That gave Harper an idea: “Let’s have a basketball game.” Harper called the warden, who thought, “This is very odd,” but agreed to allow it if Harper could recruit five Harvard players. “Then I approach Barack. ‘This isn’t going to be an easy task,’ ” but they recruited black classmate Andre Nobles, a white Hemenway player, and a black poli sci grad student. A date was set, a van was rented, and when they arrived at Walpole, the warden gave them a stern briefing. “You’re entering general population” and guards “are not going to be down there with you,” only in sentry towers, Harper remembered. “If something happens, go to the corners, because we won’t fire shots in the corners.”
For the inmates, the game was major entertainment. “The entire prison surrounded the court to watch” as “the Walpole All-Stars” hosted five nervous Harvard gym rats. “We had a good team,” Harper recalled, and “it was definitely a competitive game,” at least until halftime. The Harvard players later joked that Obama played well until he asked the inmate who was guarding him what he was in for. “The brother said double murder, and Barack didn’t take another shot,” Harper remembered. “They won the game,” but the inmates were grateful for the students’ visit. Stokes told Harper that “he was getting out” within a few months, and “I stayed in contact with him after the game.”23
By November, Rob and Barack’s relationship with Larry Tribe had far outstripped the normal research assistants’ role, especially for first semester 2Ls. The lead piece in the Harvard Law Review’s November issue was an essay by Tribe, rather than the annual foreword, and on page one, Tribe’s first footnote stated that “I am grateful to Rob Fisher,” top 3L Michael Dorf, two postgraduates, “and Barack Obama for their analytic and research assistance.” It was a remarkable commendation, and Tribe had already invited Fisher and Obama to enroll in a spring seminar, limited to fifteen students, that would further consider the ideas expressed in his thirty-nine-page Review essay, “The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics.”
Tribe’s description of the seminar invoked two contrasting conceptions of the U.S. Constitution: first that the original 1787 document was “Newtonian” in its promulgation of three branches, featuring “carefully calibrated forces and counter-forces,” and second, that the twentieth-century idea of an evolving “living Constitution” was Darwinian. Tribe proposed exploring a third conception, one modeled upon the work of physicists Alfred Einstein and Werner Heisenberg, “focusing on how observers alter the nature of what is observed” and considering “the concrete geometry of the space-time continuum.”
As obscure as that might sound, Rob and Barack were hooked after listening to Tribe at a late-October “organizational meeting” that began to sketch out what the selected participants would tackle. Rob wrote to Tribe that he had a “particular interest in … [t]he nature of the enterprise itself, that is, Law: This is the main focus of my thinking right now. Barack and I have been working on a meta-theory of the law—let’s call it post-modern epistemology. (Though Barack hasn’t seen this memo, so don’t blame him for anything in it.) I will be looking at the Constitution as both a test for and an inspiration to that meta-theory … the role I see it potentially playing in the seminar is as a gadfly to your physics metaphor” but “not necessarily inconsistent” with it. It was no wonder that classmates marveled at Barack’s “esoteric discussions” with Tribe and felt that he and Rob “were leagues beyond the rest of us.”
At the Law Review, editing work continued on the dense Anthony Cook article, which would not be published until March. The November issue that featured Tribe’s essay also contained the traditional foreword, authored by Erwin Chemerinsky of the University of Southern California, and case comment, by Frances Olsen of the University of California at Los Angeles. One 3L editor had been hugely impressed by Chemerinsky, a mesmerizingly intense speaker, and successfully lobbied for his selection for that prized role. Olsen was a well-known feminist scholar who had published a major article in the Review six years earlier. Her piece had undergone a very difficult edit, including the editors’ insistence that the Review would not publish the word “bitch.” As 2L editor Susan Freiwald, who witnessed one exchange, said, Olsen’s experience at the “P-read” stage exemplified how Review president Peter Yu “thought he was smarter than everyone else, including professors.” Yet as 3L Articles Office cochair Andy Schapiro stressed, the perception that Yu was indeed “the smartest” had been the decisive factor in his election as president nine months earlier. Editor Pauline Wan, a 3L, agreed. “People wanted to elect the smartest person in the room,” and “everyone felt Peter was the smartest person in the room.”
But Yu’s presidency was getting decidedly mixed reviews. During the summer, he had overseen the installation of a new computer system for the Review, but as the fall commenced, tensions grew. Chad Oldfather, who worked up to twenty hours a week at the Review as a work-study undergrad, remembered Yu as “not a warm and fuzzy guy,” and 3L editor Barbara Schneider realized that he was “not a people person.” Pauline Wan found him “remote,” and Brad Berenson, one of the most involved 2L editors, felt Yu was “a slightly aloof figure.” Kevin Downey, an active 2L, thought Peter was “not at all approachable” and “not a good leader.” Supreme Court Office cochair Frank Cooper, one of four African American 3Ls, viewed Peter as “a quiet intellectual who was focused on the academic rigor” of each issue, but “he was not even a quiet leader.”
Yu had a particularly strained relationship with Articles Office cochairs Gordon Whitman and Andy Schapiro, both of whom were lefty-liberals, in part over their selection of articles like the one by Anthony Cook. Susan Freiwald remembered Yu editing one piece and remarking that “every good idea in here comes from me.” But Freiwald thought Yu’s interactions with Frances Olsen were inexcusable, that he was “intellectually beating up” on her. During one loud, angry phone exchange, Freiwald remembers Yu “just screaming at her and her screaming back,” and it left Freiwald thinking that “Peter was an asshole.”
As the editing of the Cook manuscript proceeded, more and more of the work fell to Christine Lee. Articles Office member David Goldberg, a 2L, realized the piece “was way too long” and “a little jargony,” and fellow 2L editor John Parry saw that Christine “worked very hard” and “reorganized it, and I think made it coherent.” Christine willingly put in lots of time, but as the semester progressed, she concluded that Barack was more interested in playing basketball than doing his share of the necessary sub-citing and other work on the Cook manuscript. “We were a team,” but “he would play basketball religiously, including when there was a sub-cite due,” Christine remembered. “He definitely did the bare minimum,” and “it was just building my resentment” as “other people were covering for the drudge work he wasn’t doing.”
Executive editor Tom Krause noted that at the outset, “Barack was like the primary editor,” but “somehow it kind of was taken over by Christine, who ended up doing all the work.” Krause was not a fan of the article, but in his eyes, Christine, “to the detriment of her own grades and class work, was doing work he”—Obama—“could have been doing.” As the piece moved forward, Krause stepped up his own involvement, and he and Christine—polar political opposites—became personally close “doing the things that Barack had not done,” Christine recalled. In retrospect, even Gordon Whitman, Cook’s main proponent, realized the article was “pretty impenetrable.” Krause thought “it would have been worse if Christine and I hadn’t worked on it,” but Whitman’s verdict was appropriately biting: “In hindsight, what the hell was that all about?”
The real meat of each November issue was the individual case comments, which were anonymously authored by 3L editors. The 1989 issue surveyed twenty-five Supreme Court decisions, which brought the issue to a robust 404 pages. This earned Peter Yu a stern rebuke from Erwin Griswold: “I would like to suggest that one of the major tasks of the President is to edit out vast quantities of unnecessary words, and to keep the overall size of each issue, and of the volume, under control.” Yu responded