by Nancy Waring
Nearly a decade ago Kathleen Sullivan’s first argument before the U.S. Supreme Court prompted American Lawyer to observe that the young Harvard Law professor was "on the fast-track to forensic stardom." The case, Freytag v. Commissioner, concerned the constitutionality of the appointment of special trial judges by the tax court. Sullivan ’81, who left HLS for Stanford in 1993 much to the chagrin of her colleagues here, has litigated many high-profile civil rights and civil liberties cases. She has written numerous law review articles and op-eds on constitutional matters of the day, and coauthored the 13th edition of the widely used text Constitutional Law with Stanford colleague Gerald Gunther ’53. She has been a regular on The NewsHour with Jim Lehrer, commenting on issues from the Independent Counsel Statute to the Paula Jones case. Her name has been floated as a potential Supreme Court nominee, and last year she was touted by the National Law Journal as one of the 50 most influential women lawyers in the country. In September, she becomes Stanford’s 11th law dean.
Sullivan succeeds Paul Brest ’65, another Harvard Law graduate and constitutional scholar. "I take great personal delight in having recruited one of the most superb constitutional law scholars in the country to Stanford," Brest says. "Kathleen Sullivan is a brilliant choice to assure Stanford Law School’s preeminence in the twenty-first century." According to HLS mentor and colleague Professor Laurence Tribe ’66, Sullivan will be a "fabulous dean," and has qualities "apart from her brilliance and charisma" that will serve her well in the job. "She is very empathetic and unself-aggrandizing. And she has an amazing ability to build bridges between factions and find non-zero-sum solutions to problems." Another HLS colleague, Professor Charles Fried, cocounsel with Sullivan on an ACLU amicus brief in the flag burning case in 1990 (U.S. v. Eichman), notes that Sullivan also has "a wonderful sense of humor and is terrific company."
Twenty-five years ago Sullivan was at Cornell University, headed for a career as a literature professor. But political events during the summer after her sophomore year riveted her attention and caused her to change course. "It was the summer of Watergate, the brief, shining moment when lawyers were public heroes engineering a peaceful, political transition," says Sullivan. "What has always drawn me to literature are the moral dilemmas resolved in fiction. As I watched Watergate unfold, I began to see law as a practical arena to find solutions to moral and ethical problems."
In two years as a Marshall Scholar at Oxford between college and law school, Sullivan studied philosophy, politics, and economics, and, thanks to her mother, got a preview of some of the most brilliant new work in the field of law that would become her specialty. "My mother sent me an ad for the first edition of Larry Tribe’s constitutional law treatise with a note that said, ‘Wouldn’t this be helpful before law school?’" Sullivan loved the book and says she is "eternally grateful" that the HLS computer ultimately assigned her to Tribe’s ever-oversubscribed class in her 2L year. Sullivan’s mother also gave her a preview of another future mentor and friend, Susan Estrich ’77, sending Sullivan a Time magazine story announcing Estrich as the first woman editor of the Harvard Law Review.
Once she had chosen law, Sullivan imagined a career in litigation, never expecting to become a legal academic, much less a dean or a Californian. "I am such a New Yorker I thought that the only issue was really whether to go to a firm uptown or downtown," says the Long Island native.
Sullivan got her first taste of litigation as a 3L, working with Tribe on a U.S. Supreme Court brief in which the two asserted the right of Hare Krishnas to proselytize at the Minnesota State Fair. Recalling the fledgling attorney, Tribe says, "Her sense of the most persuasive way to cast the issues and her rhetorical command were remarkable for any lawyer, much less a student. It was clear to me that I was dealing with the most extraordinary student I had ever had." The challengers lost that case, but it launched Sullivan on a series of litigation collaborations with Tribe.
A 1983 case Tribe and Sullivan worked on together involved defending the city of Boston’s policy of giving hiring preference to Boston residents on city construction projects. "I’m not sure I would have won without her," says Tribe, noting that he and Sullivan had a formidable opponent in Susan Estrich, who helped to represent the other side. "This was Susan’s first exposure to Kathleen, and Susan was immediately impressed by what a powerhouse we had in our midst." Estrich recalls having felt confident that her side would likely win the case, until she received a daunting reply brief coauthored by someone named Kathleen Sullivan: "I turned to my research assistant and said, ‘Who the hell is Kathleen Sullivan?’ I vowed never to be on the other side of this woman again. And I haven’t been. And I won’t be."
After graduating from HLS and clerking for Judge James L. Oakes ’47 of the U.S. Court of Appeals for the Second Circuit, Sullivan spent two years as a litigator in Boston, working often with Tribe and sometimes with the firm then known as Silverglate, Gertner, Baker, and Fine. She was "recruited off the sandlot," as she puts it, initially by the University of Virginia Law School, and later by Yale and then Harvard, where she began teaching in 1984.
Sullivan says she has her "great day job" to thank for "the luxury of continuing to take occasional cases relating to cutting-edge issues in my field." She was cocounsel with Tribe for the Georgia ACLU in Bowers v. Hardwick, an unsuccessful 1986 challenge to Georgia’s sodomy law as a violation of privacy rights, and in Hawaii Housing Authority v. Midkiff, a successful 1984 defense of Hawaii’s land reform act against a taking clause challenge. Sullivan was the last attorney, following in a long line that began with James St. Clair ’44 (’47) and Professor Alan Dershowitz, to represent Frederick Wiseman in the "Titicut Follies" case, which has long been the basis of HLS’s federal litigation course. The case involved a gag order on a 1967 film about Bridgewater State Hospital; the gag order was finally lifted in 1991, when the judge decided that the subjects of the film would no longer be recognizable. Sullivan’s roster of cases also includes Anderson v. Green in which she made her second solo appearance before the Supreme Court in 1995, arguing on behalf of the right of newly entered poor mothers in California to receive AFDC benefits at the same level as longtime California residents. Sullivan says she won by virtue of mootness, and that the case is back on the Supreme Court docket this year.
If litigation was her first love, Sullivan quickly developed a passion for teaching as well. She has won the top teaching awards at both Harvard and Stanford, where she teaches Constitutional Law and an elective covering the free speech and religion clauses. "Teaching has always been at the center of my career, and my best writing has been stimulated by classroom discussion," says Sullivan, noting that her tenure piece, "Unconstitutional Conditions," published in the Harvard Law Review in 1989, emerged from a classroom discussion about the constitutionality of a then-hypothetical government program to dispense family planning subsidies with the stipulation that the funds could not be used to counsel women to have abortions. Asked if she plans to continue teaching when she becomes dean, Sullivan says she will "insist upon it."
And while some of her future writing projects on subjects from freedom of speech, to the politics of religion clauses, and the jurisprudence of Supreme Court—may go on the "back burner" for a while, Sullivan will keep up with her own field, and then some. She will continue to edit the Gunther and Sullivan constitutional law casebook. And, she notes, "I am looking forward to becoming more of an intellectual generalist—an exciting aspect of the job as dean will be keeping abreast of developments in my colleagues’ fields."
Sullivan notes that she is the third in a series of constitutional scholars - following Brest and former HLS Professor John Hart Ely - to assume Stanford’s deanship. "The hegemony of constitutional lawyers in the deanship here is a question for historians," she says, adding that the specialty may have advantages for the job. "As a constitutional lawyer, I think about how to structure institutions and use institutional design to ensure that heterogeneous and diverse groups of people can work together productively, and to make sure that minority rights are always respected. I hope the lessons of thinking about these public policy questions in the larger world will serve me in the smaller world of our law school."
That world has some special features, in Sullivan’s view. "Stanford is a bit of a western frontier school," whose prominence is more recent than Harvard’s, or Yale’s, or Chicago’s. "There is a kind of fresh, innovative environment here, an openness to new ideas," she says. "There is also the proximity to Silicon Valley, which Sullivan refers to as "an amazing engine-room of the economy, where business practices have the same kind of innovative feel that the school does."
Many Stanford graduates become attorneys or entrepreneurs in the Silicon Valley area and have enormous collective wisdom about such matters as "the impact of the new technologies on law practice and the shape intellectual property regimes will take in the next generation." Says Sullivan, "Our graduates in this fast-paced legal environment can also advise us about what kind of services legal educators should be providing to the profession."
Noting that law schools have perfected the teaching of analytical skills, Sullivan says it’s time for legal educators "to think about what we should add to the mix to prepare students for an array of careers in the next century, and to expand our scholarship and loan forgiveness programs so financial obligations do not interfere with career choices. And every law school has to attend to globalization of business and law practice, and to ensure that students are well prepared to work in legal regimes in other countries."
On the issue of racial and gender diversity, Stanford, whose 40-member faculty includes ten women and five minorities, "has done very well," Sullivan says. "But we can, and should, do even better." Asked about the significance of being a woman law dean—1 of 19 in the country, according to a recent ABA survey, Sullivan says, "I stand on the shoulders of many women pioneers before me, from the HLS women of the Class of ’53 to my own wonderful female mentors. My goal as dean is to create an environment that is inclusive and supportive of any group—racial, gender, religious, or ideological."
While Sullivan’s profile in legal academia couldn’t be higher, how often she’ll continue to appear on television reflecting on legal issues of the day remains to be seen. "I’ll have to decide that on a case by case basis. I strongly believe, though, that law professors and deans have an important role in clarifying and explaining legal issues to the broader public. As former White House counsel Lloyd Cutler recently wrote to me, it’s part of a law dean’s job to be ‘an articulate spokesman for the values of the legal profession.’"
Reflecting on a guest appearance of a very different order, Sullivan says her visit to HLS to deliver the Holmes Lecture in April was "a joyous occasion." The 34th speaker in a series that has included Learned Hand, William J. Brennan, Jr. ’31, and Antonin Scalia ’60, Sullivan addressed the purposes of antidiscrimination law in light of the nation’s constitutional traditions, concluding that discrimination against gay men and lesbians presents a classic case for its application. "I was very moved to be back among so many beloved friends and former students and colleagues," says Sullivan, whose lecture was greeted warmly by an overflow crowd including alumni returning for Spring Reunions. "I owe so much of who I am and what I do to wonderful colleagues at HLS. Even though I defected to the West, I hold HLS in the highest esteem."