Bruce Terris Sixth Interview: January 16, 2015

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ORAL HISTORY OF BRUCE TERRIS
VI. REFLECTIONS ON THE LAW AND ON LIFE
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Steve Steinbach, and the
interviewee is Bruce Terris. The interview took place in Bruce Terris’s office on Friday,
January 16, 2015. This is the sixth interview.
MR. STEINBACH: Good morning, Bruce.
MR. TERRIS: Good morning.
MR. STEINBACH: Let me start with a very broad general question reflecting all the way back
on when you graduated from Harvard Law School in the 1950s until
today. If you had to do it all over again, would you be a lawyer?
MR. TERRIS: Absolutely.
MR. STEINBACH: And why?
MR. TERRIS: Well the first reason I think it’s very consistent with my personality. I’m
not saying by that every person ought to be thinking about becoming a
lawyer. I think it has a lot to do with personality, and I think for some
people that makes sense and for an awful lot of other people it doesn’t
make any sense at all. It doesn’t bother me to be in combat so to speak.
I’m a litigating lawyer, and that’s not all lawyers. I don’t think I would
like to write wills and plan estates and do a host of other things that
lawyers do all the time, give advice to corporations. But a litigator I think
is consistent with my personality. I’m combative. I enjoy matching my
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mind and ideas up against other people, trying to persuade judges and
what have you, so it fits with me.
MR. STEINBACH: You’ve also combined your legal skills and background with a public
interest approach throughout your career. Is there something about being
a lawyer that helps when you’re working inside the government or that
helps when you’re dealing with issues of social policy?
MR. TERRIS: I definitely think so. It obviously helps if you’re going to do litigation.
You have to be a lawyer to do that. But I think litigation is an effective
way to affect social policy, and I think you are right that that’s given me
considerable satisfaction for at least some portions of my career, like when
I worked for the Crime Commission. I was doing, I guess, what a lot of
lawyers do, which is to take policy positions and write memoranda and all
that kind of thing. I think lawyers are valuable in that situation too.
MR. STEINBACH: Suppose that you couldn’t have been a lawyer, that that was prohibited.
Have you ever thought back on alternative careers? Baseball player,
movie star?
MR. TERRIS: Oh, sure. Like every young guy, I would rather have been a baseball
player, but I was pretty far away from being a major league baseball
player. My baseball abilities were not exactly close to that line, or even to
be a high school baseball player. The other thing I really thought about, to
go seriously to your question, I seriously thought about becoming a doctor
and if I had, I would have practiced medicine with my father. That would
have been a wonderful thing to do because I had a tremendously close
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relationship with him and I had great admiration for him. I know he
contributed an awful lot to society, in quite a different way, and I certainly
would have enjoyed that. But I guess I was maybe overly influenced by
seeing that operation when I was a very young boy. As I’ve gotten older
and been thinking more seriously about that, I think it’s possible that I
could have gotten over it and enjoyed being a doctor.
MR. STEINBACH: I think on slightly different alternative paths we talked about that you had
explored, or at least for a year, you were a law school teacher and decided
not to pursue that. You had mentioned before something about becoming
a judge, that you had thought about that as a possibility. Why don’t you
explain a little more?
MR. TERRIS: I never really thought about it as a possibility because I’m not the kind of
person that lobbies to become a judge. I don’t know if there are people
who do that or not, but that’s not my style. But I did get an offer to
compete to be a judge – in other words, give the government some papers,
and I guess I would have been considered against 50 other people. But I
didn’t think it was the appropriate judgeship. At the time I did not think I
was adequately skilled in what happens in a trial court. I think I was then
and now adequately skilled for an appellate court, but that was never
offered or even suggested to me. But that’s one of those things that if out
of the blue somebody said I was going to be a judge and if it had been the
right kind of court, I would have taken that very seriously.
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The law school professor [job] I didn’t take terribly seriously.
Earlier in my career, when a couple of very good law schools indicated
interest in me, I hadn’t had any experience in teaching at that time, and it’s
conceivable that I would have accepted if it had been the right law school
and if it had been consistent with what my family situation was, and what
have you. Later on when I taught a year of law school – I think I may
have said earlier in our conversation together – I thought it was bad for the
soul. I was thinking actually after that session, because you’re a teacher, I
think it’s different teaching younger people [like you . . .]. But it just
didn’t seem right to me, these people who were in their 20s and I was
essentially manipulating the discussion – that I didn’t think it was really
good for me for a lifetime of doing that.
MR. STEINBACH: Let’s not change your career. It’s been productive and spectacular
enough. So let’s imagine a nephew or niece of yours in college, or the son
or a daughter of a co-worker: “Mr. Terris, should I be a lawyer or not?
What would you advise me nowadays?”
MR. TERRIS: I would build on what I said a moment ago, which is what kind of person
are you, what kind of characteristics, and what do you want to do in law?
In other words, when you say “lawyer,” it’s too broad a subject. There’s a
tremendous difference as I indicated before between being a litigator and
being somebody who advises people on wills or handles divorces or
advises corporations or whatever. I think there’s enormous differences in
that kind of thing. And you also, I think you have to talk about what you
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want to do in life. Do you want to make $10 million, because that’s going
to tell you what kind of law you’re going to have to practice, and does that
fit with your ideas of what you want to do with your life? If you want to
be a grassroots activist helping poor people, you’re not going to make
$10 million, and on the other hand, you’re going to get some very
important benefits from doing that kind of work, and that may fit very well
with you. So I think it really depends very much on what people want to
do with their lives, what kind of ideas they have, social ideas, other kinds
of ideas, and their personalities.
MR. STEINBACH: There are some doctors out there who would say, “I had a great career but
medicine has really changed, it’s much more bureaucratic, don’t go into
medicine.” What are the challenges that a young lawyer, brand new to the
profession, faces that maybe you didn’t have to face?
MR. TERRIS: That’s a very difficult question. I don’t know exactly. I’m not sure that
that much fundamentally has changed. Maybe I’m wrong because I’m an
older lawyer, not a young lawyer, so maybe I just don’t really appreciate
the challenges of young lawyers. I mean lots of things have changed
obviously, but fundamentally, I mean the profession to me looks quite
similar to when I was coming out of law school. You can go into the
government, a variety of different kinds of government, particular kinds of
jobs. You can go into large law firms, and you’re going to make a lot
more money doing that than probably any other job in the law. You can
go out in private practice yourself, maybe prepare for it by being in
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government or in a large law firm for a few years, but then go out and
practice by yourself. You can to some degree go into public interest law,
although that is different. There was no such thing when I got out of law
school, a handful of jobs in the country, probably not anywhere near a
hundred jobs in the entire country. So that certainly has changed, and I
think people coming out of law school for a large number of lawyers ask
themselves the question whether that’s what they want to do. And an
awful lot more want to do it than can get jobs. So that certainly is a
change. I think other than that, the basic structure is not that different.
MR. STEINBACH: So your nephew or niece has gone to law school and they’ve graduated
and they come to you before they start their first day of work and say,
“Mr. Terris, I’m a lawyer, how do I get to be a really good lawyer? What
do I have to do?”
MR. TERRIS: I think the most important thing is to go to some place that, if you can, you
are going to get the practical education in law that you didn’t get in law
school. I know law schools now do much more practical education than
when I was in law school, lots of clinics and things like that, but I still
would stick to my point. There’s still a limit to how much practical
education you’re really getting in a law school environment. I think it’s
good that law schools do that, but I still think the most important thing is
when you come out of law school to go into a situation where there are
very good lawyers and there are lawyers who are willing to take time with
their junior people. Closely editing your work to allow you to learn to
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really write as a lawyer, which to a great degree you don’t learn in law
school. The kind of people that when they’re working on cases aren’t just
going to give you little pieces to go out and research and bring them back
and you aren’t going to participate really in the case. A kind of
atmosphere, whether it’s a law firm or government or wherever, where the
more senior people include the junior people in the discussions and the
strategy formulations. That’s where you really are going to get your
education. Law school, if it’s done anything for you, in my opinion, has
taught you to think as a lawyer. It sure changed my whole way of
thinking. But that doesn’t make you a lawyer. That makes you prepared
to become a lawyer. That’s what I’d be looking for, that kind of
atmosphere. Very good lawyers who are willing to include you in the
package, you’re not just doing drudge work.
MR. STEINBACH: To follow up on what you just said, law school changed the way you think
so that you ended up thinking like a lawyer. What does that mean to you?
MR. TERRIS: It means not mainly acquiring or spitting out information. It means being
able to analyze, that when somebody gives you a problem, that you can
analyze it. That covers not just analyzing legal issues, which law school
of course should acquaint you with how to do that, but that also is
transferrable to any kind of an issue. It first of all makes you a skeptic, it
ought to make you a skeptic about almost anything, so that you don’t just
say, “Oh, that’s what somebody said so that must be it.” You approach
every proposition as a skeptic. Certainly I do, and I think most good
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lawyers do. I was amazed in the first year of law school – it was like
getting hit in the head with a 2” x 4” – the way that I thought at Harvard
College, and I had done very well at Harvard College, didn’t make any
sense at all. At Harvard College they essentially asked me what are the
causes of the Civil War, and on an exam, I would write for three hours and
give them enormous amounts of information. But that’s what it was. It
was information. For the most part I was not really analytic.
MR. STEINBACH: So when a new, big case comes into your office and at any level of being a
lawyer, you’re in charge of trying to figure out what to do, how to staff the
case, how to manage the case, how to investigate the case. What are your
thoughts on how that should be approached, based on how you approached
questions like that?
MR. TERRIS: In many ways the most important thing are the facts, not the law.
Ultimately of course it’s got to be the law too but the facts are really
where you’ve got to start. You’ve got to start by really investigating as
deeply as you can what the facts of the case are. We had a meeting right
here, I was sitting in this same chair yesterday, in which we were
considering whether we were going to bring a particular lawsuit. We
discussed both facts and law, a memo had been prepared, a very detailed
memo, about at least a number of the legal issues that were involved. And
we hadn’t written such a memo on the facts, and it quickly became
apparent, which I didn’t find surprising, that the law was not the most
critical thing, that the most critical thing was, what do the facts show.
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And we would assign it, to go back to your question, we would assign it to
one of the young lawyers, and we would basically say, “this is your case,
now we may not bring it, but at this point, you ought to see this as your
case.” And the point I always make to young lawyers is: you’re not going
to do anything creatively if you think it’s my case. If it’s my case, you’re
going to give me a lot of facts, and you’re going to give me a lot of law,
and you’re not really going to have thought through what this is. So
you’ve got to assume this is your case, and should we bring it or should
we not bring it, and if we are going to bring it, what’s our strategy, and we
will talk that through together, and I hope I can make some contribution to
that. But you’re going to know more than I do at that point, you’re going
to have done the work, and I may have more experience than you, so I
hope I can contribute, but you’ve got to think of it in this way. That’s how
we really start.
MR. STEINBACH: I hesitate to ask this since I’ve been interviewing you, but how do you
approach interviewing a fact witness, someone who’s either cooperative or
hostile – how do you prepare for that?
MR. TERRIS: I learn as much as I can before I talk to the person, but frequently I don’t
know that much. It depends where in the case we’re at. If we’re early in
the case – I had a case fairly recently of a woman that has a potential
action against the federal government for discrimination, racial
discrimination, and she named I think four or five people that worked in
her same unit who were also African-Americans and said they would have
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the same view that she did. Well I got from her as much as I could about
her views about the racial discrimination, but I didn’t know a tremendous
amount about how these other people would talk, so I was starting fairly
early in the process. Very frequently what you’re doing is going to have
several interviews, obviously not if the person won’t talk to you or they
really have nothing to say, but if they really have something that’s useful.
You’re going to have several interviews, and you’ll gradually get deeper
in because you will have learned. First you talked to this person and then
you talk to three or four other people. Now you know an awful lot more,
so you really need to go back very frequently to the first person, and so
you go through this kind of process of deepening your understanding.
MR. STEINBACH: What’s your approach to preparing for trial? It’s two or three weeks
before a trial, do you hibernate in a hotel, do you carry on your normal
life? What do you do?
MR. TERRIS: In general, I don’t hibernate until right upon the trial, then that’s about all
I’m going to do. We frequently are litigating out of town so that works
rather well. There’s nothing else to do out of town but concentrate on the
trial. What you really should be doing, and I think normally we do a fairly
good job here doing this, is preparing way before that, preparing
thoroughly way before that. Because you’re going through stages – in the
kinds of cases that we have, we go through elaborate fact discovery over a
long period of time – we’re not talking about discovery over two or three
months; fact discovery may take six or nine months [or even longer].
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Then we are going through experts’ reports and expert discovery, and
we’re dealing with our own experts in tremendous detail. So we’re going
through each one of these phases in a tremendously intensive examination
of the case, so you’re sort of digging deeper and deeper at each level.
Very frequently, as far as the documents are concerned, you don’t
remember them anymore because you read them for the first time maybe
two years before trial, maybe even more. So you’ve got to go over all the
documents, or at least important documents, again. There’s no question
that in the few weeks before trial you’re in a much more intensive phase,
but you should have gone through these phases in a way that doesn’t leave
you in a sort of semi-panic at that point. You’re not doing a very good job
if that’s the situation.
MR. STEINBACH: So you’ve made it to trial and you’re arguing in front a jury.
MR. TERRIS: Almost never in this office in front of a jury. I think I may have been in
front of a jury in my career two or three times.
MR. STEINBACH: Interesting. What’s the most recent? Was it a while ago?
MR. TERRIS: A long time ago. At least twenty years ago, maybe thirty.
MR. STEINBACH: And that’s a function of the type of the practice that your firm has
pursued?
MR. TERRIS: Exactly.
MR. STEINBACH: Are you happy with that, or do you wish you’d had more jury trials?
MR. TERRIS: That’s kind of hard for me to say. I don’t know that I’m the greatest jury
trial lawyer, partially because I haven’t done it very much, but also I think
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again a little bit is my personality, that I feel more comfortable trying to
persuade somebody who is a lawyer like I am and we presumably, to a
large degree, are thinking in the same kind of way. I don’t feel very
comfortable frequently dealing with lay people[. . .]. I don’t want to make
it sound like I’m denigrating jury lawyers, but it’s, you’re being clever,
you’re not exactly tricking people, but it’s not a pure “I’m convincing you
because my ideas are better than the other guy’s.” (I’m wrong, by the way
that it’s been that long, now that I’m thinking about it. It’s probably has
been ten years since I had a jury trial.)
MR. STEINBACH: I’m getting the sense that arguing in front of a judge is more intellectual,
and arguing in front of a jury is more emotional, argumentative?
MR. TERRIS: I think that’s right. As I say I’ve only done it a relatively small amount,
but what I read in the legal press, which has [articles] about how I won
that $500 million case in front of the jury with a whole sequence of tricks.
There are not too many tricks in front of a judge.
MR. STEINBACH: How do you prepare for arguing in front of a judge or a panel of judges?
Say you have an appellate argument next week, what would you do
between now and next week?
MR. TERRIS: I am not able, or at least I’m not willing, to go in front of judges without
having an oral argument in front of me.
MR. STEINBACH: Meaning a prepared script?
MR. TERRIS: A prepared script. In an appellate court these days, almost never could
you, even if you wanted to, give a prepared script. This is definitely a
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change in the way courts behave. When I came out of law school and did
arguments, you did a substantial portion of your argument the way you
want to give it. I happen to have an ability, which is a nice ability to have
– it’s not the most important ability, but it’s a nice ability to have – and
that is I can read an argument and most people will think I’m not reading.
But even so, it’s certainly desirable not to be doing that that much.
Occasionally I read, but it’s quite occasionally. When you’re actually in
court you don’t see this very often, of the lawyer not having the script in
front of him or her. Archibald Cox, and we’ll come to this later I think
when we talk about lawyers, who is certainly the best oral advocate I’ve
ever seen. I’m going to put aside Edward Bennett Williams because I only
saw him once, and he was terrific and he has a reputation of being terrific,
but Archibald Cox was a tremendous advocate, and he had a script that he
had written out. You didn’t get the feeling that he was reading, but he
often was.
But anyway I write out a script. I practice that script many times
to myself. I almost never have a moot court. I hate moot courts. They
scare me more than the argument. The argument doesn’t scare me, never
did. When I first went into the Supreme Court when I was 27, I was
scared momentarily for ten seconds, but the adrenaline goes after that and
I didn’t feel it, but moot courts make me nervous as all get-out. I’ve had a
couple of them. On Supreme Court arguments, Georgetown now likes to
have moot courts for people. I didn’t have enough nerve to say to them, “I
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don’t need your moot court.” So I did that. And I had a moot court over
at the Department of Justice on a case that they were interested in. That’s
what I do.
MR. STEINBACH: One more question that just occurred to me. How do you handle losing?
MR. TERRIS: That really depends. I’m not a good loser. I mean, I can’t say that I am a
good loser. I’m a very competitive person. I’m a very competitive person
when I play tennis, and I’m a very competitive person in my law practice.
But it does depend. When I was young and I lost a whole slew of cases in
the Supreme Court 5 to 4, it didn’t affect me a bit. Edward Bennett
Williams could have argued those cases or Archibald Cox, and they
wouldn’t have won. There was no more chance of winning than flying to
the moon. So there’s no sense in me getting all upset about this kind of
thing. It was inevitable.
On the other hand, the other extreme, I lost a case for a woman
who had a sex discrimination case – no, I guess it was disability
discrimination – and I really felt terrible because I was certain she was
right, and I thought she had been very badly treated by her employer, it
was an agency of the government, and I really felt terrible. So I consider
it’s an individual person who has been very badly affected, and the
environmental cases which of course you could say maybe are more
important than the individual person, although I say that with hesitation. I
feel badly. For one thing the economics of this office are badly affected
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by losing an environmental case but it doesn’t stick with me as long as the
case of the woman with the disability.
MR. STEINBACH: By now, Bruce, you’ve argued dozens of cases in the Supreme Court.
Have you appeared in front of most United States appellate courts across
the country, or at least many?
MR. TERRIS: Every one of them except for the Federal Circuit because we don’t
practice in that area of law.
MR. STEINBACH: And many district courts?
MR. TERRIS: Many district courts.
MR. STEINBACH: So over the course of your career you’ve seen many, many judges, good,
bad, and ugly. Reflect if you would on some of the judges who have
impressed you the most, who you’ve respected the most, and why.
MR. TERRIS: The judges who I know the most about are the Supreme Court Justices
who I argued before when I was in the Solicitor General’s Office. I say
that because, first of all, I appeared before them numerous times, each one
of them numerous times, and I saw a lot of arguments that other people in
the Solicitor General’s Office argued, and I read all the opinions from that
period. I don’t read all the opinions anymore. I read opinions if they have
something to do with our practice. So I knew an awful lot more about
those Justices than the subsequent ones – who many of them I’ve appeared
once or twice before, but really I don’t think it’s very fair to judge them on
one or two appearances.
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I’m also very hesitant. I think you always have to take it with a
considerable grain of salt, that you just don’t say all the good Justices are
the ones who voted for me, and all the bad ones are the people who were
on the other side. I really don’t feel that way. I guess the Justices who I
argued in front of in the early part of my career that I particularly admired,
probably most Justice Harlan because I believed, and I can’t prove this
proposition, but I believed many of the things he decided he would not
have decided in that way if he were in Congress. To me, that’s almost a
bottom line test of a fine Justice who isn’t just reflecting [his or her]
political opinions – that they’re really trying to base what their decisions
are on the law. Now of course they are affected by their other opinions,
there’s no way to avoid that. And they should be, so I would put him
probably number one. Felix Frankfurter of course was a great mind, and I
would certainly rate him highly. On the liberal side, whose vote I may
never have gotten, Justice Black was certainly a fine Justice. I thought
Potter Stewart was a very good Justice too. Maybe not quite as smart as
the very smartest of the other Justices, but certainly a smart man. And
certainly a man trying to find out what the right place for his vote was, that
it wasn’t just foreordained where he was going to come out. And I
thought Justice Brennan was a very good Justice. I do not think Justice
Douglas was a good Justice. I don’t think he paid much attention, at least
not at the point I was arguing in the Court. It may be that in an earlier part
of his Supreme Court career that he was different. I don’t think he paid
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much attention to the arguments, and I think he could have decided any
case that came to the Supreme Court probably within fifteen minutes after
a brief appearing on his desk. Most of the other Justices I don’t think, that
I argued in front of, were as smart as the people that I mentioned.
MR. STEINBACH: Try to distill and summarize what you just answered. What makes a great
Justice or a great judge? Or, if you had ended up being a judge or a
Justice, what would you have aspired to?
MR. TERRIS: I think you have got to be smart to be a Supreme Court Justice. These are
hard questions, they’re extremely important questions, and you obviously
have to be very smart. The harder thing, however – that you probably are
or you aren’t by the time you’ve become a Supreme Court Justice, you’re
not going to become too much smarter. The hard thing, I think, is the right
demeanor – how do you decide cases, how do you decide them so you’re
just not voting your political instincts? Because I think that’s wrong in so
many different ways, but maybe most importantly why it’s wrong is that
why should anybody have confidence in a judicial system if it thinks that
what the Justices, the highest level of the judicial system, are simply a
different place but still Congress, still politicians, voting their inclinations.
And that I think is enormously hard to do because, as I say, you can’t put
aside all your lifetime of ideas and just think all you’re doing is a
mechanical thing of interpreting words and statutes. It’s much more
complex, and it’s a very difficult thing to do, and I don’t think the
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Supreme Court as a whole does a very good job of that. Not a terrible job,
but not a very good job.
MR. STEINBACH: Let’s build on those principles and put you on the Supreme Court in the
early 1960s, and along comes Bruce Terris and the Justice Department,
really pushing the envelope on one person, one vote. How would you
have decided that case?
MR. TERRIS: Hah! It’s very hard to answer, and the reason why it’s hard to answer is as
an advocate, I never really push myself the way you need to if you are a
judge push yourself to say, “How would you, Bruce Terris, really decide
this case?” You kind of edge yourself up to that, but you don’t quite get to
really forcing yourself to decide. In a way it’s kind of destructive to force
yourself to decide, because if you ever do convince yourself that you’re
not right, you really are undermining your creativity, your ability to argue,
so you really don’t do it, and I never really have tried to do it.
You can come back to this if you want to, to that exact question,
but let me give you a different example. I didn’t handle the sit-in cases
when they were in the Solicitor General’s Office. They were there when I
was there, and they were [intensively] discussed within the Solicitor
General’s Office, among us. I don’t mean with the Solicitor General, but
among the Assistants to the Solicitor General, we discussed them in great
detail. I had a lot of trouble with that case, and I believe enormously
strongly in civil rights, but I really had trouble with that case. The reason
I had trouble was, it seemed to me it was calling state action what people
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were doing in a private environment – that if that was state action when
the owner of the restaurant turned away Black potential patrons, why
wasn’t it state action if somebody in their house did exactly the same
thing? And isn’t that fundamentally inconsistent with democracy? Now if
you have a statute about the restaurant, which of course we fairly soon
thereafter did get such a statute, that’s different because that’s a judgment,
that’s not like my home or your home; it’s a judgment that that’s a public
place and it should be governed in a way that doesn’t allow for racial
discrimination. That in fact is what the Fourteenth Amendment was all
about. But in any event, that was a big, big problem for me at the time. It
didn’t matter what I thought because I wasn’t working on it anyway, but in
our discussions, elaborate discussions that we had within the Office. We
used to go to lunch at the Federal Trade Commission every day, virtually
everybody in the office, other than the Solicitor General, and that was a
major topic of conversation for quite a long time.
MR. STEINBACH: Do you want to circle back and any other thoughts on one person, one
vote?
MR. TERRIS: No. Partially because of these interviews, I looked at a couple of books
that I have that deal with the Solicitor General’s Office, a biography of
Archibald Cox, etc. It just occurred to me, it’s such an ironic thing,
Archibald Cox decided long after, later in his life, that this was the most
important thing that he did in the Solicitor General’s Office. This little
dinky guy Bruce Terris, that I really won this battle with him. Here’s this
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eminence of the law in this period, certainly one of the great lawyers, and
somehow I persuaded the guy who really decided, which was Robert
Kennedy, in a way that made the difference, kind of made me chuckle.
MR. STEINBACH: In fact, since we started the process of these interviews, there’s been an
important book by a scholar, J. Douglas Smith, called, On Democracy’s
Doorstep,
††† which examines in great detail all of the litigation
surrounding one person, one vote and really does make you front and
center as, if I can say so, a hero – or the hero – of the argument. Have you
had a chance to look at Smith’s book, and what’s your reaction to it?
MR. TERRIS: My basic reaction is he probably gives me a little more credit than I
deserve, but overall, it’s a very competent book. The question of how
much credit you give to one person or another is pretty subjective, but it’s
a good book, and he was very intelligent when I talked to him.
MR. STEINBACH: In a sense it circles back to where we were a half hour ago about the
importance of an older lawyer listening to someone in the trenches who’s
really done the homework and is able to persuasively put forward a new
position.
MR. TERRIS: I might say Robert Kennedy wasn’t the kind of person who would be a
mentor to lawyers, but he was definitely a man who would listen to other
people. I mean that was one of his most outstanding characteristics. He
would listen. He would have people come to his house – I wasn’t one of
them – great academics, people who were experts in the field, and just

††† Smith, J. Douglas. On Democracy’s Doorstep: The Inside Story of How the Supreme Court
Brought ‘One Person, One Vote’ to the United States. New York: Hill and Wang, 2014.
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simply talk to them. He welcomed people talking to him who were junior
lawyers in the Department.
MR. STEINBACH: We talked about judges. Any other judges you care to reflect on who we
may have omitted?
MR. TERRIS: Not Justices, but I certainly early in my career argued quite a bit in front of
the Court of Appeals in this Circuit. I really have argued pretty much
through my career in this Circuit, but particularly relatively early in my
career, maybe sort of mid-career. Certainly I had great admiration for
Judge [David] Bazelon, Skelly Wright, [Harold] Leventhal. They were
very fine judges. They were creative judges and smart.
MR. STEINBACH: I think it’s probably only fair since you’re still practicing law at a law firm
in town not to ask you for similar comments about currently sitting judges.
MR. TERRIS: That’s correct. Let me add one District Court judge. When Judge
[Charles] Richey was appointed, I was the chairman of the Democratic
Party and I went in front of the committee in Congress and I opposed him
on the ground that he didn’t live here and that this was essentially a court
supposedly for the District of Columbia, that is its jurisdiction. Later on I
had a major case in front of him, and first of all, he didn’t act at all hostile.
In fact he joked with me, about how I had opposed him. It involved the
development of Georgetown. He basically indicated that I was going to
win, and then the opinion came out, and I lost. And I don’t know how I
happened to be in front of him again, maybe it was another case or maybe
it was some further aspect of the Georgetown case. He said to me, “You
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know, Bruce, when you were in front of me, you totally convinced me, but
when I went back and thought about it when you weren’t around to make
your argument, I decided that you weren’t right.” And I thought to
myself, “that’s a pretty good judge.” I didn’t like losing, of course, but I
thought, that’s a pretty good judge.
MR. STEINBACH: Beyond judges, how about lawyers that you’ve either worked with or
worked against. Any come to mind? I know you’ve mentioned Archibald
Cox repeatedly. Any other colleagues or adversaries whom you look at
with great respect?
MR. TERRIS: The people in the Solicitor General’s Office were terrific lawyers. Let me
start one step earlier. The year I spent in the Internal Security Division at
the Department of Justice, there was a guy there, Phil Monahan, who, he
wasn’t even the Section Chief, but he edited all the briefs. And I think I
earlier said, I believe I said during these interviews, that he threw out [all
of my work]. None of my briefs ever appeared in print, but I learned an
enormous amount from him. And that’s when we talked a few minutes
ago about having a mentor or having somebody, whatever the name is,
that you can really learn from. I learned an enormous amount how to
write briefs from this man, because I looked over all the changes he’d
made – which were total, essentially, but I tried to figure out, why did he
do this? He obviously had a reason for what he was doing. [He’d]
completely toss it out rather than do little edits, so he taught me an
enormous amount.
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Then when I went to the Solicitor General’s Office, that was just a
marvelous place to work. I said before that we met every day at the
Federal Trade Commission. We talked about our cases. The people that
were there were enormously good lawyers. They were very good
advocates in the Supreme Court. Oscar Davis later was on the Court of
Claims. Phil Elman, who became a Federal Trade Commissioner. Lou
Claiborne, a tremendous advocate. Ralph Spritzer was also a great oral
advocate. Wayne Barnett, who was the most unbelievable mind on
dealing with tax law, he just used to regale us at lunch about tax law, some
particular tax case. For some reason he handled all the tax cases in the
Solicitor General’s Office at the time, and he’d go through it in detail
showing how this should come out. It was almost like it a language
beyond me, it was so precise as to how to do this. And I mean these
people, and there were of course others as well, it was a tremendous
education for me. That wouldn’t have happened if we didn’t have these
lunches because basically that didn’t happen in editing briefs. The First
Assistant, Oscar Davis, didn’t come and talk to me and say, “here’s a
brief, now I want to talk to you about how you ought to do it.” It would
just be given to me, and I would edit it. Nobody would really even talk
about it. So I would basically make up my own mind as to where to go.
Now of course I was editing a good brief. These were coming out of
divisions, appellate sections of the various divisions of the Department,
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but still I wasn’t getting anything from conversation in meetings on
particular cases, but these lunches were just tremendously educational.
And then I’ve been very lucky that I’ve had very good lawyers as
partners here with me. They’ve taught me a lot too. I tend to be more
law-focused, and they tend to be a little bit more fact-focused, which I
think is a good corrective for me. That’s pretty well my view of lawyers.
To a considerable degree I think it’s hard to evaluate other lawyers, but for
the most part I’ve been disappointed with lawyers on the other side from
us. Given the kind of law firms we litigate against, you would think they
would generally be better. That’s obviously not every lawyer that’s on the
other side.
MR. STEINBACH: In reflecting on some of our previous discussions, it’s obvious that religion
seems to have played a very important part in your life, and your religious
path over your life has been far from ordinary. I wondered if you could
reflect on your religious thought and practice and how that’s developed.
MR. TERRIS: Yes, I think it has been enormously important to me, and it’s kind of
interwoven, I believe, in a complex way, that I’m not sure I can
completely understand myself, with my political and social views. I’ve
always been – let me start with the political and social views. I’ve always
been a liberal except for a very brief period, strangely enough, when I was
in college. I’m also kind of, as my wife keeps reminding me, if everybody
else is saying yes, I’m likely to say no. Of course everybody else when I
was going to college was a liberal Democrat and beating up Republicans
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daily, and so I was for a period of my life actually was sort of a
Republican. I actually did a small amount of work for Senator [Henry
Cabot Lodge, Jr.] when he was running against John Kennedy.
MR. STEINBACH: We can edit that out if you’d like [laughter].
MR. TERRIS: So that’s about the only period in my life that I had those kind of views,
and since I got to Washington and John Kennedy took over the
White House particularly, I’ve been a liberal Democrat. And I was as a
child too. I grew up in a community that was totally Republican, probably
weren’t a handful of Democrats in the entire city. So that really feeds to
my interest later on in trying to help poor people and what have you.
As far as religion was concerned, I grew up in a family that was
Jewish, but my parents at that time never went to synagogue. My mother
felt that she was duty-bound when I was I guess 12 years old to take me all
the way across town to a Reform synagogue. So for a year I went to
classes I think twice a week at the Reform synagogue, and they taught the
Hebrew alphabet. I think we got halfway through the Hebrew alphabet.
At that point Reform synagogues didn’t bar mitzvah people, when you’re
13, they confirmed them, and I was confirmed. And I paid very little
attention to being religiously Jewish, but my family was very Jewish. My
father, I joked, never said a sentence that didn’t have some Yiddish word
in it. That’s something of an exaggeration, but it isn’t too much of one,
and he was very, very strongly Jewish. My family went and visited Israel.
Not me, but my parents, and they gave money to Jewish causes, etc. My
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family some years would have a Pesach Seder, we’d go to the brothers or
sisters of my father, but there was no content.
When I was in high school and then in college, the two women that
I dated most seriously – girls at that point – they were the same age that I
was, were Catholic, and they took it seriously, and it was very impressive
to me that they took it seriously. And so in college I began to study, under
this young woman’s tutelage, Catholicism very seriously. And I ended up
a year after law school, I guess it wasn’t in college, it was in law school,
and the year after law school, I married her and I converted to
Catholicism, which infuriated my father, and he didn’t talk to me for two
or three years. We were married for almost twenty years, and I was a very
loyal Catholic, as was she, and I was quite a knowledgeable Catholic, I
read a lot, until totally suddenly she had an aneurism and died within a
day. We had adopted three children during that time period and they were
Catholic, but very near the end of that period, my allegiance to
Catholicism had begun to decline. It was always a kind of a little bit of
conflict within me because I also in a strange way still thought of myself
as Jewish.
In any event, she died, and then roughly a year later, I married
Sally Gillespie, who is my wife today. Some period after that, not terribly
long after that, I don’t know how long, a year or two or something like
that, she said to me, “You know, you are Jewish” – and I wasn’t at that
point doing anything more with Catholicism – “Why don’t you do
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something?” Sally Gillespie, as the name implies, is not Jewish, but she
wasn’t anything else either. She had been brought up as Episcopalian, I
guess, but she was definitely not Episcopalian. So I thought to myself,
“Well that’s an interesting idea.” So I started to read. I knew nothing
about Judaism. That’s the truth. Essentially nothing. So I began to read,
and then she and I went to some courses together, and then I started going
with my son to a kind of an activist-type of service, not Reform, and I did
that for two or three years, and then I gradually began to take on the
requirements of being an Orthodox Jew.
So I’ve basically been an Orthodox Jew now for almost 35 years.
And that got deeper and deeper. Then we decided, Sally and I decided, to
take a trip to Israel, and then she said to me, “Why don’t we move to
Israel?” I said, “now that’s an interesting idea.” So I went and tried to
figure out a way to get a job in Israel. Well I can’t speak Hebrew, and I’m
a terrible language student. I figured I really couldn’t get a job in Israel
that would be interesting to me, and so I said I’ll keep my job and I’ll
commute, and that’s what I did. We lived in Israel. But then a time came
when Sally decided that she had grandchildren here in Washington and it
was too tough to be away. So she moved back, and I continued to live in
our house in Jerusalem off and on, but I gradually cut that down to only
spending six weeks a year in Jerusalem.
So I’ve become really a very committed Orthodox Jew. I guess the
proof of that is Judaism really has two sets of holy documents. Most non-
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Jews don’t realize this. There’s the Bible, the Torah, but there’s also the
Talmud. There’s actually two related Talmuds, one is called the
Babylonian Talmud, which is where it was written by Jews in Babylonia,
and one is the Jerusalem Talmud, which was written by Jews in Israel. I
have gone through the entire Babylonian Talmud, which is approximately
sixty volumes, and I’m now half-way through the Jerusalem Talmud,
which is I think roughly forty volumes. So I’ve taken this very seriously.
And the connection with the law is – because I really think it’s connected
to what I have wanted to do in this world – I think basically I’ve been a
religious person that was looking for what I wanted to do.
MR. STEINBACH: Why do you say that? Because of an underlying search for justice?
Trying to improve your community? What is it that really explains that
last sentence for you, the combination of religion and your career?
MR. TERRIS: It isn’t a situation where a lot of people would say [. . .], I was a religious
person and my religion says look at these passages that say you should
care for the poor, as the Torah does, and so does the New Testament.
There are plenty of people who say, that’s why I’m concerned about the
poor. My history is not in that linear way because I didn’t know anything
about anything really at the time that I first started being interested in poor
people. But when I became a Catholic, there’s no question about it, I
became much more interested in social justice problems. My first wife
was a social worker, and she worked in one of the poorest areas of
Washington, and the work that I did in that area in housing and other
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things started out from that. You could almost say that the Catholic views
on poverty and how you deal with those problems had a great influence at
that point and helped push me further into the whole social action field.
And now that I’m an Orthodox Jew, I feel the same way based on the
Hebrew Bible.
MR. STEINBACH: In both respects, religion has almost propped up the beliefs that you came
to independently as to how to run your life?
MR. TERRIS: I think so. Right.
MR. STEINBACH: I don’t know if you’ll like to hear this or not, but if you reflect on the fact
you started in the Eisenhower Administration, that was eleven Presidents
ago.
MR. TERRIS: I have never thought of that. You said that to me before, and I thought to
myself, Wow.
MR. STEINBACH: Which is one-fourth of our country’s Presidents – so it’s not just a
distinguished career but a lengthy career, which I think gives you the right
to reflect and opine on progress the country has made or not in a number
of major areas that have been central to your career. So I’d be interested
in your reflections. Is the country better off? Worse off? What still needs
to be done? We can start with police practices and police community
relations.
MR. TERRIS: Can we start on a broader thing?
MR. STEINBACH: Absolutely.
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MR. TERRIS: On a broader level, obviously some things are very much improved. The
civil rights revolution was an enormously important thing for this country
and on this very central set of issues, the country was not living up, had
never lived up, to its principles, and that’s a very serious thing it seems to
me in a democracy, to have this huge gap between all these wonderful
documents that we have, back to the Declaration of Independence, and the
way our society is set up. And of course more true in the South, but it was
also very true in the North. Not in as clear-cut a way as in the South, but
still very, very serious problems, we weren’t living up to our principles.
So that’s been an enormous change and an enormous contribution. That
doesn’t mean those problems are all gone, because bringing up
police/community relations and what’s happened in the last six months
shows that these problems [still exist]. But now, I think you can almost
say that they are problems, serious problems, but the structure of dealing
with the problems is there to deal with them. Before the civil rights
revolution, the structure was totally inconsistent with even dealing with
the problems. I mean it was seen as a revolution, Brown v. Board of
Education was like a bombshell. I mean, today any changes we do in this
areas wouldn’t be a bombshell, it would be a way to deal with them in a
constructive way. So that’s I think enormously important.
I think in other ways the improvement is not nearly as great. We
certainly haven’t done a great job of dealing with poverty, and that’s
closely connected to the civil rights issues that still remain, they’re
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interwoven with those. Lyndon Johnson made I think a valiant effort to
get started. Not only did they only partially succeed – and they did
partially succeed – but now we’ve retreated. You can tell, the day you
hear a candidate for office in this country really talk about poor people
will be the day, because now what people talk about is middle-class
people. That’s considered a very liberal position, to be concerned about
the middle class.
And I think the politics today are very disappointing. I think what
I would call the deterioration of the Republican Party is very sad and very
dangerous for the country because we used to have two parties, they had
disagreements and that’s a good thing in a democracy, but they had a lot
of overlap too, so even if you had a Democratic administration or a
Republican administration, they could get things done. But today, it’s
almost impossible to get things done because people are acting like this is
war. I mean I read in this morning’s newspaper that many of the
Republicans in Congress are now very disappointed with their leadership
because they worked with the Democrats. They stake out the most
extreme positions, not thinking of how we’re going to get together. And
that’s just terrible in a democracy.
MR. STEINBACH: So overall great progress on civil rights, far less progress on poverty and
inequality and maybe the state of our politics. How about specifically on
the question of legal services for the poor and the elderly: Are we better,
are we worse? What’s left to be done?
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MR. TERRIS: I would say that we’re roughly the same as when the conference that I
helped run was finished, not that moment, but let’s say a year or two later
when money was already flowing. Essentially there hasn’t been
improvement, and I think that’s very disappointing because you would
think over this time period the country would have tried to figure out a
way to provide adequate legal services for the poor. Not just set up a very
good program and then starve it of funds so that most people who are poor
do not get legal services today. A program exists for them, but there are
not resources.
MR. STEINBACH: Taking you earlier in your career, the work you did for the Internal
Security Division on national security and free speech issues – reflect on
where you think we are now compared to where we were in the 1950s and
1960s.
MR. TERRIS: Well we certainly are better off in the sense we don’t have anybody
comparable to Senator McCarthy, we don’t have the kind of panic in
Congress to be digging into all kinds of areas and thinking that there’s got
to be subversives out there and that even people that look like
distinguished Americans are really not distinguished Americans. We
really know better [than to think] that if we dig deep enough, we’ll find
that they once attended a meeting that there were five Communists at.
You know, that kind of thing is not going on today, and that’s certainly a
huge improvement, because then you can deal with these problems
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without having this layer of suspicion of each other. I see very little of
that around today, and I think that’s very good.
I don’t think it’s the fault of the country, but we have very serious
problems in the world, and those problems bleed into this country
domestically, not nearly in as an extreme a way as in Europe, but they do
here. You can find frequently in the newspaper a new investigation, a new
indictment, a new sentencing of somebody who has been convicted of
being a potential terrorist or for the most part they haven’t actually done
terrorist acts, but that’s what they were planning.
MR. STEINBACH: What’s your reflection on the state of environmental law?
MR. TERRIS: Of course that’s an enormous improvement. There wasn’t any essentially
then. There weren’t as serious problems either, but the problems were
building, and so if there hadn’t been important efforts to take care of them,
we would be in a horrible state today. We’d probably be in the same
situation as China, which is in horrible state in terms of the environment.
So that’s a huge improvement. On the other hand, the country’s ability –
inability – to deal with climate change is really scandalous. I mean a
country like this in which you have large numbers of important political
people thinking there is no climate change problem? They’ve got to be
the only people in the world who think that. And that’s terrible because of
how bad this problem is, but it’s also terrible in the sense of what kind of
leaders do we have that when 95% or more of scientists have come to a
particular conclusion, they, totally non-scientists, probably never even
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read one of these document, say “I don’t believe it.” That’s quite
unbelievable.
MR. STEINBACH: Again, considerable progress reflecting over the course of your career in
the environmental field –
MR. TERRIS: That’s true, but we’re faced probably with a bigger environmental
problem than we or the world has ever faced.
MR. STEINBACH: How about reflections on the state of public interest law now, especially
compared to what you’ve seen over the years?
MR. TERRIS: Certainly again in comparison to when I came out of law school, there
essentially wasn’t any such thing. Now I don’t know how many public
interest law firms there are. There must be hundreds. There are so many,
when I read about one, I never heard of that one before. There it is, in
South Dakota. It’s amazing, and I think it’s wonderful. To me, a great
contribution, and they do represent a lot of interests in this country that
never got represented before.
MR. STEINBACH: One final area, which takes us back to where we started, the one person,
one vote decision. Reflecting on that, how important was that? How
much is our politics and democracy dependent on the results of that case?
MR. TERRIS: I think it’s almost unimaginable what would be today if that hadn’t
occurred. What I’m really saying to you is: it had to occur. If it hadn’t
occurred then, it had to occur ten years later, or it had to occur twenty
years later. It’s not possible that the country could continue in which
handfuls of people in rural areas would be in control of state legislatures
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or would be in control of the House of Representatives delegation from a
particular state. If you imagine it, it seems impossible to think that could
exist today – that you’d almost be approaching revolution if that occurred
today, because it would have gotten much worse. It wouldn’t have stayed.
It would have gotten much worse because population has continued to
flow from the rural areas into the cities. So it had to occur. But when I
say that, that doesn’t mean that those cases were unimportant, because if
they hadn’t come out that way, I think the turmoil on how to reach the
result by some other method would have been a very, very serious
problem for the country. Because if the Supreme Court had said no, the
Constitution doesn’t do any of this, this has nothing to do with the
Constitution, it has to be decided by all you politicians – I think there
would have had to be things done. But you can’t figure out really how
that would have been done, so I think it would have caused terrible
problems in how our democracy functioned from that point until now. So
I think the cases were enormously important, but not because you say
nothing would have happened in that field if the Supreme Court had come
out somewhere else.
MR. STEINBACH: When people are trying to figure out what to do in those cases, there was
an important note of caution from those who said, for 100-plus years after
the Fourteenth Amendment, we have not had one person, one vote, we’re
throwing out all this history. The Supreme Court, thanks in large measure
to you, threw out all that history and achieved this transformative change,
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with very little outcry. We’ve all come to just accept it as fair. Did that
surprise you? Does that surprise you? What does that say at bottom?
MR. TERRIS: That’s a very perceptive question because I can’t remember, and I think I
would remember, a single person bringing up what would be the reaction
in the country. Now it’s interesting why nobody brought it up and also
why it didn’t occur. I think your point is a very interesting point. It
certainly is an enormous contrast to, say, Brown v. Board of Education.
MR. STEINBACH: And active resistance.
MR. TERRIS: Right. And that is a very interesting question about why that is so. I
suppose part of it is because people basically said: this is fair. This is
really what our democracy demands, and it didn’t have the overtones of
race, which as we all know, goes deep into the soul of all kinds of people,
not just African-Americans, but Caucasians and how they really see
themselves in society, in a very fundamental way.
So one man, one vote appeared to be fair, but it still is curious.
Your point is an interesting one in that a lot of people were going to lose
political power and it was pretty obvious they were going to lose political
power. You didn’t have to be a terribly deep thinker to figure this out, and
it really went down without much problem. Redistricting occurred. There
were things people had to do, the politicians that were in office had to do
something – the wrong politicians were in office, but they had to do
redistricting. And somehow it was done. I think my answer is not a
completely persuasive one, but I haven’t got a better one.
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MR. STEINBACH: But it is a very under-appreciated example of how we as a people can do
the right thing – which is as good a place as any to stop, I suppose. Any
final thoughts, Bruce?
MR. TERRIS: No. I thank you for the time you spent on doing this. You’ve done a very,
very good job. I’ve had these interviews, and I don’t think I could come
anywhere near to the kind of job you’ve done and the preparation you’ve
done for the interviews. I’m very impressed, and I’m thankful for it.
MR. STEINBACH: Well thank you. It’s been a pleasure. It’s been intellectually fascinating
and wonderful to talk with you so informally for such a period of time. I
know the Historical Society is in your debt for sharing your recollections
with all of the legal community. So thank you, Bruce.
MR. TERRIS: Thank you.