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Jay Wexler is a Professor of Law at Boston University and former official in the Department of Justice, as well as a one-time Supreme Court clerk for Justice Ruth Bader Ginsburg. He has a newly released collection of creative writings, The Adventures of Ed Tuttle, Associate Justice, and Other Stories.

I wanted to talk to him because I’m always interested in academics with creative sidelines and how they balance work and play.


John Warner: You have, for lack of a better term, a real career: former Supreme Court clerk, former attorney in the Department of Justice, current law professor. I’m assuming you’re still expected to produce scholarship and engage in all the other standard academic duties. And yet, you also take the time to write things such as an imagined confirmation hearing for Sonya Sotomayor conducted not by United States Senators, but the Kansas City Royals. Why do this?

Jay Wexler: Umm, because I have tenure? No, no, that’s just a joke. I do have tenure, but almost all of the stories in the book were written before I had tenure (the two McSweeney’s pieces are an exception) and in fact were written during the period between when I started teaching and the year I was up for tenure, which I think was 2007. During that period, I needed some sort of creative outlet to counterbalance the effort that I was putting in to writing these very long, extremely serious, overly footnoted articles that law professors have to write when they start their careers. I’ve always written humor, from the puppet show scripts I penned in elementary school (the Friday the 13th spoof was a HUGE neighborhood hit) to the review I wrote for my high school newspaper of the flavors in the cafeteria’s Slurpee Machine to the many pieces that the editors of the Harvard Lampoon didn’t like when I was in college. So it was natural that I would turn back to writing humor when I was looking for something to keep me sane during those early, stressed-out years of being a professor.


John Warner: Do you see your creative writing as important to your academic/scholarly work or do they populate two separate spheres, one is job, another is hobby, that sort of thing?

Jay Wexler:  During my pre-tenure days, I viewed them as two separate spheres, with the creative writing being primarily a hobby and quite apart from my professional work. Now that I have tenure, though, I feel much freer to combine legal analysis with humor/creative writing, and I’ve been fortunate to have been able to publish two non-fiction books about law (The Odd Clauses and Holy Hullabaloos) that at least try to be funny as well as informative and provocative. Since I’ve been able to use more of my creative side these days in my professional work, I feel less of an urge to write crazy humor pieces and stories on the side.


John Warner: We first became acquainted through my position as editor of McSweeney’s Internet Tendency, and you as one of the submitters/contributors. I don’t want to tell tales out of school, but my memory is that I rejected some of your work for publication. Two questions: 1. Was I nice about it, or did you want to hunt me down and kick me in the teeth? 2. What’s your advice for soldiering on through rejection?

Jay Wexler:  You were nice about it, a veritable peach in fact. And I remember that when you did accept a piece (the B&B guestbook spoof), working with you to edit it and make it funnier was very helpful and satisfying. As for rejection, if I had a dime for every time I’ve had a piece rejected, I’d have probably $8,123 by now. Perhaps some people make it to a place in their career where they don’t have to worry about rejection anymore, but I’m certainly not one of them. Every day practically I get rejected by somebody or other, and not just by my wife. Yesterday, for example, a bookstore that I wanted to do a reading at said no to me. The last academic article I sent out got accepted by one journal and rejected by 45. Right now, I have a query out at a magazine for a piece I want to write and a humor piece I submitted somewhere, and I’m predicting rejection (or just outright silence) on both. It’s a cliché I guess, but at some point, you just have to get tough and learn not to feel bad about getting rejected and stop putting the rejection letters up as wallpaper all over your bedroom, or otherwise you’ll find yourself weeping all day on the toilet, and nobody wants that.


John Warner: What’s it like clerking for the Supreme Court?

Jay Wexler:  It was surreal. Everyone who clerks there has a different experience, depending on who they are clerking for and what term they’re clerking. If you’re there during a particularly divisive term, like this past one with the health care case, or the term two years after I was there, when the Court decided Bush v. Gore, then I imagine the work can be very stressful. The term I was there, however, I think the biggest case involved whether the 30 day period for filing an answer to a complaint starts running when the defendant actually receives official service of the complaint or instead when the defendant receives an unofficial copy of the complaint, like by fax or something. Now, if you didn’t fall asleep during that sentence, you can probably tell that the cases my term weren’t all that explosive. So that, combined with the fact that my boss (Ruth Bader Ginsburg) was extremely experienced as a judge and took complete charge of all the work, made it so that my year was pretty relaxed, work-wise, and I was free to enjoy the fact that I was working at the Supreme Court, which, as I mentioned, was just a very surreal thing. The whole time I was there a voice in the back of my head was reminding me that I was working at the Supreme Court, so like if I was drinking a Pepsi, I was thinking, “I’m drinking a Pepsi at the Supreme Court,” or if was urinating, I was thinking, “I’m urinating at the Supreme Court.” You get the idea.


John Warner: It seems as though the Court is under greater scrutiny than ever. Is it your sense, based on your experience, that the Court cares or is influenced by this? The hubbub around the ruling on the Affordable Care Act was that Justice Roberts “switched” his vote because of outside pressure. Is that really something the Court experiences?

Jay Wexler:  I very much doubt the Chief switched his vote because of any specific outside pressure, like that he was worried about CNN or Jon Stewart criticizing him for the decision. He may have switched his vote because he realized that voting against the health care act was going to lessen the Court’s general prestige over time. In other words, I think the justices think about the Court as an institution and are concerned about maintaining the institution’s legitimacy as a historical matter, but I honestly don’t think any of them give a rat’s ass about what the immediate reaction to a decision is going to be.


John Warner: In the title story we meet Ed Tuttle, a Supreme Court justice on vacation in the Tetons who realizes that the robes can help him pick up women. I have to say it was weird thinking about a Supreme Court justice as a flesh and blood person with…needs? Where did Ed come from?

Jay Wexler:  Ed and his story come from a lot of places, including a month I spent with my family in Jackson Hole and my longstanding crush on Liz Phair, but mostly I suppose he comes from imagining what I might do if I were a Supreme Court justice. One of the great things, it seems to me, about being a justice, is that unlike other public officials and figures, nobody knows who you are or what you look like. So this opens up an enormous world of possibilities for doing other things while you’re also justice-ing. If you wanted to take an adult education class in pottery down at the local Y, for example, you can do it, and your classmates would likely have no idea who you are. Or if you’re single and you want to go hang out in Wyoming and fly fish the Snake River and meet women, why not? Most justices don’t do anything particularly interesting when they’re not working (Justice Thomas may be an exception -- I’ve heard he tools around the country with his wife in an RV during the summer), but there’s no reason they couldn’t.


John Warner: Your bio at the end suggests that there’s an Ed Tuttle novel in the works. Finishing the story in the book, I definitely had the sense that there was much more going on with Ed. What made you feel that it’s a novel?

Jay Wexler:  I’ve always wanted to write a novel, and with Tuttle I feel I have a character I can understand facing a situation I can empathize with. I think the idea of a Supreme Court justice facing a mid-life crisis of sorts is a fruitful place for a novel to start, especially when the mid-life crisis coincides with the term of the century at the Court and the justice in question is the swing vote.


John Warner: Any hints on what Ed’s up to in the novel?

Jay Wexler:  He may or may not find himself drawn to the Taoist writings of Chuang Tzu, whose skeptical views on logic and reason fit uneasily with the work of a judge.


John Warner: Lastly, give me five books not related to the law or lawyering that law students should read.

Jay Wexler:  Well, how unrelated to law do they have to be? Can I include Kafka’s The Trial or Dostoevsky’s Crime and Punishment? If not, then I guess I’d suggest Kafka and Dostoevsky alternatives The Castle and The Brothers Karamazov. In any event, the other three would be The End of the Road by John Barth, Straight Man by Richard Russo, and Infinite Jest, by David Foster Wallace.



Tweets from John Warner are rare, but valuable @biblioracle.

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