Judge Guido Calabresi : The Future of Law and Economics [66:35-71:48]

Because I thought you could do more. On the other hand it is also the case but the Supreme Court is bound by law and my story there is Justice Reed was in racial matters a bigot he was a suvernor and he was a suvernor of that age and a bigot and he was planning to vote to dissent in Brown vs. Board of Education. Just this black was a judge for whom I clerked for went and talked to him and said you cannot do this. Now remember this is Brown vs. Board of Education that has been attacked by so many people as being not a law like decision. It was a law like decision. I was told by a leading lawyer in Montgomery Alabama that every lawyer in Montgomery Alabama knew how it was going to come out because the law was clear because for a good marshal and the people with him had slowly developed the law in such a way that it was inevitable and it was sufficiently inevitable so that Justice Reed finally said okay the law compels me. Now compels me in what way in a way that only maybe judges but not just judges people study law understand we are compelled by the law there are things that the most conservative or the most lefty person in the court cannot do at a particular moment that doesn't mean that the law over time won't change. It changed between Plessy and Brown dramatically so that by the time of Brown Brown was compelled. It changes in all sorts of things but at any given moment the people who say anything goes are as wrong as the people who say everything is determined. It's not that way. There is some room and there are some things that you cannot do if you are a judge and that's one of the great things about judge Supreme Court has more room than we do but they too ultimately I don't care who they are. You can ask them something and you know that you'll say no that can't be done. Let me ask one last question and I'm going to ask this question which comes from my 16 year old son I told him I was coming here today and he asked what I was doing and he wanted to be here. But one of the questions he asked me to ask you is what's been the hardest decision you've had to make as a judge? What's the hardest case that came before? Well, it's a story that takes a little bit of time to take you. We've got plenty of time. I was on a panel with Jose Cabránis and Fred Parker. It was a habeas case and it was a case of a young man who had been convicted of murdering his parents. We get many habeas cases in which there is something wrong in what was done and so on but basically you think you know the person was guilty. Here I looked at that and I thought I think this guy may well have been innocent and a whole series of things. This question and for hours and he finally confessed and took it back immediately and said no and all sorts of things were going on which made me think that this was a real chance that this guy had been wrongly convicted. And I wanted to grant habeas, you know that. And these other two, one Jose Cabránis, a very conservative judge, Fred Parker who was a Democrat, Fred Parker who was a Republican from Vermont, a much more liberal judge. That way both with great experience as trial judges, well I'd never said foot in a courtroom when I became a judge said to me you can't grant habeas here, you just can't do it. And I worried about it and finally said you know makes no sense for me to dissent and so I wrote an opinion of holding the conviction. Over time, more and more evidence came in that this guy was innocent and he kept trying to go in state court to get that conviction quashed in the state judge said never too much.