John Sexton Interview (page: 4 / 6) Education & Law	Print Interview

Get the Flash Player to see this video. But, Warren Burger invited me to write bench memos that disagreed with him. I understand this is not the stereotype of Warren Burger. But he invited it, he welcomed discussion. There was this one great case -- and he authorized me to tell this story -- it was called Michael M. v. Superior Court, it came out of California, the Rose Bird Supreme Court. And the facts of the case were that a young man, 16 years old, and a young woman 17 years old, had had consensual intercourse. And under the California statute, he was prosecuted for statutory rape. She could not be -- even though he was younger, and she seemed, on the facts, to be the initiator of the intercourse. The Rose Bird California Court declared it unconstitutional. Now this was the same year that the all-male draft was being challenged by the National Organization of Women. And I had been trained, you know, at Harvard Law School by Larry Tribe, and I knew an Equal Protection violation -- you know, you stereotype women, even if it's to their advantage -- you know, I knew the whole argument. And so, I wrote my bench memo on Michael M. to affirm the Rose Bird decision. And then I said, "Let me see if there's any case out there that the briefs have missed." And I found a First Circuit Court of Appeals opinion by a very good judge -- Frank Coffin, a person we lionized at Harvard Law School. And, sure enough, his analysis was the same as mine. So, I said, "This is good. I get an A+ on this paper." It's the first bench memo ever I did for the Chief Justice. And I said, "Let me just check to see if they appealed to the Supreme Court." And lo and behold, they had. Coffin's decision had been appealed to the Supreme Court, and certiorari had been denied. But Burger and Rehnquist had dissented from the denial of certiorari -- and they had indicated that they would have granted certiorari to review it, and they would have summarily reversed it. They said that publicly. They didn't even have to hear the case. It was so wrong, in their view, they would have just reversed it without hearing arguments. So here he was, exactly 180 degrees from where I was, on the public record, about eight or nine years earlier. And I had this crisis of conscience: What do I do? And I ended up putting in the first paragraph, "Sir, you're on record on this -- " -- and so on. And I put my bench memo in unchanged. I said, "I hope, on reflection, you'll see this as the better analysis. This is what I would urge."

[ Key to Success ] Integrity

Chutzpah.

John Sexton: Chutzpah, perhaps. First Monday, of course -- it's always a Monday.

Get the Flash Player to see this video. On Saturdays he had the habit of coming in, and he would always make soup for us from leftovers from the night before, and the four of us would get together, and he would tell stories. And he'd already discussed the three cases of my co-clerks for First Monday -- there were four cases. No discussion on Michael M. And as we're getting up after the stories, he said nothing. And I said, "Chief, could we discuss Michael M.?" And he looks at me, he says, "You mean that case you got so wrong?" And I said, "Yes." And he said, "Sure." He said, "Come on into the chambers" -- into his inner office. He said, "You'll just get me ready for Brennan." And I went in, and he took this piece of my work -- you know, eight-and-a-half by 11, about a 20-page memo. There's a big zero in felt-tip pen on the first page. And as I paged through it, different -- in the margin -- there's these balloon question marks, some big, some small. He says, "You see those question marks?" He says, "Whenever I disagree with something, I put a question mark." There must have been 30 question marks in this memo. He said, "The larger the question mark, the more I disagree." And he turns back to the zero, and he points at it, and he says, "That's the period at the bottom of the question mark." I said, "Oh my God." So I said, "Sir, could we discuss this so that I get instruction, at least." And so, he says, "Oh, of course." He said, "Come on. Come on." And we started discussing it. And I have to tell you, for years -- now the guards have changed -- but for years the guards remembered the shouting match, because they could hear it through the double doors. And I had gone into a zone. I didn't realize what I was doing. It's the Chief Justice of the United States. He's across -- he's closer than we are. And we're shouting, and he's beet red, and I'm shouting back as if I'm in an argument with my brother-in-law or something.

[ Key to Success ] Passion

Get the Flash Player to see this video. And finally, I make the stereotype argument. And he pounds the desk, and he says, "I don't care if it is stereotype. The fact of the matter is that female virginity is different from male virginity. And someone's got to stand up for basic values. And I'm going to draw the line, and this is where I'm going to draw it." And he's beet red. And, I mean, his argument sounded to me preposterous. And I looked at him. And without realizing what I was saying, I said, "Sir, is that why you feel the way you do about this case? Or is it because guys like you wanted to marry virgins?" And I had no sooner said the words -- I said, "Oh, my God, if he fired me on the spot, he would" -- and I could see the white come down his face as the blood drained. And it seemed like an interminable length of time. And he looked at me and he said, "Didn't you want to marry a virgin?" And it just broke the tension. And he looked at me and he said, "Stereotype. Stereotype." He said, "Don't stereotype me." And he didn't change his vote on Michael M., but it changed our relationship. And I knew from that moment on that he welcomed disagreement. And a book like The Brethren overemphasizes the importance of law clerks, because law clerks were the source of the book that Woodward and Armstrong did. But I'll tell you, I know of cases where conversations he had with the clerks -- and, in one case, with me -- where he did vote differently, even after he had cast his vote in conference, and had assigned the opinion to himself. When he struggled with the opinion, the conversation continued. He switched from 5-4 in one direction, to 5-4 in the other direction, from the initial -- he said, "I'm going to keep the opinion," and it ended up being 7-2; in other words, two other Justices, also upon -- and that gave me great belief in the dialogic process of the Supreme Court at that time -- which has lived with me. You know, it's a genuine process. And it's not what happens in so much of our society, where people are just exchanging slogans, and voting conclusions, and then looking for the reasons and the answer to it.

[ Key to Success ] Integrity

Do you still hold that view?

John Sexton: I have to say that I do hold that view. I can speak to the judge with whom I worked. I can speak about the Justices that I know. I think I know the methods and the thoughts and the thinking of someone like a Sandra Day O'Connor, someone like a David Souter. These are people that engage in the kind of dialogic process that I'm thinking of.

And, by the way, I would say that most of the present Supreme Court, if not all -- I can't speak to all -- but I feel comfortable saying that most of them approach their work with an open mind, and with a sense of the importance of the institution and the rule of law in what it's doing.

How did your appointment to head NYU Law School come about?

John Sexton: Well, I really hadn't done much when I was chosen as Dean of NYU Law School. I was a high-risk choice. I graduated from law school in '79. I clerked for the two years in Washington. I came to the NYU faculty in '81, and I was named dean in '88. So I was really, when I was named, only eight years out of law school. I was one of the three or four most junior members of the faculty.

And NYU Law School already was a very good law school. It was clearly one of the 15 or 30 schools that could claim to be in the top ten. And it felt good about itself. And my message was not very popular to the faculty, because the school had undergone a tremendous movement and transformation in a positive direction to get to the point where it was, and it therefore understandably was content and satisfied with that.

Get the Flash Player to see this video. But I had come in relatively new, and I said, you know, "We could be still better, and we're probably not as good as we think we are, because people tend not to be sufficiently self-critical. And the way to do that is for us to come together as a community, and that means not being out of the building." And this meant that the faculty had to be present all of the time, and that we would move away from the practice of faculty being out as of-counsel to law firms -- which meant that the faculty, by giving those positions up and returning to be with their students and their colleagues, it meant huge financial sacrifices. Many of them were making multiples of what they would be paid as professors. But it was a calling to them -- it was a calling to them to the wonderful rewards of being in a learning and creating community. It wasn't a call out of the world of practice. I said, "Do all the cases that you want to do, but do them in the building. If you're good enough, the cases will come to you -- whether they're pro bono cases or remunerative is inconsequential, as long as you do them with colleagues and with students as laboratories of learning and you're engaged in the building."

[ Key to Success ] Vision

Get the Flash Player to see this video. And, it was very interesting, because this community of men and women responded to that. It was not obvious in the beginning that they would. And that began to develop a kind of social compact theory of what it was to be a faculty where, instead of acting as independent contractors -- I mean a tenured professor can, if he or she chooses to be -- be the ultimate independent contractor. I mean, you literally don't have anyone to whom you report. You report to your conscience. And this was a call to become reciprocally obligated to each other: to be present, to read each others' work, to be there for students, and so on. And the bet was that there were a sufficiently large number of the very best people in the country who wanted that community, and the dividends of a social compact. And it turned out the bet was a good bet. And it stimulated a migration of faculty from the leading law schools in the country to NYU of people who cared for that, and didn't find it as much as they liked in their home institution. So, over the course of a decade, because of that migration -- and then what followed from the observation of what came from that community. I mean, what I'm good at is being a noticer. You know, I notice sometimes what people are doing before they do. And I can make some connections between what people are doing, sometimes before the people make the connections. And then I'm a good storyteller, so I would create a story, or a mythology -- in the best sense of that word "mythology," the Aristotelian sense, where myth or poetry carries the real truth. And it created a terrific move for NYU Law School to where, today, some people outside NYU would call it the leading law school in the world.

I think everybody would say it's one of the leading law schools; one of the small handful of four, five, or six leading law schools -- depending upon what your interests are, this is the place to be -- either as a faculty member or as a student.

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