Articles
Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

‘My first few months have been amazing’

An interview with Justice Paul Thissen of the Minnesota Supreme Court

Justice Paul C. Thissen was appointed to the Minnesota Supreme Court in 2018 by Gov. Mark Dayton. Prior to joining the Court, Justice Thissen had spent 15 years as a member of the Minnesota House of Representatives, including two years as speaker of the House. While serving in the Minnesota Legislature, he was a partner at Ballard Spahr (formerly Lindquist & Vennum) from 2010 to 2018, and at Briggs and Morgan from 1993 to 2010. Justice Thissen also spent a year in the appellate division of the Minnesota State Public Defenders Office (1998-99). After graduating from the University of Chicago Law School, he clerked for the Honorable James Loken at the 8th Circuit Court of Appeals.

Justice Thissen and I recently had a chance to discuss his first few months on the Court, as well as the experience of being in different rooms “where it happens.” 

Jon Schmidt: You are now several months into your tenure on the Minnesota Supreme Court. What have the first few months been like so far? Perhaps a bit quieter than your previous jobs?

Justice Paul Thissen: My first few months have been amazing. People on the court—staff and other justices—have been incredibly welcoming and helpful. The job has certainly been both challenging and exhilarating. I’ve been surprised at how much not just the law but legal reasoning itself has changed over the years. There is so much more significance placed on close textual analysis. On the other hand, the art of understanding law from a common law perspective—as a series of stories and decisions that have developed over time—seems somewhat a lost art among some practitioners. Maybe it’s Westlaw and other technologies, which allow lawyers to grab a cite to support a legal principle without really digging in and understanding why that principle mattered in the first place. 

You are absolutely right that the job is quieter than either politics or a law firm practice, but in many ways that is a wonderful gift. I keep telling people that for the first time in a while, I really have the time to think instead of constantly reacting to the latest development. But I do miss getting out and talking to Minnesotans about what’s going on in their lives in the way I used to. I hope to spend more time out among Minnesotans in 2019. I think it’s really important that the Court and judges stay grounded and accessible that way.

Schmidt: You have been active during oral arguments, asking a fair number of questions. What have you found the most (and least) helpful during arguments?

Justice Thissen: I’ve been somewhat surprised at how helpful and important oral argument is. I’ve found it gives me a chance to zero in on the issues that really matter and to test ideas for resolving the case on the people who best know the case. I tend to start with the facts and the basic law and try to reach a basic hypothesis about the case first. Then, of course, I do a deep read of the parties’ briefs and the opinions of the Court of Appeals and district court. Oral argument is a chance to push on (and hopefully fill in) gaps between the various approaches to resolving the case, as well as to figure out where agreements between the parties and concessions may exist.

I am certainly not breaking new ground here, but the most helpful thing a lawyer can do during oral argument is actually answer the questions from the bench. It’s surprising how often advocates fail to do that, and it’s also surprising how refreshing it is when an advocate gives a straightforward and simple answer. Understand what concessions you can make and still win the case. Be ready with a one- or two-sentence articulation of the legal rule you believe the Court should adopt to resolve the case in your favor—that, ultimately, is what the court is looking for. And the thing I wish more advocates would do is to listen carefully enough to questions to know when a question is a softball or at least supportive of his or her position. Stated another way, don’t always assume that questions coming from the bench are adversarial. 

Schmidt: How do you think your legislative experience will influence your approach to statutory questions that come before the Court?

Justice Thissen: Our job first and foremost in statutory interpretation cases is to implement the intent of the Legislature. The courts (along with the Legislature in Chapter 645) have constructed a complex superstructure of canons and other rules that is intended to drive the analysis of legislative intent. Those rules are important and helpful, but as any advocate knows, our canons of construction and other rules can also be used selectively to reach a certain result. Judges have to guard against that vigilantly. 

Based on my own experience, I know that legislators are not sitting at the Capitol consulting dictionaries or arguing over grammatical rules. And often the unforeseen circumstances under which the Court is called upon to interpret statutory language was not considered by the Legislature. But our job is still to implement the Legislature’s intent. Legislating is a more practical process aimed at trying to fix a perceived problem. And so I try to first understand the problem the Legislature was trying to fix and the solution it reached and proceed with my analysis accordingly. As an aside, the plain words of the statute do resolve the question of interpretation more often than not, but as a former legislator there have admittedly been times that I’ve been appalled and embarrassed at how poorly and confusingly some state statutes have been drafted.

Schmidt: To quote Lin-Manuel Miranda, you have been, and currently are, “in the room where it happens.” I have to imagine that conferencing a case as a Minnesota Supreme Court Justice is very different from the conversations that occur when finalizing legislation. Can you talk about the difference (and similarities) in “how the sausage gets made” when it comes to those discussions, compromises, and approaches to decision-making?

Justice Thissen: You are right that it is a very different process. There are only seven of us involved and each of us has closely considered the case and come to our individual initial conclusions. We are representing our best thinking as individuals when we enter the room and we speak to each other candidly. In contrast, legislative leaders, and the governor and his commissioners, are representing much larger constituencies—their caucuses, their constituents, their parties—which puts a limit on decision-making authority and also limits candor. And there is no staff in the room here—just the seven justices. That makes a big difference. I have been so impressed at the magic that happens when, as justices, we put our minds together, draw on one another’s insights and reach a stronger conclusion than any of us would likely have reached on our own. And a big part of that is that as a Court (unlike the reality of the legislative process), we are all genuinely playing on the same team, if that metaphor is apt. It should go without saying, but it’s true that a Minnesota Supreme Court conference is obviously less partisan and political than end-of-session negotiations. 

In addition, the fact that the Legislature and the judiciary have distinct roles makes the process of reaching decisions different. The Legislature deals in the big picture; judges deal with cases between specific individuals involving specific facts. The Legislature is there to represent the voice of the people. In addition, while the Court is charged with implementing that voice, a critical role of judges is to protect other voices that are sometimes not heard when “the people speak.” We’re there to protect the fundamental individual and political rights of those not in the political majority at any given time.

And that leads to the thing that is not different in the two situations. In each room, I feel both the incredible honor and privilege of being there and the heavy responsibility of doing my best to reach the right decision.

Schmidt: The ComMN Law podcast has analyzed some of your tweets. Who on Twitter do you find most interesting? And where do you find your “this day in history at the Minnesota Supreme Court” material?

Justice Thissen: I have pretty drastically changed my Twitter feed over the last six months. I got rid of a lot of the political stuff, which rarely has much that is useful or interesting. Longreads is great to follow—it has introduced me to lots of interesting authors and essays. The Economist’s Twitter feed. New Scientist’s Twitter feed. I think Jason Isbell is funny and I love his music, so that’s a win. I like to follow Timberwolves developments and commentary. 

I do my own research for the “on this day in Minnesota Supreme Court history” tweets. I love Minnesota history. I love to pull over at the roadside historic markers, and I carry two books in my car—a list of all the historic markers and a book on Minnesota place names. This is an incredibly cool and varied state with thousands of disturbing or funny or thought-provoking stories sitting out there waiting to be retold. And I find that Minnesota Supreme Court cases are another great point of entry into that history. I’m constantly delighted to find a case that lends some insight into a historical incident or gives me a chance to learn more about a famous (or not so famous) character in Minnesota’s history. I also find that the evolution of our state Constitution and statutes, and what that evolution says about our changing values, is fascinating. And a good reminder that how things are today is not how they have to be.

Schmidt: You are a big music fan. What are your top 10 all-time albums?

Impossible.

Schmidt: I’m guessing that Bruce Springsteen is going to land in at least one of your top all-time albums. How has Springsteen been a soundtrack throughout your life? What is it about his music that speaks to you?

Justice Thissen: I have been a fan—a committed fan—for several decades. A big part of the appeal of Springsteen’s music is just that. Songs remind me of friends and places and moments; rocking my kids to sleep by singing “Thunder Road” and “The River.” And his music has matured as I’ve grown. His version of “Real World” from the Christic Institute shows in 1990 (you can find it on YouTube) is a beautiful rendition and among the most realistic visions of what being a grown-up means. His music introduced me to worlds I did not know existed growing up in Bloomington. I wouldn’t have found Flannery O’Connor or Walker Percy or Alejandro Escovedo or John Ford or Reinhold Niebuhr—so many artists and ideas—without Springsteen.

I’m constantly moved by his tempered optimism, his faith that individual lives matter and are valuable, his belief that mercy matters as much as—or as a part of—justice, and his commitment to creating communities based on our broadly shared ideals rather than (as is too often the case these days) a narrow set of interests. I also believe strongly that our families and the places where we grew up are an important part of who we are, and Springsteen captures that as well. As Springsteen once said of Bob Dylan, he is like the brother I never had. 

Schmidt: At the press conference when you were appointed to the Supreme Court, and again at the investiture ceremony, you mentioned two people as being very influential on your legal career: 8th Circuit Judge James Loken and Tim Thornton, a partner at Briggs and Morgan. What have you learned from them?

Justice Thissen: Judge Loken and Tim Thornton are both incredibly important to me as teachers and legal mentors. They share that essential characteristic that is so important for success—each is comfortable with himself. Each is genuine. Each is a great writer. And the most important lesson that each taught me about the law can be summed up in one word: Think. 

Schmidt: Early in your career you spent some time in the Appellate Public Defender’s Office. What were some of your biggest takeaways during that time?

Justice Thissen: Both my time at the Appellate Public Defender’s Office and the decade I spent working with colleagues at Briggs and Morgan on a Texas death penalty case deeply affected how I view what access to justice really means. The obstacles, unfairness, and almost chilling indifference to the individual life at stake that I encountered in the Texas proceeding deepened my sense of responsibility to make sure that individual lives—particularly those who are shunned by society—are truly seen by the courts. I believe we do a better job of that in Minnesota, but it is hard work and we can always strive to be better. Mercy and compassion are important components of a “justice system.” And I firmly believe that while holding individuals accountable when they break the law is important, it is just as important, really more important, to hold the government accountable when it fails to live up to its obligations under the law. 

Schmidt: You and your wife, Karen, have juggled extremely busy careers while raising three wonderful children, one of whom just started college. Do you have tips for those of us who are trying to navigate busy law careers and still be involved parents?

Justice Thissen: Don’t worry about always earning A’s in a B-minus world. There are going to be times when the shirts don’t get to the dry cleaners or the lawn does not look perfect. And that does not make you a bad person. The reality is that Karen and I are unbelievably blessed. Our family has been healthy. We’ve had access to great educations and secure jobs with decent benefits, jobs that challenge us every day. We have a great network of friends and family to lean on when needed. There are so many people who live under much greater day-to-day pressure than we do. 

Schmidt: If they made a movie of your life, what actor (or actress) would you want to play you and why?

Justice Thissen: I’m not sure about that, but I think Jeff Bridges is the greatest living American actor (i.e., captures what it is fundamental about America) and Robert Redford, across his career, has played the characters who I would most like to be.

Schmidt: You have travelled Minnesota and know the state well. What are your favorite spots for: a burger? Malt? Piece of pie? A cup of coffee? Pizza? French fries? A beer on a patio? Breakfast spot? Concert? Vacation get-away? Fishing spot? A day trip (starting from Minneapolis)?

Justice Thissen: My favorite food is pizza, far and away, and I am partial for personal reasons to the Leaning Tower of Pizza followed by a stop at the CC Club (although in my memory nothing will ever beat Shakeys in Richfield (R.I.P.) for the best pizza experience). I love seeing shows at the Turf Club and seeing Prince at Paisley Park was amazing, but the best shows I’ve seen in Minnesota over the last three-plus decades repeatedly have been at First Ave, so it’s hard to beat that. 

Justice McKeig will be happy to know my favorite fishing has been on Leech Lake out of Federal Dam. My favorite drives are along Highway 16 in the Driftless area in southeastern MN, the Glacial Ridge Trail in western Minnesota, and through the woods along Highway 1. And there is no more paradigmatic Minnesota experience than the Giant Slide at the Minnesota State Fair. I’ve been on the slide 51 of my 52 years on this earth (an exception for my honeymoon).

 

JON SCHMIDT is an assistant Hennepin County attorney in the Special Litigation Division—Appeals Unit, focusing exclusively on criminal appeals. Prior to joining the Hennepin County Attorney’s Office, Jon was a shareholder at Briggs and Morgan, P.A., with a varied appellate and litigation practice. He lives in St. Paul with his wife (Ramsey County Judge Sara R. Grewing) and their two kids.

Leave a Reply

Articles by Issue

Articles by Subject