way to think about this, I feel like that's a case where that should have been acknowledged. Now, no one said anything about it. So, you know, God only knows what the answer to it is, but I mean the thing I wanted to see if we could do with our old bosses—what Judge Wood has just shown is you can constitutionalize in a blue way and a red way. And if you ask me the last 34 years show red blue red blue red blue, but the constant is more constitutionalizing, i.e. the US Supreme Court being more and more the decision maker.
And this is the fundamental choice we Americans have to make. If we're comfortable with that, great, but I promise you you're going to win just half the time. And please don't be deeply resentful on the half the time you lose. There's just no reason—if the Court is going to be in charge of all this stuff and aggressively construe the Constitution, it's not going to go in red and blue rights over time. And that is path A, that's the path we're on. I worry that ends in tears because you politicize this crown jewel of American government. Path B is a detente.
And the thing that would be really interesting to me is if Justice Blackmun were alive today, Justice Scalia were alive today, and they had us as their agents going back to the old days and they asked us to negotiate. And Justice Scalia said, here are the five constitutionalizing decisions I like the least. Justice Blackman says, here are the constitutionalizing decisions I like the least. I promise you they would not overlap. Could we do a trade and return all 10 issues to the American people?
Now, I don't know what the answer to that question is, but I can tell you that is the stakes: it's either we go back to a world in which you win some you lose some democratically, or we stay with the current path, you win some you lose some constitutionally, where it's five of nine members. So that's the call. I don't know the answer. Like Justice Scalia famously said, I can't negotiate over originalism because it means something and that's that.
On the other hand, I think he would think seriously about this deal.
Judge Wood: [00:50:40] Well, the interesting thing -
Rosen: [00:50:42] Would Justice Blackmun? And would you? And do you and Judge Sutton want to do the deal right now?
Judge Sutton: [00:50:48] Yeah, we didn't get anything in writing about our authority here, did we?
Judge Wood: [00:50:52] No, I don't think we did…
Rosen: [00:50:54] It's an advisory opinion.
Judge Wood: [00:50:55] We have apparent authority.
Judge Sutton: [00:50:56] We have a child authority.
Judge Wood: [00:50:57] I actually can't imagine Justice Blackmun doing that either, but I have given a lot of thought to I think what Jeff is getting at and what in some ways we've all been talking about, which is that one of the most important things that we need to do in our system—and it's often the Supreme Court who does it—is really say in whose court does this fall, you know, you know whose decision is it, you know, is the Affordable Care Act and Heller and abortion and death penalty and all the rest of that: are they - is that something that legislatures do, or is that something that there is some fundamental law that has been laid out in the Constitution that confines the power of the legislature to do anything about it. I would say—I can't resist saying on Heller—that many of the post-Heller cases have been acts striking down state and local laws passed by the legitimate bodies of the state legislatures and the cities.
Judge Sutton: [00:52:03] Hey, I'll make the trade, we can do it right today; we'll have an announcement. I will make the trade.
Rosen: [00:52:09] What what will you give up, Judge Wood, for Heller?
Judge Wood: [00:52:13] Oh boy, I don't think - I'm not quite prepared to answer that. Although with cert grant this morning in the Louisiana case, maybe it's easy.
Rosen: [00:52:26] Well, except well… It's a serious question. Would you give up Roe for Heller? I think that's what Judge Sutton is asking you.
Judge Sutton: [00:52:30] Or Citizens United! Maybe it's a twofer.
Rosen: [00:52:34] Citizens United plus Heller, for Roe plus Shelby County. For Roe plus Shelby County, take it or leave it.
Judge Sutton: [00:52:44] Then a no-trade clause.
Rosen: [00:52:46] Yeah.
Judge Wood: [00:52:46] Yeah… Shelby County, I mean the thing that bothers me about Citizens United and Shelby County is that they go to the root of who participates in our democracy. And -
Rosen: [00:52:59] Shelby County's the voting rights case.
Judge Wood: [00:53:01] Right, so it's very hard for me - the closer you get to protecting the sound functioning of our democratic institutions—who votes, who can get to the poll, what things belong to the legislature—the more I would be willing to say that has to be protected, and something that's further out from that, you know, will sort itself out over time.
Rosen: [00:53:24] Well like your courtrooms, these Constitution Center discussions have to end on time. I must say how dazzled I am by the quality of this discussion, how grateful I am for it. The point of the Constitution Center convening former Supreme Court clerks to come to Washington was not just to celebrate the hundredth anniversary of the institution, but to model civil debate about the Constitution, to show how people can disagree without being disagreeable. And to have sat here with two of America's greatest judges talking deeply about competing but complementary theories of the Constitution is a rare treat. At the Constitution Center, we say it's like working in constitutional heaven. Sitting here with both of you and listening to your ideas has put all of us in constitutional heaven. For all they've done to illuminate our understanding of the Constitution, please join me in thanking Judges Sutton and Wood!
Today's show was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich and the Constitutional Content Team. Special thanks to my colleague Professor Brad Clark of GW Law School, and to Taylor Dowd of the GW Law Review for partnering with us on this symposium.
Please rate, review, and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone everywhere who's hungry for a weekly dose of constitutional debate. And always remember, friends, that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and dedication of people from across the country who are inspired by our non-partisan mission of constitutional education and debate. You can support our mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to support our work, including this podcast, at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.