Back in the late-1990s, when I was somewhat on the rise at Sports Illustrated, a kid came along who made me feel awfully ordinary.
Jamal Greene was quiet and soft spoken, which didn’t do a person particularly well at the magazine. But if one paid close attention, he realized he was in the presence of a brilliant young scribe. Jamal was was a skilled writer and an even more impressive observer. Baseball was his sport, and he looked at the game from an intellectual level that I often failed to master. Although many of us were territorial and protective of our places at the magazine, I was certain this Jamal Greene fella was destined to be a star.
Alas, some editors failed to see it that way. For reasons I’ll never fully understand, a handful of power brokers determined that Jamal couldn’t cut it at SI. To my dismay, he ultimately left, destined to a wayward life of ambition-less hardship and meaninglessness.
Orrrrr … he’d graduate from Yale Law, then become one of America’s leading legal minds.
These days, Jamal serves as Columbia Law School’s Dwight Professor of Law, where he focuses on the structure of legal and constitutional argument. He has penned dozens of law review articles and can regularly be heard speaking on issues related to the Supreme Court.
In the 320th Quaz Q&A, Jamal’s discusses his brother (Talib Kweli, the hip-hop superstar), his president (“generally sociopathic disposition”) and his willingness to endure the music of Bananarama. One can read more about Jamal here, and follow him on Twitter here.
Jamal Greene, to hell with SI, to hell with Columbia. You are the Quaz …
JEFF PEARLMAN: So Jamal, you’re the Dwight Professor of Law at Columbia Law School, and you focus on the structure of legal and constitutional argument. Lately there’s been growing national dialogue on whether our democracy, our government can survive the Trump Administration. Or, to be blunt, I’m sorta terrified that something is fundamentally changing in a very bad way. What says you?
JAMAL GREENE: I am less worried about the Administration itself than what Trump’s election says about American democracy. Although many of the specific actions Trump has taken were not predictable, his intellect, his temperament, his history of scams and failures, his mendacity, his sexism and racism, and his generally sociopathic disposition were all well-known at the time of his election. He beat a distinguished (if boring) public servant. Any nation whose electoral process can legitimately elect Trump under those circumstances is one whose politics are broken at the core. We will survive Trump—I doubt he serves a full term—but someone like Trump, or worse, is in our future unless we become less polarized and fractured as a people. We have actually gotten lucky that Trump is incompetent. Our luck may run out with the next demagogic candidate. I am not optimistic.
J.P.: We first met in the late 1990s, when you worked as a reporter at Sports Illustrated. And I always thought you were done wrong at the magazine; that you were this young kid with oodles of talent who wasn’t given an opportunity. Looking back, I wonder how you feel? And what did you take from your time there?
J.G.: I appreciate the sentiment but I have a different view. I think there are things I am talented at, but I don’t think being a sports reporter was one of them. I have always liked to write, but I didn’t much like the reporting part, which is the meat of the job. I didn’t enjoy talking to athletes and agents, building relationships, or chasing stories, and I wasn’t good at it. I was an unreformed introvert in a job that doesn’t reward introversion.
I agree that I had a fairly short leash at the magazine—that is, there are folks there who gave up on me relatively early in my short career there (in addition to many who didn’t)—but I think they made the right call and I have no resentment at all. In fact, I have very fond memories of and great respect for the people I got to work with at SI. The fact that I enjoy my current work and unquestionably made the right decision for me in leaving gives me the luxury of having no resentment, but I think I’m right on this. Legal academia is a better fit for my skill set.
J.P.: From the little-known-fact department: Your brother is Talib Kweli, the famous hip-hop artist. I find this ludicrously fascinating; the widely divergent paths of siblings. What was your relationship growing up? What is it now? Did you see this coming for him? Would he say he saw it coming for you?
J.G.: My brother and I lead very different lives but the view from the outside looks more divergent than the view from the inside. We were very close growing up, right up until he was about 11 or 12 (he’s two years older). That was the point at which we started going to different schools. He went to a magnet school in Fort Greene, which was then a gang-riddled neighborhood. I went to a school for mostly nerds on the Upper East Side. He got into hip hop and I got into Harvard. The worlds each of us live in have very different norms, different pressures—he is constantly on the road—and different measures of success, and so the paths we have traveled have led us apart. But we have always gotten along and share the same basic set of values. It is fair to say that I did not expect him to be an internationally renowned hip hop artist, because who has those expectations for anyone? I have no idea whether he is surprised that I am a law professor, but I would guess not. I was always comfortable in academic environments, much more than I am outside of them.
J.P.: In 2006-07 you were a clerk for John Paul Stevens. We always hear “so-and-so clerked for so-and-so,” but I don’t think I’ve ever thought about what it actually is to clerk for a justice. So what is it to clerk for a justice? What does it entail? And what can you tell me about Stevens? What is he like, just as a guy?
J.G.: Law clerks are the substantive right hands of a judge. Typically, they write memos informing the judge about the issues in the case, they offer recommendations, they act as sounding boards, they draft opinions. Clerks are (almost) never final decisionmakers, at least not at the Supreme Court level, but they often play a substantial role in framing issues and facts and so can end up very influential.
I think the influence of clerks with Justice Stevens was less than for almost any of his colleagues, for the simple reason that he structured the job to ensure that that was true. The main jobs of Supreme Court law clerks are three: (1) to screen cert petitions, which are applications to have a case heard by the Court, (2) to help prepare the judge for cases on the Court’s docket, and (3) to help write opinions.
Justice Stevens was, at the time I clerked for him, the only Justice who had his own clerks individually screen every one of the 8,000 or so petitions. The others participated in what is called the “cert pool,” where clerks from all of the eight participating chambers draft a memo on petitions that is shared with the participating chambers. Justice Stevens did not want his decisions to be influenced by the pool memos, so he didn’t participate. He also didn’t want his decisions to be influenced too much by his clerks, so when we thought a petition was important, he just wanted us to flag it for him very briefly—no elaborate memos—so that he could look at it with fresh eyes. On case preparation, most judges ask their clerks to write a lengthy “bench memo” describing the issue in the case, the lower court opinions, the arguments in the briefs, and a recommended outcome. Justice Stevens did not want any bench memo. He prepared for cases on his own and would just have an oral conversation with the clerk assigned to a given case some time before the case was argued. Again, he wanted to ensure his own independent thinking. On opinions, he always wrote the first draft of opinions. I’m pretty sure he was the only Justice who did that as a matter of principle. Personally, Justice Stevens is about the kindest, most humble, and most delightful brilliant person one can imagine. I doubt you would find anyone who has ever met him who would say otherwise.
J.P.: I know you’re from New York, I know attended Harvard, then Yale Law—but why this path? Why law? Why constitutional law? Did you have an ah-ha moment as a kid or teen? A light bulb moment? In short, why are you here?
J.G.: I didn’t know I wanted to be a legal scholar until after I started law school. For most of college, I wanted to be a journalist, and I put in a lot of hours at The Harvard Crimson trying to make that possible. I took the LSAT exam my senior year of college—after I already had my SI job lined up—just as a backup. Those scores were valid for five years.
I told myself that if I didn’t see a promising career in journalism in the next three years, I would go to law school. And that’s basically what happened. I think 9/11 pushed me a little bit—I just stopped caring about sports. Plus, as you’ll recall, SI underwent some changes after the AOL-Time Warner merger that made the product more sensationalist and pandering than it was before. That rubbed me the wrong way and made me feel like I just needed a fresh start. Law was something with some real intellectual content that also opened some possibilities for gainful employment.
Once I got to law school, I knew by my second year that I wanted to teach. The biggest thing for me, as a former journalist for a big magazine, was that I could write what I wanted and how I wanted to write it. A standard legal academic article is 25,000 words. You write the argument you want to write about until you think the argument is finished. No boss. No subscriber. The tradeoff is you get a lot fewer readers. I’m still searching for the middle ground between that and a 400 word article on the Brewers second baseman’s tattoos, but I like where I am right now.
J.P.: You wrote “The Age of Scalia” for the Harvard Law Review, and he’s one of the judges who truly fascinates me. I remember when he died, I was at my daughter’s Bat Mitzvah and someone—inappropriately—let out a yelp of glee. He was so beloved by one side, so abhorred by the other. But how do you view his ultimate legacy and impact?
J.G.: I recommend anyone read the article for the full picture, but in brief, I think his legacy is multifaceted. He was very influential among legal scholars. He is the single person most responsible for the prominence of originalism—the idea that the Constitution means the same thing now as when enacted—and that has generated a huge scholarly literature. He also had a very charismatic and sharp writing style that has given his ideas a greater reach into the broader culture than any of his contemporaries on the bench. On the court, he has been an important interlocutor on issues of statutory and constitutional interpretation, and his dissents were justly feared. He made his colleagues better, which is a pretty nice legacy.
That said, his impact ended up somewhat limited by the fact that he promoted relatively uncompromising positions. Legal interpretation at the Supreme Court level is messy and is beset by lots of reasonable disagreement. You just can’t get that far by being doctrinaire about methods. Justice Kennedy and Chief Justice Roberts have gotten further in less time because they are more flexible.
J.P.: How is it OK for Clarence Thomas to never ask questions? I know that sounds simplistic, and perhaps it is, but I’m always bewildered by this. Is it a lack of curiosity? A love of listening? A preference for silence?
J.G.: I have defended Justice Thomas’s silence in the past and I will continue to do so. He has said that he doesn’t talk because he wants to hear the lawyers speak. Although I think that reason probably doesn’t justify almost never speaking, I think it is a generally sensible position to take—especially for him—that I wish more of the Justices took.
It’s important to bear in mind that oral argument matters but is far from the most important input into a Supreme Court decision. Most of the decisions get worked out based on the written briefs. If you listen to arguments from the 1980s and earlier, you hear lawyers explaining their positions to the Justices, often for minutes at a time, with occasional questions from the bench. Arguments today are dominated by rapid-fire questioning from the eight Justices other than Thomas. It is common, even expected, that lawyers will not be able to answer questions they receive from one Justice because they are interrupted mid-answer by a different Justice. This is no way to hear a serious constitutional argument, in my view. And since eight people interrupting each other is quite enough, I respect Thomas for deciding not to be the ninth. I say it is an especially sensible position for Thomas to take because his views are so often on the margins of the case, and he tends to be quite uncompromising. Oral argument is most useful for the Court to work through a set of precedents that Thomas often ignores or is uninterested in because of his particular philosophy.
J.P.: This is sorta random, but you’re a law professor at one of the finest institutions in the world. You have the best, the brightest, the sharpest, the most accomplished. And I wonder—do you see social media impacting your students in negative (or positive) ways? I mean, I just teach journalism, and I’m eternally forcing students to put their phones away, to get off Twitter, Snapchat, etc. Is that even an issue for you?
J.G.: Many of my colleagues ban laptops from class in order to avoid having distracted students. I respect this position, especially since the distraction can be a distraction for other students as well, e.g., the ones sitting behind the “offender.” Still, I don’t ban laptops myself. I teach adult students who need to have the judgment to know when they need to pay attention to me. I doubt most of them can do well in my class while distracted, but I feel like it’s their decision to make. I warn them in advance about it, but I don’t go further than that. It might be somewhat less of a problem in law school than in other schools, since we cold call students, but I have no doubt that students sometimes tune out. I think we’re too far into the social media age for me to put the genie in the bottle during my class. My job as a teacher is to make class more valuable than its alternatives.
J.P.: How are we supposed to feel about the Merrick Garland affair (for lack of a better word)? Does it go down as a blip on the radar, or is a fundamental destruction of how judges are traditionally appointed to the court?
J.G.: I think it crossed a red line that can’t easily be uncrossed. The second we see a Republican president with a Democratic majority in the Senate, we are likely to see retaliation. I think we need a dramatic reset of the judicial nomination process. If I had my druthers, I would take it out of presidential control entirely (which would require a constitutional amendment). Many countries have a commission with a balance of political types and judges. I’d favor that here. The idea that a president and a bare majority of the Senate can give a lifetime appointment to a Supreme Court Justice is disquieting in the polarized era we live in. When politics is broken like this, we should try to limit the damage.
J.P.: Another weird one—at this moment I’m reading Robert W. Creamer’s biography of Babe Ruth. It’s riveting, beautifully written, absorbing. You, on the other hand, must read a trillion legal papers, briefs, decisions every year. Do you enjoy the material? Do you view it as a dry-yet-necessary part of the profession? Because, Jesus, I couldn’t do it …
J.G.: I like reading good legal academic work, which is most of what I read. I think you’ll find the same is true among most law professors. Some of it can be very well written—Charles Black comes to mind, for example—but at bottom you read it for the quality of the ideas. I don’t read as many court opinions as you might think, and fewer legal briefs. Many of these are not exactly pleasure reading, but you’re reading them for information, and with practice it can be done quickly and relatively painlessly.
QUAZ EXPRESS WITH JAMAL GREENE:
• Rank in order (favorite to least): Jim Kiick, Mos Def, arugala, Steve Cannella, Mark Tushnet, Luis Sojo, William Cushing, iced cinnamon almond milk macchiato, Cornel West: Steve Cannella, Mos Def, Cornel West, Mark Tushnet, Luis Sojo, William Cushing, arugala, iced cinnamon almond milk macchiato. I don’t know who Jim Kiick is.
• Three strangest memories from your time at SI: 1) The magazine ran a photo of Darryl Strawberry, then retired, standing next to a woman in a swingers club. This photo had no news value. It was pure clickbait. But it ended up imperiling Strawberry’s return to baseball. A few days after the photo ran, he suffered a drug relapse and crashed his car. Has to be one of the low moments in the history of the magazine and I am ashamed that I had anything to do with it; 2) Enjoying taco night at the home of ex-Astros and Tigers catcher Mitch Meluskey (where he lived with his mom), in Yakima, Washington. I was doing a story on him. As I was leaving into the pitch blackness to find my car, he told me that his last dog “don got ate by the coyotes.” Right on cue, I hear howling coyotes outside; 3) You returning from your interview with John Rocker and telling me what he said.
• Would you rather sit in a room for 54-straight hours listening to the music of Bananarama or change your name to Daniel Habib Horseradish-Chairguy III?: Bananarama.
• One question you would ask Joe Klecko were he here right now?: Who are you?
• Does climate change ruin the earth and cause our great-great grandkids to die horribly?: Some of them.
• In exactly 22 words, make an argument for Melville Fuller: Fuller presided over the Lochner Era, when the Court made lots of mistakes but, for the first time ever, took rights seriously.
• How did you propose to your wife?: I surprised her in her parents’ kitchen and proposed in front of them.
• Three memories from your first-ever date?: I don’t know what my first-ever date was. Seriously. As to my first date with my wife, I remember that (1) she emphatically did not consider it a date, (2) we had Ethiopian food, and (3) she wore blue, the Germans wore grey.
• If you had to take five justices for your all-time fantastic name justice list, you’d pick …: Rufus Peckham; Bushrod Washington (nephew of George); Henry Billings Brown (author of Plessy v. Ferguson, which was later overruled by … the Brown case); Salmon Chase; Lucius Quintus Cincinnatus Lamar II.
• On a scale of 1 to 100, how much to you fear your own mortality (100 being you can’t stop thinking about it)?: 10