Q&A: Justice David Lillehaug prepares for Minn. Supreme Court

David Lillehaug will be officially installed as Minnesota's newest Supreme Court justice on Friday.

Lillehaug is a former U.S. Attorney and is also well-known for his legal role for the Franken and Dayton campaigns in both recent statewide recounts. He was appointed to the Supreme Court by Gov. Mark Dayton in March. He was sworn in earlier this month, and has already been immersed in his court responsibilities.

In May, Lillehaug announced he had throat cancer, but that the diagnosis and treatment would not prevent him from taking his seat on the bench.

Lillehaug spoke with Tom Crann of MPR News' All Things Considered. An edited transcript of the conversation follows.

TOM CRANN:What are your impressions so far after a few weeks?

DAVID LILLEHAUG: First of all, the court is a very collegial place. I'm working with six other justices - more accurately, they're working with me and helping me get up to speed - and they've all been extremely welcoming.

There are some supreme courts and appellate courts around the country where the judges are almost literally at each others' throats. That has not been my experience at all, nor did I expect it to be. Minnesota historically has been a court where the judges get along.

My second impression is I kind of feel like I'm at an intellectual feast. Many lawyers these days are in narrow areas of specialty. I have never really been that way, but the variety and intensity of cases that come before the court have been very impressive. I have had to work hard to keep up, reading all the briefs and decisions from the courts below. It's been an intellectual challenge but I'm really enjoying it.

CRANN: Your predecessor Justice (Paul) Anderson had some words of advice. In one of his exit interviews here on MPR News, he talked about the power of writing. What is your philosophy when it comes to writing opinions and how important is that?

LILLEHAUG: Well, my first philosophy is I agree with Justice Anderson that the writing is extremely important. That's the way the court speaks. And it's not just speaking for today, it is speaking for generations.

For example, when I was a lawyer I would sometimes cite Minnesota Supreme Court cases from the 1860s. Think about it, we're celebrating the 150th anniversary of Gettysburg this year, and people are still relying on the words that have come down from the justices of the Minnesota Supreme Court. There are people going to be reading these words a long time after I'm gone, so I need to be clear, my decision needs to be based on precedent and principle so that it gets the respect that we hope it has decades down the road.

CRANN:You have a lot of pretty high-profile partisan DFL activity on your resume. You said you'd leave that behind. How do you do that?

LILLEHAUG: You do it by doing it. The moment you raise your right hand and swear allegiance to the law and you walk through the courthouse door, you have to leave it behind. These decisions need to be based on precedent, relying on the cases that have come before and applying principle. It's not applying politics, it's not applying personalities. That's the way those decisions need to be made, and my experience in the conferences where the court has gotten together after a case, precedent and principle are discussed, politics and personalities are not.

Many people do recognize my name from things such as the election contest, the government shutdown. I've been very lucky to represent public officials, but 90 percent of the work that I did in private practice law had absolutely nothing to do with politics. It was representing business and families and individuals in day-to-day litigation. In that regard, I am not unlike many other lawyers around the state, happily with 30 years of complex litigation experience. That's the primary thing I bring to this court.

CRANN: Any reaction you can offer from this week's rulings?

LILLEHAUG: One thing I've learned in just three weeks on the Minnesota Supreme Court is we certainly pay close attention to U.S. Supreme Court decisions, and then sometimes in the aftermath of those decisions it's up to us to apply them. So I'm going to be careful in discussing Supreme Court decisions. I thought the Defense of Marriage decision was interesting. It cut along what one would consider to be lines that you see on the Supreme Court with (Justice) Anthony Kennedy probably being the swing vote on a 5-4 decision.

The other case involving California did not split along any predictable lines. The question there was who has standing to appear in the United States Supreme Court to defend the state law where the state government official said, "Hey, we're not going to defend it anymore." That was kind of an interesting combination. The five justices who found lack of standing were Chief Justice Roberts - who by the way, was a law school classmate of mine. A brilliant man - Antonin Scalia, and then you've got Justices (Ruth Bader) Ginsberg, (Stephen) Breyer and (Elena) Kagan. These are people who in close cases maybe don't often vote with one another. I thought that was interesting. It's a long opinion and I haven't finished reading it.

CRANN: Do we put too much into predicting the way these justices will rule based on either who appointed them or what they did in the past?

LILLEHAUG:As Yogi Berra said, "You can observe a lot by watching." It's not just watching. We have a very sophisticated industry now that analyzes the justices' opinions and can tell us within two standard deviations what they're likely to do in the same way we analyze the NCAA tournament.

Based on three weeks of experience in the Minnesota Supreme Court hearing seven arguments ... I will tell you when the justices get together in conference there's a magic to it. You got seven people from seven different backgrounds and they are all bringing their experience to bear on the case that's before the court. Sometimes that results in surprising unanimity. Sometimes it results in one justice agreeing with another who you would say, "Hey, based on their background you would think they wouldn't agree." But they see things the same way.

This is not a science. There is an art to it, and a social science to it. I'm always interested in these kinds of Supreme Court predictions, but at the end of the day it's people trying to follow the law and try to do the right thing.

CRANN: You've been pretty public revealing you've been diagnosed with throat cancer.

LILLEHAUG: I do have throat cancer. The doctors have used phrases like "highly curable," which they don't throw around too often. I am encouraged and optimistic. I am in the middle of a seven-week non-surgical treatment program.

I am also a little embarrassed to talk about that, because with what so many Minnesotans go through on a daily basis in terms of health and financial and other challenges this is pretty small potatoes. I thought because of the timing of it and because this is a public office I needed to let people know that it was happening and that I'm optimistic.

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