erational identity may not be the most important marker. Q. You were a clerk for Justice Stephen Breyer. What was your reaction when he announced his re- tirement? A. I expected the announcement to come at the end of the term, not in the middle, but I was really not surprised. Justice [Ruth Bader] Ginsburg tended to talk about the seat as if it were hers, basically, and Justice Breyer didn’t usually talk about it that way. He thought about the seat more as a job of service. Q. How do you think Ketanji Brown Jackson will perform on the Supreme Court? A. You couldn’t write a resume that demonstrates more brilliance and qualifications for the job. It’s always a little hard to know beforehand what kind of a justice some- one will be, because even if they’ve been on the bench, being on the bench and being a justice and even being an appeals court justice are just different types of jobs. But I have a lot of faith in her judgment and in her wisdom and intelligence.
And that would very much hamper the ability of the federal government to operate the way it has long operat- ed, which is by Congress providing relatively broad grants of authority to administrative agencies and then telling administrative agencies to use their own expertise to reg- ulate as appropriate, and also to change the regulation as circumstances change in order to meet the goals that Con- gress has identified. Depending on how robustly revived non-delegation doctrine is, it would really hamper the abil- ity of the federal government to operate that way. Q. How does the interpretation of the Constitu- tion evolve as different generations join the Court? A. One of the problems with life tenure on the Su- preme Court is that to the extent that there is generational change, it very much lags. You have people who serve on the court for decades, and by the time they leave the court, they tend to be quite old. They either retire or die. And so really any generational change is going to really lag signifi- cantly behind the rest of society just for that reason alone. Some people might argue that that’s a good thing, be- cause part of what’s good about our system of law is stabil- ity, but you can have too much of a good thing. I also tend to think that within each generation, especially within the legal profession, there are plenty of divisions, so the gen-
Q-and-As are edited for length and clarity.
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34 LAW DAY 2022 • CHICAGO DAILY LAW BULLETIN
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