- Good evening.
It's my pleasure to welcome all of you
to this year's version of
the James Madison lecture.
This is a really special event
on the Law School's calendar,
in many ways, the flagship lecture series
at NYU Law School every year.
And I dare say, one of the leading events
in legal education every year.
We're just thrilled that
you're all here with us.
The Madison lecture series began in 1960
with the first lecture being presented
by Supreme Court Justice, Hugo Black,
where he very famously laid out his theory
of the first amendment
protection of free speech
as an absolute protection and the series
over the years has provided a forum
for our community and others joining us
to hear our nation's
leading jurists present
their vision of the law
and its role in society.
Professor Norman Dorsen has directed
this lecture series since 1977.
The Madison Lecture Series
is a wonderful tradition
in part because it's an opportunity for us
to welcome members of
the judiciary and some
of our past lecturers
back to the law school
and tonight I believe we
have with us Judge Newman,
from the Second Circuit, who delivered
the Madison Lecture in 1993.
Judge Newman, are you with us?
There he is, Judge Newman, welcome.
And this year we have
the great opportunity
to welcome Judge Sandra Lynch,
Judge of the United States
Court of Appeals for the First Circuit
who we'll add to our list
of distinguished speakers
in this series now over many years.
We're really grateful to
Judge Lynch for joining us
and look forward to
hearing her talk entitled,
"Constitutional Integrity,
Lessons from the Shadows."
She will be introduced
shortly, but let me just say
on behalf of the school
how thrilled we all are
to welcome you here this
evening, Judge Lynch.
Norman, Professor Norman
Dorsen will introduce
Judge Lynch in just a minute.
But, I can't resist taking
this opportunity to say
a few words about Norman Dorsen.
He is, in many ways, the
embodiment of NYU Law School.
Our longest serving
faculty member, in addition
to directing the James Madison Series,
the James Madison Lecture Series, he is
the Stokes Professor
of Law and Co-Director
of the Hayes Civil Liberties Program.
His long time leadership
of this lecture series
is just one of the many ways that he has
so deeply contributed
to the intellectual life
of this law school across
many, many decades.
I'm not sure whether it
should embarrass me to say
that he has been an
integral part of this school
for much longer than I have been alive,
but it certainly is my great pleasure
to count Norman as one of the pillars
of our community here and of course,
as a leader of law across this country,
a renowned champion of civil liberties
throughout his entire
career, he's shaped the law
within the profession and beyond it.
And of course, here at NYU
has had a huge influence
on legal education and how
this school undertakes that.
Many of the things we
do at this school owe
their origin to some
inspiration from Norman Dorsen.
He was the founding
Director of our school's
Hauser Global Law School
Program and he helped bring,
in that capacity he helped
bring leading law professors
and visiting researchers and students
from around the world here to NYU
and today we consider
ourselves the global law school
and we have that and much
more to thank Norman for.
He is a true treasure of this law school,
a terrific colleague, a friend of mine
and to many of us in this
room and it is my pleasure
to welcome Norman to say some remarks now.
(crowd clapping)
(mumbling)
- Well, thank you and thank you, Trevor.
I'm very happy to see you all here.
Judge Lynch is a very worthy
person for this lecture series.
She's been a judge for many years,
has had a long career in practice
and I'm sure we'll be very
uplifted by what she has to say.
Now, there's a little
history here as usual,
and that is that there
are several other judges
from the First Circuit who
have been at Madison Lecturers.
One is Michael Boudin, who is
Chief Judge of the Circuit.
Another is Stephen Breyer, who
went on to the Supreme Court,
but was also Chief Judge of the Circuit.
And Frank Coffin, who
was a judge from Maine.
Not all of you, maybe many
of you have not heard of him,
but he did something that I still think
of as quite remarkable.
Usually at this point, after
I go on a little bit long,
but not much, the speaker
gets up to the microphone
and delivers the Madison
Lecture, but Frank Coffin
did not do that.
He was a speaker, but he got
up and walked over to there
and without looking at
a note, gave a speech
that was an absolute
exact replica of what he
would have said if he wrote it down.
He didn't look at a
single note for an hour,
and that's longer than most lectures are
and I'm reliably told that Judge Lynch
will not speak that
long and not only that,
it means that we can have some questions
from the floor, which
we sometimes don't have.
But, Judge Coffin, with
out looking at a note
spoke for almost an hour
with remarkable fidelity
to the substance and the
structure of the subject
which I now forget.
But, in any event, I do remember
the occasion of any event.
So, here we have some predecessors
from the First Circuit.
There's one other predecessor and that is
the former Chief Judge
of the First Circuit,
Calvert Magruder.
Magruder was a member
of the Circuit from 1941
to about 1965.
Among his less important
aspects of his career was
that I was his clerk for a year and he was
a remarkable judge.
Among other things, he was
Brandeis', Justice Brandeis'
first law clerk and he
showed that in his own work
which was as meticulous
and careful and thoughtful
as anyone could imagine and
Magruder has always been
a standard for me when I think about how
a judge should function.
Now here we are very fortunate in having
Judge Sandra Lynch.
The program states some of
her many accomplishments
and I'm very, ordinarily
we don't have judges
who, with the exception of Judge Newman,
who have done as many
things as Judge Lynch,
but Jon was one of our best lecturers
and it was great to have him here.
He and I clerked together
at the Supreme Court
where he clerked for Chief Justice Warren
and I clerked for
Justice Harlan and we had
a few minutes thinking
back to what we sometimes
think of as the good
old days, but who knows.
In any event, Jon Newman, it's
great to have you here, Jon.
Anyway, here we have Sandra Lynch, who's
outstanding judge of the First Circuit.
The Circuit has had
wonderful jurists going back
40, 50 years including some
of the ones I mentioned.
So, it's a great pleasure for
me to introduce Judge Lynch
and we look forward to her
remarks as the Dean said.
(crowd clapping)
- Good evening.
My thanks to Dean
Morrison, Professor Dorsen
and NYU for this invitation.
Norman's comments bring
two stories to mind.
One is, Frank Coffin actually
wanted to be governor of Maine
and he became a judge on the First Circuit
as a sort of consolation prize.
So, of course he could
speak without notes.
(crowd laughing)
And as to why he did not
become governor of Maine,
perhaps it was his snappy campaign slogan,
"There's a coffin in your future."
(crowd laughing)
And, as for Norman, what a prime example
of good things who come to those
who clerk for the First Circuit Court.
(crowd laughing)
When Professor Dorsen
asked me in November 2014,
to give this lecture I
thought it would be useful
to talk about what happens
when the Executive Branch,
to put in politely, shadows the truth
to the Supreme Court.
Specifically, I wanted to
tell the disturbing story
of the government's lack
of candor to the Court
in Korematsu versus United
States, the 1944 Japanese
internment case.
Until recently I hadn't known that history
and indeed, it was
Justice Souter who told me
the history and suggested
that few people knew
it and it was useful to talk about it.
I had no idea when I chose
the subject of the speech
that the topic of lying
would become so much
a part of the present political discourse.
Perhaps the recent cover
of The Economist captured
the national mood best.
The cover of its September
10, 2016 issue is white
except for the dark profile
of a man with a forked tongue
and bold lettering in gray which says,
"the art of the lie", an odd phrase.
The feature article refers
to the post-truth politics
in the age of social media.
The article does distinguish
the legal system.
It refers to legal systems
as one of the institutional
mechanisms which allows
some level of consensus
over what is true.
I also had no idea when
I accepted the invitation
that the themes of stereotyping
predicated on race,
national origin or religion
would be an important
current topic.
Perhaps I had taken it for
granted that ascribing fault
to a person solely on the
basis of that person's
parentage without looking
at the individual's
own life was a thing of the past.
I was concerned then, and
I'm even more concerned now,
about the rising level of
fear from our post 9/11
War on Terror.
There is good reason for that fear.
The photos of the beheadings by ISIS
were horrifying and barbaric.
Polls confirm that fear in this country
is at the highest levels since the days
immediately after 9/11.
So, as I stand here
today there is good cause
to be concerned.
The lessons of the past are pertinent now.
In 1822, James Madison
wrote, "a popular government
"without popular information or the means
"of acquiring it is but
a prologue to a farce
"or a tragedy, or perhaps both."
Madison continued saying,
"knowledge will forever
"govern ignorance and
a people who mean to be
"their own governors must arm themselves
"with the power which knowledge gives."
Benjamin Franklin put it
more prosaically in 1731.
"When truth and error
have fair play, the former
"is always an overmatch for the later."
But, what happens when truth
is not given fair play?
I began to worry about
the problem of the courts
not being given accurate
information a few years ago.
It happened as the extent of
the National Security Agency
Surveillance Programs came into focus.
This followed Edward
Snowden's infamous leak
of thousands of classified documents.
We learned from Mr. Snowden
that there was widespread
government surveillance of electronic
and phone uses by Americans,
and as a result, there was a strong sense
in our society that the public
trust had been breached.
Just months before the Snowden disclosures
first broke in 2013, the Supreme Court
had handed down a decision in a case
called Clapper versus
Amnesty International.
It was a six/three opinion.
The Court on Motion to
Dismiss dismissed claims
that the government
was spying in violation
of the Constitution on
plaintiffs' attorneys,
journalists, activists who
worked with people abroad.
Clapper involved a
Constitutional challenge
to Section 702 of the Foreign Intelligence
Surveillance Act of 2008.
A majority of the Court
concluded that the plaintiffs'
lacked standing largely
because their claims
of surveillance rested on speculation
about choices that would
be made by independent
actors in the other
branches of government.
Thanks in large part to
Mr. Snowden's disclosures,
we now know that the fear
of some of the plaintiffs
had some basis and that
the picture painted
by the government to the Court
was not entirely accurate.
We learned at least two
pieces of information
that call into question the government's
position in Clapper.
There was a question, if these plaintiffs
did not have standing,
did someone have standing?
The Solicitor General had,
believing it to be true,
represented to the Court that notices were
in fact given to criminal defendants
that warrantless surveillance
had been the source
of evidence against them.
Such persons who got such
notices would have standing.
But, it turned out in fact, despite
what the Solicitor General
believed to be true,
that prosecutors were
not giving such notices.
There ensued a battle in
the Department of Justice
between the Solicitor General
and the line prosecutors.
Eventually the Solicitor General required
prosecutors to give such notice.
Secondly, there was
some sense of the scope
of the communications that
were being intercepted,
but it turned out that it was much broader
than the picture painted
by the Solicitor General
to the Court.
This is a fact substantiated
by the FISA Court.
The government had been
engaging in much broader
surveillance in what is
called upstream collection.
Members of Congress, three
United States Senators
wrote a letter to the Justice Department
saying that the department had been less
than forthright with the Clapper Court.
Whatever one thinks of how Mr. Snowden
went about his disclosures,
those disclosures
have had value and a continuing impact.
The Second Circuit in 2015,
held that this surveillance
through the telephone
metadata program was illegal.
One could question
whether the Supreme Court
in providing the role of the Supreme Court
in providing a check
on the Executive power
had been undermined in the Clapper case.
Remember Madison, a
judiciary without the facts
or an independent means of acquiring them,
stands in danger of being manipulated
by the very political branches
it was designed to control
and that is what happened in Korematsu.
That is a case in which the Supreme Court,
by a vote of six to three,
upheld the Constitutionality
of a military order requiring persons
of Japanese descent to
remain out of certain areas
and to report to detention centers.
Korematsu is exactly the model of the case
in which the government attorneys shadowed
the truth to the Court.
The Court upheld the military
orders and that resulted
eventually, in the
evacuation and internment
of over 100,000 people
of Japanese ancestry.
70,000 of them were American citizens.
The opinion itself refers to the camps
as concentration camps.
Many scholars have discussed Korematsu.
I'm offering the perspective
of a working judge.
The legal canon is Korematsu
was a horrible mistake.
Many now accept that
the internment in camps
surrounded by barbed wire fences was
wrong and unconscionable.
Korematsu is a case that
has come to live in infamy,
to quote Kathleen Sullivan.
But, Korematsu has not been overruled
by the Supreme Court and
it is cited occasionally
on the point of strict scrutiny under
the Equal Protection clause.
Not everyone agrees
with Kathleen Sullivan.
A Virginia mayor recently
said about the prospect
of relocating Syrian
refugees to his community
that he was and I'm quoting,
"reminded that President
"Roosevelt felt compelled
to sequester Japanese
"foreign nationals after
the bombing of Pearl Harbor
"and it appears that the
threat of harm to America
"from ISIS is just as real and serious
"as that from our enemies then."
And recent polls have
shown that many voters
approve of the Japanese internment.
What most people don't
know is that the government
attorneys withheld
substantial material evidence
from the Court and this is what I learned
from Justice Souter, who
obviously had a strong
interest in accuracy of
information put before the Court.
The government's position
was that the detention orders
were required by military
necessity in order
to avoid both sabotage and espionage.
Here's the background to the case.
Three months after the
Pearl Harbor attacks,
President Roosevelt signed
Executive Order 9066.
The order authorized and
directed the Secretary of War
and his military commanders to prescribe
military areas from which certain people
would be excluded.
The next day the Secretary
of War designated
Lieutenant General J. L.
DeWitt as military commander
of the western defense command.
In 1942, DeWitt issued a
series of public proclamations
designating such military
areas of exclusion.
Not only did the president authorize this,
but Congress in turn,
had authorized penalties
for violating these military restrictions.
The prior year the court had upheld
in the Hirabayashi case, the
imposition of military curfews.
Interestingly, the problem
which so concerned the Court
arose out of earlier cases involving
the president's war power and the extent
to which it could exceed
Congressional authorization.
This issue came up in a
German saboteur cases,
but this case raised no such conflict.
Both the congress and the
president had authorized
those actions, a point
emphasized by the Court.
Fred Korematsu was a native
born American citizen
of Japanese descent.
It was conceded he was loyal.
He was criminally charged with remaining
in a designated military area in violation
of one of these exclusion orders.
He was found guilty and was sentenced
to five years of probation and
the Ninth Circuit affirmed.
Interestingly, the ACLU had been searching
for the right plaintiff and
they picked Fred Korematsu.
And the argument made to the Supreme Court
was that his conviction
was unconstitutional
because it was based on nothing more
than racial prejudice.
He argued that the
government had presented
no evidence substantiating the existence
of a clear and present or potential danger
to our military and defense resources
from citizens of Japanese pedigree
or from aliens who were evacuated.
Justice Black wrote for the Court.
He announced the strict scrutiny standard,
but he concluded that it wasn't violated.
Korematsu was properly convicted
for a series of reasons.
Let me read them to you.
Because we are at war
with the Japanese Empire.
Because the properly
constituted military authorities
feared an invasion of
our west coast and felt
constrained to take
proper security measures.
Because they decided
that the military urgency
of the situation demanded
that all citizens
of Japanese ancestry be segregated
from the west coast temporarily.
And finally, because Congress,
reposing its confidence
in this time of war in
our military leaders,
as inevitably it must,
determine that they should have
the power to do just this.
Black stressed that
the military had to act
under time pressure, so
individual loyalty determinations
could not be made and that his inquiry
would go no further than the time at which
the military had promulgated the order.
Justice Felix Frankfurter,
who in private correspondence
with the president, had offered to resign
because he wanted to be involved
in the war effort, concurred.
The constitution gave the
Executive and the Congress
this power and that was
the end of the story.
Justices Roberts and
Murphy dissented saying,
there was no military
justification for this
and Roberts noted that
the very report on which
the administration
relied, the DeWitt report,
saying espionage and
sabotage was questionable.
Justice Jackson in his
usual eloquent prose said,
what Korematsu did was,
I quote, "a crime only if
"his parents were of Japanese
birth and that if any
"fundamental assumption
underlies our system,
"it is that guilt is personal
and not inheritable."
Here is an attempt, Jackson wrote, to make
an otherwise innocent act a crime
merely because the prisoner is the son
of parents as to whom he had no choice
and belongs to a race from which
there is no way to resign.
So, what was the failure
of candor by the government
lawyers in Korematsu?
Remember, the justification
was, and I'm quoting
from the DeWitt report,
"pervasive loyalty among those
"disloyalty among those
of Japanese descent
"with no practicable way to separate
"the loyal from the disloyal
and there were instances
"of espionage and sabotage,
particularly cases
"of illicit radio and light
signaling along the coast."
The problem is that the
Justice Department knew
at the time that several
American intelligence agencies
had flatly contradicted
the factual underpinnings
of DeWitt's claims.
The Court was never told
of the contrary conclusions
reached by the Office
of Naval Intelligence
in the Ringle Report in early 1942.
The Ringle Report concluded that those
of Japanese descent did
not pose a serious threat
to national security.
The entire Japanese problem
it said, has been magnified
out of its true proportion
largely because of the physical
characteristics of the people.
The Ringle Report said
you can make individual
determinations of
disloyalty and recommended
that significantly.
The Court was also not
told that the FBI agreed
with the Naval Intelligence Services.
J. Edgar Hoover had personally informed
Attorney General, Francis
Biddle, that the necessity
for mass evacuation is based primarily
on public and political
pressure rather than
on factual data.
Further, the Court was not told
that the Federal Communications Commission
had informed the Attorney
General that there was
no evidence to substantiate
DeWitt's claims
of illicit signaling by Japanese Americans
on the west coast.
There were some heroes in this piece.
Two of the lawyers writing
the brief for the government,
Edward Ennis and his
assistant, John Burling,
attempted to add a footnote to disclose
and warn the Court that there
was contrary information
that contradicted General
DeWitt's conclusions.
They sent memos to Attorney
General, Herb Wechsler
and Solicitor General, Fahy.
Ennis emphasized the willful
historical inaccuracies
of the DeWitt report and
he stressed attorneys'
ethical obligations to the Court.
Burling sent a memo pointedly stating
that the FBI and FCC reports left no doubt
that what DeWitt said were
intentional falsehoods.
In the end, there was a footnote
in the Supreme Court brief,
but it had been edited beyond recognition
and it did not inform the Court
of this contrary information.
And so, the footnote,
in some ways, undercut
its intended purpose.
If that weren't bad enough,
Solicitor General Fahy
maintained the misleading government line
even at oral argument.
When he was pressed about
the government's reliance
on the DeWitt report
and the cryptic language
of footnote two, Fahy
denied that the footnote
was a repudiation of
the military necessity
of the evacuation.
The lack of candor in
Korematsu is all the more
egregious given that there
were no state secrets involved.
This was, it was not necessary to protect
the war effort to
withhold that information.
The same day Korematsu
was issued the Court
also issued a decision in ex parte endo,
which upheld the release from the camps
of interned people whom the
government conceded was loyal.
The effect of endo was
to lead to the closing
of the camps.
Why am I so certain about this?
Because there were three
later investigations
which concluded the same thing.
In 1980 there was a commission
on wartime relocation
and internment of civilians
established by Congress.
They reached the unanimous conclusion
that the DeWitt report was contradicted
by substantial credible evidence
from a number of federal
civilian and military agencies.
Second, the Ninth Circuit Courts granted
writs of coram nobis to both
Korematsu and Hirabayashi
and annulled the convictions.
They found that the government's omission
of relevant evidence and its presentation
of misleading information and a selective
record were deliberate.
They also noted that the government
was not confessing error.
The government eventually confessed error,
70 years after the event.
In 2011, acting Solicitor
General, Neal Katyal,
to his credit, issued
a confession of error
in goth Hirabayashi and Korematsu.
His confession of error acknowledged
that Solicitor General Fahy
had known about and withheld
the Ringle Report from the Court.
One might ask whether it
mattered at all to the outcome.
As a working judge, I tend to
believe that those disclosures
would have changed the outcome,
or, at the very least,
they would have changed
the reasoning in the
case and forced the Court
to be more honest about what it was doing.
So finally, what are
the lessons to be drawn
from this shadowing of the truth?
I think there is a tendency to think
that the Korematsu decision was a one of.
But, I don't think that's correct.
The case was taken, was
really about the actions taken
in response to an attack on this country.
We have no reason to be
confident there won't
be another attack on this
country from terrorists.
We have already been attacked once.
And so, the reactions
of the government during
the time period of the second world war
foreshadow the type of
reactions we will get
from the government in times of attack.
Indeed, the Supreme
Court has just accepted
in a Second Circuit case
involving the question
of whether very high ranking officials
are entitled to qualified
immunity for the choices
they made in setting up
policies after the attack.
We should not think
that the problems faced
in Korematsu will never recur.
We should not under estimate
the Executive's motivation
to protect the country
from terrorists attacks.
There are just enormous
pressures on that branch
to protect the public in times of war.
I don't think that the courts
are off the hook either.
The courts should recognize that pressure
and bear some responsibility
for determining
what the facts actually are.
Recently we've seen some
signs, Justice Breyer
in the Texas abortion
case, in which there was
very severe questioning
of the justification
offered by the state of Texas.
Linda Greenhouse writes about this,
about the importance of
actually understanding
the facts of the case.
The Solicitor General of
necessity, relies heavily
on the accuracy of what
the Supreme Court relies
heavily on what the
Solicitor General says.
In Clapper, the failures
probably came about
from the complexity of the
various surveillance programs
under FISA and the lack of information.
The SG confesses error
several times a year.
Almost always, it's too late.
And the Attorney General's
confession of error
does not overrule a case
which is wrongly decided.
My last lesson is the most
important and the simplest.
Truth matters.
It matters enormously.
It is the obligation of
lawyers to tell the truth
and to be accurate.
It's also the obligation of judges
to be honest and accurate.
The integrity of our system
of justice depends on it.
There's no room in the legal system,
and I'm going to quote the economist
for Post Truth Politics in
the Age of Social Media.
It is the job of the third
branch to get it right
and to allow a national
consensus on what is true.
We need to remember the
past so we don't repeat it.
Thank you very much.
(crowd clapping)
(mumbling)
- I just said to Judge
Lynch that not only was
that a wonderful lecture, but the subject
of the truth being forced to be unearthed
is a subject that can never be overdone.
It comes up in so many
different situations,
not only in the courts I might say,
but in the legislature
and the Executive Branch.
We have some time for some questions
if anyone has any.
So, if anyone has
questions now is the time.
- If anyone's interested, by the way,
Louis Ennis, the lawyer
who fought for the truth
went on to be head of the
American Civil Liberties Union.
- That was Ed Ennis, you mean.
- Yes.
- Ed Ennis.
(person asking question)
- Look, I trust our adversary system.
I'm not talking about
creating a new system
of truth gathering for
the courts, but I do think
a healthy skepticism which takes account
of the pressures the government is under
would be a wiser course of action.
Let me tell you a story which does not
directly answer your question, but it led
to why I talked about this issue tonight.
I was having dinner
with a newspaper editor
who had been given some information
from a lawyer which would
have led to the early
disclosure of a huge scandal.
The editor did not pursue
it and I asked him why
and he said, well,
everyone knows lawyers lie.
And I said, no, not all lawyers lie.
But, I had just read a
brief in which the lawyer
had lied to me.
And so, I didn't feel that I could just do
a general defense of the bar.
I do think we need to
reinforce this truth telling,
not just because it's
the right thing to do,
but because the consequences, especially
when the Supreme Court
is deciding an issue,
can be so horrendous.
Think of all of the Japanese
who lived their lives
for two years in those camps.
There is a federal judge
among them, by the way,
Wally Tashima, of the Ninth
Circuit Court of Appeals,
was interned as a child
in Colorado, I think,
where they worked on
the sugar beet fields.
So, any other questions?
Yes.
Okay.
- There's a question, someone back there.
Yes, miss, I got you next.
- [Questioner] Can you hear me.
- Yes.
- [Questioner] I was wondering if you saw
any similarities between
the story you described
in Korematsu and something
that's recently happened
regarding the mandatory
defection of immigrants
who are sorta mandatorily detained
for certain criminal conditions?
Supreme Court decided a
case 2003, Demore v. Kim,
where they upheld the constitutionality
of mandatory detention.
- And the Solicitor General recently filed
a confession of error as to
some of the factual data.
Sorry, I have that case
in front of me right now.
(crowd laughing)
Nice try though.
(crowd laughing)
- Yes.
- [Questioner] To what
extent might a District Court
be more active at say
uncovering the truth?
It strikes me this is crucial.
It's much more difficult
for a U.S. Court of Appeals
or the Supreme Court
say kinda one might say,
supplement the record.
And so, are you on one level
asking the District Court
to, for lack of a better
word, do a better job?
- Well, of course I am.
But, beyond that amicus
briefs teach us a lot
about a given area and I have found them
to be invaluable.
I was a skeptic when I
first went on the court
because I'd written a
number of amicus briefs
for bar associations
where they tend to say,
oh gosh, sex discrimination
is a bad thing.
Well yeah, it's a bad
thing, but that doesn't help
the court resolve the case.
But, more recently, I've come to the view
that really good amicus briefs are a way
of, if you will
supplementing the strictures
on the record before District Court.
You have to assume in Korematsu
that if Herb Wechsler and Fahy withheld
this information from the court,
they did so because
they thought it mattered
and they did so because they thought
winning the war and
supporting the military
was the more important objective.
And in some ways, that's
what I'm warning against now,
that that same syndrome could happen again
and I would just like the courts
to be more skeptical about it.
- Okay.
(muttering)
- [Questioner] Our
courts have the political
question doctrine and
because of that in Korematsu
the parties were not equal.
The Solicitor General was
arguing a political question
on Spades and the other side didn't have
an ability to challenge it.
So, is a remedy for these type of things
rethink the political question doctrine.
- Boy, you're not getting me to go there.
(crowd laughing)
One thing I've wondered about
is why the other reports,
the Ringle Report, the FBI
report, why the plaintiffs
never got a whiff that
those reports existed.
Today we have the public disclosure laws
and we have Twitter and
we have a lot of other
sources of information.
So, maybe we're equalizing things out more
because of the enormous
sources of information.
But then, the problem
becomes, what's trustworthy?
A lot of it's not trustworthy.
The Federal District Courts
do an awfully good job
on evidence questions and
keeping out of the record
information that's simply not reliable.
- Yes.
- [Questioner] Thank you very much
for coming, your honor,
enjoyed your lecture.
Just for your information,
I actually was in your class
the summer of 1960 as a student here.
I attended the very first lecture.
Thank you for your effort.
With all due respect I'm
gonna ask this question.
I note in reading here that you were,
it says here you've handled
numerous complex litigations
including the Wolverine Toxic tort case
described in a civil action because of its
fascinating literature that I've read.
- Actually, I wanted when
they made a movie of it,
for Jane Fonda to play me.
(crowd laughing)
- [Questioner] I appreciate that.
Did that case, your
involvement, without talking
about your involvement,
have anything to do
with withholding any information
on the part of lawyers?
That's my question, thank you.
- Not from the group of
lawyers I worked with.
Jerry Fasher, who's a
great litigator is quoted
in the book as saying, truth, what's truth
it's at the bottom of a deep dark well.
And sometimes I'm sort of,
I'm left with the feeling
that I don't know.
I can only make my best
understanding of it.
- Yes.
(crowd chattering)
- [Questioner] I'd like
to ask about the court's
obligation to try to
bring forth the truth,
would you favor some
kind of qualifying unity
for government employees who reveal truths
that their superiors would
rather not have revealed?
- I'm sorry, I have too
many whistleblower cases
in front of me.
- Judge, thank you.
This has been a terrific
talk and your exploration
in Korematsu I think
absolutely resonates today.
So, because you brought up
Justice Jackson's dissent
I wanna ask you about
another part of his dissent
that's I think, for any
reader a really very poignant.
On the one hand he dissents
from the outcome of the case
and would not have upheld
Korematsu's conviction.
But, in taking that position he urges
that people not think the
courts can be relied upon
to protect individual
liberties, especially
in times of war and
national security crises.
I think he's effectively
saying, it's one thing
for the government to invoke
the power of the courts
to prosecute someone in a case like this
and he won't abide that.
He won't underwrite what
the judgment of holding
the constitutionality of what
the government has done there,
but that the people ought not to expect
that the courts can regularly
be relied upon to restrain
the government including
presumably to insure
that the government is telling the truth
in times of war and
national security crisis,
especially when it's not
the government invoking
the power of the courts, but it would be
a private citizen trying to
invoke the power of the courts
to restrain its actions.
- Right.
- How does that factor into your thinking
about really the ability
of the court to insure
truth telling, especially in times
of national security crisis?
- You know, Winston
Churchill, talking about
the second world war
said, the truth is really
so valuable it has to be
clothed in a shroud of lies.
I'm sure many presidents feel that way.
As to Justice Jackson,
of course, he's right.
In many ways the courts have been asked
to take on the position of determining
the morality of a society
that's beyond our capabilities.
We can protect constitutional values,
but we don't exist to be
free standing arbiters
of the truth.
What's so odd is that
Jackson then goes on to be
the prosecutor in the Nuremberg trials
against assertions that
the rules were never
clearly set out and who is this group
coming to hold politicians accountable?
But, I suppose the Nuremberg trials also
demonstrate that societies can live
without their leaders
telling them the truth.
The outcome isn't good.
I once heard Gabriel
Lorka say something like
it's very important to draw distinction
between fact and fiction, that dictators
regularly use fiction to remain in power.
Those who oppose dictatorships
have to deal with facts.
- [Questioner] Did
Korematsu proceed breaking
was required that prosecutor
disclose information
favorable to the defense?
- Well, Korematsu's 70 years old.
I'm sure Brady has come more recently.
I'll tell you, given the
time I was able maybe
to cope with this topic,
that's a wonderful topic,
but it's well beyond my knowledge.
Yes, Bill Pinsler who was.
- When we were in law school Justice Clark
came to the school and
he was asked a question
about Korematsu, as we all
know if we were listening,
and he noted it was a
different time that they were
reports flying (mumbling).
My question is, according
to your research,
what happened at the District Court level
where a judge is obviously surrounded
by the community and
surrounded by great pressure.
Is there any interesting
thing in the decision
of the District Court that would indicate
anything other than
essentially (mumbling)?
- I don't know because
I didn't go back to read
that decision, but sociologists have done
a lot of work on the climate of the time.
And the climate of the
time was a sort of hysteria
about people of Japanese descent.
No attempted distinction was drawn
between citizens and aliens.
And I believe that
several states submitted
amicus briefs to the court in Korematsu
with a sort of something has
to be done about this problem.
And, Supreme Court, we
expect you to protect
the interests of the states.
The Dean is nodding, so
apparently, that's right.
(crowd laughing)
- Okay, I'll take one more question.
Someone, one more.
Yes.
- [Questioner] Thank you
for a wonderful speech.
I have a question, since
we are outlining law,
about what that might
be for legal education.
One theme that seems to be coming up is
that the person who has claimed the role
(mumbling).
- The Clapper case.
- [Questioner] Are there
lessons for how we should be
thinking about legal education
case law and doctrine?
- So, this is one of my law clerks.
A bunch of them are here.
I'm very grateful to them for being here.
I'm also very grateful for all the work
they put in on this.
And Dean, actually the
question is addressed to you.
(crowd laughing)
- Well, I think that's
an excellent question.
People in the back didn't hear it.
The question is, what
should this challenge
that the judge has posed to us about the,
I would say the fragility of the ability
to rely on truth claims
within the legal system.
What should that
vulnerability of institutions
like the judiciary teach us and how should
legal education respond?
That's something I want to
think a good long while about.
The insight I have at this
point is not insight thought
I have is that a great deal
of this can be enforced
externally except well after the fact.
These are the kind of
norms that we need to try
and generate self enforcement around.
And so, I would say that
a part of a really great
legal education is not
just in the classroom,
but it's in the lecture
hall in the evenings.
And if the current students
here today have taken away
from tonight, it's that
the ethics that we try
and impart (mumbling) there
he is, needs to be taken
seriously as the core
component of the professional
preparation we're trying to provide.
A lot of the sort of
insistence around truth telling
has to be self enforced
or internally enforced
in the first instance and
policed only imperfectly
and after the fact.
(mumbling)
It's not gonna always
capture all the times
that we fall short.
Sometimes the Solicitor General won't know
that he or she has been
hoodwinked until after the fact
unless some kind of insistence on the part
of those attorneys to
include that footnote
in the brief.
It seems to me, just as Judge Lynch said,
a tale of heroism and we
oughta celebrate here.
Norman, I'll leave it to you to close.
- Okay, thank you, Trevor
and thank you Judge Lynch
for an excellent Madison Lecture.
