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May 30, 2018

A Friendly Court

by Anupam Chander

An award ceremony has the risk of being largely predictable, even if worthwhile. The presenter makes the usual remarks about the namesake of the award and the honoree, and the honoree is duly grateful. I was privileged to attend an award ceremony in Washington D.C. this week that well-exceeded the usual standard. The occasion was the award of the Henry J. Friendly Medal of the American Law Institute (ALI) presented by Chief Justice John Roberts to Associate Justice Ruth Bader Ginsburg at the ALI’s annual meeting in Washington D.C. earlier this week. The Medal is named in honor of the famed Second Circuit judge, who served on the bench from 1959 to 1986. Chief Justice Roberts observed that Judge Friendly has often been regarded as the most important United States jurist never to sit on the U.S. Supreme Court. Judge Ray Lohier of the Second Circuit Court of Appeals spearheaded the nomination, and it was approved by acclamation of the American Law Institute’s Council. It was Chief Justice Roberts who approached the ALI to present the award. 

Chief Justice Roberts had himself clerked for Judge Friendly, as did a number of prominent members of the ALI, including Professors Bruce Ackerman and Ruth Wedgwood and Judge Merrick Garland. I have long admired Judge Friendly myself. When I clerked for Judge Jon O. Newman of the Second Circuit, his New York offices had once been the chambers of Judge Friendly himself. Given Judge Newman’s frugality and concern for the public fisc, I’m confident that we still had the old chairs and desks that Judge Friendly’s clerks used. I then went on to become an associate at the law firm of Cleary, Gottlieb, Steen and Hamilton, which had been cofounded by Judge Friendly. 

Chief Justice Roberts uncovered letters between Justice Ginsburg and Judge Friendly—where she forwarded him, for his appraisal, an opinion (Norris v District of Columbia, 737 F.2d 1148 (D.C. Cir. 1984)) she had authored as then-Circuit Judge citing one of his precedents (Johnson v. Glick). Chief Justice Roberts reported that Judge Friendly had approved of her interpretation of his opinion and saw her as a rising star. The Chief also remarked on Justice Ginsburg’s quality of work—and mentioned her special interest in “jabots”—a term I had to look up. Jabots, for those like me who didn’t know, are the decorative collars, which Justice Ginsburg uses to accessorize her judicial robes (for more, see this Bustle article)

The level of respect and admiration for his senior colleague was palpable in the Chief Justice’s remarks. Inviting her to receive the award, Chief Justice Roberts joked that he was happy to participate in this effort “to increase your public profile.”

Justice Ginsburg’s address was quite humble. She picked up with the Chief’s joke. She explained the origin of her current “notoriety” as the work of a law student. It was a 2L at NYU who had apparently noticed some (perhaps unlikely) similarity between Justice Ginsburg and rapper Notorious B.I.G. Justice Ginsburg declared they were indeed alike—they both hailed from Brooklyn! Thus were born all manner of paraphernalia sporting her new moniker. She went on to describe the generational shift in opportunities that she had been afforded compared to the women of generation prior to hers (she did not mention the many opportunities in law she had been denied): “What is the difference between a garment worker in New York City and a Supreme Court Justice?” she riddled. She answered, “A generation.”

Justice Ginsburg also spoke of Judge Friendly, relaying an oral argument that she had attended at the Second Circuit in which Judge Friendly had asked a particularly penetrating question to the advocate, who happened to be her husband, Marty Ginsburg. 

In sharp contrast to the collegiality displayed by Justices Ginsburg and Roberts, the process of Supreme Court Justice confirmation is no longer characterized by collaboration. Justice Ginsburg lamented the recent politicization of the Supreme Court confirmation process. She noted that only three Senators voted no on her candidacy, while dozens of Senators voted no on more recent appointments. Furthermore, she noted that no Senator asked her to defend her role as a card-carrying member--and cofounder of the women’s rights project--of the ACLU.

This was my first meeting as a new member of the American Law Institute, the long-standing group of jurists, lawyers and academics that publishes the Restatements of Law and the Principles of Law that practitioners and judges often rely on to apply the law. The award ceremony perfectly encapsulates the spirit of bipartisan engagement that characterizes ALI. The ALI includes lawyers who generally respresent plantiffs, as well as lawyers who generally represent defendants. The ALI relies on civil discourse and the quality of argument to arrive at its answers for the significant questions it asks.

The UC Davis law faculty includes ALI members Dean Kevin R. Johnson and Professors Ashutosh Bhagwat, Gabriel "Jack" Chin, William S. Dodge, Floyd F. Feeney, Robert W. Hillman, Thomas W. Joo, and Leticia Saucedo, as well as Professors Emeriti Alan Brownstein, Carol S. Bruch, Joel C. Dobris, Daniel W. Fessler, Angela P. Harris, John B. Oakley, Rex R. Perschbacher, Edward H. Rabin, Daniel L. Simmons, and Bruce Wolk.