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Washington College of Law
Stephen Gerald Breyer, U.S. Supreme Court Associate Justice
May 18, 2008
I am pleased and honored to speak to you here at American University 's Washington College of Law. In my own mind, I automatically associate the Law School with public service. I think of your Dean, Claudio Grossman, who has dedicated his professional life to international human rights and has also helped cement the Law School 's rightful place among the Nation's great institutions of higher education. I think of Washington College of Law alumni such as Senator Robert Byrd of West Virginia, the longest serving Senator in our Nation's history, who, while serving in the Senate, earned his law degree from your law school after ten years of study in night classes. And I think of Ellen Spencer Mussey and Emma Gillett, two pioneering women who sought to provide opportunities for those historically outside the mainstream of the legal profession when they founded your law school in the late 1800s.
Today is your day. You can enjoy your accomplishment. You can celebrate. I shall interrupt your celebration only briefly, in part because I remember George Bernard Shaw's advice to a friend, a judge I believe, who complained that he was supposed to speak to a group of recent graduates about the law. “How can I tell them all I learned about the law in fifteen minutes?” the judge asked. “Well,” Shaw replied, “you should speak very slowly.”
Let me start with a reminiscence. When I think of graduation, I think of my father, the first in his family to attend college. He grew up in San Francisco , graduated from Stanford, and worked in the San Francisco School Department for about forty years. That was long ago. Consider that when my father was in college, he could not join any of the social organizations there because he was Jewish and those organizations, at that time, did not accept Jews. Indeed, I can remember as a child, my mother thinking of going to lunch at a downtown hotel with a friend of hers, who was African-American, and their discussing whether they would be served. That was in San Francisco , not the South; and in the 1940's, not the 1860's. Many institutions of higher learning were closed to the women of my mother's generation. My own law school class, of 540, contained sixteen women. When my colleagues Justices Sandra Day O'Connor and Ruth Bader Ginsburg graduated from law school, they had trouble finding jobs — because they were women.
Look around you right now and you will see how the world has changed and so much for the better. Women comprise a little more than half of your class; more than a third of you are members of minority groups that have been traditionally underrepresented in law schools; and you collectively speak over 30 foreign languages, from Arabic, to Mandarin Chinese, to Spanish.
Change, however, does not occur magically. It represents individual and collective pioneering efforts. You can still choose to be a pioneer, for much remains to be done. And I hope you will do so.
A hope, I confess, is weaker than a prediction. Casey Stengel said, “I never make predictions—especially about the future.” My hope is that you will remember, as you create your life's story, to devote time and effort—to commit yourselves—not only to your personal lives, your careers, but also to the public affairs of your communities and your nation—in a word, that you will participate in community life.
That devotion can take many forms. A lawyer can participate in traditional pro bono legal work, providing legal services to those who cannot afford them. The need is great. Several years ago the American Bar Association reported that between 70% and 80% of those with low incomes who need a lawyer in a civil case could not find one. We in America spend through government about $2 per citizen on legal aid, compared to about $5 in France and about $15 in Britain .
Law reform, too, is a form of “public service.” One of my law school colleagues told me years ago: “Go to meetings—bar association meetings.” Learn to love those bar associations with their 400,000 members and 600,000 committees. Why? Because so often law is made in those committees—through discussion, resolution, action. Learned Hand said that it “is the bar that makes” or changes “the statutes.”
And why not spend part of your career working directly for the government? You will not begin at the top—but you can keep in mind as models some of those who have divided their professional lives between private practice and government—the Dean Acheson's, Wild Bill Donovan's, Lloyd Cutler's, and the many other lawyers who have made such a difference.
“Public service,” however, sometimes seems easier said than done. Where does pro bono work fit if you must produce 2100 billable hours each year, often spending, say 65 or 70 hours in the office each week, working at a pace, which according to one lawyer, is like “drinking water from a fire hose”? Not surprisingly, recent studies of the largest law firms show a drop on average in the number of hours a typical lawyer devotes to pro bono work— even as typical profits rise. Also not surprisingly, one top law school recently found the percentage of recent graduates beginning their careers in the public or non-profit sector fell from about 12% in the l970's to under 4% in 1998. How many young lawyers will search for a government or public interest job when the comparative public/private salary gap has widened and young lawyers must repay school loans of $100,000 or more?
How enthusiastically will a lawyer, in mid-career, seek a temporary government job—given the increasing cynicism (unjustified in my view) with which the public tends to view that government service? Will the complex rules, regulations, and other government-service requirements act as a practical barrier to recruitment?
These problems may seem minor compared to problems such as racial or gender inequality or global warming, problems that American lawyers have helped, or are helping, to overcome. But they threaten our profession.
Can you help the bar to resolve them, recognizing competing needs—participation in public life and, for that matter, raising families? Can you help bring about action based on that recognition? During World War I, Will Rogers said that he could stop the German U-boats. How? “Just drain the North Atlantic .” How? “That's a problem for the engineers.” But I'm not asking you to drain the North Atlantic . Your Dean tells me that over the last number of years, your law school has ranked well above the national average in the percentage of its graduates who go on to do public interest and government work. I applaud that record and encourage its persistence. And for those who join the private sector—our Nation needs community-minded people in all sectors—I ask you to help change a certain law firm culture. You can help here and you will benefit by helping to create a life that has room, not only for paid legal work, but for family and public service as well.
Now let me mention one characteristic of our society that I hope will not change. Every day in my job I see how this Nation over time has gradually made real the Constitution's promise of a rule of law. In 1832 the Cherokee Indian tribe lived on land guaranteed them by treaty. They found gold on that land. Georgia tried to seize the land. The Cherokees sued. And eventually the Supreme Court, in Worcester v. Georgia , held in favor of the Cherokees. Georgia then refused to obey the Court. President Andrew Jackson reportedly said, “John Marshall [our Chief Justice] has made his decision; now let him enforce it.” And Jackson sent troops to evict the Cherokees, who traveled the Trail of Tears to Oklahoma , thousands dying along the way.
In the last few years our Court has decided a host of controversial cases, ranging from abortion, to religion, to Bush v. Gore , to the rights of enemy combatants. Those cases produced a vast amount of commentary—positive and negative, including much that was heated. But these cases have produced less public comment about their most remarkable characteristic—the fact that losers as well as winners will abide by the result, and so will the public.
Many scholars and judges from around the world who seek to strengthen the rule of law in their home countries come to the U. S. Supreme Court. During their visits, they often ask me, “How is it that your controversial court orders are followed?” or “How is it that your decrees are respected?” To put it in terms of our own history, how did we get there—from Point A, “John Marshall made his decision, now let him enforce it,” to Point B, widespread acceptance of the final decision even where we might whole-heartedly believe the decision is wrong? The answer lies in 200 years of a national history that has included a Civil War and many years of racial segregation. It lies as well in a legal profession that, over the years, has reached out to others, taught by example, instilled respect for the rule of law. As lawyers we fully understand that a system that protects our constitutional liberties must consist, not simply of fine words on paper, but also of habits, customs, expectations, settled modes of behavior engaged in by judges, by lawyers, by the general public.
The rule of law that this system reflects has served us well in protecting our liberty. It is a national treasure. But as John Marshall said, the “people made the Constitution and the people can unmake it.” Its continued existence depends upon our willingness, and our ability, to make certain that the next generation of Americans participates in our democratic, governing process and understands the Constitutional importance of doing so. Here too the professional example you set, your decision to spend some of your time in public service, will make a difference.
Finally, I should like to pass on some personal advice that made a difference to me—when I, like you, had to decide “what next?” When I graduated, I heard much advice, such as “Join the Army,” “Give blood,” “Travel East,” “Stay West,” and (if you've seen the movie The Graduate) “The Future is Plastics.” Of course, advice sometimes reflects the tunnel vision of one's own career. Supposedly someone asked Conrad Hilton what he might pass on to others after 50 years in the hotel business. He replied, “Always keep the shower curtain inside the bathtub.”
But the best advice I received was from a former law school dean, Bayless Manning. He pointed out that, when we make an important personal decision, we rarely know more than ten percent of all we would like to know about it, let alone about the other options that the decision precludes. Sometimes agonizing does not help; sometimes we must simply choose. And our lives then shape themselves around the choices that we make. Those choices create a story — and that is a metaphor I have found so useful. Every person's life is a story of passion, with its moments of joy and happiness, of tragedy or sorrow. And each person's story is different, one from the other.
The external circumstances, the material circumstances, of that story are often beyond our control, but they often matter less than we think. The most important parts of the story are personal. Your own story will include family and friends, not just career. And it will include your own justifications for choices made. What we do and how we explain it tells us who we are. We cannot escape the negative meaning that a failure of integrity—a failure to live up to our standards of right and wrong—will give to the stories we ourselves shape. I agree with the philosopher who said that money can vanish overnight, power disappear, reputation evaporate, but character—personal integrity—is a rock that stays secure.
“Personal integrity,” “public service,”—those are the words, the labels, that I hope will characterize in part your own personal stories. I hope too that you will be ambitious, for yourselves, for your profession, for the communities in which you live, and for the Country of which you are a citizen.
My friend Reginald Lindsay made this final point well at his induction as a federal judge in Boston when he read a quotation from Dr. Benjamin Mays. Dr. Mays, among his many accomplishments, was President of Morehouse College for almost 30 years. He counted Dr. Martin Luther King, Jr., among his students. Dr. Mays was an inspirational teacher and leader. I leave you with what he repeatedly told his own students:
The tragedy in life does not lie in not reaching your goal. The tragedy lies in having no goal to reach. It is not a calamity to die with dreams unfulfilled, but it is a calamity not to dream. It is not a disaster to be unable to capture your ideal, but it is a disaster to have no ideal to capture. It is not a disgrace not to reach the stars, but it is a disgrace to have no stars to reach for. Not failure, but low aim, is sin.
So, follow that advice. I congratulate the Washington College of Law class of 2008. I wish each of you a life of passion, action, integrity, participation—a long and most fulfilling story.
President John F. Kennedy spoke at American University's Spring Commencement on June 10, 1963. In this speech Kennedy called on the Soviet Union to work with the United States to achieve a nuclear test ban treaty and help reduce the considerable international tensions and the specter of nuclear war at that time. (text of speech)
Recent Commencement Speakers