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Don Rotunda, who was Ron’s twin brother, gave me permission to publish these remarks which he gave at Ron’s memorial in April.

About My Brother Ron Rotunda

Anyone who knows Ron Rotunda professionally knows about his many extraordinary accomplishments — his work for the Senate Watergate Committee; his work for the Ken Starr investigation of President Clinton; that he advised the governments of Cambodia, Moldova, Romania and Ukraine on drafting their first democratic constitutions; that he was a highly distinguished law professor at Chapman University and other places, including universities in Belgium, Venezuela, and Italy.  They also know that he wrote a lot of books, more than 200 of them.  He’s written more books than most people have read.  Wayne LaFave, his colleague at the University of Illinois, once described “reading Ron’s resumé” as “my most ambitious undertaking since ‘War and Peace.’”

Our similar names have led to confusion.  Ronald Rotunda is one of the most cited law professors in the United States.  In a way, so am I.  I am not a lawyer but many of his articles have been attributed erroneously to me.  I unintentionally received credit for some of my brother’s work thanks to people’s haste when they intend to cite him and instead carelessly type a “D” instead of an “R” for the first name of the author.  You can find out more about “my” law citations in an article Wayne LaFave wrote for the Illinois Law Review in 2003.  Just google and you’ll find “Rotunda: Il Professore Prolifico Ma Piccolo” by Wayne R. LaFave.

People say we look alike.  We’re supposed to look alike.  We’re twins.  When people saw us together, they noticed a few differences.  Ron was taller than I am and I am better looking than he was.  He wore a bow tie and I wear a long tie or, as I like to call it, a tie.  He is noted for his colorful bow ties.  He has been on television many times.  One time, many years ago, he was on the Geraldo Rivera program.  It was when the Bush v. Gore issue was before the Supreme Court.  Not only did Ron correctly predict the decision but he also predicted the legal argument the Court would use in its decision.  More interesting to Geraldo and to people who paid close attention to the program is that every time there was a commercial break Ron changed the colorful bow tie he was wearing for something even more outlandish.  It was difficult for Geraldo to keep a straight face.

He had a wicked, dry, great sense of humor.  Ron would send me and others an email that gave a link to a book or an article he just published in what he called “shameless self-promotion.”  If you go to his web page you’re invited to click on a photo of Star Trek’s Mr. Spock.  When you click on that you will see a photo of Ron next to the alien from Vulcan.  Ron thoughtfully identified himself as the one on the left.  At home he had a Star Trek communicator, the sonic screwdriver from Dr. Who and a small statuette of him in a Star Trek uniform made through the wonders of 3-D printing.

In addition to his interest in science fiction, Ron also had a fascination with exotic cars.  When he was at the University of Illinois he drove a vintage Rolls Royce.  He eventually traded that for a contemporary Rolls.  When he drove it into Chicago he would give the parking attendant a larger tip than normal and say “Please take good care of the car.  If the owner found out I was taking his Rolls for a spin he would be furious.”

When he moved to George Mason University in Virginia he drove a Mercedes convertible – a red one, of course.  When he got to California he thought maybe he should get a Bentley or perhaps a Tesla.  When he asked his son about what he thought Mark told him Bentley was the past.  Tesla was the future.  Ron chose the future.  You can’t drive a Tesla without having a vanity plate.  His license plate says “E Musk.”  It used to be our standard practice that when we went someplace that had valet parking I would get out of the car first and yell, “I’ll meet you in the lobby Elon!”

People who know him liked him a lot.  The people who had problems with him are the ones who didn’t know him.  They only knew him from his work.  You can’t work on the Watergate Committee or the Independent Counsel without upsetting some people.  He had his enemies.  That is a strong word to use but I think it applies because he had death threats, some of them serious enough to be investigated by the FBI.  That did not faze him.  He even joked about it.  He said he had a secret weapon to protect him.  I asked what that was? He looked at me straight in the face and said, “I have a body double!”

Not all of his more than 500 articles were about the law.  One of his more interesting ones was written for The Wall Street Journal and titled “The Boston Strangler, the Classroom and Me.”  Albert DeSalvo killed 11 women between 1962 and 1964.  When Ron was an undergraduate at Harvard he volunteered his time to teach rhetoric to inmates, one of whom happened to be DeSalvo.  He wrote that DeSalvo was “the only one of his students who would help me arrange the chairs for class.”  Ron said that he was “relaxed and gregarious” and “looked normal.  What was so abnormal was his mind.”

He spent time at Guantanamo Bay – not as a detainee but as a lawyer for the U.S. military.  I asked him was there anything unusual about the place.  He said he was surprised to find that it has its own Starbucks.  Remember the movie “Paper Chase”?  One of the key elements in the movie was a study book the students used.  The prop in the movie was the real study book that was written by Ron and one of his fellow students Irv Yoskowitz.  In one episode of the TV series “Law & Order: LA” the detective quotes from a law book by Nowak and Rotunda and holds up a copy, not a prop, but the actual book.

Ron was my only brother.  We had no other brothers or sisters.  Once a visitor in my house asked if I had a brother named Morgan.  I said “no” and asked how he came up with that.  He said he saw a book on my shelf by Morgan Rotunda.  I told him the book was by Morgan and Rotunda.

My brother was dedicated to his work, but he also was dedicated to his children, his grandchildren, and his friends and me.  His home is filled with their photos and photos of me.  So is the wallpaper of his computer and cell phone.  I got a copy of his recently published book on John Marshall.  I asked him to autograph it.  He was surprised because I see him every day in his house.  He was surprised but he also was pleased.  I saw Ron every day because about four years ago I moved from Washington, DC to California to be closer to him.  I stayed in his house for a “short time” until I could find my own place.  I am the proverbial house guest who never left.

As brothers we had our disagreements over arguably minor questions such as the future of mankind, the relative merits of red over white wine and whether the British ate turkey or goose on Christmas.  I actually lived in England for five years so you think he would defer to me on that last question but he didn’t.  My brother was born 12 minutes before me.  He always held that over me, but in a good way.

Somewhere in the Bible it says that death comes like a thief in the night.  My brother’s death was that way, sudden and unexpected.  I thought he had another 20 or 25 years to live and would write another 20 or 25 books.  He told me about a new book he was writing when we celebrated our birthday together on February 14.  He was healthy and vigorous then.  He was thinking about making some changes to his Marshall book for the second edition.  He was throwing around ideas for his next article.  None of this will ever be.

I will miss him always.   The last thing he said to me in his hospital bed on March 1 was “You’re a good brother.”  I always will cherish that simple sentence.  The next day I saw him he was sedated and not able to talk to anyone.  He remained that way until his death on March 14, one month after our birthday.  He was a good brother to me, a good father to his children, a good grandfather to his grandchildren, a good friend to all who knew him and a good teacher to his students.  We all will miss him.

I came across a poem by someone I never heard before, Helen Lowrie Marshall.  What she wrote reminded me of my brother:

How long we live is not for us to say;

We may have years ahead – or but a day.

The length of life is not of our control,

But length is not the measure of the soul —

Not length, but width and depth define the span

By which the world takes measure of a man.

It matters not how long before we sleep,

But only how wide is our life – how deep.

—

On January 25, 2019, the Chapman Law Review will hold a symposium on Ron’s impact on students, colleagues, the academy and legal scholarship.

Chapman also posted a video of the memorial:

Twelve years ago, I walked into law school absolutely clueless. I had never taken a class in constitutional law and could not tell you what the acronym SCOTUS meant. That cluelessness changed when I entered Professor Ronald Rotunda’s ConLaw I class. I was immediately hooked. Ron, as I would come to know him, was able to seamlessly blend probing questions, compelling lectures, and uproarious humor. In the early days of this blog, I recounted my favorite Rotunda joke about the Mann Act: “A zookeeper fed his long-lived dolphins sea gulls, which was the secret to their longevity. One night he was was carrying the gulls, but he had to jump over a sleeping lion, and so he was arrested for transporting gulls across staid lions for immoral porpoises.”

Even his one-paragraph syllabus was comical:

For the first day of class, please read the U.S. Constitution (pp. lv-lxxix), in Rotunda, MODERN CONSTITUTIONAL LAW (Thomson West, 8th ed. 2007). Then, we will read Chapters 1 & 2. Then we will read §5-1 of Chapter 5. After that, we will read Chapters 3 & 4. Then, we will read Chapter 6, §§ 6-1 & 6-2. All pages include the associated pages in the 2007 Supplement. Finally, we will return to Chapter 5 and decide what parts of that chapter we will read next. For each class, please read about 30 pages beyond where we finished in the previous class. If you do that, you will often be ahead of the class but never behind.

A few weeks into the semester, I invited Ron to participant in a Federalist Society event with Roger Pilon (of the Cato Institute) on the 9th Amendment. Ron replied that he may not be the right person to participate. “I suppose you want someone who has a view of the 9th Amendment more restrictive than Roger’s. I’m not sure.” Eventually, Professor Nelson Lund indicated he would be willing to debate Roger. Ron agreed to moderate. “I’m a very moderate person,” he replied. When we tried to figure out the timing, Ron joked, “My guess is that the students like to ask questions rather than watching us talking heads.” The debate was a great success. It was the first event that I put together as a student, and inspired my ongoing involvement with the Federalist Society. (I became fortunate to count Nelson and Roger, along with Ron, as friends and colleagues.)

Ron and I would email quite frequently about the most arcane issues of constitutional law. And–unlike many law professors–he would always respond with clarity and care. Ron was always willing to engage with any questions I posed. At one point, Bill Clinton suggested he could run as Hillary Clinton’s VP. I asked Ron if that was constitutional under the 22nd Amendment. He replied, “I don’t think answering legal questions is Bill’s forte,” adding “he and Hillary are from the same state and the President and Vice President cannot be from the state state, amendment 12.” In another email, I inquired about then-candidate Rudy Giuliani’s proposal to “brib[e] the states with money and power.” Ron replied, “Giving money to the states is ok if there are not strings.  Sadly, there are always strings.” Later in the semester, I asked him whether the Virginia GOP could require voters to sign a loyalty oath. (This plan was designed to prevent Democrats from interceding in the Virginia’s open-primary.) He quickly wrote back, and pointed me to the Oaths cases in the textbook, and said “there is a real free speech problem. A few days later, Ron emailed me back to note that the GOP dropped the pledge. He thought that much of his students that, unprovoked, he sent me items that would interest me. I missed one class for a reason I cannot recall. During that class, Ron answered some question I asked earlier in the semester. Even years later, Ron would still carp that I missed the class where he answered my question

After our constitutional law class, Ron remained a presence in my life, with his characteristic wit. During my 2L year,  I asked him if he had some time to chat about clerkships at a certain time. He replied that my preferred day wouldn’t work: “I will have a small private lunch with the President!  I’m excited. It will be at a Georgetown restaurant.” In a follow-up email, he wrote “Speaking of the President, our lunch was great. Bush was in great form. He spoke, impromptu, for over an hour. We were about 6 feet from him the whole time. He told me that I have to obey Kyndra (his wife) because she is a Major and outranks me. I told him that I already knew that.” Another time he apologized for being unable to attend an event at GMU: “Tomorrow, I get two wisdom teeth extracted, so the next time we chat, I’ll have less wisdom.” After Boumedienne v. Bush was decided, Ron quipped, “As for bin Laden, I think he would get habeas after this decision, although the case has a lot of fudge words in it (e.g., Kennedy complained that people were detained for an ‘undue’ amount of time, with no definition of what amount of time is due.” Shortly before District of Columbia v. Heller was decided, he predicted “Scalia will write the majority.” Hours after it was decided, Ron wrote back “I’m trying to edit the case now to put it in the casebook. It is too long. But, there is a lot of discussion of how to interpret.  I’m editing Stevens now.”

Even after Ron left George Mason for Chapman, we kept in touch. During my 3L year, when I attended a clerkship workshop at Pepperdine, Ron and Kyndra picked me up in a snazzy Mercedes coupe and took me out to dinner. (In an earlier email, he joked that he had some car trouble: “There was a loose flux capacitor or something like that. They put in a new one.”).

After I started teaching, Ron and I grew closer. I sent him copies of my articles, and he always sent back pithy comments. (I thanked him in the dagger note of my recent piece on Model Rule 8.4(g).) He not only affected my scholarship, but also made a significant impact on my teaching. Many of the specific points I make in class come directly from Ron. For example, he would always complain that most constitutional law casebooks exclude Justice Blackmun’s citation to Buck v. Bell in the excerpt of Roe v. Wade. He wrote in an email, “they excise it from the opinion. I guess they wanted Blackmun and the Court to look better than they really are. That is what acolytes do.” (Rotunda had a fascinating exchange with Justice Blackmun about Roe.) When I became an editor of Cases in Context, I ensured that our casebook included that citation. Ron would always send me copies of his latest writings. “Hot off the presses!” the subject line would usually say. His writings were always punchy. In a 2015 email about Masterpiece Cakeshop, Ron offered a definition of the word “liberal”: “someone who doesn’t care what you do as long as it’s compulsory.”

In 2016, I spoke at the FIU Law Review Symposium on the separation of powers. It was my honor to be on the same program as both of my ConLaw professors: Ron and David Bernstein. I remarked to both of them that much of what I teach came directly from their class. I was very fortunate to have such amazing professors at George Mason. I wouldn’t be the professor I am today without having learned from them.

Earlier this week, the Fowler School of Law at Chapman University announced the heart-breaking news that Professor Rotunda passed away. Though Ron is gone, his memory will live on in the hearts and minds of his students, his colleagues, and the rule of law, which he cared so deeply about. This post is but a mere first step in remembering Ron’s remarkable legacy.

I encourage you to read other remembrances from Steve Bainbridge, Roger Pilon, Hans von Spakovsky and Elizabeth Slattery, John Dean, and The Federalist Society.

In the Chicago Tribune (my former   prof) Ron Rotunda has a piece, titled “On deep background 41 years later.” It begins:

Type “41st anniversary of Roe v. Wade” into Google and you will get more than 54,000 hits.  Wednesday marks the date. It caused me to review the notes of a conversation a small group of us had with U.S. Supreme Court Justice Harry Blackmun and his wife about Roe. It was the summer of 1994, the 21st anniversary of Roe.

He would take no questions; he spoke from notes. His wife Dottie sat next to him, wearing a T-shirt that said, “The Supreme Question: Row vs. Wade.” Underneath it was a cartoon of a man rowing while another was wading in the water. I was surprised that she treated the topic as a joke.

Blackmun began by saying, “One usually doesn’t speak about the conference of the U.S. Supreme Court.”  However, it was important to speak to “promote understanding of the Supreme Court.”  “I decided it,” he said.

First, Ron talks about the decision to schedule Roe for arguments in 1971 when there were only 7 justices:

At the end of 1971, there were only seven justices on the court, so Chief Justice Warren E. Burger appointed a committee to select cases for argument, to avoid a 4-to-3 split.  “The screening process was poorly conducted by the screening committee, of which I was a member,” he said.  It placed Roe for argument.  “Our screening committee made serious mistakes. We had a bull by the horns.”

Second, Ron talks about Blackmun’s perceptions of the oral arguments:

He said, “The first (oral) argument was poor.  Three of the four oralists were women. Sarah Weddington (one of the lawyers arguing the case) puts on her stationery, ‘Winner of Roe v. Wade.‘  I find that peculiar.”  Blackmun’s gratuitous comments about the gender of the oral advocates and their competence came with no transition, either before or after, and no explanation why.

During the first argument, Blackmun was “disturbed” that the parties did not discuss the Hippocratic oath. “One of the woman oralists, in reaction to my question, said that it was irrelevant.”  However, some versions of the oath say doctors cannot prescribe abortion and Blackmun considered that significant.

Third, Ron recalls the votes at conference:

At the conference a few days later, the votes were tentative, according to Blackmun. He recalled that Justice Burger suggested “Someone should prepare a helpful memorandum, not a first opinion.  (Justice William) Douglas wanted the assignment, but Burger gave it to me. I don’t know why.  Maybe because of my 10-year association with Mayo (Clinic).”

Blackmun’s memorandum urged that the Supreme Court strike the law.  He also “wanted (a) new oral argument, to get some help on the Hippocratic oath.  Also, (Justices William) Rehnquist and (Lewis) Powell were now added to the court.”  Blackmun said Chief Justice Burger also wanted reargument. “I think that he thought that he might get a 5-to-4 majority to uphold the law.” Then Blackmun said, with emphasis, “It was ugly.”

Fourth, Blackmun suggested that Justice White’s dissent was due to his “wife’s influence.”

Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.”  With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.”  When White announced his dissent, “White was emotional.”  Blackmun asked rhetorically: “Why was White so strong against my view?  His upbringing in modest circumstances?  Or his wife’s influence?”

Fifth, Blackmun was surprised that his opinion resulted in such controversy:

Another Blackmun disclosure: “To date, I’ve gotten almost 70,000 letters on Roe. I have read almost all of them.” He said many letters are “abusive”  and he was amazed that many people objected to his decision. “Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised.”

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Sixth, Blackmun viewed this as a “doctor’s rights case, not a woman’s right case.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice.  He spoke of the case as a doctor’s rights case, not a woman’s right case.  In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

Seventh, Blackmun closes by saying he is not that bad of a guy.

He closed by saying, “it has been exciting to be in the center of the issue so politicized by the political branches.”  He added, “I make no apologies for the scholarship or result in the opinion.”  His last words on Roe, “I’m really not too bad a guy after all.”

Update: Ron writes in with additional details of the Institute:

I got to be friendly with Harry Blackmun (he said to call him Harry) and his wife, Dottie. He wanted to give his side of the story. It was a small group. We were in Aspen.  I may have been the only one who took notes.  He knew I was taking notes. He just wanted to say some things on his mind about the case, but he wanted to questions.  He spoke and that was it.

I filed my notes away on my computer and then forgot about them for a long while.  Something made me think of the upcoming anniversary and so I tried to find out where I put the notes. (I took my notes long hand and transferred them to Word Perfect, which is what we used in the old days.)

So, I searched for the digital file on my computer. It took a bit of effort.  After moving from one computer to another and from one school to another (from the U. of Illinois to George Mason to Chapman), it took a bit of time but I found the old notes and then I wrote this piece.

Update: As Greg points out in the comments below, it was common for Justice Blackmun to identify counsel based on their race. As Tony Mauro noted in this 2005 article about Blackmun’s papers:

The other somewhat unnerving aspect of Justice Blackmun’s papers can be found in the notes he took on oral argument. In many instances he graded the advocates before him – he once gave an ACLU lawyer by the name of Ruth Bader Ginsburg a grade of C+. 54 There is nothing particularly wrong with that, but these grades were also accompanied by unusual annotations about the lawyer’s characteristics, physical and otherwise. One lawyer in a 1971 case got a D, and was described this way: “sad face, short, stupid.” 5 Another lawyer in the same case got a D+, with this annotation: “short, older, balding, licks fingers.” 56 Hispanic lawyers were labeled “H,” and lawyers who appeared to him to be Jewish got a “J.” Future Justice Ginsburg, in the 1973 argument that got her a C+, is described this way: “NYC J ACLU very precise, reads. Rutgers.” 57 She was teaching at Rutgers Law School at the time.

Professor Rotunda is looking quite dapper in his testimony, though I do have a photo of him without his trademark bowtie.

H/T Moin on FB for reminding me of this Gem from Professor Rotunda’s Con Law Class. And if this doesn’t make you laugh, you aren’t studying hard enough:

A zookeeper fed his long-lived dolphins sea gulls, which was the secret to their longevity. One night he was was carrying the gulls, but he had to jump over a sleeping lion, and so he was arrested for transporting gulls across staid lions for immortal porpoises