Jean Dubofsky, the first female justice of the Colorado Supreme Court, and the appellate lawyer who took Amendment 2 to the U.S. Supreme Court, reflects on her career
Published in 2012 Colorado Super Lawyers magazine
By Erik Lundegaard on March 2, 2012
Q: You previously mentioned to me you would be retiring soon. Is this well-known in Colorado legal circles?
A: I’ve never done any kind of a formal announcement. A lot of people who see me know that I’m not taking on new cases—that I am either consulting or serving as an expert. I’ve done some reports for state agencies and things of that nature. I’ll keep doing that. But I’m not going to be the person responsible for shepherding any more cases through the appellate system. Just takes too long. It goes on for years, and, boy, I’ll be 70 in April. I want to have time for traveling, and for my grandson, and for gardening and reading and all the things that you keep saying, “Oh, one of these years I’ll get to it.”
Q: Yet I’ve interviewed plenty of attorneys in their 70s, 80s—one even in his 90s—who never think of retiring.
A: I think a lot of people don’t know what else to do with their time. They enjoy practicing law—and I’ve always enjoyed practicing law—but [some] people have it so bound up with their identity that they can’t think of anything else to do.
Q: What do you enjoy about practicing law?
A: Most of the cases that go on appeal have interesting legal issues. I’ve also always liked cases involving governmental issues—public interest kinds of cases—and they almost always have some public policy involved that’s usually timely; and if you’re creative enough, you’re going to figure out some interesting ways to develop the law.
Q: Any of these cases stand out for you? I know you’ve argued before the U.S. Supreme Court.
A: The Amendment 2 case. That’s a career case for almost anyone. But I’ve done a lot of cases involving government policy: how the workers’ compensation system has developed; whether you can interpret the statutes governing public tensions. I represented the state, Governor [Roy] Romer, because the attorney general didn’t favor affirmative action. I represented the Democrats on redistricting 10 years ago. I’ve done a couple of cases challenging constitutional amendments that the voters have adopted in Colorado.
Q: Any of those cases turn out different than you expected? Winning a case you thought you’d lose or losing a case you thought you’d win?
A: You can always lose a case you think you’re going to win. For me, that happened more frequently in cases that did not involve governmental issues. Occasionally I’d represent an insurance company fighting another insurance company on an interpretation of a contract. I’ve always found that contract interpretation and statutory interpretation cases are the hardest to predict, because when you’re talking about whether something can be clearly interpreted, it usually means there’s more than one way of interpreting it. Those are pretty unpredictable.
But the case I felt we had the toughest time on was the gay rights case: Romer v. Evans. The only U.S. Supreme Court precedent we had was Bowers v. Hardwick, which was an atrocious case for gay rights. We had an uphill battle all of the way.
Q: When you spoke to us a few years ago, you mentioned the moment when Justice Anthony Kennedy asked his first question of your opponent: “Has there been a law as terrible as this?” [Laughs]
A: That’s when I felt we were going to win. I’m still of the view that, in the end, you can win difficult cases if you have good facts, or if, like on that particular citizen initiative, people overreach. It’s a little like the “personhood” amendment that got turned down in Mississippi? That kind of a citizen initiative is in some respects the easiest to defeat—even if you’ve got a lot of law going against you. So we won the Amendment 2 case primarily because it was such an overreach and the court had to find a way to justify overruling it.
Q: An overreach, but three Supreme Court justices still voted in favor of it.
A: That just shows you that, though the facts were so much in the plaintiffs’ favor, it still wasn’t a sure winner. We worked as hard as we could to put together a case that had the best facts we could find. That’s one of the things that’s interesting about the Health Care Act cases going through the courts now. They’re all going through in an abstract sense. There aren’t any facts because it hasn’t gone into effect yet.
Anyway, that’s a very long answer to why I found the practice of law fascinating. I’ve just had some fascinating cases to work on; and because I’m a sole practitioner, I’ve been able to sit down and figure out, “OK, if I were judging this case, what would I want to hear and what would it take for the court to rule in my favor?” As opposed to: “Well, there are five lawyers, and three of them have totally different views, and you have to somehow accommodate them.” When you accommodate that much, sometimes a case gets muddy. And I’ve worked on some cases with teams of people where what we ended up with was pretty muddy.
Q: Such as?
A: One cert petition before the U.S. Supreme Court not so long ago out of the 10th Circuit over whether a church could be built in an area where the zoning was unclear and the county had said the church couldn’t expand. It was raising issues that all kinds of people who have been litigating First Amendment religion issues wanted to raise. But there were so many of them involved in this that I thought we ended up with a pretty muddy product. There wasn’t anything wrong with it. It’s just nobody’s clear view came through.
Q: Earlier you mentioned that you often sit down and think, “How would a judge decide this case?” Was your time on the bench helpful in that—
A: Invaluable. [On the bench] you see how cases get resolved. And these are resolutions not just by one person—those are harder to predict—but by a group of people. Normally you’ll come up with something that is not on either extreme, and usually closer to the middle, so you begin to see where compromises are made, and after awhile people deciding things in groups tend to not push their own personal views quite as much.
This may not be true of the U.S. Supreme Court right now, but certainly when I was on the Colorado Supreme Court people looked for ways to accommodate. An opinion written by one person may very well include ideas from others. So the cases resolved in a fashion that, if you thought about it, usually made sense.
In practicing appellate law, my theory has been to figure out what is the more likely way a court is going to rule in your favor. There are lots of rules of the road. Like: You usually don’t raise sufficiency of evidence on appeal; you don’t say that the trial court was wrong in terms of interpreting what witnesses said or their credibility; and you don’t usually try to go against a trial court’s finding of fact. That just doesn’t work. But you do have to find some legal issues that are significant enough for the court; and you’ve got [to have] a good theory going for you. So you go back and look at some of the treatises, and figure out where the rule you’re talking about came from and why. Then you can start putting together an argument that you can make appealing to a court.
Q: You were appointed to the Colorado Supreme Court in ’79. Was that your first judicial appointment?
Q: What was that experience like?
A: I don’t think not having been a judge was significant. You don’t have to rule on questions right in front of you, you can always go look up the answers. So I didn’t find that part daunting. It was a little harder—although my colleagues couldn’t have been more supportive—being the first woman on the court, and being a generation younger than the others.
Q: Apparently you were the youngest Colorado Supreme Court justice ever.
Q: When you left in 1987 to return to private practice, were you also the youngest to leave?
A: That I couldn’t tell you. There are some people who come and don’t stay too long at all. There are some who just don’t like it. It’s way too isolating.
Q: Was that you?
A: Well, I felt I’d been on the court long enough. I loved being a judge. But I could see cases starting to repeat themselves. On some things, I could feel I’d already made up my mind and wasn’t listening as carefully. And, boy, the years go flying fast when the only thing that changes are your law clerks. You sit at the same desk all day long, every day, and you don’t go out and about very much.
Q: Because of that—the cases beginning to repeat themselves—would you argue in favor of term limits for justices?
Q: Have you done that? Made that argument?
A: I usually stay out of [those] fights. Quite often, the people who are pushing term limits want to change the character of courts. For example, as more and more Republicans have been appointed over recent years, you don’t hear many people pushing for term limits anymore.
Q: So now’s the time.
A: [Laughs] I suppose. Anyway, somebody else will have to do that.
Q: Beyond the technological, what are the big changes in the law during your career?
A: Oh, the treatment of women. Definitely. When I began practicing law and placed a call to another lawyer, more often than not the secretary who answered the phone would ask me, “And who are you calling for?” Only after I assured the secretary that I was an attorney would my call be put through. Now women are everywhere. Women are judges, district attorneys and state attorneys general. When I went on the court, I don’t think there’d been a woman attorney general ever in the country—let alone U.S. attorney general. District attorneys were almost always men. There’s just been a sea change.
Q: What was this like for you back then?
A: I always felt that I was watched more carefully. So if I did a good job I was remembered more than perhaps I should have been, and if I did a poor job, you know, people wouldn’t forget it. I once gave a talk in Denver and one of the attorneys that I had known for many, many years, an African-American man, came up to me afterward and said, “I’ve always felt the exact same way.”
Q: Did you feel like there was a great weight on you as a result?
A: You just had to work harder.
Q: And if you failed it would reflect upon …
A: Upon me and—until there were more women—other women.
Q: Did you feel this was ultimately a positive or a negative?
A: Ultimately it worked very much in my favor. That’s why I ended up on the state Supreme Court.
Q: What drew you to the law in the first place?
A: I was an undergraduate at Stanford and thinking I would get a Ph.D. in history. That’s what I’d majored in and I liked it. I had a political science professor, his wife had just gotten a Ph.D. in history at Harvard, and he said she couldn’t find a job anywhere in the country. He said, “Times haven’t changed enough for women. You’ll be much better able to find employment if you go to law school.”
Q: Did you know any lawyers growing up?
A: I worked a couple of summers for General Mills in Minneapolis; and their general counsel took me under his wing and let me sit through a bunch of things he did during the day. Most of them had a lot of intellectual content to them. It just seemed that being a lawyer gave you a breadth of type of things you could work on. You would always be practicing law, but it could be business, it could be civil rights work, it could be any number of things.
Q: How did you become a legislative assistant to Sen. Walter Mondale?
A: Well, I went to Washington after I finished law school [at Harvard, in 1967]. It was really hard for women to find jobs as lawyers then. It was at a time when public interest law was just beginning to be popular. Legal Services, for example, had just been created. And a number of my friends from law school wanted to work in Legal Services. But most of the women in my law school class—we were about 2 percent of the class—went to Washington, because government hired women in jobs that were relatively interesting. And I got a job with Fritz Mondale.
Q: Did the General Mills thing help?
A: No, it didn’t. It’s funny. I suspect all the General Mills people were Republicans. [Laughs]
Q: So how did the Mondale job come about?
A: I just went in and interviewed. I mean, it was no … anything. No political connections at all. We spent most of the interview arguing about the Vietnam War. He was at that point in favor of it and I was against it. And he hired me.
Q: He liked your arguments.
A: I don’t know. But I got to work on a couple of issues there that were absolutely extraordinary. The first was the Fair Housing Act of 1968, which passed because Martin Luther King was assassinated. Mondale had started out as a junior member of the housing subcommittee of the banking committee—talk about an assignment that, at that point, wasn’t very interesting—and he decided he would start working on fair housing. It went through the Senate after a filibuster—a real filibuster, when people had to stay on the floor and argue all night; and then it went through the House right after King was assassinated. Lyndon Johnson signed it into law. I don’t think that kind of legislation could pass now. But I did half of the staff work on that. The people I got to work with, and the things I got to see and do, were just amazing.
Q: Such as?
A: The little group that every day prepared for the filibuster arguments included Ted Kennedy, Jacob Javits, Chuck Percy from Illinois, [Joseph] Tydings from Maryland—there were six of them. Oh, Ed Brook from Massachusetts. So you go to sit and listen to them talk and work through things on a daily basis. I was usually the only staff member there with Mondale. At one point he told me I should pay him for my job.
The other thing I worked on for him was an East-West trade bill. The computer industry was getting pretty strong in Minnesota—Control Data and 3M—and those companies wanted to trade with Europe. But computer equipment couldn’t be traded anywhere outside the United States for fear that it would go on to communist countries. The bill I got to work on ended that ban on trade of computers.
Q: What stands out about your tenure with Colorado Rural Legal Services?
A: The case that was probably most significant involved the Hill-Burton Act, which required the hospitals that received Hill-Burton funds for construction—that’s how hospitals got built in the 1950s—were to provide free or below-cost services; and the hospital in Greeley was turning away migrant farmworkers and not providing any free or below-cost services for them. We ultimately won that case in the 10th Circuit. That became, and I think it still is, the governing law.
Q: Did you have a mentor there?
A: Not really. Legal Services tended to be young people.
Q: What about when you became a deputy attorney general?
A: No. [Laughs] I’ve always been pretty much a Lone Ranger, I guess.
Q: How did the deputy AG job come about?
A: You know, I never asked J.D. MacFarlane, who was the attorney general, why he decided to appoint me. But I think he saw me at the Capitol. I started representing Legal Services clients for the state Legislature. We figured that we might not get in the court some of the things we wanted, [but] if we could talk our clients into coming and testifying before a legislative committee, we could often get legislation that changed things. It was a Republican-controlled Legislature, but pretty moderate. [MacFarlane] was a former state senator, and when I met him he was the number two person at the state public defender’s office. He asked me if I’d be his deputy when he ran for attorney general. It was a pretty nice job to have and I said, “Sure.” I basically did all the hiring and firing there.
Q: Is that tough?
A: Hiring is fun; firing isn’t so much fun. I also oversaw a lot of the legal work that was done, kept track of the cases that were controversial; and if the governor or secretary of state had a legal question, I was the person from the attorney general’s office who would go over and talk with them and work through it.
The only case I did—because I wasn’t doing much court work—was one in the state Supreme Court, where I had the nice task of arguing that the voter-initiated amendment that fixed the Denver school district boundaries with the boundaries of Denver should be upheld. It was an effort to keep school integration and busing out of the suburbs. It wasn’t an issue I was particular excited about doing, but that’s what my job was.
Q: Did you win?
A: I won. But I wasn’t too happy about it.
Q: Have you ever thought about …?
A: Running for office?
A: I’m too shy! I hate making telephone calls. And every time I volunteer to deliver pamphlets door-to-door, I can’t bring myself to do it. So my husband is perfectly happy to do things like that.
Q: You’re able to argue before the U.S. Supreme Court and yet you’re too shy to …?
A: Yeah. I don’t do well at cocktail parties.
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