I. Separation of Powers

For two centuries Congress has prosecuted conspirators to murder American citizens through Article I, Section 8, Clause 10 of the U.S. Constitution, which gives Congress the authority to “define and punish Piracies ... and Offenses against the Law of Nations.” On November 13, 2001 President Bush declared it necessary to try non-citizens suspected of these crimes under military tribunals with congressional authorization a decision you have adamantly opposed. In your view, has the executive branch overstepped the federal judicial and legislative systems to try terrorists?

I think the military commissions experiment has proven to be a failure. I think that Guantanamo has proven to be a failure, and having military commissions on Guantanamo has been of dubious value to the administration. The government has not succeeded in having trials or delivering any sort of credible justice the world can respect. Military commissions by their nature adopt a truncated procedure; we criticize them when other countries hold them. And the truth is, that almost six years later, we’ve had no trials completed.
What the administration should learn from this is that hard power military power is only part of America’s strength. The greater part of our power is our moral authority. Hasty decisions to rush into these kinds of efforts hurt our moral authority and turn out to be both unnecessary and ultimately counterproductive.

In January 2005, at Attorney General Alberto Gonzales’ confirmation hearing, you spoke against the Bush admin-istration’s use of torture, describing an opinion on executive power as “perhaps the most clearly legally erroneous opinion I have ever read.” Has executive power stepped over court-created boundaries on torture? If so, in what ways can this situation be rectified?

That 2002 Justice Department opinion has been withdrawn because it was so obviously wrong. It said three things: first, that torture, or acts that we understand to be torture, are not really torture after all. The opinion defines torture so narrowly that many things that should be considered torture would not be treated as torture under the Justice Department definition. Second, it said that American officials who commit torture under the orders of the commander-in-chief would be immunized for their actions. Under their reading, an American official could also be immunized for committing genocide, and that seems simply wrong. Third, it effectively said that people who were committing torture could invoke a kind of “following orders” defense. And that was exactly what was rejected at Nuremberg. At the hearing, I said that an opinion so wrong — that says acts of torture are not really torture, that torturers can be immunized, and that Nuremberg can be eviscerated — must be one of the most legally erroneous opinions I’ve ever read. I don’t think the Justice Department has really disputed my objection, because they’ve now withdrawn that opinion as unsupportable.

Since then, Congress has tried in a number of respects to reinstate the definition of torture in adopting the Detainee Treatment Act, with the McCain Amendment and the October 2006 Military Commissions Act, but I think the legislative situation remains very much unsettled.

In an interview last January, President Bush said that the president can’t order torture. My position is simple: the Constitution recognizes the president as commander-in-chief, not “torturer-in-chief.” Once the president crosses the line from being commander-in-chief to being “torturer-in-chief,” he crosses the line from legal to illegal conduct.

In Hamdan v. Rumsfeld, the Supreme Court rejected the government’s interpretation of Hamdan as a person outside the law. The case has been interpreted by many as a landmark decision because of its placing limits on executive power in the War on Terror. In your opinion, what does this case mean for the executive branch and its relationship to a supervisional judicial branch?

I recently wrote an article in the Yale Law Journal saying that Hamdan is the most important case on executive power decided in the last fifty years. I think it will be a very important case for the future. And the reason it’s important is not so much for what it says, but for the broader way that it looks at the separation of powers. In Hamdan, the President tried to invoke a very vague source of statutory power to claim a very general license for him to try a detainee outside our civil justice system. The Supreme Court rejected that reasoning, making clear that Congress’s statutes enacted after September 11 are not a blank check, and that the emergency power should not be generally invoked as a reason for ignoring our constitutional system of checks and balances. The Court made clear that enemy aliens do have rights, and that we should not be accepting broad restrictions on people’s civil liberties when Congress has not imposed such restrictions with a “clear statement.”

And the rationale of the opinion, if read carefully, undermines three recent rationales put forward by the executive branch. It undermines the claim that we can try people in the absence of statutory law. It undermines the claim that executive officials can commit torture in the face of statutes to the contrary. And it destroys the argument that the president can order warrantless wiretapping of domestic conversations in the face of the explicit provisions of the Foreign Intelligence Surveillance Act. So I think the Hamdan opinion is extraordinarily important.

II. The U.S. Supreme Court in a Globalizing World

Is the Supreme Court adapting to the demands of a changing and globalizing world? What role should globalism play in the Court’s current decision-making?

My view is that the Supreme Court exhibits two schools of thought on this question. One is a “nationalist” school of thought which says essentially that U.S. judges should construe the legality of actions that take place within a larger global system with a narrow focus on what happens within our borders. The other view is a “transnationalist” view, which says that judges should decide cases that touch on international affairs mindful that we are part of a global system. Ironically, the transnationalist view, not the nationalist view, represents the originalist position in our constitutional history. John Marshall, the great chief justice, served also as secretary of state. John Jay, the first chief justice, was an ambassador. When the United States was a small country, we necessarily had to be more respectful of what other countries did. The Declaration of Independence says that we should give “decent respect to the opinions of mankind.” Currently on the Court, there are four transnational justices: Justices Breyer, Stevens, Ginsberg, and Souter. There are probably four who are nationalists: Justices Alito, Thomas, and Scalia and Chief Justice Roberts. And the ninth justice, Anthony Kennedy: we’re still trying to figure out exactly where he stands, though he has tended in important cases to side with the transnationalists. So right now, the majority of Supreme Court Justices are transnationalists.

In my view, this is incredibly important for the changing world. The United States is part of a much broader globalizing legal system. We don’t make rules for the Internet that just affect the United States anymore, our assumption is that they apply to the rest of the world. We don’t make rules about electronic currency that just affect the United States anymore; we assume that they apply to the rest of the globe. So if we’re trying to link up to global standards with respect to communications and markets, we should do the same in law as well.

You have been outspoken on the subject of capital punishment, alluding to a shift in your own views on the subject over the years. If at all, how should the Supreme Court consider prevailing international guidelines in its rulings on this contentious topic?

I think the real question is whether there should be a death penalty and whether it is in fact helping to serve our national interests. Take the recent execution of Saddam Hussein. Here was someone who was clearly guilty of terrible atrocities. Yet the way in which he was executed exacerbated political divisions, and its rushed nature undermined its legitimacy. It became an embarrassment. Now if the execution of someone who is so clearly an evil person ends up with such mixed results, what happens if you’re executing people whose guilt is in doubt?

I go back to the fact that nearly all of the countries in the world that we consider to be our peers have all gotten rid of the death penalty they have done without it, without losing anything. The question is: can someone make an argument that the death penalty is serving important social purposes? Is violent crime declining in this country because we retain the death penalty? Are would-be criminals really being deterred by our having the death penalty?

One thing that has really affected my view is talking with people who are very close to me who have been victims of these crimes they have made it abundantly clear that even if they were killed, they would not want the death penalty to be applied to the people who attacked them. So if the very people who were attacked don’t want the death penalty to be administered to their attackers, why should outsiders, third parties, have a right to carry out that penalty in their name?

I think we would be a better world and a better country without the death penalty. The death penalty has nearly been eliminated in this country several times, but each time, a war intervened and the death penalty has survived. I happen to believe that “Thou shalt not kill,” should apply not just to people, but also to governments.

III. The Blackmun Court

Justice Harry Blackmun wrote that “in order to get beyond racism, we must first take account of race.” What is Yale Law School doing to take account of race? Currently there are no tenured Hispanic professors and very few tenured female professors of color. What has been your approach to working toward a balanced faculty?

I take your point. This is a school that is diverse and looking for faculty who represent all communities. We are long past due having an Hispanic professor. A lot of people here agree, and we’re working hard on a solution. To make a formal faculty appointment takes a considerable amount of time. It involves searches, it involves people visiting, and it can often take several years from the time when a candidate is first identified until the time that we make and finalize an appointment. Our own students may ultimately be the best source of future candidates who will solve this problem.

When I first came to Yale Law School there were very few Asian professors, but now there are quite a few, which proves that the numbers can change quite quickly. I am wholly committed to addressing this issue, and I think it’s very important that we work on this aggressively.

In the years following Roe v. Wade, Justice Blackmun filed separate opinions in 1989’s Webster v. Reproductive Health Services, warning that Roe was in peril. He said, “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.” Which of the two worlds will the Court choose when it comes to partial birth abortion? What ramifications will the Court’s choice have on the future of Roe?

Before Justice Blackmun retired, the Court also decided Planned Parenthood v. Casey, in which the justices reaffirmed Roe. And the key part of Casey turned on three justices: Kennedy, Souter, and O’Connor, who said that sometimes society needs to maintain stability around a legal rule. To change back and forth would disrupt social expectations.

When Justice Blackmun retired in 1994, he noted that since Roe v. Wade was decided, an entire generation of women had grown to adulthood under its protection. I think it would be traumatic to change that situation now. So I understand that the issue is still highly contentious. Many people feel differently about what they should do in their personal lives and what they are legally free to do. I really don’t think that a legal move away from Roe is desirable at the moment.

You compiled the remarkable oral history of Justice Blackmun. What personal lessons did you take away from your interviews with Justice Blackmun?

Justice Blackmun was an inspiration to me in at least three ways. First, here was a man who distinguished himself in many ways. He was an outstanding student, lawyer, general counsel, and judge. He arrived at the Supreme Court when he was sixty-one years old, yet he was still open-minded enough to change and grow. That’s very impressive. Some people, as they grow older, begin to close their minds and screen out different perspectives. But to maintain that open-mindedness is certainly a virtue I admire.

Second, Justice Blackmun had an amazing ability to see the world through the eyes of those he called “the little people.” Even though Justice Blackmun became a very powerful man, as he became more powerful, he became more sensitive and more aware of the outside world. It’s very easy when you’re in a position of authority to forget that there are people who are suffering. Justice Blackmun, I think, looked outside the marble palace of Supreme Court and heard the voices of the disempowered the poor, the children, the aliens.

The third thing I learned from Justice Blackmun is to look to the future. The world is changing fast, and one element of having an open mind is seeing what’s going to be important as the decades unfold. Globalization will be important, obviously the Internet is important, systems of law will emerge that cut across generations, and new global cultures will emerge. Students will have a completely different experience than their professors have had. All this suggests that we really should not insist on originalism as a guiding lamp; it is the spirit of the Constitution that will remain a guide in changing times.

In all of these ways open-mindedness, looking out for the outsider, and making adjustments in a rapidly changing world I learned a tremendous amount from Justice Blackmun.

You’ve quoted Justice Blackmun’s belief that “compassion need not be exiled from the province of judging.” In your view, has the Court succeeded in balancing compassion with jurisprudence?

Not always. What was Justice Blackman saying? He’s saying that we should remember that judging is not purely an intellectual exercise; it’s a human exercise. People who are in powerful positions have to view the litigants before them as people with a voice. And they have a responsibility to listen to them and to take thoughtfully their points. So when he says, “Compassion need not be exiled from the province of judging,” he is saying that when you become a judge of course you must apply reason, but it is not also required that you stop being a compassionate person.

Mahatma Ghandi was a compassionate person, Nelson Mandela was a compassionate person, Martin Luther King was a compassionate person, and they were as smart as can be. Judges are not intended to be mechanical calculating machines making coldhearted decisions without compassion. “Don’t judge without human consciousness” was really the message that Justice Blackman was delivering.

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