Over the next three months, the CockleBur will provide a series of conversations about the law with a number of prominent legal journalists, practitioners, scholars, policy makers, and social justice advocates. I chose these particular people because I think they can bring a unique perspective about topics such as advocacy, legal education, the legal profession, how the media covers the law, and how the law can work social justice change.
Our first conversation is with Professor Kathryn Watts, the Garvey Schubert Barer Professor of Law at the University of Washington School of Law, and former clerk to Justice John Paul Stevens.
Q. Thanks for taking the time for this discussion during your sabbatical year. Speaking of which, when law professors are given a year off, do you think law schools should cut that sabbatical short day-for-day that a professor is late is turning in their grades? Just kidding. (And for the record, Professor Watts has never been late.)
A. Ha! You seem to be assuming that sabbatical years are a “year off” for professors. During my sabbatical this year, I am excused from teaching but not from my scholarship, so I will still be working—just on a different mix of work than usual.
Q. You’ve had a big year discussing the U.S. Supreme Court. Please explain your article, titled Judges and Their Papers, which will be published in the NYU Law Review later this year?
A. My forthcoming article looks at the question of who should own federal judges’ papers and what should happen to the papers once judges leave the bench. Throughout history in our country, this question has rarely been asked. Instead, it has generally been accepted that the justices of the U.S. Supreme Court and other federal judges own their own working papers—meaning papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. As I describe in my article, this longstanding tradition of private ownership has led to tremendous inconsistency in the treatment of judges’ and justices’ papers. For example, Justice Thurgood Marshall’s papers were donated to the Library of Congress and then publicly released by the Library of Congress just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues like abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the 50th anniversary of his retirement—and when they are finally released, they will be located in Concord, New Hampshire.
My article questions why this ad hoc private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, my article questions why the private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand to the judiciary’s independence, confidentiality and collegiality on the other.
Seizing upon the upcoming 35th anniversary of the Presidential Records Act as a reason to revisit the question of how best to treat judges’ papers, my article argues that judges’ working papers should be treated as governmental property — just as presidential papers are. Although there are important differences between the roles of President and judge, I don’t believe that any of the differences suggest that judicial papers should be treated as a species of private property. Rather, it is my view that the unique position of federal judges, including the judiciary’s independence, should be taken into account when crafting rules that speak to reasonable access to and disposition of judicial papers — not when answering the threshold question of ownership. Ultimately, my claim is that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers.
Q. Fascinating. How did you come up with the idea for the paper?
A. When I was working on a book I recently co-authored with Rich Seamon, Joe Thai and Andy Siegel called The Supreme Court Sourcebook, I drafted a chapter that contained a section on “The Court and the Public Eye.” In drafting this section for our book, I realized that much of what we know about the Court and how it operates behind the scenes has been culled from the papers of retired justices. And I was fascinated to learn that—unlike Presidential papers, which are regulated by the Presidential Records Act—there is no federal law regulating the release of federal judges’ papers. So I decided to write a law review article on the topic.
Q. What were you and your co-authors seeking to accomplish in your new book The Supreme Court Sourcebook?
A. We wanted to create a book that would contain a diverse compilation of sources on the Court and that would render our book a true educational “sourcebook” to serve the growing interest in the inner workings of the Court. To try to achieve this goal, we selected, edited and explained numerous sources in our book, including: academic literature by scholars such as Lee Epstein, David O’Brien and Margaret Cordray; judicial opinions; practice pointers from leading Supreme Court experts; teachable examples of certiorari petitions, merits briefs and oral argument transcripts; and internal Court documents taken from retired justices’ papers, such as sample cert. pool memos and internal draft opinions. We hope that the end result is a book that exposes readers to a real mix of doctrinal, practice-oriented and theoretical materials about the Court. I’d love to hear thoughts and reactions from any of your blog’s readers who have taken a look at the book already.
Q. Full disclosure here: I was a student this past spring in Professor Watts’ Supreme Court decisionmaking class, and it was my favorite class of law school. I was not alone. Please explain the class and then give your view on why students enjoy this class so much?
A. In the class, students spend the first two to three weeks learning about the Court generally. Using The Supreme Court Sourcebook, we read and talk about materials covering the justices and the nomination and confirmation process, certiorari, merits briefing, oral argument, and opinion writing. Then the real fun begins when we dive into the heart of the class, which involves simulating various merits cases that are then pending on the Court’s docket. We tackle one new case per week. Each of these weeks, two to three students deliver oral argument in the assigned case and nine students sit as justices and simulate the process of oral argument and conference. Then students go off and draft majority, concurring and dissenting opinions in the case, writing the decisions as they believe their assigned justice would.
This year in the class, we simulated a variety of hot cases, such as Windsor and Perry involving same-sex marriage and Shelby County involving the Voting Rights Act. I think students love the class because it is a real mix of theory and skills-based learning, and they love having an excuse to keep up on all of the hot cases on the Court’s docket. Students also have lots of fun taking on the personas of their assigned justices throughout the class. Some students really get into role and have great fun becoming Justice Scalia or Justice Sotomayor or whatever Justice they have been assigned to role play all quarter. The one caveat is that I don’t allow Justice Thomas to remain silent during oral arguments in class. In my class, Justice Thomas does have to speak in oral arguments.
Q. Speaking of legal education, everywhere you turn, there is an article about the demise of legal education, as we know it. Where do you see legal education headed?
A. This is the million dollar question in legal academia right now. I don’t think I have a good answer. But I wouldn’t be surprised if legal education in the future incorporates more technology and online learning, as well as greater integration of experiential and skills-based learning into core, bread-and-butter J.D. courses such as contracts, administrative law and civil procedure. I also would not be surprised if there is a greater effort to make legal education more affordable, such as by offering more opportunities for streamlined J.D. programs.
Q. Turning back to the Court, what big issues do you see the Court deciding to decide in the next few years?
A. I think perhaps the biggest issue of our time that will return to the Court again soon is same-sex marriage. The Court’s decisions in Perry and Windsor this past Term were wins in the fight for equality, but they did not resolve the issue on a broad level. So I would expect the issue to return to the Court again soon.
Q. And what are the chances that the Court’s composition will change during the rest of the Obama Administration? How about the Court’s composition looking forward to the next Administration?
A. It is impossible to predict when seats will open up on the Court since that will depend on when a Justice becomes ill, dies or chooses to retire. But if openings do occur in the near future (for example, if Justice Ginsburg chooses to retire during Obama’s administration), I think we will likely continue to see a continued focus on achieving greater diversity on the Court. President Obama, of course, diversified the Court by appointing two women—one of whom is the Court’s first Hispanic Justice. Whether or not that trend will continue with the next administration is hard to say since we do not yet know who will replace Obama.
Q. What’s next for you Professor Watts? Where is your scholarship headed, i.e., Administrative Law, the Supreme Court, something else?
A. I am working on a few different administrative law projects at the moment, so my scholarship on the Court is going to take the back burner this year.
Again, thank you for taking the time to discuss your latest work and the issues of the day.