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00:00:01P.M., JOURNALIST ANNIE JACOBSEN, AUTHOR OF THE BEST SELLING BOOK
00:00:04BIOLOGICAL WAR A SCENARIO, EXPLORES HOW THE RELEASE OF A
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00:00:29>> OUR 2026 IN REVIEW. LOOKING BACK AT CURRENT SUPREME COURT
00:00:33JUSTICES PUBLIC REMARKS CONTINUES. KETANJI BROWN JACKSON
00:00:36SAT DOWN AT YALE UNIVERSITY TO DISCUSS THE EMERGENCY DOCKET AND
00:00:39OTHER PRESSING ISSUES AT THE
00:00:41COURT. HERE'S A LOOK.
00:00:45>> THANK YOU SO MUCH, JUSTICE
00:00:47JACKSON, FOR SPENDING THAT TIME
00:00:49WITH US. YOU'VE BEEN SAYING
00:00:52SOME OF THESE THINGS IN YOUR
00:00:54WRITINGS FROM THE BENCH, BUT IT'S AN EXTRAORDINARY
00:00:57OPPORTUNITY FOR US TO GET TO HEAR YOU SPELL THEM OUT WITH
00:01:01SUCH RIGOR AND SUCH PASSION ABOUT THE INTEGRITY OF OUR SYSTEM.
00:01:04>> WELL, THANK YOU VERY MUCH FOR, AGAIN, FOR THIS
00:01:07EXTRAORDINARY OPPORTUNITY TO DO THAT. >> SO WE HAVE ABOUT 20 TO 25
00:01:10MINUTES FOR SOME QUESTIONS. SO I
00:01:14THOUGHT I WOULD ASK YOU A FEW QUESTIONS THAT FOLLOW THE
00:01:17STRUCTURE OF YOUR SPEECH. AND THEN MAYBE WE CAN VEER BEYOND
00:01:20THAT. IF WE HAVE THE TIME. SO
00:01:22THE YOU START OUT BY DESCRIBING
00:01:27THE STANDARDS THAT APPLY WHEN PARTIES ARE SEEKING AN
00:01:28INJUNCTION OR A STAY. AND THERE
00:01:33ARE TWO THAT THEN BECOME RELEVANT TO YOUR PROPOSAL FOR
00:01:35REFORM. AND SO I WANT TO UNDERSTAND EACH OF THOSE AND HOW
00:01:39YOU'RE THINKING ABOUT THEM A LITTLE BIT BETTER. BUT SO LET'S
00:01:41START WITH THE CONCEPT OF HARM.
00:01:44AND THAT'S WHERE YOU REALLY PLACE THE EMPHASIS AND FIGURING
00:01:47OUT WHAT THE REAL WORLD HARM IS.
00:01:49YES. SO HOW DO YOU EVALUATE REAL
00:01:53WORLD HARM? BECAUSE FOR THOSE OF
00:01:55US WHO ARE READING, UH, EITHER THE GOVERNMENT'S BRIEFS IN A
00:01:59LOT OF THE CASES THAT ARE COMING THROUGH THE EMERGENCY DOCKET OR
00:02:03THE COURT'S OPINIONS, THERE'S A
00:02:07CONCEPT OF HARM THAT THE INABILITY OF THE PRESIDENT TO BE
00:02:10ABLE TO UTILIZE HIS POWER. YES. IS ITSELF A HARM THAT IS A
00:02:13CONSTITUTIONAL HARM FOR PRESIDENT, NOT TO BE ABLE TO EXERCISE HIS RIGHTFUL POWER.
00:02:17WHAT WHAT RELEVANCE DOES THAT HAVE IN THE CALCULUS OF HARM?
00:02:21>> SO IN THE CALCULUS OF HARM, AS I UNDERSTAND IT, AND LET ME
00:02:24START BY SAYING I WAS A DISTRICT COURT JUDGE FOR THE LONGEST
00:02:28PERIOD OF MY TENURE, SEVEN AND A HALF YEARS IN THE DISTRICT OF
00:02:31COLUMBIA. AND SO I HAVE HAD TO
00:02:35RESPOND TO PARTIES WHO RUN INTO
00:02:38COURT THE DAY BEFORE SOME
00:02:40CATASTROPHIC EVENT AND ASK FOR INJUNCTIVE RELIEF. AND WHAT YOU
00:02:44LEARN VERY QUICKLY WHEN YOU'RE
00:02:46IN THAT POSITION, IS THAT HARM
00:02:50HAS TO BE EVALUATED RELATIVE TO
00:02:53WHAT IS HAPPENING IN A CONCRETE
00:02:55WAY, WITH RESPECT TO FACTS ON
00:02:59THE GROUND. SOMETHING LIKE
00:03:02CONSTITUTIONAL HARM IS TOO ABSTRACT TO DRIVE THIS KIND OF
00:03:06ANALYSIS. WHY DO I SAY THAT?
00:03:11BECAUSE CONSTITUTIONAL HARM IS
00:03:11ACTUALLY LITTLE MORE THAN IN A
00:03:15LEGAL CONCEPT. AND WE HAVE AN
00:03:17UNDERLYING LEGAL PROCESS THAT IS SUPPOSED TO BE DETERMINING
00:03:21WHETHER OR NOT THE PRESIDENT OR
00:03:24WHOMEVER HAS VIOLATED THE LAW.
00:03:27UM, I TRY TO I'M TRYING TO FIGURE OUT AN EASIER WAY OF
00:03:31SAYING THIS. THE, THE PRESIDENT
00:03:33OF THE UNITED STATES, ALTHOUGH HE MAY BE IN THIS HYPOTHETICAL
00:03:36THAT YOU'VE POSED, UM, HARMED
00:03:38IN AN ABSTRACT WAY BY NOT DOING
00:03:42WHAT HE WANTS TO DO, HE CERTAINLY ISN'T HARMED IF WHAT
00:03:46HE WANTS TO DO IS ILLEGAL.
00:03:48RIGHT. HE DOESN'T HAVE THE
00:03:50ABILITY TO DO SOMETHING
00:03:54UNLAWFUL. AND THE POINT OF THE MERITS PROCEEDING IS TO DETERMINE WHETHER THE THING HE
00:03:58WANTS TO DO IS UNLAWFUL. SO THE
00:04:01INTERIM RELIEF PROCEEDING REALLY HAS TO BE ABOUT SOMETHING ELSE.
00:04:05AND THE SOMETHING ELSE IS, ARE
00:04:07WE GOING TO ALLOW HIM TO DO THIS
00:04:09THING, THIS THING THAT IS BEING
00:04:12CHALLENGED IN THE INTERIM, WHILE
00:04:15WE ARE EVALUATING WHETHER OR NOT THAT THING IS LAWFUL? AND THE
00:04:17ONLY WAY TO MAKE THAT
00:04:20DETERMINATION WITHOUT HAVING IT JUST COMPLETELY COLLAPSE INTO
00:04:23FORECASTING THE MERITS, IS TO
00:04:25FOCUS ON WHAT IS GOING TO HAPPEN
00:04:30IF HE DOES THIS THING CONCRETELY IN THE REAL WORLD, VERSUS NOT.
00:04:33AND SO, YOU KNOW, I APPRECIATE THAT THE GOVERNMENT MAKES THAT
00:04:37KIND OF ARGUMENT, BUT WHAT I WOULD BE LOOKING FOR AS A
00:04:40DISTRICT COURT JUDGE IS THE GOVERNMENT EXPLAINING TO ME THE
00:04:44NEED FOR THEM TO IMPLEMENT THIS
00:04:47POLICY RIGHT NOW IN CONCRETE WAYS, AND THEREFORE, THE HARMS
00:04:50THAT WOULD BEFALL THE GOVERNMENT
00:04:51OR THE PUBLIC IF THEY DON'T DO
00:04:54IT NOW. THAT'S WHAT THE INTERIM RELIEF DETERMINATION IS REALLY
00:04:58ABOUT. >> SO, IN A SENSE, THEN OUR OUR SYSTEM, THE WAY THAT YOU
00:05:02ENVISION IT, HAS A VERY STRONG STATUS QUO BIAS, OR OUGHT TO
00:05:05HAVE A VERY STRONG STATUS QUO BIAS. AND IF SOMETHING.
00:05:07>> TO IT HAS TO, BECAUSE THE CHALLENGE IS ABOUT THE
00:05:11LAWFULNESS OF THE CHANGE. SO I
00:05:14DON'T UNDERSTAND HOW WE CAN
00:05:17DECIDE THAT WITHOUT HAVING A LEGAL PROCEEDING. THAT TELLS US
00:05:20WHAT THE ANSWER IS. I MEAN, ONE OF THE MOST IMPORTANT PARTS OF
00:05:22THE SPEECH, I THINK, IS WHEN I
00:05:26SAID, THE COURT DOES NOT KNOW,
00:05:27WALKING IN THE DOOR, WHETHER OR
00:05:31NOT THE PERSON WHO IS MAKING THIS CLAIM HAS THE BETTER LEGAL
00:05:35ARGUMENT. THE POINT IS THAT IT TAKES TIME TO FIGURE THAT OUT.
00:05:38WE WANT OUR JUSTICE SYSTEM TO
00:05:41HAVE JUDGES LOOK AT EVIDENCE, RESEARCH THE LAW, YOU KNOW, GO
00:05:44TO THE JURY IF THAT'S NECESSARY. THAT'S PART OF THE LEGAL
00:05:47PROCESS. AND ALL OF THAT TAKES
00:05:49TIME. SO I JUST CAN'T ABIDE A
00:05:52SCENARIO IN WHICH WE ARE SOMEHOW
00:05:57FORECASTING WHO'S GOING TO WIN ON THE MERITS WITHOUT DOING ALL
00:05:59OF THOSE THINGS.
00:06:02>> SO IT'S VERY CLARIFYING WHEN
00:06:04YOU SAY THAT THERE'S NOT AN ENTITLEMENT TO DO SOMETHING
00:06:07ILLEGAL, ESSENTIALLY. AND SO THE HARM CAN ARISE FROM EXERCISING A
00:06:11POWER THAT COULD BE AN ILLEGAL EXERCISE OF POWER.
00:06:14>> HOW COULD YOU BE HARMED FROM
00:06:17BEING STOPPED FROM DOING SOMETHING YOU'RE NOT ALLOWED TO
00:06:21DO? SO I DON'T. >> SO THEN THAT LEADS TO THE
00:06:24SECOND QUESTION ABOUT WHAT THE
00:06:27LIKELIHOOD OF SUCCESS ON THE MERITS ELEMENT OF THE STANDARD
00:06:30REQUIRES. AND YOU'RE SUGGESTING IN YOUR PROPOSAL THAT WE LOOK AT
00:06:33THE HARMS FIRST, IRRESPECTIVE OF THE LIKELIHOOD OF SUCCESS ON THE
00:06:37MERITS, AND THEN ENTERTAIN THE POSSIBILITY THAT THE LEGAL
00:06:40CLAIMS MIGHT BE COMPLETELY UNFOUNDED. UM, SO IF I HAVE THAT
00:06:43RIGHT. WHAT, WHAT ALLOWS A COURT
00:06:47IN THIS INTERIM POSITION TO SAY THAT THE CLAIMS ARE COMPLETELY
00:06:51UNFOUNDED, SUCH.
00:06:53>> THAT THERE ARE WAYS TO
00:06:57QUICKLY ASSESS THE PLAUSIBILITY OF THE CLAIM? THERE'S A DIFFERENCE BETWEEN SAYING, YOU
00:07:01KNOW, I CAN TELL YOU RIGHT NOW
00:07:05WHO'S GOING TO WIN THIS ISSUE. AND I CAN TELL YOU RIGHT NOW
00:07:09THAT THIS PARTICULAR CLAIM HAS NO CHANCE. I MEAN, THIS IS THE
00:07:12POINT OF BRINGING UP THE CAPITAL CASES THAT THERE ARE MANY TIMES
00:07:16WHEN PEOPLE MAKE CLAIMS THAT THE THIS, YOU KNOW, THE SUPREME
00:07:19COURT HAS ALREADY FORECLOSED
00:07:21THIS ISSUE. UM, THERE YOU CAN
00:07:26MORE QUICKLY ELIMINATE, UM,
00:07:29CLAIMS THAN YOU CAN EVALUATE AND DETERMINE WHO'S GOING TO BE THE WINNER. AND I ACTUALLY THINK
00:07:33THAT IF YOU READ THE WINTER CASE, AND IF YOU THINK ABOUT THE
00:07:35WAY THIS WORKS, THAT THAT'S
00:07:38REALLY WHAT THEY MEANT WHEN THEY SAID THE LIKELIHOOD OF SUCCESS
00:07:41ON THE MERITS, THAT IT WAS REALLY ABOUT, IS THIS A
00:07:44POSSIBILITY, NOT WHO IS ACTUALLY
00:07:47GOING TO WIN? BECAUSE IT CAN'T
00:07:50WORK THAT WAY. IF YOU HAVE AN UNDERLYING MERITS PROCEEDING THAT IT'S SUPPOSED TO BE
00:07:53FIGURING THAT OUT.
00:07:56>> SO THEN, UM, THE SECOND PART
00:07:58OF YOUR SPEECH, YOU, YOU TALK ABOUT THE WAY THE SUPREME COURT
00:08:01HAS BEEN HANDLING THESE, THESE
00:08:07PETITIONS AND CONTRAST THE CURRENT PRACTICE WITH WHAT YOU
00:08:11SAW AS A CLERK 27 YEARS AGO. AND
00:08:13THE WAY UP UNTIL VERY RECENTLY.
00:08:16YES. WE THOUGHT ABOUT THE
00:08:18EMERGENCY DOCKET AND YOUR, UM, FORMULATION OF IT WAS EVOCATIVE.
00:08:21YOU TALKED ABOUT THE COURT HISTORICALLY WANTING TO STEER
00:08:24AWAY FROM POLITICALLY CONTROVERSIAL DECISIONS. BUT I
00:08:28WOULD NOT DESCRIBE WHAT IT'S BEEN DOING FOR THE LAST YEAR AS
00:08:31STEERING AWAY FROM POLITICALLY CONTROVERSIAL DECISIONS. AND SO
00:08:34WHAT DO YOU THINK ACCOUNTS FOR
00:08:37THE COURT'S WILLINGNESS TO JUMP INTO THESE CASES? IS IT
00:08:41SOMETHING PARTICULAR ABOUT OUR
00:08:42MOMENT, ABOUT THE THE RISE OF PRESIDENTIAL ACTION OVER THE
00:08:46LAST 2 TO 3 ADMINISTRATIONS? IS
00:08:48IT SOMETHING ABOUT THIS PARTICULAR COURT AND ITS
00:08:52UNDERSTANDING OF EXECUTIVE POWER, OR IS IT SOMETHING ABOUT OUR POLITICS MORE GENERALLY?
00:08:55THAT IS. >> THE COURT? I DON'T KNOW THE ANSWER TO THE WHY. I REALLY
00:08:58DON'T. I MEAN, ALL I CAN SAY IS, I KNOW IT'S DIFFERENT
00:09:02BECAUSE I HAD THE GREAT GOOD FORTUNE OF CLERKING. UM, AND I
00:09:06KNOW YOU CLERKED AT, UM, A FEW
00:09:10YEARS AFTER ME AND, AND MY OBSERVATION WAS, AND, AND I
00:09:14THINK THE STATISTICS BEAR THIS OUT THAT WE HAVE, YOU KNOW,
00:09:16SCHOLARS WHO ARE LOOKING INTO THESE ISSUES AND WHO HAVE
00:09:20CONFIRMED THAT THE COURT IS DOING MORE ON THE EMERGENCY
00:09:23DOCKET. NOW, IN NON-CAPITAL
00:09:25CASES THAN IT USED TO. I DON'T
00:09:27KNOW THE ANSWER AS TO WHY, BUT I
00:09:30DO THINK, UM, THAT THE COURT CAN
00:09:32CONTROL IT. YOU KNOW, I DISAGREE
00:09:35WITH SOME OF MY COLLEAGUES WHO
00:09:37HAVE, UM, MADE PUBLIC STATEMENTS
00:09:40SUGGESTING THAT, YOU KNOW, THE COURT REALLY HAS ITS HANDS TIED
00:09:43OR THAT THIS IS A FUNCTION OF A
00:09:46LOT MORE OF THESE CASES BEING
00:09:49FILED OR APPLICATIONS BEING FILED. AND PART PART OF MY
00:09:52RESPONSE IS, IF YOU BUILD IT, THEY WILL COME. UM, YOU KNOW,
00:09:56FIELD OF DREAMS, FOR THOSE OF YOU WHO ARE OLD ENOUGH TO
00:09:59REMEMBER THAT, UM, YOU KNOW, IF
00:10:03WE SIGNAL OR SUGGEST OUR WILLINGNESS TO, UM, GRANT THESE,
00:10:06THEN OF COURSE WE'RE GOING TO GET MORE OF THEM. BUT EVEN
00:10:09BEYOND THAT, IT IS NOT THE CASE.
00:10:12AND THIS WAS THE PART OF MY SPEECH TAUGHT COMPARING STAYS TO
00:10:15CERTIORARI. IT IS NOT THE CASE
00:10:18THAT THE COURT HAS TO DECIDE THE
00:10:21MERITS OF A STAY APPLICATION.
00:10:22THE COURT COULD ABSOLUTELY FILTER AND SAY, WE'RE ONLY GOING
00:10:26TO DO CERTAIN THINGS. AND THAT
00:10:30WAS COMMON BACK WHEN WE CLERKED. SO I DON'T KNOW WHAT HAPPENED
00:10:32TO THAT PRACTICE, BUT I PREFER IT TO WHAT WE'RE DOING NOW.
00:10:36>> IT'S DEFINITELY WORTH EMPHASIZING THAT THESE ARE
00:10:40DISCRETIONARY DECISIONS. AND SO THERE ARE CHOICES BEING MADE,
00:10:43EVEN IF THE WORLD AROUND THE
00:10:47COURT IS ACCELERATING THESE
00:10:48KINDS OF CASES. AND SO, UM, I
00:10:51THINK PEOPLE WOULD BE INTERESTED IN KNOWING WHETHER YOU EVER TALK
00:10:54ABOUT THIS WITH YOUR COLLEAGUES OR IF YOU'RE COMMUNICATING
00:10:57THROUGH SPEECHES LIKE THIS AND THROUGH YOUR OPINIONS, IS THIS
00:11:01SOMETHING THAT PEOPLE GRAPPLE WITH BECAUSE YOU'RE.
00:11:02>> WELL, I MEAN, WE ARE ALL, UM, AS JUSTICES TRYING TO DO WHAT WE
00:11:06BELIEVE IS IN THE BEST INTEREST OF THE INSTITUTION. AND WE HAVE
00:11:10CONVERSATIONS BOTH THROUGH OUR
00:11:12OPINIONS INTERNALLY AT TIMES, AND THROUGH OUR PUBLIC SPEECHES,
00:11:16AS WE ALL GRAPPLE WITH, UH, YOU
00:11:19KNOW, WHAT DEFINITELY IS A SIGNIFICANT CHANGE IN PRACTICE
00:11:21AND WHAT WE SHOULD BE DOING ABOUT IT.
00:11:25>> SO I THINK THAT, UM, MAKES
00:11:30SENSE THAT EVERYONE ON THE COURT WANTS TO DO WHAT'S BEST FOR THE
00:11:34COURT AND THEIR UNDERSTANDING OF THE LEGAL SYSTEM. YOU HAVE A
00:11:36PARTICULAR VIEW OF HOW THE SYSTEM OUGHT TO BE WORKING, AND
00:11:40THAT WHAT THE COURT IS DOING NOW IS UNDERMINING ITS LEGITIMACY.
00:11:44AND I WONDER IF SOME OF THAT
00:11:47UNDERSTANDING OF THE IMPORTANCE
00:11:50OF THE LOWER COURTS HAVING THEIR
00:11:52SHOT AT IT, UH, IS BORNE OF YOUR EXPERIENCE 7 OR 8 YEARS ON THE
00:11:56DISTRICT COURT. YOU'RE THERE'S A THERE'S ONE OTHER JUSTICE, JUSTICE SOTOMAYOR, WHO SERVED ON
00:11:59THE DISTRICT COURT, BUT FOR LESS TIME THAN, THAN YOU DID. AND
00:12:03WHAT DO YOU THINK THAT IT SEEMS LIKE YOU'RE TRYING TO PRESERVE THE SPECIAL ROLE OF THE DISTRICT
00:12:06COURTS IN OUR SYSTEM. WHAT IS IT THAT YOU THINK THAT ROLE IS, AND WHAT ARE WE LOSING THAT OTHERS
00:12:10AREN'T SEEING? >> WELL, YOU KNOW, I THINK THAT
00:12:13THE FACTUAL RECORD IS A VERY
00:12:16SIGNIFICANT AND IMPORTANT PART
00:12:19OF, UM, ACCURATE AND CONSISTENT.
00:12:24AND, UH, YOU KNOW, UH, CORRECT
00:12:27DECISION MAKING. UM, I THINK IT IS NOT, IT SHOULDN'T COME AS A
00:12:31SURPRISE TO ANY OF THE LAW SCHOOL STUDENTS HERE THAT FACTS
00:12:35ARE THE FOUNDATION FOR ULTIMATE
00:12:38LEGAL DETERMINATIONS AND THAT YOU CAN HAVE DIFFERENT LEGAL DETERMINATIONS WHEN THERE ARE
00:12:42DIFFERENT SETS OF FACTS. AND SO YOU NEED, UH, SOMEBODY AT THE
00:12:46BEGINNING OF A CASE WHO IS GOING
00:12:49TO MAKE A DETERMINATION ABOUT WHO IS TELLING THE TRUTH, WHAT
00:12:52IS THE CREDIBLE, UH, SET OF
00:12:54CIRCUMSTANCES HERE? WHAT ARE THE
00:12:56FINDINGS THAT WE MAKE? AND
00:12:59TRADITIONALLY, UM, THE COURTS OF
00:13:02APPEALS WERE ACTUALLY BOUND TO A CERTAIN DEGREE, UH, WITH RESPECT
00:13:05TO ACCEPTING THOSE FACTS, THERE WAS DEFERENCE THAT WAS GIVEN TO
00:13:09THE TRIAL COURT'S SUPERIOR
00:13:12ABILITY TO ASCERTAIN WHAT THE FACTS ARE, BECAUSE THEY'RE THE
00:13:16ONES WHO SEE THE ACTUAL PARTIES WHO ARE SITTING THERE WHEN THE
00:13:19WITNESSES ARE TESTIFYING. THEY
00:13:21ARE THE ONES WHO ESTABLISH THE FACTUAL RECORD. AND WE LOSE A
00:13:25LOT IF WE ARE NOT PAYING
00:13:30SUFFICIENT ATTENTION TO THAT FOUNDATION. BECAUSE I THINK ONE OF THE THINGS YOU LOSE AT THE
00:13:34APPELLATE LEVEL IS THE ABILITY
00:13:41TO HAVE VERY GROUNDED UNDERSTANDINGS OF WHAT THESE
00:13:44RULINGS MEAN AND WHAT THEY'RE DOING IN THE REAL WORLD. I THINK
00:13:47IT'S VERY EASY TO GET REALLY
00:13:51ABSTRACT REALLY QUICKLY WHEN YOU DON'T HAVE A GOOD SENSE OF WHAT
00:13:54YOU'RE TALKING ABOUT. IN TERMS
00:13:56OF THE FACTS OF THE CASE. AND SO
00:14:00THOSE WERE LIKE THE GIVEN BACK IN THE DAY. YOU KNOW, YOU'D HAVE
00:14:03A FACTUAL RECORD. AND EVEN
00:14:05PEOPLE WHO VEHEMENTLY DISAGREED ON THE LAW WOULD START FROM A
00:14:09COMMON SET OF, THIS IS WHAT THE FACTS ARE IN THIS CASE. AND SO
00:14:12NOW, WHEN WE DON'T REALLY GIVE
00:14:16THE LOWER COURT A CHANCE TO
00:14:18DEVELOP THE FACTUAL RECORD, TO MAKE ITS DETERMINATION WITH
00:14:21RESPECT TO HOW IT SEES THE LAW APPLYING, AND THEN SERVE AS A
00:14:25COURT OF REVIEW, WHICH IS WHAT
00:14:27WE ARE SUPPOSED TO BE DOING. I
00:14:30THINK THE THE SYSTEM IS NOT
00:14:32DESIGNED FOR A PROCESS THAT DOES
00:14:34NOT TAKE INTO ACCOUNT THE
00:14:37SIGNIFICANCE OF THE LOWER COURTS PROCEEDING. >> SO I THINK I HAVE A SENSE OF
00:14:40WHAT YOUR ANSWER TO THIS QUESTION MIGHT BE. BUT HOW DO
00:14:43YOU REACT TO THOSE WHO SAY THAT
00:14:46THE SUPREME COURT AND THE APPELLATE COURTS, FOR THAT
00:14:48MATTER, NEED TO INTERVENE TO STOP ROGUE DISTRICT COURTS FROM
00:14:52EXERCISING TOO MUCH POWER? AND
00:14:54THIS THIS CRITIQUE WAS, I THINK, A MORE SIGNIFICANT ONE. BEFORE
00:14:58THE SUPREME COURT SHUT DOWN THE
00:15:00NATIONWIDE INJUNCTION, UM, IN THE CASA DECISION FROM WHICH YOU
00:15:04DISSENTED, UH. >> I THOUGHT OUR WHOLE SYSTEM
00:15:06WAS DESIGNED TO STOP DISTRICT COURT JUDGES FROM BEING THE ONE
00:15:09TO MAKE THE DECISION. LIKE, I DON'T KNOW WHAT THAT MEANS. THE
00:15:12DISTRICT COURT IS NOT THE FINAL ARBITER. SO IF THEY'RE ROGUE,
00:15:16IT GETS APPEALED, AND THEY GET
00:15:18OVERTURNED. I DON'T KNOW WHAT. SO IT'S ABOUT TIME.
00:15:21>> IT'S ABOUT TIMING. IT'S ABOUT TIMING. >> IT'S ABOUT TIMING. AND, AND
00:15:25TO ME, THE, THE VERY SIGNIFICANT
00:15:28DOWNSIDES OF BEING PREMATURE, OF
00:15:32HAVING THE COURTS OF APPEALS
00:15:34JUMP INTO EARLY DWARF ANY KIND OF CONCERN SOMEBODY HAS ABOUT A
00:15:38ROGUE DISTRICT COURT JUDGE. YOU CAN EASILY, IF YOU HAVE ONE OF
00:15:41THESE JUDGES, ASK THE COURTS OF
00:15:46APPEALS TO EXPEDITE THEIR REVIEW. YOU CAN GET THE WHOLE
00:15:48CASE AND GET IT RIGHT UP TO THE SUPREME COURT IN SHORT ORDER. SO
00:15:52THERE'S NO NEED, IN MY VIEW, TO
00:15:55HAVE THE SUPREME COURT EXERCISING OR EVEN, YOU KNOW,
00:15:58COURTS OF APPEALS JUMPING IN EARLY. LET THE DISTRICT COURT
00:16:00FINISH. AND THEN THE APPEALS COURTS GO TO WORK.
00:16:04>> SO I WANT TO SWITCH GEARS JUST A LITTLE BIT, THOUGH IT
00:16:06DOES RELATE TO THE WAY IN WHICH
00:16:09YOU'RE CHALLENGING WHAT'S
00:16:12HAPPENING ON THE COURT. AND THAT IS TO ASK YOU ABOUT YOUR
00:16:15DISSENTS IN, IN MERITS CASES. YOU'VE WRITTEN SOME NOTABLE
00:16:19DISSENTS IN MERITS CASES, STUDENT FOR FAIR STUDENTS, FOR FAIR ADMISSIONS VERSUS HARVARD,
00:16:23THE AFFIRMATIVE ACTION CASE. YOU WERE A LONE DISSENTER JUST
00:16:26RECENTLY IN THE CONVERSION
00:16:28THERAPY CASE. WHAT ARE YOU
00:16:31THINKING WHEN YOU WRITE INDEPENDENTLY AS A DISSENTER,
00:16:33AND WHAT DO YOU THINK THE ROLE OF THE DISSENTER IS ON THE
00:16:36COURT? WE SEE THEM AS OUTSTANDING TEACHING TOOLS, BUT
00:16:39I HAVE A FEELING THAT'S NOT WHAT YOU'RE THINKING WHEN YOU'RE
00:16:41WRITING. WELL, YOU WOULDN'T BE SURPRISED. >> UM, NO. YOU KNOW, FIRST OF
00:16:45ALL, I THINK THAT DISSENT IS ONE
00:16:48OF THE MOST EXTRAORDINARY
00:16:51ASPECTS OF THE AMERICAN LEGAL
00:16:53TRADITION, THAT IT IS AN
00:16:58EMBODIMENT OF ONE OF OUR CORE VALUES, WHICH IS FREEDOM OF
00:17:01EXPRESSION AND TOLERANCE OF MINORITY VIEWS. IT IS
00:17:05EXTRAORDINARY THAT WE HAVE A SYSTEM THAT ALLOWS FOR THOSE WHO
00:17:08DISAGREE, TO VOICE THEIR
00:17:09DISAGREEMENT, AND SOMETIMES VERY STRIDENT WAYS. AND SO I THINK
00:17:13THE COURT MODELS, IN A WAY, THE
00:17:17KIND OF SOCIETY WE SHOULD WANT
00:17:19AND HAVE, UH, THAT PEOPLE WHO
00:17:22HAVE DIFFERENT VIEWS CAN ACTUALLY ARTICULATE THEM. UM,
00:17:25AND I TAKE ADVANTAGE OF IT. YOU
00:17:27KNOW, YOU ASKED ME WHAT, WHAT I'M THINKING, I'M THINKING, I
00:17:31DISAGREE, I DISAGREE WITH WHAT
00:17:33THE MAJORITY HAS SAID. I FEEL
00:17:36LIKE IT'S MY OBLIGATION. UM, IF
00:17:38I DISAGREE, TO MAKE CLEAR WHY I
00:17:41THINK I'M SPEAKING TO LAW
00:17:43SCHOOL STUDENTS, I'M SPEAKING TO
00:17:46FUTURE JURISTS. I'M SPEAKING TO THE AMERICAN PEOPLE BECAUSE I,
00:17:49YOU KNOW, AS MY COLLEAGUES, FORMER COLLEAGUE, JUSTICE
00:17:53GINSBURG AND JUSTICE SCALIA,
00:17:54THEY WERE BIG PROPONENTS OF
00:17:57DISSENT AND THE SIGNIFICANCE AND IMPORTANCE OF LAYING DOWN A
00:18:01MARKER THAT NOT ALL OF US AGREED
00:18:03ON THIS ISSUE. HERE'S AN ALTERNATIVE VIEW, AND YOU ARE
00:18:07DOING THAT IN PART FOR HISTORY
00:18:08AND FOR THE FUTURE, FOR HISTORY AND THE FUTURE. UM, BECAUSE YOU
00:18:13HOPE THAT AT SOME POINT, UH,
00:18:16THE, UH, BETTER, COOLER HEADS
00:18:18WILL PREVAIL AND SOMEONE WILL AGREE WITH YOUR VIEW.
00:18:22>> SO YOU CLEARLY HAVE IN MIND THE POSSIBILITY OF CHANGE. AT
00:18:26THE END OF YOUR LECTURE, YOU
00:18:28TALKED ABOUT CALLING FOR, FOR
00:18:30CHANGE OR, UM, YOU KNOW, CALL TO
00:18:33ACTION AND WHAT YOU JUST SAID
00:18:34ABOUT DISSENTS, NOT JUST MAKING A NOTE FOR HISTORY, WHICH HAS
00:18:38ITS OWN VALUE, BUT ALSO LAYING DOWN A MARKER FOR THE FUTURE. SO
00:18:41HOW DO YOU IMAGINE THAT THAT
00:18:43CHANGE HAPPENING IS, AND, UH, IS
00:18:46YOUR ROLE ONLY TO SUGGEST THAT IT OUGHT TO HAPPEN? OR ARE
00:18:50THERE, DO YOU SEE IN, IN YOUR TIME ON THE COURT OR IN YOUR
00:18:54LIFETIME, THE POSSIBILITY FOR THE SORTS OF CHANGES YOU WANT TO SEE IN THE WAY THE COURT
00:18:57FUNCTIONS AND IN THE SUBSTANCE
00:18:59OF THE LAW?
00:19:03>> I AM, AT CORE, A VERY OPTIMISTIC PERSON. AND I THINK
00:19:05YOU HAVE TO BE, UM, TO BE IN A
00:19:10SET OF CIRCUMSTANCES WHERE YOU THINK YOU SEE THINGS THAT CAN BE
00:19:14IMPROVED, AND YOU'RE DOING THE WORK TO TRY TO BRING THAT TO
00:19:18FRUITION. I HAVE NO IDEA, UM,
00:19:19WHAT THE TIMELINE IS OR HOW IT
00:19:22WILL ULTIMATELY PLAY OUT, BUT I
00:19:26DO, FEEL VERY STRONGLY IN THE
00:19:28CASES THAT I, THAT I DISSENT IN,
00:19:31WHEN I WRITE SOMETHING, I AM TRYING TO EXPRESS WHAT I THINK
00:19:35THE RIGHT ANSWER SHOULD BE. AND
00:19:38MY HOPE IS THAT IN THE FUTURE, THAT WILL COME TO FRUITION AT
00:19:40SOME POINT. >> SO SINCE I HAVE YOU HERE, I
00:19:44HAVE A QUESTION THAT I'VE ALWAYS
00:19:46WANTED TO ASK A SUPREME COURT JUSTICE, WHICH. >> IS.
00:19:50>> UM, WHEN YOU SAY I DISSENT AS
00:19:53OPPOSED TO I RESPECTFULLY
00:19:57DISSENT, WHAT DO YOU MEAN BY THAT?
00:19:59>> OH MY GOODNESS, WHAT DO I
00:20:02MEAN BY THAT? YOU KNOW, I MEAN,
00:20:05THE TRADITION, THE STANDARD, AS YOU KNOW, IS FOR THE JUSTICES TO
00:20:07SAY, I RESPECTFULLY DISSENT. AND
00:20:09I THINK JUST LIKE, UH, THE
00:20:13JUSTICES DETERMINATIONS TO READ THEIR DISSENTS OR SUMMARIES OF
00:20:17THEIR DISSENTS FROM THE BENCH.
00:20:19UH, WHEN YOU HAVE A PARTICULARLY
00:20:21VIGOROUS, VIGOROUS DISAGREEMENT,
00:20:24WHEN YOU ARE INTENDING TO SIGNAL
00:20:29THAT THIS CASE YOU THINK IS VERY
00:20:32SIGNIFICANT, UM, AT TIMES
00:20:34JUSTICES WILL DROP THE RESPECTFULLY, UM, YOU KNOW, WE
00:20:38CAN'T DO A LOT, BUT WE CAN DO
00:20:43LITTLE THINGS LIKE THAT. >> SO WE'RE CLOSE TO THE END OF
00:20:46OUR TIME. SO I WANTED TO ASK A
00:20:49QUESTION IN A MORE PERSONAL REGISTER, BUT THAT ALSO RELATES
00:20:52TO SOME OF WHAT YOU'VE WRITTEN
00:20:55AS A JUSTICE. WHEN YOU SPOKE ON THE SOUTH LAWN OF THE WHITE
00:20:59HOUSE, WHEN YOU WERE CONFIRMED
00:21:00TO THE COURT, YOU SAID, IN MY FAMILY, IT TOOK JUST ONE
00:21:04GENERATION TO GO FROM SEGREGATION TO THE SUPREME COURT
00:21:07OF THE UNITED STATES. AND I
00:21:10THINK, UM, THERE'S A LOT IN THAT STATEMENT. AND I THINK SOME OF THAT MIGHT BE REFLECTED IN
00:21:14YOUR DISSENT FROM THE SJFA
00:21:17DECISION. UH, WHAT DOES THAT STATEMENT MEAN TO YOU? WHAT DO
00:21:21YOU MAKE OF WHERE YOU ARE AND WHERE, WHERE THE COUNTRY IS?
00:21:25>> WELL, UM, THE STATEMENT I
00:21:32THINK WAS INTENDED TO EXPRESS MY
00:21:35GRATITUDE FOR BEING ABLE TO
00:21:39SERVE ON THE SUPREME COURT OF THE UNITED STATES. WHEN I ANSWER
00:21:42SIMILAR QUESTIONS, UM, I OFTEN
00:21:44REFER TO CONSTANCE BAKER MOTLEY,
00:21:46WHO WAS THE FIRST AFRICAN
00:21:48AMERICAN WOMAN, TO BE APPOINTED
00:21:53AS A FEDERAL JUDGE IN THE 1960s.
00:21:55AND SHE WAS ALSO A CIVIL RIGHTS LAWYER. SHE WORKED WITH THURGOOD
00:21:59MARSHALL. SHE WAS PART OF THE TEAM THAT CONCEIVED OF THE BROWN
00:22:02VERSUS THE BOARD. UH, STRATEGY.
00:22:05SHE WAS THE FIRST BLACK WOMAN TO
00:22:09ARGUE IN THE SUPREME COURT OF
00:22:11THE UNITED STATES. AND SHE
00:22:14ARGUED SOMETHING LIKE TEN CASES, AND SHE WON NINE OF THEM. SHE
00:22:18WAS A GENIUS, BUT SHE DID NOT
00:22:20HAVE A CHANCE TO SERVE BECAUSE
00:22:22OF THE TIMES IN WHICH SHE LIVED.
00:22:28AND SO I FEEL EXTRAORDINARILY
00:22:31GRATEFUL FOR THE OPPORTUNITY TO DO THIS WORK, TO SERVE THE
00:22:34AMERICAN PEOPLE, TO BE IN THE
00:22:36ARC OF HISTORY THAT ALLOWS
00:22:38SOMEONE LIKE ME, FROM MY
00:22:40BACKGROUND, WHOSE PARENTS, WHOSE
00:22:44PARENTS WERE SUBJUGATED TO
00:22:47SEGREGATION, TO BE ABLE TO SIT
00:22:49AS I DO, LISTENING TO THE CLAIMS
00:22:53EVALUATING THE LAW, AND DOING MY
00:22:57BEST TO SERVE. IT'S IT'S AN
00:23:01EXTRAORDINARY HONOR. IT'S VERY DIFFICULT. PEOPLE ASK ME, YOU
00:23:04KNOW, ISN'T IT HARD? ISN'T IT
00:23:06HARD TO BE ON THE COURT AT THIS
00:23:09TIME? I MEAN, ABSOLUTELY, BUT IT
00:23:13IS ALSO SUCH A PRIVILEGE. AND SO
00:23:16THAT STATEMENT WAS MEANT TO
00:23:18CONVEY, TO CONVEY MY GRATITUDE. >> YEAH.
00:23:21>> IT'S LOVELY TO HEAR YOU TALK ABOUT CONSTANCE BAKER MOTLEY, AS, AS I MENTIONED TO YOU
00:23:25BEFORE, YOU ARE NOW THE SUBJECT
00:23:26OF ELEMENTARY SCHOOL BIOGRAPHY
00:23:30REPORTS. AND YOU ARE PROVIDING
00:23:32SOURCES OF INSPIRATION TO THE
00:23:35NEXT GENERATION. UM, WHAT DO YOU
00:23:38HOPE THAT INSPIRATION WILL BE, OR CONSIST OF?
00:23:40>> OH, GEEZ. UM, YOU KNOW, IT'S
00:23:45A LITTLE, THIS IS SORT OF THE QUESTION PEOPLE ASK ME ABOUT WHAT DO I WANT MY LEGACY TO BE?
00:23:47AND I SAY, I'M ONLY THREE YEARS
00:23:49ON THE COURT. UH, YOU KNOW, I, I
00:23:54WANT, UM, I WANT TO BE KNOWN FOR
00:24:01BEING A GOOD COMMUNICATOR. UM, I
00:24:03THINK THAT IF I CAN INSPIRE
00:24:05YOUNG PEOPLE TO USE THEIR VOICES, NO MATTER WHERE THEY'RE
00:24:09FROM OR IN WHATEVER CAPACITY,
00:24:13UM, THAT WOULD BE EXTRAORDINARY.
00:24:15AND I ALSO WOULD LIKE TO INSPIRE
00:24:18PEOPLE TO, TO WORK HARD TO DO
00:24:20THE HARD WORK, TO UNDERSTAND
00:24:22THAT NOTHING IN LIFE COMES EASY.
00:24:25UM, AND THAT I LEFT EVERYTHING
00:24:30ON THE FIELD. UM, AND IF PEOPLE
00:24:33CAN TAKE AWAY FROM MY EXPERIENCE, YOU KNOW, SHE'S
00:24:36ALWAYS WRITING, SHE TALKS TOO MUCH. SHE'S DOING ALL THESE
00:24:39THINGS. IT'S BECAUSE I KNOW
00:24:43THAT, UM, WE CAN ONLY GET BETTER
00:24:46IF WE ALL PUT OUR SHOULDERS TO
00:24:48THE GRINDSTONE. AND I'M TRYING
00:24:50TO INSPIRE PEOPLE TO DO THAT. >> WELL, WE CAN VERY MUCH SEE
00:24:54THAT YOU'RE LEAVING EVERYTHING ON THE FIELD, AND WE COULD NOT BE MORE GRATEFUL THAT YOU SHARED
00:24:58THIS AFTERNOON WITH US HERE AT YALE. >> THANK YOU. I'M DELIGHTED TO
00:25:02BE HERE. THANK YOU.
00:25:14>> [MUSIC]
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