Penn Undergraduate Law Journal: How did you come to teach at Penn Law?
Kermit Roosevelt: Well, I was always interested in teaching, from when I was in college and was trying to decide actually whether to go into philosophy graduate school or go to law school. In both of those cases, I was thinking about teaching and my parents talked me into going to law school. Because, they said it’s a faster path into teaching. Because, it takes you longer to get a PhD than a JD and it’s easier to get a teaching job in a law school than a Philosophy Department. Which I think is true. And if you do get that job, they'll pay you better and you’ll be working on issues that affect people’s lives, that people care about, that are socially relevant. And if you don’t get a job, you’ll have a degree that’s worth something. Whereas, if you get your philosophy PhD and you don’t get that philosophy teaching job your philosophy PhD isn’t opening up a lot of other doors for you. So, I was always interested in teaching and what that meant really was that while I was in law school, I was writing a lot of papers in trying to publish.
When I got to the school it was actually a bit of an adjustment. Because I was trying to approach it like philosophy graduate school and law has different concerns than philosophy. So, my first year of Law School, I was very unhappy and I was going to drop out and go get a philosophy PhD instead or maybe do a joint degree or something like that. But I actually took the GRE and I applied to graduate schools. I was accepted and I was going to fill out my leave of absence form at my law school but then I slept too late and missed the deadline on a Friday and that weekend I went out and met some girl and decided I would stay. In some ways my life turned on a random twist at that moment but it was all for the best I think.
PULJ: Could you talk a little bit more about your time clerking for the Supreme Court?
KR: Clerking in the Supreme Court was a wonderful experience. It was very interesting very high quality work. The Supreme Court gets some cases that are boring, in that it’s complex statutory interpretation of the tax code or some other complex statutory scheme. But it doesn’t get any easy cases. So, even if it’s a case that doesn’t resolve some divisive social issue, the ones that make headlines, it’s still an interesting case because there will be good legal arguments on both sides. Typically, it would require some effort to find out what the right answer was. So, that in itself was interesting. Of course there were the big socially divisive cases and the publicized cases and there was a chance to work with a lot of great clerks for one thing. The clerks of my year have gone on to be judges and law professors and lawyers. Clerking also gave me a chance to work very closely with Justice Souter, which was a great experience. I admire him a lot; I really like him a lot. It also allowed me to get great exposure to the other justices who had different intellectual styles and approaches to the law and the Constitution. And that was really interesting too. So, the whole thing was great.
PULJ: You’ve written a few novels. What got you into the realm of writing?
KR: Well, I was always interested in writing. I started out writing short stories in high school. Then, I started writing novel length fiction in college. I was doing that mostly because I like writing—I liked the creative writing. Then after I went to law school, I was writing In the Shadow of the Law while I was working at a law firm, after my Supreme Court clerkship, before I started teaching at Penn. And I basically wrote that because, I thought that at that point I had a number of different perspectives on the legal system, having been a non-lawyer and then a law student and then a judicial clerk and then a law firm associate. I wanted to try to tell a story about how the system looks and how the system works for people with different perspectives and different backgrounds. So that’s what that’s about.
PULJ: As a writer and someone interested in writing literature, what is your favorite book?
KR: Well, I’ve gone through different phases. I value books for different things. You know, in some ways it’s hard not to say ‘Ulysses’. More recently, I’ve been reading more sort of plot-driven books. When, I was in college, I really loved Joyce and Nabokov and I was all about their beautiful sentences, I was trying to write novels that had as high as possible percentage of beautiful sentences. But if you’re not working on the level of Joyce and Nabokov, it’s not a good thing to do. Because you end up having some nice sentences but you’re not really telling the story that people are interested in, if you’re focusing too much on the sentences. So, more recently I’ve been interested in storytelling and themes, characters and plots. I like the George R. R. Martin [A Song of Ice and Fire] books, although I think he’s clearly lost control of the story and will probably die before he finishes the series. I like the Magicians trilogy, a fantasy series by a guy named Lev Grossman. I don’t know if you’ve heard of that. Unfortunately, I don’t have as much time to read fiction as I would like.
PULJ: Your most recent book is called Allegiance. Can you talk a little bit about that and what inspired you to write it?
KR: Allegiance is about the Supreme Court and World War II built around the detention of the Japanese-Americans, which you might know about. This gave rise to a couple of interesting constitutional law and Supreme Court cases. I was trying to explore that era and that set of cases because I thought that they raised very interesting questions about, who is a real American? And who’s loyal and who’s dangerous and how you can know and whom you can trust? And whose interests count? These questions are very relevant now. These are questions that we're seeing played out in our political discourse now too.
The subtext is a response to 9/11 and National Security questions and what we should be doing and how we should be thinking about National Security in the present.
PULJ: On that topic, some have said that Donald Trump’s remarks calling for a complete and total shutdown of Muslims entering United States may not be constitutionally illegal. Is that true?
Roosevelt: Well, it isn’t totally clear. The general rule is that Congress has very broad powers over immigration. And Congress can do things to non-citizens outside of the United States, that it couldn’t do to citizens or even to non-citizens who have come into the United States. So, if the question is, whom are we excluding, ordinarily the government has a very limited ability to classify people by religion or classify people by race. But if the question is who gets to enter the United States, those limits are reduced. The cases that people rely on for these propositions aren’t crystal clear. From those, Congress has almost total power over immigration, but those are old cases. Maybe they’ve been eroded by more recent developments. It’s not clear.
PULJ: Could you offer any advice for prospective law students? Do you have any advice that you could offer as both a law student and a law professor, when looking at specific law schools to apply to and specific areas on which to focus?
KR: Well, it’s hard to give advice that applies to everyone. If you want to go to law school, it doesn’t really matter what you major in [as an undergraduate]. I know people think about that. It doesn’t really matter what you major in. Although, familiarity with your basic economics probably helps. Maybe basic statistics. Basic logic for the LSAT. That would help.
Think about why you want to go to law school. Because when I went to law school, I felt very alienated. I came in with values and aspirations that were not shared by my classmates and didn’t really match up with the institution. But then, I found things in law that I could get excited about and care about and be enthusiastic about. So, it worked out for me. But my sense was there were a lot of people went to law school because they thought it would keep their options open—a law degree was flexible and you could do a lot of things with it. And they would say that they were interested in public interest law and wanted to pursue justice, advance various causes, and then they found themselves in law school with a lot of student debt and career services steering them towards a lot of big firms. Because that’s sort of what the career services offices do in most schools. They say to themselves, ‘Well, you’ll get great experience in training at the big firms.’ Which is not necessarily true. ‘And I’ll only be there a few years anyway, because there is a lot of turnover.’ And then they go to these big firms and get used to the salary, and stay there for five years. Then they ask, ‘What have I done with my life?’
PULJ: Has being from the Roosevelt family shaped you’re interests and career, if at all?
KR: Well, I don’t know. Looking at what I write now, I would say, ‘Oh it made me more interested in politics and constitutional law.’ Except it’s totally not true. I wasn’t interested in politics. I was kind of averse to politics until I went to law school and I started becoming more politically engaged and I started thinking about more of the way the world is structured and legal reproduction of hierarchy and things like that. When I was in college, I was just interested in philosophy and literature and was not concerned about what was going on in society. Constitutional law was an area I got into by accident, because when I was in law school I was interested in teaching and people said to me, ‘You know, they need more tax professors and tax is where it’s the easiest place for you to get a teaching job.’ And I thought, ‘Okay, that sounds good. Why not?’ Because tax also seemed like an area where it really helps you to be smarter than other people. So tax seemed, in some ways, closest to philosophy, not like moral philosophy obviously. But maybe deductive logic, where you’ve got a complex system with relatively rigid rules and if you can manipulate the rules with greater facility then somebody else you can outmaneuver them. That sort of seemed like a sort of interesting thing to do.
But when I was talking to the people from Penn and other schools during my Supreme Court clerkship, they said to me, ‘You’ve taken a couple tax courses but you haven’t written any papers on tax and you don’t have any experience with the IRS, which tax professors normally do. So, we actually don’t think you’re very plausible as a tax professor. With your Supreme Court clerkship maybe constitutional law?’ And I responded, ‘Okay, I’ll do constitutional law.’
So the answer is, I don’t know, maybe it made me more interested in public service when I started thinking about that. And I suppose it has given me a different perspective on constitutional law and presidential power and so on. But all of that sort of happened later on in my life and in some ways by accident.
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