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critical to deciding whether a defendant was nor deterred from it by a contrary rule of to be held responsible for a crime, whether law, so their suicide can occasion payouts a decedent’s declarations in his will were without offense to a pro-life public policy. definitive in the disposition of his property, Runk’s suicide was of a not-uncommon whether an insurer had to pay out to the sort. He owed a lot of money, had speculated family of a suicide, whether a party to a com- using embezzled funds and lost those funds mercial transaction was competent to enter in the market, and so forth. He left a suicide into the contracts involved, and of course note asking that the insurance funds be em- much else. ployed to pay those whom he had cheated. Blumenthal’s Big Picture is that the 19th Of course, that suicide note has no conse- century saw a slow move away from religious quences for his beneficiary, but the question as well as metaphysical conceptions of the was: Should the beneficiary get anything? soul or self, toward naturalistic and medical- That depended on whether Runk was sane ized takes on the mind. In her conclusion, or insane. Blumenthal quotes Douglas Baynton, a The jury found that he was sane and that cultural historian at the University of Iowa, the insurance company was not liable. The who has written of this shift that it began matter was appealed to the U.S. Supreme with “a God-centered … culture that looked Court. This was in the era before Erie v. within to a core and backward to lost Edenic Tompkins, when the federal courts, includ- origins” and culminated in one “that looked ing the Supreme Court, decided common outward and forward to a perfected future.” law questions such as those of contract Law and the Modern That Big Picture is not especially original interpretation. and the value of this book won’t be found Mind: Consciousness and there. Its value will be found, rather, in the Harlan’s View Responsibility in American details, in the botanical richness of the de- The Supreme Court took the case, and, in Legal Culture scription of some of the trees in that already an opinion by the first Justice well-mapped forest. Harlan, upheld the trial court’s judgment. It By Susanna L. Blumenthal explicitly affirmed the principle that, in the Press, Cambridge, MA, 2016. Life Insurance and Insanity absence of explicit mention in the contract, 385 pages, $45. The matter of life insurance and insanity a sane person’s suicide is a defense against Reviewed by Christopher C. Faille is especially striking. In 1898, the U.S. insurance company liability. Supreme Court considered Ritter v. Mutual Harlan wrote that insurance premiums This new book by Susanna Blumenthal, Life Ins. Co., a case that arose because a are typically determined by actuarial tables, co-director of the Law and History Program fellow named William M. Runk, a Philadel- and that those tables show at any time the at the University of Minnesota, takes a fresh phia businessman and an insured of the probable duration of life. This arrangement look at the way that American judges under- respondent, had shot and killed himself six suggests that the insured “will leave the stood their world, and especially the inner years before. event of his death to depend upon some oth- world of the litigants before them, through- Runk was a partner in a dry-goods firm. er cause than willful, deliberate self-destruc- out the 19th century. In this case, as was usual in the 1890s, the tion.” That phrase isn’t as resonant as “the Many destabilizing developments oc- insured’s insurance policy contained no Constitution is color-blind.” But it is clear curred throughout that century, events that express exclusion for cases of suicide. The and emphatic. Harlan knew how to be so. upset the reflective equilibrium of judges, law as interpreted by a trial judge held that Blumenthal observes that the Ritter as they would have anyone else conscious a sane man’s suicide does not warrant an decision encountered resistance. Judges, at the time. In Blumenthal’s brief list, the insurance company payout, but an insane in Blumenthal’s words, remained “deeply destabilizing developments included the man’s suicide does. The idea, presumably, conflicted about how to allocate the burden booms and busts of the cyclical economy, was that the sane fellow might be tempted of loss between insurers and beneficiaries in the rise of Darwinism, the trauma of the Civil into suicide by a businesslike calculation of cases of self-destruction.” The very fact of and its aftermath, the disruptions of his family’s coming gain from the proceeds a sane suicide embodies market failure and rapid industrialization, and the uncertainties versus their continued troubles in the event moral hazard, both threatening notions in engendered by waves of immigration. All of this sane-but-hard-pressed fellow’s contin- the Gilded Age. of these chipped away at notions of mental ued living presence among them. The insane At points in this book, one senses the competence and responsibility—notions are neither tempted into suicide in this way shadow of Albert Camus, a philosopher and

July 2016 • THE FEDERAL LAWYER • 77 novelist of another place and time, declaring ideas, as opposed to the material world, sit Ferguson sympathizes rather excessively that suicide is the only serious philosoph- at the heart of reality. This doesn’t sound like with Kissinger, I will concede that Fergu- ical question. Camus’ “absurd hero” is an the Kissinger we remember either, but not son is right in trying to recover Elliott from eminently sane figure who concludes that because we think of Kissinger as disdaining obscurity, and framing him as a central figure the indifferent universe gives him no good idealism in this sense. Rather, we might among the national-security intellectuals of reason to say “no” to suicide. That’s a view of naïvely guess that the issues for which ide- the mid-20th century. the human condition with which the eminent alism in this sense stand might never have The context of Elliott’s first appearance jurists discussed in this volume surely never been a concern of his. And this naïve view, as in this book is a discussion of a decision grappled. Ferguson shows, would be wrong. Kissinger had to make in the late 1940s as an Kissinger: 1923-1968: The Idealist undergraduate concentrating in government Christopher Faille, a member of the Con- argues that Kissinger, while he was develop- (Harvard parlance for what in other univer- necticut bar, is the author of Gambling with ing his own philosophy and worldview, took sities would be called “majoring in political Borrowed Chips, a heretical account of the quite seriously the Kantian idealist notion science”). Kissinger chose Elliott as his Global Financial Crisis of 2007-08. He writes that the reality of material objects—of that senior faculty adviser. Ferguson tells us this, regularly for MJINews, a website for actual whole world that seems to exist outside of but then oddly starts to discuss one negative and potential investors in the legal marijua- one’s head—cannot be proved to exist. implication: that Kissinger therefore did not na industry. select Carl Friedrich for that role in his life, Collingwood’s Method though Friedrich would have been “the more Ferguson takes as his own method the views obvious” choice. So Ferguson goes off imme- on history and its study propounded by diately on a tangent about Friedrich and his philosopher R.G. Collingwood. In his preface, reputation at the time. Ferguson quotes Collingwood: Eventually, we come back to Elliott. He 1. All history is the history of thought. was known then as the author of The Prag- 2. Historical knowledge is the re-enact- matic Revolt in Politics (1928), a harsh ment in the historian’s mind of the indictment of William James’ pragmatism. thought whose history he is studying. Pragmatism is a philosophy to which (full 3. Historical knowledge is the re-enact- disclosure) this reviewer adheres, but which ment of a past thought incapsulated in Elliott saw as anti-intellectual at its core and a context of present thoughts which, as consequently complicit in movements by contradicting it, confine it to a plane then on the rise in Europe, including both different from theirs. fascism and syndicalism. Elliott put forward his own theory of what he called the “co-or- In short, when we do history we try to ganic state,” a theory that was intended to figure out why someone did something. No save democratically organized nation states external fact is ever an adequate answer. An from what Ferguson, paraphrasing Elliott, adequate answer always entails the reasons, calls “the supposed subversions of the within the mind of that someone, insofar pragmatists.” as they can be re-created in a necessarily Elliott approved of the League of Nations different context. A scholar-turned-states- and in general of ’s vision man might seem to be the ideal case for a of extending the constitutional machinery Kissinger: 1923–1968: Collingwood-esque approach to history. of the more enlightened nations onto the The Idealist Even without philosophically distin- world stage. He saw this vision as Kantian guished authority for such sentiments, and he saw Kant as a sort of anti-James, the By Ferguson would surely be on firm ground in antidote to the badness of pragmatism. Penguin Press, New York, NY, 2015. 986 pages, $39.95. writing, “The first task of a biographer who Elliott was also rare among the political Reviewed by Christopher C. Faille undertakes to write the life of a scholar— scientists of his day in his concern with I begin my discussion of this complicated even if that scholar goes on to attain high the politics of strategic commodities. He book with its subtitle. The phrase “the ide- office—ought surely to be to read his writ- coauthored International Control in the alist” isn’t being used in its colloquial sense ings.” And that task Ferguson has evidently Non-Ferrous Metals (1938), which, in Fer- to mean one who cherishes and pursues accomplished with care. guson’s reading, “argued for an Anglo-Amer- abstract and demanding moral principles. ican condominium to control the world’s That sense of the word, for better or worse, The News Here supply of nonferrous metals and other war has a whiff of Don Quixote about it, and it The news in this book, I submit, is the matériel.” This may ring bells for students of doesn’t sound at all like the emphasis Ferguson places on an unexpect- Kissinger’s career. some of us remember. ed master-disciple relationship: Kissing- By 1942, Elliott had a named chair at Niall Ferguson uses “idealist” in a quite er’s connection to a now-nearly forgotten Harvard, and by the end of that decade he different sense: the classic metaphysical political scientist named William Yandell had young Henry Kissinger as a protégé. sense. An idealist is one who believes that Elliott (1896-1979). Though I believe that While Kissinger was still an undergraduate,

78 • THE FEDERAL LAWYER • July 2016 Elliott was writing enthusiastically of him as a competition of systems, defined largely and decided to pursue a doctorate in govern- that he is “more like a mature colleague than as economic systems. Under the influence of ment with Elliott as his dissertation adviser. a student” and that he had never known a pragmatism, discussion of this scene, and of Having made that decision, he turned for student with such “depth and philosophical its history, can turn into an argument about the subject of his dissertation to the early insight.” the relative efficiency of those systems. 19th century. His dissertation described how But, in encouraging the argument about Metternich and Lord Castlereagh restored The Meaning of History efficiency, pragmatism commits a grave error equilibrium in Europe after the disaster of Kissinger’s senior thesis at Harvard, which because that issue “is on the plane of objec- the Napoleonic . was an incredible 388 pages long (“the tive necessity and therefore debatable.” This dissertation has been much dis- longest-ever thesis written by a Harvard By this Kissinger means that a pragmatic cussed by earlier Kissinger biographers. senior and the origin of the current limit on argument about efficiency is an argument Ferguson makes the case that they have length,” writes Ferguson), bore the ambi- about what goes on in the external world, generally failed to understand it. Many have tious title “The Meaning of History.” At its the world outside our minds, the world that thought that Kissinger identified with Met- core, it consisted of a compare-and-contrast (as idealists argue) can’t even be proven to ternich and sought to negotiate world equi- exercise among three philosophers: Oswald exist. On the other hand, by understanding librium on behalf of the in the Spengler, Arnold Toynbee, and Immanuel the noumenally real nature of freedom, Nixon and Ford years in much the way that Kant. Spengler appears here as the apostle one comes to reject totalitarianism in a less Metternich on behalf of Austria had worked of gloom—the man associated with the idea “debatable” way, a way that would survive to place his empire within a continent-wide that western civilization is involved in an the discovery that it might be economically equilibrium. But Ferguson thinks that that inevitable decay just as other civilizations more efficient. misses the point. Kissinger wasn’t identifying before it have decayed, and that it will die Think about that. Doesn’t it mean that with any of the individuals who figured in his as they have died. Toynbee adopted much the meaning of history is that history has no account, and is sometimes quite damning of Spengler’s cyclical theory, but gave it a meaning? Such meaning as we have in life about Metternich in particular, writing about potentially optimistic twist—civilizations can on this view belongs to an inward world cut his “smug self-satisfaction,” for example. revive themselves as they respond to the off from history, so, as to history (surely a Kissinger identifies, rather, with the Big challenges they face. It is only a civilization phenomenal study—a study about the world Picture into which his characters fit. that fails to respond to a trenchant challenge of teacups and saddled horses outside the What was the Big Picture? It was this: that is doomed to decay. skulls of the historians), we have a Kantian When equilibrium fails, the world has to pass Toynbee also postulated that history has license to be nihilists. In the outer world, for through much chaos before another order a goal, a telos. Human history is at heart the all this philosophizing can tell us, only power can come about. And when a revolution aris- development of a single civilization that will exists; there are only winners and losers. es, when it becomes something more than so span the globe, incorporate all the achieve- Those who dislike this can find their com- many idiosyncratic plots or sporadic unrest, ments of the several civilizations of its past, pensation inside themselves, in disregard of the equilibrium has already failed. So an and be at with itself. Mankind, he history. intelligent conservatism, the sort with which wrote, “must become one family or destroy That wasn’t Kant’s interpretation of Kant. Kissinger at this point identified himself, itself.” Indeed, Kant wrote a book about Perpetual cannot be about opposing revolution, but has The undergraduate Kissinger, with a Peace, expounding on his own conception of to be about forestalling revolutions, about young intellectual’s confidence, rejected political progress. Toynbee was a bit like the managing things so that revolutions don’t Spengler for his failure to find a place for Kant of Perpetual Peace. But Ferguson says arise and don’t need to be opposed frontally. human freedom in the world, and dismissed that Kissinger thought he had “caught Kant In short, when conservatism has to become Toynbee’s combination of erudition and tele- out,” that is, that he had caught Kant failing counter-revolutionary, it has already lost. ology as the “superimposition of an empirical to be sufficiently Kantian in that book, failing Those abstractions apply to Metternich’s method on a theological foundation.” to stay true to the message of his more situation thus: The wave of revolution in These adverse findings, and Elliott’s influ- famous Critiques. Europe that began in 1787 destroyed the old ence, sent Kissinger back to Kantian idealism. order, making proper conservatism impossi- Kant distinguished between the phenomenal Pragmatism Looks Good After All ble for decades. The continent had to pass world (the world as it appears to us), in which So it seems that Kissinger, with Elliott’s war- through a vast amount of bloodshed and everything is deterministic, and a noumenal rant, took the Kantian license to be a nihilist disorder, until the general revulsion against world (the unperceivable reality), which has about history and politics right off Kant’s that condition finally made a new order pos- room for freedom. In this Kantian notion, desk, and did so in defiance of Kant himself. sible. Metternich, Castlereagh, and others Kissinger finds the answer to his original dou- This Elliott/Kissinger sort of Kantian, were the executive officers of that general ble question—the meaning of history and the which, as noted above, has its roots in a revulsion, the realizers of that possibility. A place of freedom—writing, “Purposiveness rebellion against pragmatism, is the sort of new order, and so a renewal of conservatism is not revealed by phenomenal reality but thing that makes pragmatism look good. But that was not merely counter-revolution, that constitutes the resolve of a soul.” more of that thought in a bit. was for something rather than just counter This answer leads Kissinger, again as a After getting his bachelor’s degree and to something, became possible. good student of Elliott’s, to an anti-pragmat- after another brief sojourn in , That new equilibrium lasted, more or ic lesson. The international scene manifests Kissinger returned to America and Harvard less, until 1914. Then Europe broke down

July 2016 • THE FEDERAL LAWYER • 79 into another long period, a bit longer than 30 Kant’s work, studied through the prism The Master and Student Fell Out years, again with vast bloodshed and chaos. of Elliott’s interpretations, gave Kissinger The Elliott-Kissinger relationship, as por- The that had developed in the late the sense that moral action requires the trayed in this volume, has a fitting conclu- 1940s, when Kissinger was first studying choice of the least of the available evils. sion, a falling-out suitable for classic fiction. under Elliott, constituted a new equilibrium. The phenomenal world is inherently sloppy, In 1959 and 1960, with Vice President Nixon So others were playing the part of Metter- statesmen deal with timber, and all seeking the Republican nomination for Pres- nich and Castlereagh. Far from being their actions involve risk, yet action in the face of ident, Elliott sought to become a member imitator, Kissinger was their passive though our own ignorance is required. So much evil of Nixon’s inner circle. He may have fancied admiring observer. People such as George F. may be done in the world in the reasonable himself one of the next administration’s Kennan and George C. Marshall (of the Mar- expectation of forestalling greater evils, insiders. shall Plan) might be considered the analogs and the greater evil was represented in the Elliott now saw his protégé Kissinger as of Metternich and Castlereagh—their heirs young Kissinger’s developing thought by the a rival in the game of courtship. At this time, in the late 1940s, the re-creators of equilibri- breakdown of order inherent in revolutions Kissinger was an adviser to Nelson Rockefel- um. Kennan, Marshall, and others re-created and Bonapartisms. ler, governor of New York. Rockefeller was their world’s equilibrium, which is what Now, let us defy Elliott’s anti-pragmatism always seeking to burnish his own for- conservatives thereafter—including, if we and ask the forbidden question: Did it work? eign-policy credentials to bolster a contem- may project a bit, Presidents Nixon and Ford How well did the policies inspired by this plated presidential campaign of his own. So from 1968-1976—were striving to conserve, particular variant of Kantianism serve the it is unsurprising that, when Elliott wrote to as they sought to forestall another analogous country for which Elliott’s disciple labored? Nixon in January 1960 to advise him to have revolution and period of turmoil. (Let’s ignore just for convenience the ques- a meeting-of-the-minds with Rockefeller, El- tion of how well that country’s policies were liott mentioned Kissinger in this connection. Connecting Some Dots serving the rest of the planet.) We have to What may be surprising is that this mention Thus, as Ferguson reads Kissinger, he was in wait for Ferguson’s second volume for his ac- was a backstab. this period through his study of post-Napo- counting, but, in the meantime, perhaps we “For some time I have thought that leonic government developing his own idio- can make do with ’s summary the best role for me in this matter [the syncratic sort of conservatism, influenced by in (Feb. 5, 2016), commenting Nixon-Rockefeller talks] was not to oper- Kant via Elliott, but distinct from “the more on an odd exchange in a presidential debate ate through Henry Kissinger. I find that common forms of American conservatism,” in which Sec. , to Sen. Bernie intermediary a doubtful channel, and now with which his relationship would “never be Sanders’ dismay, seemed to be bragging one disappointed in [his] ambitions by an easy one.” about her closeness with Kissinger. Nelson’s very wise choice” not to contest the One thinks (flashing ahead, well be- Grandin replied in part: primaries. That is what Elliott wrote; seeking yond the scope of this first volume) of the to keep his old student off the gravy train presidential nomination contest in the Pull but one string from the current that he thought he had clambered onto. As Republican Party in 1976, when Kissinger tangle of today’s multiple foreign Ferguson puts it, Elliott had decided that was one and perhaps even the key bone of policy crises, and odds are it will Kissinger “had become too big for his boots.” contention between President lead back to something Kissinger did Elliott’s attempt to muscle Kissinger out and Governor . Ford, with between 1968 and 1977. Over-reli- of a position in the executive branch and Kissinger, was willing to cede sovereignty of ance on Saudi oil? That’s Kissinger. to create one for himself turned out to be the Canal Zone to Panama; Reagan was not. Blowback from the instrumental use fruitless. This was, of course, because Nixon The eventual winner of the general election, of radical Islam to destabilize Soviet lost the 1960 election to John F. Kenne- President , would follow up on allies? Again, Kissinger. An unstable dy. After Nixon won the election in 1968, and successfully conclude the bargaining arms race in the Middle East? Check, however, Kissinger gained precisely the kind to that effect. But the example perhaps Kissinger. Sunni-Shia rivalry? Yup, of role that Elliott had apparently envisaged clarifies the difference between forestalling Kissinger. The impasse in Israel-Pal- for himself. revolutions and combating them. Ford and estine? Kissinger. Radicalization of According to historian Andrew Scott Kissinger might reasonably have thought that Iran? “An act of folly” was how vet- Cooper, who cites James Schlesinger, they were forestalling revolution in Panama eran George Ball described Nixon’s CIA director for five months in by ceding the land around the canal on terms Kissinger’s relationship to the Shah. 1973 and later his Secretary of Defense, that secured what was most important to a Militarization of the Persian Gulf? the Nixon/Kissinger policy toward the Shah world-straddling empire: the right of passage. Kissinger, Kissinger, Kissinger. of Iran began with “we’ve got to give him But let us back up and connect some what he needs” in order to make him our dots. What did Kissinger as a graduate Indeed. The record will likely make surrogate guardian of the Gulf, and then student take from his undergraduate study any candid observer hanker for the most evolved into “we’ve got to give him what of Kantianism in the context of the meaning simpleminded of pragmatisms, and value it he wants.” It is clear in hindsight that this of history? How did Kant’s ideas apply to over the odd and disastrous consequences of inflation of the Shah, motivated by the the study of Metternich and the meaning of the legacy, at once idealistic and nihilist, that concern for resources that Kissinger may some old-school European ? Elliott passed along with Kant’s imprimatur have learned at Elliott’s knee, contributed The impression one takes away is that to his favored student. mightily to the destabilization of the entire

80 • THE FEDERAL LAWYER • July 2016 region. Our ongoing 21st century wars in the unless we practice national security or civil seek an accounting for the wrongs of Middle East have much less to do with the rights law, we are unlikely to keep up with the past. He should have prosecuted abstraction of “terrorism” than we imagine, the cascade of court decisions, legislative those who engaged in practices clearly and more to do with access to resources. actions, and executive branch statements and understood to be torture and, on top They are at their core an effort to pick up policies concerning matters such as drones, of that, allowed those who were in fact the pieces that remained after Kissinger’s extraordinary rendition, Guantánamo Bay, tortured to pursue civil remedies. reliance on a Persian surrogate blew up and wiretapping. Helping to fill this need is spectacularly. A War Like No Other: The Constitution in What, then, is the answer? Can a balance As we continue to send our young men a Time of Terror, by Owen Fiss, edited and be achieved between national security and and women to fight in the Middle East, we with a forward by Trevor Sutton. civil liberties? Chapter 5, “Law is Every- will continue to pay the price.  Fiss is professor emeritus of law at Yale where,” provides an example. This chapter University. He clerked for Thurgood Marshall profiles Aharon Barak, a retired justice of Christopher Faille, a member of the Con- at the U.S. Court of Appeals and for William the Israeli Supreme Court and a close friend necticut bar, is the author of Gambling with J. Brennan Jr. at the U.S. Supreme Court. He of Fiss’. Israel has lived with violence ever Borrowed Chips, a heretical account of the is one of this country’s most-cited professors since its founding and is exposed to it on a Global Financial Crisis of 2007-08. He writes on constitutional law. Sutton served as a law daily basis. However, Barak, in his judicial regularly for MJINews, a website for actual clerk on the U.S. Court of Appeals and is a decisions, forged a path that our Supreme and potential investors in the legal marijua- recent graduate of Yale Law School. Court justices could emulate: na industry. A War Like No Other is concise and straightforward. It has 10 chapters by Fiss In all this—his refusal to defer to the with a prologue to each by Sutton. In his military in the trade-off of values, forward to the book, Sutton states its theme: his insistence on the least restrictive alternative, and, finally, his application Linking all the essays is Fiss’s sus- of the requirement that the harm to tained concern for the offense done fundamental values not be dispropor- to the Constitution by the political tionate to the gain in security—Justice branches in the name of public safety, Barak held firm in his attachment to and the refusal of the judiciary to the law and the belief that the law hold those branches accountable. As is the embodiment of reason in the Fiss observes, practices that at first service of humanity. His method was to seemed like temporary excesses of demand, systematically and relentless- the Bush administration have become ly, that any sacrifices of rights required entrenched legal doctrines perpetuat- by a proper regard for human dignity ed by President Obama and enshrined be fully and rationally justified. in judicial opinions. How these constitutional aberrations outlasted If A War Like No Other could be made the political climate that created them stronger, it would be by including a chapter constitutes the central narrative of on the impact of post-Sept. 11 measures this volume. that seem far removed from the lives of the ordinary legal practitioner and ordinary Indeed, A War Like No Other is a no- citizen. For instance, what is the impact, if holds-barred critique of everyone and every any, of the continued existence of the pris- A War Like No Other: institution involved in what Fiss calls the on at Guantánamo on the rights of pre-trial The Constitution in a “debasement” of the Constitution, deriv- detainees? Does the largely unfettered use ing from “judicial cowardice” to President of drones abroad influence acceptance and Time of Terror Obama’s “lofty rhetoric about the future” regulation of their domestic use? Have deci- By Owen Fiss that substituted for action aimed at abuses sions on warrantless wiretapping paved the , New York, NY, 2015. 332 pages, $27.95. of the Constitution: way for federal agencies to require private Reviewed by Elizabeth Kelley industry to design encryption technology It has been more than 14 years since the War At his first press conference, Presi- with a backdoor accessible to law enforce- on Terror began. As lawyers, our lives and dent Obama was asked to comment ment? our practices have been forever altered, from on Senator Patrick Leahy’s proposal Both Fiss and Sutton are passionate having to show a photo ID and opening our for the establishment of a truth advocates for “one constitution in war and briefcases while going through courthouse commission. He then said that he was peace,” and A War Like No Other is a pas- security to representing the growing number more concerned with the future than sionate piece of scholarship.  of clients who have post-traumatic stress with the past. ... The willingness of disorder or traumatic brain injury because Obama to speak only to the future was Elizabeth Kelley is a criminal defense lawyer of the wars in Afghanistan and Iraq. But, ill-conceived. He also had a duty to based in Spokane, Wash., who has a nation-

July 2016 • THE FEDERAL LAWYER • 81 wide practice representing persons with A wealth of YouTube videos features the answered the dean, “it’s important mental disabilities. She is serving her third always colorful late . A recent for wives to understand their hus- term on the board of the National Associa- tion of Criminal Defense Lawyers. She has flood of books has fed the frenzy. In addition band’s work.” been appointed to the National Advisory to Jeffrey Toobin’s books noted above, Joan Committee of The ARC’s National Center on Biskupic released Sandra Day O’Connor: O’Connor and Ginsburg were not immune Criminal Justice and Disability. She hosts How the First Woman on the Supreme from dismissive and patronizing attitudes two Internet radio shows, CelebrityCourt Court Became Its Most Influential Justice once they joined the high court. For exam- and AuthorChats. She can be reached at and Breaking In: The Rise of Sonia Soto- ple, shortly after Ginsburg arrived at the [email protected]. mayor and the Politics of Justice. In addi- Court, the case of J.E.B. v. Alabama ex rel. tion, Marcia Coyle has released The Roberts T.B., which concerned sex discrimination in Court: The Struggle for the Constitution. jury service, came before it. Hirshman gives Several justices and former justices have us the following behind-the-scenes view: themselves published books in the last cou- ple of years: Stevens, O’Connor, Sotomayor, Since the chief was in the dissent, and Scalia, as well as Stephen Breyer. after conference, the decision about Add Sisters in Law to the mix. Indeed, who should write the opinion fell to the omission of dashes between the words the senior in the liberal majority, Har- in the title is significant. As the book shows, ry Blackmun. Giving the nod to Gins- O’Connor and Ginsburg are as unrelated as burg, the author of the law of women’s can be: the former a Junior League president equality on juries, would have seemed from Phoenix, the latter an ACLU lawyer the obvious move. But instead he kept from Brooklyn. But what binds them is the it for himself. law—the law as a profession and as a tool for achieving equality for women. Blackmun’s tone deafness vis-a- As Hirshman describes in detail, both vis his female colleagues was well O’Connor and Ginsburg are products of their known. Although he denied it at time. Both married young and had de- the time, the opening of his papers cades-long marriages to loyal, devoted spous- revealed that he resented Justice es, both now deceased. Both women had O’Connor from the get-go. After children. Both enjoyed American upper-mid- O’Connor was selected, he groused dle-class comforts. But both were also blessed about her overnight fame and her with keen intellects and a desire to partici- energetic embrace of the Washing- Sisters in Law: How Sandra pate in the wider world. However, the wider ton social scene. His clerks report Day O’Connor and Ruth world of the 1960s, 1970s, and 1980s was one that he did a wicked imitation of his Bader Ginsburg Went to where women were not always allowed to be female colleague’s distinctive loud, equal participants. The legal profession was nasal diction. Blackmun had actually the Supreme Court and particularly unwelcoming. never thought that much of Ginsburg Changed the World Although O’Connor graduated third in either; when the legendary Supreme her class from Stanford Law School (behind Court litigator first appeared, he gave By Linda Hirshman ), at least 40 law firms her a C+ on her oral argument. HarperCollins Publishers, New York, NY, 2015. refused to interview her, and she eventually 390 pages, $28.99. found employment as a deputy county at- Hirshman also tells the story of a visit Reviewed by Elizabeth Kelley torney in San Mateo, Calif., after she offered to the Court by the couple who introduced When a book’s dust jacket boasts glowing en- to work for no salary and without an office, Chief Justice Warren Burger to O’Connor, dorsements from both Jeffrey Toobin, author sharing space with a secretary. And the path then an Arizona state court judge: of The Nine and The Oath, and former was no easier for Ginsburg. At Harvard, Justice John Paul Stevens, one expects that When the Driggses arrived, Chief the book is a must-read. Sisters in Law: [Dean] Erwin Griswold gave a dinner Justice Burger was waiting to crow How Sandra Day O’Connor and Ruth party to find out how the women over the great outcome of their Bader Ginsburg Went to the Supreme justified taking a place a man would houseboat trip all those years before. Court and Changed the World confirms otherwise have had. Following a What an addition Justice O’Connor this expectation. well-established tradition, each of made to the court, he said. Why, he We live in an age in which Supreme the women students was escorted made it his business to use his powers Court justices are celebrities. Sonia Soto- by a male faculty member. ... In due as the chief to single her out to write mayor was greeted like a rock star when she course, Griswold called on Ginsburg the opinions in really important cases visited Puerto Rico. Ruth Bader Ginsburg to justify her presence in the law because he thought so highly of her. It is fondly known as Notorious RBG—a play school. To her lifelong unending as- was an extraordinary admission from on the name of the rap star Notorious BIG. tonishment, the future feminist icon Burger, who had long been accused of

82 • THE FEDERAL LAWYER • July 2016 manipulating the assignment power, the World. In Sisters in Law, Hirshman Court, it is a fine one, I look forward to in violation of the unspoken norms of sees the lives and careers of O’Connor and many more.” the institution he headed. Only thing Ginsburg through a feminist lens, and, is: it wasn’t true. Even after five years accordingly, wrote Sisters in Law with a After she was appointed to the Court, on the tribunal, and numerous in- feminist pen. O’Connor was treated for breast cancer. stances where the chief unexpectedly Hirshman describes the personal ele- Later, when Ginsburg was treated for colon changed his position when he saw he ment behind the word “sisters” in the title cancer, O’Connor gave her colleague advice would be on the losing side, Burger of the book: about when to schedule treatments in order never assigned O’Connor to write the not to miss any conferences among the Court’s opinion in any big cases. And from the beginning she [O’Con- justices or oral arguments. nor] did what she could to make sure In Sisters in Law, Hirshman describes How, then, did O’Connor and Ginsburg Ginsburg succeeded. Ginsburg’s first both O’Connor and Ginsburg as courageous use the law to change the world, as Sisters assignment was not the traditional and focused. They never believed that in Law’s subtitle claims they did? Very “dog” case, where the Court is unani- their genders should be a barrier. Instead, similarly and very differently. Although mous and the opinion uncomplicated. they persevered. They maximized their Hirshman admires both women, she does Instead, Chief Justice Rehnquist educations, talents, and prospects. But not paint them as being above the rough handed her a contentions 6-3 decision their unique experiences as women gave and tumble required to succeed in the legal on one of the most complex federal them special sensitivity to gender matters profession and, ultimately, to be named to statutes. “Sandra,” Ginsburg asked her before the Court. One was described as the the Supreme Court. She often describes predecessor plaintively, “how can he only woman whom Ronald Reagan would O’Connor in political terms, as calculating do this to me?” O’Connor (who was on have found palatable to nominate, and the what battles to fight while she served in the the other side in the decision) made other was called the Thurgood Marshall for Arizona legislature and how to vote on the her typical flat-tire response. “Just do women, and both have indeed managed to high court. And one is left to ponder what it.” Oh, and do it before he makes the change the world.  Justice William Brennan meant when he next set of assignments, she advised. called his “over-the-top” (Hirshman’s term) O’Connor knew—and it was one of the Elizabeth Kelley is a criminal defense dissent, which insulted O’Connor during her many unwritten rules of the institution lawyer based in Spokane, Wash., who has a first year on the Court, “the worst mistake that newbies must learn somewhere— nationwide practice representing persons I ever made.” As for Ginsburg, during her that Chief Justice Rehnquist would not with mental disabilities. She is serving her third term on the board of the National time at the ACLU, she revealed a “steel-trap give Ginsburg another assignment until Association of Criminal Defense Lawyers. mind behind the velvet modesty” when she had turned in the one she had. She has been appointed to the National jousting over which lawyers should handle “Typical,” Ginsburg remembered years Advisory Committee of The ARC’s National oral arguments before the Supreme Court. later, of her predecessor’s no-nonsense Center on Criminal Justice and Disabil- Sisters in Law’s dust jacket describes guidance. She called O’Connor “the ity. She hosts two Internet radio shows, the book’s author, Linda Hirshman, as a most helpful big sister anyone could CelebrityCourt and AuthorChats. She can be lawyer and a cultural historian. She is most have.” O’Connor welcomed her sister’s reached at [email protected]. known for her highly controversial book delivery of her first opinion with a Get to Work: A Manifesto for Women of note: “This is your first opinion for the

Miranda continued from page 68 self-incriminating statement was ‘compelled’ (Ginsburg, J.) (“This Court has never indi- (2010) (Kennedy, J.). despite the fact that the law enforcement cated that the rigidity of Miranda extends 65 Id. at 404 (Sotomayor, J., dissenting). authorities adhered to the dictates of Miran- to the precise formulation of the warnings 66 Salinas, 133 S. Ct. at 2186 (Breyer, J., da are rare.”). Accord Dickerson v. United given a criminal defendant.”) (quoting dissenting). States, 530 U.S. 428, 444 (2000). California v. Prysock, 453 U.S. 355, 359 67 Dickerson, 530 U.S. at 443. 58 For example, a suspect’s invocation of his (1981)). 68 Berghuis, 560 U.S. at 388. or her rights is “scrupulously honored” if 61 Powell, 559 U.S. at 62. See also Johnson the police wait half an hour and recite the v. Laxalt, 624 Fed. Appx. 492 (9th Cir. Miranda warning again before resuming 2015) (officer’s “rambling … ambiguous” re- questioning. See United States v. Hsu, 852 sponse to the suspect’s question concerning F.2d 407, 409-410 (9th Cir. 1988) (citing the scope of his possible waiver of Miranda Michigan v. Mosley, 423 U.S. 96 (1975)). construed against the suspect). 59 Missouri v. Seibert, 542 U.S. 600, 608-609 62 J.D.B., 564 U.S. at 269 (Sotomayor, J.) (2004) (Souter, J.) (citing Berkemer, 468 (citations omitted). U.S. at 433, n. 20). 63 Id. at 288 (Alito, J., dissenting). 60 Florida v. Powell, 559 U.S. 50, 60 (2010) 64 Berghuis v. Thompkins, 560 U.S. 370, 382

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