Shining A Spotlight On Adjunct Faculty Member Judge Marsha Berzon

If you ever asked about UC Law SF’ best-kept secret, someone would probably mention the caliber of the school’s adjunct faculty.

“Our proximity to the state and federal courts, great law firms and world-class non-profits gives us an edge in attracting talented adjunct faculty from across the legal profession. Judges and attorneys are drawn to teaching here because of our students and our reputation – they know they’ll have a chance to get to know and influence leaders of tomorrow’s bench and bar,” said Provost & Academic Dean Elizabeth L. Hillman.

Judge Marsha Berzon, who has served on the U.S. Court of Appeals for the Ninth Circuit since 2000, first broke down barriers as a newly minted lawyer. She was the first female law clerk for U.S. Supreme Court Justice William Brennan, Jr. at a time when very few women had clerked for Supreme Court justices. In fact, he had initially denied her the clerkship. “But then he changed his mind,” she said.

As an appellate lawyer in private practice, Judge Berzon co-founded Altshuler Berzon LLP in San Francisco with her husband, Stephen, and Fred Altshuler. She was the first female lawyer to represent the AFL-CIO and its member organizations before the Supreme Court and argued many cases on their behalf, including the landmark sex discrimination case UAW v. Johnson Controls. Although her clients consisted largely of unions and employees, her docket ran the gamut – she argued employment and labor law matters, First Amendment cases, environmental law matters and women’s rights cases, among others. She also represented female professors in university tenure cases.

During her time on the bench, Judge Berzon has often caught the attention of legal commentators. Prior to last year’s U.S. Supreme Court’s decision that legalized same-sex marriage, she wrote a concurrence in a 2014 decision that struck down gay marriage bans in Idaho and Nevada. Her opinion was widely cited in the press for its argument that gay marriage bans should be subject to intermediate scrutiny. “Idaho and Nevada’s same-sex marriage proscriptions are sex based, and these bans do serve to preserve ‘invidious, archaic, and overbroad stereotypes’ concerning gender roles. The bans therefore must fail as impermissible gender discrimination.” She also rides the current of popular culture. Her 2015 Paeste v. Guam opinion cited a segment that John Oliver did on Last Week Tonight about the U.S. territories. When she recently discovered that she was featured in a new Oxford University Press book, Point Taken, a guide about writing like the ‘world’s best judges,’ she found herself in good company. “I looked at the alphabetical list of biographies – Berzon, Brandeis, Cardozo. It was really quite remarkable.”

Judge Berzon is circumspect when asked to single out memorable cases. “I try to remember every day that every case, including the ones that perhaps no one else cares about, are real issues for real people. They’re entitled to the care and attention of the judges even if there’s not going to be a precedential opinion and even if no case in the future is going to be affected by it. I don’t triage – I take each case for what it is and I take each case seriously.”

For the past several years, Judge Berzon has taught the constitutional cases seminar with Professor Joe Grodin, himself a former associate justice on the California Supreme Court. The unique class primarily reviews cases that are on the docket for the Supreme Court’s current term. Students draft summary memoranda, read background materials, debate their opinions on the cases and eventually vote. “One of the seminar’s objectives is to put students in a judicial perspective – to view cases as a judge might view them, rather than as advocates, which is the usual perspective in law school,” said Grodin. “From my perspective, the seminar constantly rekindles my interest in looking at the role of judges in a democratic society.”

For those aspiring to clerk after law school, the seminar is a rite of passage. “Virtually all of the UC Law SF alumni I’ve encountered as fellow federal court clerks took the class,” said Jessica Winter ’13, who took the seminar as a 3L and is now clerking for Judge Berzon. “The most important thing I’ve carried into my clerkship from the seminar is to constantly question and get under the legal arguments that are made, as well as my own perceptions. While I’m not certain there are absolute ‘right’ and ‘wrong’ answers to many of the cases before the courts, I think it’s critical to evaluate my own thinking, and make sure it’s intellectually honest and internally coherent.”

With its two preeminent professors and an all-star cast of visitors, including California Supreme Court justices, lawyers involved in the actual cases and Judge Berzon’s colleagues, the seminar sounds much like the equivalent of a literary salon for devotees of American jurisprudence. One year, Donald Verrilli, Jr., the U.S. Solicitor General, made an appearance. “We probably have the largest professor-to-student ratio of any class we’ve seen,” mused Berzon.

The lessons Judge Berzon likes to impart on her students and law clerks are both practical and aspirational. One piece of advice is important for any practicing lawyer. “Read very carefully. One of the things my law clerks come away with is ‘read the statute.'” Another touches on life in general. “Young people today seem to want to plan their lives out and want advice on precisely how to do that. I tend to discourage that degree of planning and the belief that you can try to project the future on the ground that you can’t. Most of life and law is serendipity,” said Judge Berzon, whose own remarkable and, by turns, serendipitous, career is nothing short of inspiring.