Thomas A. Berry
In September I became the fourth director of Cato’s Robert A. Levy Center for Constitutional Studies. This is the biggest honor of my professional life, and it is also a tremendous responsibility. The Levy Center (or CCS, as we call it here) has been shaped by the three directors who came before me. And those three directors have also served as professional mentors to me over the last nine years. The best way to explain why CCS is so unique and so important is by sharing what I’ve learned from each of its previous three directors: Roger Pilon, Ilya Shapiro, and Anastasia Boden.
First, Roger Pilon. Roger founded CCS and led it for 30 years. Roger was the CCS director when I interned here in 2015 and when I served as a legal associate in 2016–17. When Roger founded CCS, the main philosophical dispute in constitutional interpretation was framed as “judicial activism” versus “judicial restraint.” Roger founded CCS to advocate for a then-radical third approach: judicial engagement. As Roger put it, CCS was founded “to encourage judges to be more engaged than many conservatives believed proper, and to locate the authority for that engagement in the Constitution itself, properly understood.”
Roger made CCS the intellectual home of the idea that the Constitution strongly protects personal liberty in all its facets, including economic liberty. As Roger summed it up, the goal was “to help change the climate of ideas to one more conducive to liberty under limited constitutional government.”
On my first day as a legal associate, Roger sent me a reading list. If I had been starting at a law firm, such a list might have comprised style guides and legal hornbooks. But Roger instead sent works of legal theory and political philosophy. Thanks to Roger’s example, I’ll always remember that CCS is fundamentally about ideas—about legal and political philosophy put into application. The most important test for everything we do at CCS is whether it will help to advance the acceptance of those ideas by both the courts and the general public.
Next, Ilya Shapiro. Ilya made Cato’s amicus brief program what it is today. It was under Ilya that Cato began its practice of hiring four legal associates (recent law school graduates) per year to help draft amicus briefs that would be filed in state and federal courts across the country. Writing more than 30 amicus briefs per year with roughly a half-dozen lawyers is an enormous undertaking, but Ilya made it look easy. To run the amicus program, Ilya had to make many quick but informed decisions about which cases to file in, what arguments to make, and how much time to devote to each brief. By his example, Ilya taught me the judgment and organizational practices needed to make these decisions and run this program. As I now begin to manage Cato’s amicus program myself, I know that the task is feasible only because I watched Ilya do it firsthand.
Perhaps even more important, Ilya taught me how to write a Cato amicus brief. Again, he taught by example. As a legal associate, I was tasked with writing the first draft of several amicus briefs. And like most recent law school graduates, I thought I could show off by sprinkling in legalese, jargon, Latin phrases, and obscure words found deep in my thesaurus. As my editor, Ilya dutifully took out all of them. It was during my year as a legal associate that I learned the point of our briefs is to be understood, not to show off.
I saw how Ilya transformed my drafts from middling to crackling. Short, snappy sentences. Section headings of just a couple of words. Direct language. And arguments that can be understood not just by lawyers, but by any educated layperson. As I now take on the role of final editor for Cato’s briefs, I still have Ilya’s editorial voice in my ear.
Finally, Anastasia Boden. I was fortunate to work with Anastasia when we were both attorneys at the Pacific Legal Foundation. When she came over to Cato and we were professionally reunited, she reinvigorated our amicus brief program with a litigator’s perspective. Yes, our briefs are about ideas. But they’re also filed in real cases involving real people. These human stories help explain why the ideas and principles we argue for matter. And these human stories deserve pride of place in amicus briefs just as much as they do in the parties’ briefs. Anastasia’s keen instincts as a litigator gave her a sense of what grabs a judge’s attention and what puts them to sleep. For the rest of my career, I will never be satisfied with a brief’s opening paragraph unless I think Anastasia would be satisfied with it.
My hope as CCS director is that I can put into practice what I have learned from each of my predecessors. My mission is for CCS to produce accessible legal writing that is both principled and personal. Our briefs and papers should explain the philosophical and historical case for our view of the Constitution. They should demonstrate the human cost of departing from that vision. And they should clearly communicate that message to both judges and the general public alike.
I’m keenly aware that Cato’s CCS fills a role that no other legal institution inhabits. We have filed amicus briefs defending a constitutional right to same-sex marriage and a constitutional right not to be forced to create speech endorsing a same-sex marriage. We’ve aligned with conservative legal groups in economic liberty and Second Amendment cases, and we’ve aligned with progressive legal groups in police accountability and Fourth Amendment cases.
We defend every constitutional right on an equal footing, and we collaborate with anyone willing to defend that right with us. That has been CCS’s guiding principle since it was founded, and I won’t be the director who changes that approach.
Going forward, what do I see as the likely focus of CCS? As always, we will meet the moment with whatever legal arguments are most needed. In this moment, officeholders of both parties seem more interested in using political power to fight in the culture war than in getting the government out of the culture war. The CCS has opposed both “conservative” efforts to compel speech by private tech companies and “progressive” efforts to compel speech by private retailers. The CCS has opposed both a Texas prosecutor’s misguided crusade against a risqué movie and campus regulators’ overzealous suppression of edgy speech.
Whenever the government tries to put a thumb on the scale in the free arena of public debate, Cato will step in and defend the principle of government neutrality.
In addition, this era continues to see the leaders of both parties try to circumvent Congress and erode the separation of powers. Cato has opposed both the Trump administration’s attempt to build a border wall without congressional authorization and the Biden administration’s attempt to waive student loan debt without congressional authorization. I’m immensely proud of this record, and it will continue no matter which party wins the next election.
Does the work that we’ll be doing at CCS sound exciting to you? If so, I’d love for you to join us. If you’re a lawyer with three or more years of legal experience, apply to be a legal fellow, which is a permanent scholar position at Cato and the position that I held for the last four years. If you’ll be graduating law school in 2025 or if you’re a lawyer with fewer than three years of experience, apply to be a legal associate. That’s a one-year position that will allow you to draft amicus briefs across all of Cato’s issue areas. And that was my first job out of law school. Finally, if you’re a current law student, apply to be a summer, spring, or fall legal intern. That was the first position I ever held at Cato. And the rest is history.