THE INTERVIEW: Laurence H. Tribe on Grendsdays

Real Haters sits down with HLS Professor Emeritus Laurence Tribe '62 to talk constitutional law, day drinking, and the U.S. Supreme Court case that changed the Grendel's Den bar forever.

Laurence H. Tribe ’62 HLS ’66 is the Carl M. Loeb University Professor Emeritus at Harvard Law School. He has taught at the Law School since 1968 and has argued 35 cases before the U.S. Supreme Court. In 1983, at the prompting of his law students, Tribe took on the case of local restaurant Grendel’s Den against the state liquor licensing board, successfully arguing that a Massachusetts law permitting churches to effectively veto applications for liquor licenses from establishments within a 500 foot radius of the church was a violation of the Establishment Clause of the Constitution. In light of Grendel’s Den’s post-pandemic resurgence in popularity among the undergraduate student body, Real Haters requested to interview Professor Tribe about the Supreme Court case Larkin v. Grendel’s Den (1982). We couldn’t believe he agreed either.

Shockingly, Professor Tribe declined our invitation to conduct an interview three prickly pear margaritas deep during a late-evening Grendsdays. This interview was conducted over the phone from Mather House on a beautiful sunny Friday morning. The transcript has been edited and condensed for clarity.

HG: Per tradition for Real Haters interviews — have you seen Conclave (2024)?

LHT: I have. I streamed it on our supposedly “smart” TV.

What did you think?

I loved it. I loved the acting. I loved the gorgeous colors. I loved the theme. I thought it was gripping, and I had a blast watching it.

Correct answer.

I’m glad.

A 2006 Crimson profile noted that you wrote your senior thesis in two weeks. If you were an undergraduate today, would you have just used ChatGPT instead?

I would have tried to resist the urge, because I was trying to come up with a new proof for the problematic theorem in the theory of knots, trying to prove the equivalence of a geometric conception and an algebraic conception. I wouldn’t have trusted AI of any kind, certainly not ChatGPT, to come up with a proof, but I might have played with it see what it was like.

In 2004, you apologized for copying a nineteen-word phrase from another scholar’s book in your own. As we all know, Harvard has never experienced a plagiarism scandal of that magnitude since. What advice would you have for all the aspiring young plagiarists out there who dream of becoming one of the country’s most respected authorities on constitutional law?

First of all, I would advise them to get rid of that dream — because if you aspire to being nationally respected, you’re likely to fall on your face. Setting that aside, I suppose I would also suggest that they not aspire to be plagiarists.

In that 2006 profile, a former peer said that you “basically invented modern college debating.” Would you like to take this opportunity to apologize to high-strung, argumentative Ivy League students everywhere for the psychological damage you have inflicted upon them?

If I had really been the author of that damage, I would apologize. When I listen to debate in its modern form, I find it pathetically lacking in humanity and in persuasiveness. I dislike when people just cite arguments by number and go back-and-forth as though they were machine guns.

Nor do I think it’s true that I pioneered modern debate. Maybe I did come up with something that began taking hold — the flow sheet. Before I started debating, people would use legal notepads to write down the points that their opponents have made. I thought you couldn’t track an argument very well that way. And because I used to be an artist, I adapted my art pads for debate. I would chart arguments all the way through with horizontal lines and bright colors. It changed debate by making it a little bit more structured and logical looking. In reality, I think it was probably invented by Aristotle or somebody like that.

You count a uniquely high number of famous lawyers among the ranks of your former students — John Roberts, Elena Kagan, Barack Obama, Ted Cruz, Merrick Garland, and Jamie Raskin, to name a few. Would you support the idea of a national legal system structured entirely as a Larry Tribe alumni technocracy?

Absolutely not. I think we need more diversity, equity and inclusion, and if it happens to spell “DEI,” all the better. I think excellence is best achieved by seeking a variety of of people of different origins, different backgrounds, and different mentorships. Not that I don’t admire the people that I’ve managed to mentor. And some of the people that I’ve taught are not people that I’m proud to have anything to do with. So the answer is — no, I would not support such a thing.

Let’s jump ahead to the good stuff. Will you please explain how, exactly, my local dive bar ended up at the Supreme Court? And bear in mind that you are speaking to an audience of binge-drinking English majors with an extremely limited knowledge of appellate litigation.

It all started when one of my Harvard Law students expressed frustration that he couldn’t order a beer with his lunch at a restaurant in Harvard Square — Grendel’s Den.

A beer at lunch? On a school day?

He said to me, “Professor Tribe, you were just teaching us that one of the most obvious violations of the separation of church and state would occur if government were to delegate power to a religious body.”

I replied, “Yeah, but what’s that got to do with a beer with your lunch?”

He said, “Grendel’s Den was denied a liquor license because of a veto issued by the church next door.”

And I said, “You got to be shitting me”. Well, I don’t think I said ‘shitting me.’ In those days, I was little more careful with my language. “You got to be kidding me,” I said.

It turned out that the pastor of a nearby church was exercising the authority that the Commonwealth of Massachusetts had given to every church in the state: they could decide which establishments within a 500 foot radius of their church should be denied a liquor license, even if they were otherwise qualified. Even then, when I gather there was less alcoholic degeneracy among the undergraduate student body, you couldn’t survive as a restaurant in Cambridge without having a liquor license.

My student and I took up Grendel’s Den’s lawsuit. We won before Judge Tauro and the district court. We lost in the First Circuit. The case went to the U.S. Supreme Court. We won eight-to-one, and that’s how Grendel’s established an important constitutional precedent. It all started with somebody wanting to know why he couldn’t have a beer with his lunch.

So what you’re saying is, until 1983, I could found a religious organization devoted to worshiping a wild turkey in Widener Library, and if the Harvard Square Tatte wanted a liquor license, I could say, “nuh-uh; I’m vetoing that because state law says that churches have power to veto liquor licenses that are up at the licensing board, and there’s nothing anyone can do about it”?

Pretty much. Massachusetts law had carved the state up into micro-regions around every single church. If you were within a certain distance of any church in the state, you were at risk of being denied a liquor license with no recourse.

In his opinion about the payment dispute, Judge Tauro wrote that your legal opponents in the Massachusetts state government, “attempt to cast this litigation as little more than a liquor license case. That characterization is about as accurate as would be one that describes Moby Dick as being a book about a white whale.” But if you took the whale out of Moby Dick, you’d just get a classic piece of American literature titled Held Moot. What is it about appellate law that makes Larkin v. Grendel’s, which was undoubtedly — in the immortal words of Justice William Rehnquist’s dissent — a “silly case,” constitutionally relevant?

The giving of secular power to religious instutituons is the is one of the core dangers against which the separation of church and state, embodied in the Constitution’s Establishment Clause, is meant to guard. In other words, the Religion Clauses are designed make sure that people are free to practice their own religion — or not — as they see fit, so long as they don’t hurt others. The anti-establishment principle backs up the free exercise clause by saying that power exercised over people’s secular activities cannot be exercised by someone who derives his or her authority from the Almighty. It has to come from the people.

In his dissent, Justice Rehnquist argued that the Massachusetts law in question does not “advance” a religion, because it does not sponsor or subsidize the religion, nor does it encourage people to participate in a particular religion. He wrote that it was fine for a law to provide for people to practice religion, “unmolested by activities at a neighboring bar or tavern.” Now, Rehnquist was a pretty grumpy guy, but you don’t get to the Supreme Court without having a solid head on your shoulders. What was his logic?

His logic was that law can generally protect people from activities by their neighbors that constitute nuisances. He basically said that since the state could have an absolute prohibition on an activity like ‘getting hammered at lunch’ anywhere in the Commonwealth, the Massachusetts law was sort of a lesser imposition in terms of the right to drink.

Was he wrong?

I think he was wrong, but not ludicrously wrong. But it wasn’t the right to get hammered that we were championing — Grendel’s Den’s license was about the right to be free of the domination of a nearby church.

Personally, I feel as though my constitutional rights as a Jewish Episcopalian Harvard student with a shellfish allergy and an opinion column — famously, the most precious type of American — are being violated every time my campus enemies cut me in line at Grendel’s. Why did your case fail to account for the cruel and unusual punishment that the Grendel’s Den liquor license would inflict upon me?

[Professor Tribe laughed, and did not comment on the merits of my very serious victimization at the hands of an Eighth Amendment violation.]

Do you think that the Larkin v. Grendel’s precedent about the Establishment Clause — and in particular, the originalist case that you made in oral arguments before the Supreme Court — will have any influence on the Oklahoma charter schools case before the Court this term?

Perhaps it should, but I don’t think that it will.

It sounds like you think that if Larkin v. Grendel’s were argued today, the result would be different.

It probably would be different. I think the current Supreme Court bench would be much less sensitive to the Establishment Clause problem. It would likely say, “this is just an equal protection problem; you can’t show that there is a denial of equal protection in treating churches and schools preferentially because they, generally speaking, are great citizens and they deserve to be respected, and there’s no reason to apply a higher standard.” Something like that.

I want to prod you about a comment you made in a 2022 New Yorker interview with Isaac Choitner. You told him that you disagreed with Supreme Court Chief Justice John Roberts’s comparison of jurisprudence to a baseball umpire — “calling balls and strikes” — as well retired Justice Breyer’s characterization of apolitical jurists, because both arguments were, “trying to create a myth of completely apolitical law, which is out of joint with reality.” In 2021, you co-authored an essay arguing that the precedent set by Larkin v. Grendel’s — which you said established broad precedent prohibiting private actors from enforcing laws — might lay the groundwork to overturn a Texas law permitting any citizen to file a civil lawsuit against doctors performing abortion procedures. The story got picked up by Rachel Maddow’s MSNBC show and got a lot of hype online.

I guess I’m curious about whether you see any discrepancy between the two ideas. If law is inherently political and ideological — which is not necessarily a sentiment I disagree with — doesn’t that conflict with your idea as presented in the op-ed, that the Grendel’s case provides such a strong precedent against the Texas law’s constitutionality that even a jurist ideologically opposed to abortion would have to overrule it?

My thinking hasn’t changed. It seems to me that there is no way of thinking about political issues presented by constitutional problems without injecting some substantive values — whether you call them political or ideological.

People should be governed only by those that they have a voice in choosing. And when power over your life is given to people that you don’t have any role in choosing — like a church nearby or some vigilante who wants to control what you do with your body — that violates that core principle, and it seems to me that it’s entirely consistent to recognize that substantive principles are at the base of constitutional ideas, as opposed to merely calling balls and strikes. It’s entirely consistent with that belief to say that the Supreme Court, on the basis of its Grendel’s Den precedent, should decide that the law in Texas, which allows private vigilanteism to regulate access to reproductive freedom, should be struck down. But the Court paid no attention to that parallel, and had no difficulty upholding the Texas law.

The reason I requested this interview is not so much to pick the brain of one of America’s foremost constitutional scholars, so much as because (as we discussed earlier on the phone) Grendel’s is having a real renaissance among the Harvard student body. In 2023, a group of students pioneered the concept of “Grendsdays” — the idea of going to Grendel’s on a Wednesday night. And I feel like it’s important to emphasize that there is absolutely no financial benefit to going to Grendel’s on a Wednesday. Timed discounts on alcohol are illegal in Massachusetts; there is effectively a statewide ban on happy hour or discounted weekday drinks. Grendsdays is simply the concept of day-drinking at a certain location. And in the last few years, it has been absolutely gangbusters. If you’re a Harvard student, Grendsday is the place to be on a Wednesday night.

But that’s really more of a statement than a question. So I guess my question is: what is the ideal quantity of beverages for a guy named Larry to consume on a Wednesday night? (Bear in mind, of course, that Larry also has a 9 a.m. lecture the next morning.)

Either two beers, or one-and-a-half glasses of red or white wine. I used to like martinis. But the ideal quantity of martinis to drink on a Wednesday night is ‘zero.’