Professor Laurence Tribe Calls Out Biglaw Pro Bono And Shares His Take On The Roberts Court

Professor Tribe spoke at the UJA-Federation last night and provided an awesome evening of reflection upon his career, his take on the Supreme Court, and his plea to Biglaw.

On Monday night, the Young Lawyers division of the UJA-Federation of New York hosted Professor Laurence Tribe to speak about his career, the Supreme Court, and the importance of approaching the law as “a profession rather than a business arrangement.”

Professor Tribe also had an opportunity to comment on Justice Ginsburg and Supreme Court retirements, Citizens United, the mood of the Court, and the recent controversy around his support for the California teacher tenure lawsuit.

…and I got a chance to have some first-rate cookies and rugelach. So an all-around success.

Professor Tribe began by remarking that we’re in the midst of some monumental anniversaries in the constitutional law: the 800th anniversary of the Magna Carta coming up; the 60th anniversary of Brown; the 50th anniversary of Gideon a couple years back, and; the 40th anniversary of Richard Nixon’s resignation. That drew a hearty laugh from the crowd. But it also set up the theme of of his latest book — co-authored with Joshua Matz, who missed out on the event because he has to do the whole “clerking for Justice Kennedy” thing — Uncertain Justice (affiliate link). Brown is severely limited by the de facto segregation endorsed in Milliken, the promise of Gideon lost in a sea of budget cuts, and Nixon enjoyed a reputational renaissance before his death and protégés like Cheney and Rumsfeld got another crack at running America. I guess there hasn’t been a King John II. Yet.

The point is that justice requires vigilance. On the subject of Gideon, Professor Tribe recounted his time working in the Obama administration as Senior Counselor for Access to Justice. His words came across like the polite, intellectual version of “holy God, do you have any idea how up against it public defenders are? I’ve seen things out there that would blow your freaking cushy Biglaw minds!”

And for those Biglaw bigshots — and there were a few in attendance — they got a preview of potential dissension in their ranks when Professor Tribe explained the mini-uprising he wants to foment among the young lawyers in the room. His vision of what Biglaw could offer public service deviates a bit from the student we talked about earlier. Instead, Professor Tribe called upon Biglaw associates to not merely ask for pro bono work, but continually pester the firm to live up to its professional obligation to provide pro bono services. In addition to the criminal sphere fig leafed by Gideon, he also noted the crises in deportation and child custody, civil proceedings that have no constitutionally protected right to counsel for the indigent. One option he touted was to support partnerships between older lawyers “put out to pasture” by their firms — often involuntarily — and young lawyers to prevent the experience of seasoned lawyers going to waste.

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After the talk, I overheard a young lawyer explaining that she was admonished just last week for billing too much time to a pro bono matter. Pretty much sums up the struggle. Still, if the theme of the night was vigilance in the face of uncertainty, this plea fit the bill.

After concluding his remarks, Professor Tribe took questions from the audience. Here are some highlights:

On Justice Ginsburg and Supreme Court Retirements

As one might expect, the matter of “should Justice Ginsburg retire” was addressed. Professor Tribe noted that when Justice Ginsburg goes, we may not see her like again for some time. Not only does he think the coming midterm elections could continue to keep the brakes on a more liberal justice, but he doesn’t feel that presumptive Democratic nominee Hillary Clinton is out to find the next Justice Ginsburg either. Couple that with the congressional fascination with aggressively vetting potential justices on every dumb thing they can think of and the equal and opposite reaction of administrations to coach nominees to respond with nothing of substance. He singled out Chief Justice Roberts for famously describing his ideal role as an umpire — but Tribe noted that even umpires recognize the strike zone as a living breathing document.

The ideal solution to the Supreme Court, in Professor Tribe’s mind, is adopting non-renewable 18-year terms. He doesn’t even believe this requires a constitutional solution. Article III only requires that judges are appointed for life — not that they remain on the same court for life. At the end of an appointed 18-year term, a justice could be allowed to “ride circuit,” as they say. He even suggested that this could promote a solution to the sticky problem of SCOTUS recusals, where justices are incentivized not to recuse themselves to avoid ties — a former justice can fill that void.

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The Mood of the Court

Labeling the Roberts Court as pro-business is nothing new. But, Professor Tribe sees the bias of the Court a little differently. Instead of being a pro-business Court, this is an anti-court Court. They don’t trust lay juries and lesser judges making decisions. So the Court routinely makes it harder to pursue class actions, harder to escape take-it-or-leave-it arbitration clauses, harder to sue cops, harder to sue municipalities. Just don’t sue and if you have to, make sure it’s before expert arbitrators. This is related to a pro-business bent; Professor Tribe specifically noted the life experience of Chief Justice Roberts working at Hogan & Hartson, where his corporate clients had to suffer at the whims of lay juries or at least dole out massive settlements to avoid them, but that’s the symptom of the more elitist disdain for juries. An interesting theory to say the least.

On Citizens United

Professor Tribe identified this as one of those subjects that gets him in trouble. First of all, he has no faith in constitutional amendments declaring that corporations aren’t people. They are people — or at least they are in a lot of contexts. These efforts are more about public relations than fixing the problem. Rather, Professor Tribe defended the amendment proposed by Rep. Adam Schiff, which Professor Tribe drafted, as a sensible way of dealing with the harms of the case.

But most importantly, Professor Tribe offered a pox on both their houses. Citizens United is a poor decision, but he’s loathe to endorse a world where Congress is left to police itself when it comes to campaign finance.

Teacher Tenure

There’s nothing that really prepares you for telling a room filled with lawyers that you’re from Above the Law and sparking a massive round of nervous laughter. That’s what happened when I asked the night’s final question. I asked about the recent announcement that Professor Tribe had joined forces with groups pursuing anti-teacher tenure lawsuits in states across the country. It’s an issue where I’ve criticized him, as well as other high-profile lawyers. So I wanted to hear from him how he came to endorse this strategy.

His answer was personally comforting. Professor Tribe described the public reaction to his involvement in the California case as misunderstood — he mentioned fielding emails from friends and colleagues accusing him of hating tenure. Rather, the tenured professor and product of California public schooling affirmed his support for tenure protections and, moreover, his support of union rights. His issue with the California law at issue in Vergara was limited to the term of California’s two-year tenure law being “perversely too little” and not nearly adequate for determining if teachers are inadequate before granting them iron-clad job protection.

Which is fair — I’ve noted before that California’s tenure law was curiously fast and that a law in the 3-5 year range was more appropriate. I’ve also said that pursuing a legal precedent that invalidates tenure rather than seeking legislative reform to up the required term was “cockroach hunting with a bazooka.” To that issue, which I didn’t get a chance to say specifically, Professor Tribe would say his involvement in the case was also guided by his belief that the Court was just plain wrong in Rodriguez and that education is a fundamental right and that this precedent furthered that right in the context of the law of California. He also explained that he didn’t take this action lightly, and while he joined Ted Olson’s California suit, he does not believe he would join, for example, the New York suit pursued by David Boies.

I fear the misunderstanding over his role in these suits is inevitable — groups who want to push this much further than he would like have gleefully touted his involvement. Perhaps a lesson from his own lecture is that he needs to be vigilant about how his own reputation gets portrayed.

In conclusion, everyone knows that Professor Tribe is a preeminent constitutional law scholar, a prolific advocate for key issues before the Supreme Court, who has had research assistants go on to run the free world. But the scope of his career and impact really hit home when I got a chance to ask him about his debate career because, like me, he worked as a college debate coach. He wistfully recounted that in 1961, the year he won the national championship as a debater, the topic dealt with establishing national health insurance. He marveled that when he was putting in the work on that topic, he couldn’t have foreseen that it was going to take almost 50 years for America to adopt that policy, and that when it did, it would be under the leadership of a research assistant of his (he specifically noted that the student running the country would be named “Barack Obama” no less — a lot can change in 50 years), while another research assistant sat on the bench and yet another research assistant cast the deciding vote as Chief Justice.

Quite sobering when you think about the long-tail of a great career.

Earlier: What Harvard Law Students Tell Themselves When The Demons Come
Biglaw’s Big Dumb Teacher Tenure Lawsuits