McConnell Center Distinguished Speaker Series
U.S. Supreme Court Chief Justice John Roberts
2009
Gary Gregg: [00:00:00] Good morning, ladies and gentlemen. My name is Gary Gregg.
It’s a pleasure to welcome you here today to the University of Louisville. I’m the
Director of the McConnell Center.
The Chief Justice’s visit with us this morning is just the tip of the iceberg of a
wide variety of programs we’ve been able to offer this year to the University of
Louisville community and the wider Commonwealth, from scholarships for outstanding
undergraduates to very intense teacher education programs to hosting scholarly experts
on everything from the Civil War to Shakespeare to pop culture. The Center and the
University of Louisville are really vibrant, vibrant intellectual communities, and it’s a
pleasure to have you with us today to be part of this program.
There will be five people that are going to be key today to facilitating our
conversation with the Chief Justice of the United States: Katie Miller [phonetic], who is a
senior, a McConnell Scholar. She hails from—I say “hails from.” Reminds me of a
professional wrestling introduction. [audience laughter] Hails from northern Kentucky.
Kirk Laughlin at the other end. Kirk’s a junior McConnell Scholar from Oldham County.
They’re both part of McConnell Center’s nationally ranked undergraduate moot court
team, which for three years in a row have made it to the national competition.
Dr. Barbara Perry comes to us today from Sweet Briar College, but she’s also an
alum of the University of Louisville and a nonresident fellow with the McConnell Center.
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Dr. Thomas Mackey from the University of Louisville’s history department, and Dean
Jim Chen, the dean of the Brandeis College of Law. We have many distinguished guests
with us this morning, judges, elected officials, too many to identify, but I did want to
identify and thank our really outstanding provost at this institution, University of
Louisville, Shirley Willihnganz. Thank you, Shirley, for everything. [applause]
[00:02:42] Ladies and gentlemen, if you would now please stand and join me in
welcoming the University of Louisville’s seventeenth president, Jim Ramsey, the
Republican Leader of the United States Senate and our senior senator, Mitch McConnell,
and the seventeenth Chief Justice of the United States Supreme Court, John Roberts.
[applause]
Jim Ramsey: [00:03:31] Good morning. Let me add my welcome to that which you’ve
already received from Gary. Let me thank Gary for his outstanding leadership with the
McConnell Center and our McConnell Scholars Program. Would you join me in
thanking Gary for his leadership at the University of Louisville. [applause]
Last evening, we were very fortunate to host a private reception for the Chief
Justice of the Supreme Court of the United States of America, the Honorable John
Roberts. At that time, I had the opportunity to convey to the Chief Justice what a great
honor, what a great privilege, and what a great thrill it is for us at the University of
Louisville to host him in our community and on our campus. Would you join me one
more time in expressing our appreciation to him for being here this morning. [applause]
Also last night I stated the obvious, and that is that the Chief Justice’s visit to the
University of Louisville would not have been possible if it were not for the unrelenting
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and untiring work of Senator Mitch McConnell. I also indicated what I have said on
many occasions and will continue to stay on occasions in the future, and that is no
university could have a better friend than the University of Louisville has in Senator
Mitch McConnell. [applause]
[00:05:20] Senator McConnell’s efforts on behalf of the University of Louisville
have been transformational. The creation of the McConnell Center and the McConnell
Scholars Program and these outstanding students that you see in front of us allows us at
the University of Louisville to recruit the very best students from across our state every
year. And it’s important from a public policy perspective that those students know that
they can get the very best education here at home in Kentucky. And through the
McConnell Center and the McConnell Scholars Program, we’ve also elevated the bar for
all of our undergraduate programs and the opportunities for all of our undergraduate
students, and that has been transformational for us.
I indicated last night that the expectation of the University of Louisville, it’s in the
law, the Kentucky provides statutes, is that we at the University of Louisville be a
premier metropolitan research university, and we’re committed to that goal and we’re
committed to research that makes for a better Kentucky. One of the transformational
programs that the state implemented to help us achieve that objective was the program
Bucks for Brains. And the state, over time, has made available to us now $116 million
that we have to match, so a total of $232 million has been made available to us at the
University of Louisville to recruit the very best in human capital and faculty to build our
research programs.
What often goes unnoticed, though, is the support that the senator has given so
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that those researchers can be successful. Through the senator’s untiring efforts, the
senator has made available to us $150 million to build infrastructure, research
infrastructure, and to provide the research laboratories and research space and the
equipment that our researchers need to be successful, and his efforts in that area have
been transformational. [applause]
[00:07:34] Finally, an area where we are very proud, and I don’t think any of us
fully realize the impact of this initiative will have, I don’t think we at this point can truly
appreciate the impact that the senator’s decision to leave his papers, and his lovely wife,
Elaine Chao, former secretary of labor, has also made the decision to leave her papers to
the University of Louisville so that scholars, historians, researchers for years to come can
come to our library at the University of Louisville and study important public policy
debates and discussions. And, again, that will be transformational at the University of
Louisville. So we owe the debt of gratitude to Senator McConnell for all that he has
done, and he’s done this because he is a graduate of the University of Louisville, and of
that we’re very proud, but he’s also done it because of his commitment to the people of
Kentucky.
Just recently, I had the opportunity to visit with the senator in Washington, and
we have fascinating conversations on a lot of topics when we visit. A lot of times, of
course, I’m asking for things and money when I go to Washington. But the senator wrote
a letter after my most recent visit, and I want to read you a little bit from that letter. He
said, “As you know, I remain committed to helping the University of Louisville reach its
goal of becoming a premier urban research university. By improving the university
through such projects as cancer research and improved healthcare, support of our armed
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forces, crime prevention, renewable energy, and ultimately economic development, it can
positive impact the lives of Kentuckians. Although times continue to be tight, know that
I will do everything that I can do to continue to help the University of Louisville fulfill its
mission.”
I’m honored to introduce to you Senator Mitch McConnell. [applause]
Senator Mitch McConnell: [00:09:55] Thank you very much, Jim. You are overly kind.
I also want to express my gratitude to Gary Gregg for taking this program, which is now
a little over fifteen years old, to a level that I never anticipated it could reach. So, Gary, I
doubly appreciate what you’ve been doing.
Jim was talking about me, but this program this not about me, obviously; it’s
about our guess. As all of you know, baseball season is here. The Cincinnati Reds
played their traditional home opener just last week against the Mets. The beginning of
the reason reminds me of the way our speaker today once described his role as a judge.
He said that judges are like umpires at a baseball game. They don’t make the rules; they
just apply them. He also understands that while the role of an umpire is critical to
determine whether a ball is fair or foul, whether a player is safe or out, nobody ever went
to a ballgame to see the umpire. In that same manner, John Roberts, the Chief Justice of
the United States, approaches his job as our nation’s highest court with modesty and even
temper. He understand that when our government’s political branches may be
undergoing dramatic shifts, the Supreme Court can be a source of stability.
Chief Justice Roberts received his bachelor’s degree from Harvard in 1976 and
his law degree from Harvard Law School in 1979. He served as a law clerk for Judge
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Henry Friendly on the U.S. Court of Appeals for the Second Circuit, and he then clerked
for his predecessor as Chief Justice, William Rehnquist.
[00:11:56] Justice Roberts had worked as a special assistant to the attorney
general in 1981 and 1982 and then as associate counsel to President Reagan from ’82 to
’86. He was principal deputy solicitor general from 1989 to 1993. For thirteen years he
practiced law privately in Washington, and from 2003 to 2005, he served as a judge on
the Court of Appeals for the Circuit of the District of Columbia, which is frequently
thought of as the second-most important court in our system. And, of course, he has
impressed us all since the fall of 2005 as the Chief Justice of the United States.
It’s my distinct pleasure and honor to present to you the Chief Justice of the
United States. [applause]
Chief Justice John Roberts: [00:12:53] Thank you very much. Thank you, Senator, for
that warm and gracious introduction. Thank you, Dr. Gregg and President Ramsey, for
making me feel so welcome here in Louisville. I very much appreciate the gracious
hospitality that you and all of you have extended. I do think, though, that scheduling the
air show and fireworks display for me was a little bit over the top and not at all necessary,
but I appreciate it nonetheless. [audience laughter]
I have very much enjoyed learning about the McConnell Center and being able to
spend some time with the McConnell Scholars. The mission of the Center, of course, is
to promote the development of the intellect of these young ladies and gentlemen and also
to help shape them as future leaders not only of the Commonwealth, but of the country as
a whole.
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I touched very briefly last night in our reception on one model that they might
follow from Kentucky, Abraham Lincoln, and his career before the Supreme Court, and
I’d like to talk just very briefly before we begin our conversation about another model
familiar to all of you from Kentucky, Henry Clay. I understand the McConnell Center
has the Henry Clay Society to encourage appreciation of his abilities and career. He is, of
course, revered not only here but throughout the country as a great statesman and
political leader, the great compromiser, who looked for ways to reconcile divergent
interests in the various regions of the United States at the time of his career. Abraham
Lincoln once said of Clay’s career that whatever he did, he did for the whole country. As
I suspect many of you know, his tombstone bears the inscription “I know no North, no
South, no East, No west,” an appropriate guiding philosophy for someone from a state
that is positioned between North and South and East and West.
[00:15:06] I think he was an effective statesman, largely or at least partly because
of his skills as a lawyer, and I’d like to talk today just a little bit about his career not in
the House, but before the Supreme Court. Like many lawyers of his day, Henry Clay did
not have the benefit of a formal legal education. Now, at the Court from time to time
today we see lawyers who had a formal legal education but perhaps not the benefit of it.
[audience laughter] But Henry Clay had neither. He was drawn to oratory, and his father
convinced a friend to give Clay a job as a clerk of a court in Virginia. There he came to
the attention of George White, who years before had taught Chief Justice John Marshall
and White’s disciplines, and they encouraged Clay to pursue a legal career and arranged
for further mentors, much as the McConnell Center provides mentors to the Scholars that
are here today.
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Clay moved back to Kentucky because lawyers there were in short supply, and he
developed a reputation as a skilled advocate. His practical training allowed him to
appreciate the concerns, the practical concerns, of the jurors and his clients, and that same
sense of the popular pulse led him to pursue a career in politics. He was elected to the
Kentucky legislature in 1803, chosen as a senator in 1806, elected to the House in 1811,
where, of course, he was chosen as the Speaker. He often said he preferred the House to
the solemn stillness of the Senate chamber. I’m not sure what Senator McConnell’s
views would be about that today.
[00:16:58] But like other members of Congress at the time, Henry Clay pursued
the private practice of law. The Supreme Court was somewhat ingloriously housed in the
basement of the Capitol back then, and, like others, he would frequently go downstairs to
argue a case before the Court. He argued twenty-three cases before the Court on behalf
of private clients and won thirteen of them. He participated in some of the most
significant cases of the day, such as Osborn v. Bank of the United States, where he joined
forces with Daniel Webster to argue that a federally chartered bank could bring an action
in federal court against a state official for unlawfully assessing taxes against the bank.
Such were the concerns of banks back then. The Supreme Court agreed with their
position, and Chief Justice Marshall wrote the opinion, which is a landmark in the field of
federal jurisdiction.
But apart from those familiar successes, Henry Clay is responsible for an
important change in the way law is practiced before the Supreme Court. In 1821, the
Court issued a decision in an important case, Green against Biddle, that involved land
titles here in Kentucky. The Court had issued its decision even though no counsel for the
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Kentucky claimants had appeared before the Court. Now, Clay didn’t represent either the
plaintiff or the defendant, but he thought that the Court’s decision could have profound
consequences for individuals here in Kentucky, and he moved the Court as an amicus
curia, a friend of the court, to rehear the case with counsel on both sides present. The
Court did that, and Clay appeared as one of the counsel. The Court ultimately reached
the same result, but its decision was affected by the presentation of argument on both
sides. Since that time, my Court has continued the process first pioneered by Clay of
allowing an entity that is not a party to the case to file a brief explaining the broader
significance of the case.
[00:19:00] Now, from an historic perspective, of course, Henry Clay’s
contributions as a statesman far overshadow his success as a Supreme Court advocate. I
think that should be no surprise. His service to the nation as a representative of the
people left far more lasting mark than his service as a lawyer for private clients. But I do
think his success before the Supreme Court and before Congress is due in no small part to
the perspective he gained as a practicing lawyer. He learned the ability in that role and
the importance in that role of analyzing a problem, considering different points of view,
and articulating a practical, common sense solution.
Now, Clay often lamented his lack of a formal education, whether sincerely or for
political effect I don’t think is clear, but surely he would have welcomed the opportunity
as a young man to gain the benefit of a program like that available to the McConnell
Scholars today. I congratulate the university for its success in developing the McConnell
Center, and I congratulate the Scholars who are here today for taking full advantage of
the opportunities afforded to them.
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And now I’d like to get on with the conversation and turn things over to the
distinguished panel. [applause]
Gregg: [00:20:26] I’d like to ask Katie Miller to ask the first question.
Katie Miller: [00:20:32] Mr. Chief Justice, the McConnell Center recently conducted a
contest among Kentucky schools, and the winners were allowed to have their question
asked to you. So on behalf of Lawrence County High School, which I believe is here
today, they would like to ask this question. You hear so many cases in the course of a
year, with so many facts, how do you manage to remember all you need to make a
decision?
Roberts: [00:20:59] Well, it’s an interesting thing. My time as a judge, including the
time on the District of Columbia Court of Appeals—and I have to say, Senator, that I see
Judge Boggs and some others in the audience who would take issue with your description
of that court as the second-most important court in the country. [audience laughter] But
has brought home to me something I didn’t appreciate as a lawyer, which is the
importance of the lawyers in shaping a decision of the Court.
The high school students who posed that question are quite right. Next week
we’ll begin our final session of hearing arguments before we turn to writing the
decisions, and we’ll hear more than a dozen. We obviously can’t be as well versed in the
facts and nuances of those cases as the lawyers, so we look to the lawyers. We read their
briefs, and they highlight the important facts. The adversary presentation ensures that we
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get both perspectives on what is important, and we will have a lot of questions for them
when we face them, they face us, starting Monday morning. What happened in this
instance? Where was that objection raised in the record? And we depend upon them.
We do a much better job to the extent the lawyers do a better job. So that’s largely part
of the responsibility of the bar to make sure we’re aware of the most important facts to
resolve the legal issues.
Unidentified: [00:22:31] Mr. Chief Justice, thank you for being here at my alma mater
this morning. It’s an honor to speak with you today.
Roberts: [00:22:36] Thank you.
Unidentified: [00:22:37] Here in Louisville we are very proud of our native son Louis
Brandeis, the Court’s first Jewish justice, who chose this campus and its law school as his
final resting place. What are your thoughts about the historic tradition of presidents
considering religion, race, and gender in the appointment process? What accounts for the
U.S. Supreme Court’s movement from having a Catholic seat at one time and a Jewish
seat, to a current majority of five Catholics and two Jewish justices? And is there
something to the argument that a more diverse court is viewed as more legitimate by the
public?
Roberts: [00:23:14] You know, Brandeis’ connections to all that’s going on here are
really fascinating. He’s named after an uncle, Louis Dembitz, but Louis Dembitz named
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two of his children Lincoln and Clay because of their strong connections and their
admiration for Lincoln and Clay. And perhaps it’s a bit overreaching on my part, but I
was a law clerk, as has been mentioned, to Judge Henry Friendly, who was one of Justice
Brandeis’ law clerks. So I feel a lineal connection with him as well.
[00:23:47] You know, presidents look at a wide variety of factors in considering
who to nominate for the Supreme Court, and I suspect members of the Senate look at a
wide variety of factors in discharging their advise-and-consent role. I don’t have any
explanation for the religious composition of the Court compared to prior times, although
I’m sure that waning of discrimination in some areas makes—I mean, I think it’s quite
fair to say the Court, the composition of the Court today, would be unimaginable in
Lincoln’s time, in Clay’s time, because of religious discrimination, and I think it’s a good
symbol of how much that has waned in the development of liberty in our country. As far
as factors, gender, race, religious background, you know, it used to be far more
significant, a regional background. The idea that there had to be a certain number of
southerners on the Court and northerners was far more significant.
It’s not for me to comment on what factors should go into the consideration of a
justice. I’m glad that whatever combination of factors led to my appointment worked.
[audience laughter] Obviously, from my perspective, the thing that is most important—
and I have to say I think more important than any of those other factors—is legal ability,
first and foremost, judgment, ability to operate on a collegial court. One thing that I’ve
learned in my short time as a judge and justice is how important it is to learn from your
colleagues and have the ability to articulate your position before your colleagues.
Legitimacy of the Court, frankly, it’s an interesting thing. They do these polls all
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the time, you know, list your favorite Supreme Court Justice, and Judge Judy always
wins. [audience laughter] I’m not sure how much attention people pay to the
composition of the Court.
[00:25:59] In terms of our legitimacy, that is reflected in our opinions. We’re
very different from the other branches of government. Senator McConnell can get up in
the morning and decide he is going to pursue a particular agenda, and he doesn’t have to
explain that to anyone. As a practical matter, of course, he does explain it to the nation
and his constituents. President Obama is the same way. We can’t do anything unless we
explain it, because we’re not democratically accountable, so we have to justify why we
are imposing a restraint on the Congress or why we’re deciding one way or another. I
guess, I think, both in present times and historically, those opinions are essential to our
legitimacy in the way the makeup of the Court on other bases is not.
Unidentified: [00:26:45] Good morning, Justice. Good to see you. Thank you for being
here, too, of course. Giving that we’re commonly interested in legal history, I would sort
of start there and kind of do a big-picture question. In early 1830s, a minor French
aristocrat wrote a rather important book called Democracy in America, and he wrote at
one point—this is Alexis de Tocqueville, of course—he said that when the American
people let themselves get intoxicated by their passions or carried away by their ideas, the
lawyers apply an almost invisible brake which slows them down and halts them. There is
hardly a political question in the United States which does not sooner or later turn into a
judicial question. As most public men are or have been lawyers, they apply the legal
habits and turn of mind to the conduct of public affairs. As a previously practicing
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attorney, an appellate judge, and now service on the United States Supreme Court, I think
I’d like to ask you how do you understand the role of lawyers in American life and
culture, as opposed to just the professional life and careers of lawyers.
Roberts: [00:28:00] The one thing you learn as a lawyer early on that I think is vital to
how you approach as a judge the idea of reconciling political aspirations and views with
the application of the rule of law is how to separate your own personal views as a lawyer
from other views you might have. You know, people ask me, “Well, how difficult is it
for you in a particular case to put aside personal views, your cultural background and
things like that?” And I have to say it’s surprisingly easy. It’s important. I mean, take a
case, an example I think of often, about burning the American flag. I mean, I think that’s
a horrible thing. You know, you think of all that people have sacrificed for what’s
represented by that symbol, and are sacrificing today, and it, you know, gets your blood
boiling. But I understand the need to put that aside and appreciate that that activity is
protected, as the Supreme Court has held, by the First Amendment. As a lawyer, you get
used to that. I represented a lot of clients that I didn’t agree with, including in mundane
areas, businesses with a particular objective and I thought as a matter, say, of antitrust
law, was not a good idea. If I had been in Senator McConnell’s shoes, I might not have
voted in favor of that activity, but, again, it’s what the law requires.
So, I think, and I don’t know, of course, that this is what De Tocqueville had in
mind, but the idea of a presentation of the legal framework in which these political issues
are presented is a big part of what we do in this country. It’s why we have a written
Constitution. We are applying, as a matter of law, those principles, and the legal
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profession, obviously, is a big part of that, and their perspective on it, I think, continues
on to the bench.
Unidentified: [00:29:58] Thank you, sir.
Unidentified: [00:30:01] Mr. Chief Justice, a good deal of public awareness of the
Supreme Court focuses on high-profile issues such as flag burning, abortion, affirmative
action, the death penalty. The work of the Court, of course, is much deeper than that.
Among types of Supreme Court cases that gather relatively little public attention, which
are the most important? In other words, what cases should the public pay attention to but
typically doesn’t?
Roberts: [00:30:26] Well, you know, it’s an interesting point. We hear just shy of 100
cases, closer to 85, I guess, these days, although the number is going up. If you go down
the list, when you rank them in order of public interest, it’s pretty hard once you get past
number five or six. Most of our work is, as you point out, extremely mundane. We have
bankruptcy cases, tax cases, federal jurisdiction cases, arbitration rules cases. That’s
most of what we do, and some of those affect the public far more—I think it’s the point
of your question—to a far greater extent than the more dramatic, hot-button, politically
charged issues.
So what types of cases should they be about? These days, people might be
interested in what we’re saying about bankruptcy law. Arbitration, far more disputes are
settled through arbitration that they are in court, and we’re issuing important decisions in
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the field of arbitration law. They’re not going to be terribly interesting, and I have to say
I’m not sure—to get to the root of your question—people ought to spend more time
reading our decisions in those areas or not.
[00:31:45] But the basic point that so much of what we do is not socially charged
or interesting is a valid one, and I think it’s very important. One provision of the
Constitution that people don’t really focus on is the one where the framers say, “There
shall be one Supreme Court.” The Supreme Court symbol has, of course, the great eagle
seal, but at the bottom it has one star, to emphasize that fact. That means we do decide
bankruptcy, arbitration, business cases, and then all of a sudden on pops a case of the
kind you mentioned, abortion, affirmative action, national security issues.
The idea is, in some sense, that we get used to deciding those other cases as
judges and not as politicians so it’s easier for us to stay in that same role when a more
controversial case comes along. Other countries, European model, they often have a
separate constitutional court, only decides big constitutional issues, not the more
mundane ones. You know, different court systems for different countries and cultures
make sense, but I don’t think that’s a good idea. I don’t think that’s a good model,
because I think the judges on that court necessarily become accustomed to handling just
political, constitutional issues, and they don’t necessarily develop the experience of
together treating issues as judges.
Unidentified: [00:33:09] Good morning, Mr. Chief Justice, and thank you for coming
down to this practice facility for our national runner-up women’s basketball team. It’s a
pleasure to have you here.
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Roberts: [00:33:18] Very impressive performance. It was very impressive.
Laughlin: [00:33:20] John Marshall Harlan, a native of Kentucky, wrote a famous lone
descent in the Plessy v. Ferguson case where the Supreme Court’s majority upheld
segregation and Jim Crow laws in Louisiana and across the South. In his dissent, Justice
Harlan wrote that “Equal but separate is unconstitutional and that ours ought to be a
colorblind Constitution.” Given the ongoing debate over affirmative active and racial
school districting, has reality met the rhetoric of Justice Harlan’s famous dissent, and if
not, in what direction should our nation’s laws go in order to achieve that end?
Roberts: [00:33:53] Well, you know, we have some of those issues coming up as early as
next week, and so I don’t want to be commenting on anything in particular. I don’t want
to be understood to be doing that. But his dissent, of course, is a good example of why
writing dissents makes sense in some cases. The language he used and the principles he
endorsed resonate through the ages and are still looked to today in addressing these
questions.
Certainly, of course, progress has been made since he penned those words in
dissent in the overturning of Plessy v. Ferguson, and I think they’re inspiring. They are a
goal. Just like the notion in our founding documents that all men are created equal
wasn’t true when they wrote that, but has been viewed throughout our history as an
aspiration. Don’t forget, of course, the language you read was a dissent, so those
principles certainly weren’t enshrined at that time. I’d like to think we’re continuing to
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make progress toward the society that he had envisioned, but, again, I don’t think anyone
would suggest that we’re there today.
[00:35:10] The debate we have in public policy realms and in the law and in
interpreting the equal protection clause is what did those principles mean? What is equal
protection? Does it mean, as Harlan said, treating people without regard to race, or does
it require consideration of race? That’s something the Court has split on very, very
sharply. We continue to debate it. We continue to have cases on it.
Unidentified: [00:35:41] Mr. Chief Justice, what criteria do you use to assign opinions
when you’re in the majority?
Roberts: [00:35:47] You know, that’s a great question, and it’s one of the more
interesting aspects of my job. It’s also the only aspect really that distinguishes me from
my colleagues. I get to assign the opinions when I’m in the majority. Probably the only
reason that they’re nice to me. [audience laughter] But a lot of factors go into it. The
most important part of my job is very mundane. I have to make sure we get the work
done on time, so if somebody is being pretty slow with some of the opinions, I’ll make
sure they get an easy assignment or maybe no assignment until they catch up. That’s
very important. I have to have an even distribution of the big cases and the less
interesting, dull cases. We call them “the dogs.” [audience laughter] You don’t want
somebody at the end of the year to say, “I didn’t get any of the big cases,” so I try to
spread those out.
Hard cases and easy cases, I mean, even at the Supreme Court some are easier
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than others, so I try to make sure there’s a distribution of those. Divided cases and
unanimous cases, I don’t want somebody having only sharply divided 5-4 cases. If I see
that developing, I’ll try to make sure that person gets a unanimous case, at least
tentatively unanimous case.
[00:37:00] Subject area. At the end of the year, I don’t want somebody to be able
to look back and say, “All I did were criminal cases, not different types.” So I try to
make sure those are divided up with an even distribution. And then jurisprudential
concern. Oftentimes—let’s say the vote at conference is 7-to-2, but there are different
views among the seven—I will make sure or try to assign that opinion to the justice
whose view I think will command the most support on the court. Even if it’s 9-to-0,
maybe one disposition is actually 9-to-0 and another is 5-to-4, each one in the majority
leading to the same result, well, I’ll certainly make sure that that assignment goes to
someone who’s going to write the opinion so that it’s the 9-0 position and not the 5-4
position. And it’s hard to make all of those factors come together after every sitting of
the Court, so it’s an interesting challenge, but those are some of the considerations I look
to.
The hard part, by the way, is dealing with myself. There’s a great temptation,
boy, I want to take all the interesting cases, I want to take all the fun ones, I don’t want to
take that bankruptcy case I was talking about, but I try to be fair.
Unidentified: [00:38:16] Mr. Chief Justice, could you tell us how the law clerks assist
you in your work, and has the law clerk’s role changed since you were a clerk to Justice
Rehnquist in the early 1980s?
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Roberts: [00:38:29] They are very, very bright, hardworking young men and women.
One reason we turn them over every year—nobody’s there for more than a year—is
because we don’t want to have a staff. We don’t want a staff to develop. We don’t want
people with experience deciding cases. That’s our job. So they don’t do anything, I
hope, that affects our exercise of judgment.
They’re mostly sounding boards. This past week—we have arguments starting
again, as I said, next week, so I’ve sat down with them and say, “You know, let’s talk
about this case. What about this point?” And they’ll be either a devil’s advocate or an
angel’s advocate, depending on their view, in presenting it, and then I’ll be able to get
some sense of how the oral argument might develop, what questions I need to ask at the
oral argument. I don’t have them do memos in advance of the oral argument, because I
don’t think that’s very helpful.
[00:39:27] In the writing process, it just varies from case to case. If it’s an area of
law where I’m quite comfortable from prior experience, I might have them draft
something for me because I feel I’d know when it’s not quite right. If it’s a new area, I
might do some of the initial work myself, because I feel I need to get a better sense of
what’s going on. They exchange drafts. Once we have a draft in a case, they exchange it
all among themselves, and different people look at it. Sometimes there might be
particular issues, you know, “This brief cites these five cases for this proposition. Go see
if there are any others that cut the other way that the lawyer on the other side may not
have identified.”
It’s a very valuable institution. I know I learned a lot when I was a law clerk, and
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I hope the clerks do today. I don’t notice any way that it’s changed in the intervening
years. It seems to me to be about the same. And different judges handle law clerks
differently. I revered Judge Friendly, for whom I clerked, and tried to replicate the way
he ran his chambers, and I know many of his other former clerks who are judges do the
same. So his influence in that regard is sort of extended throughout the judicial branch.
[00:40:41] The one area I didn’t mention where they do play a somewhat
significant role is in the cert process, the certiorari process, helping us select which of the
ten thousand, nine thousand petitions we get we ought to hear. They do write memos on
those cases, and we look at those memos when we think one might be a case we take.
We look at the briefs themselves. But there’s no question they play an important
screening role in that process.
Unidentified: [00:41:09] Mr. Chief Justice, my question is sort of a follow-up on the
institutional idea that you’ve just alluded to. In the celebrated seventy-eighth Federalist
Papers, Alexander Hamilton argued that, quote, “The federal judiciary from the nature of
its functions will be the least dangerous to the political right to the Constitution.” Yet at
times in the Court’s distinguished history, many people and interests have thought that
the Supreme Court was not the least dangerous branch. Is the Supreme Court a
dangerous branch, and if so, how, and if not, how?
Roberts: [00:41:44] Well, it depends on how we envision our role. I think what
Hamilton meant at the time was they were familiar with what courts did. That’s one of
the great benefits, even though it’s coming out of the revolution, that we owe to the
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mother country, the notion of a judiciary that applies law, obviously imperfectly at the
time of the framing and particularly imperfectly here in the colonies. But you look at
some of these other countries who are trying to establish, as they democratize, an
independent judiciary, it’s a great challenge. These judges and chief justices from these
countries come and visit at the Supreme Court. We forget, take for granted what a
beacon our Supreme Court is around the world. This is where they look to how to
establish a rule of law. Just last week, the Chief Justice of Peru, the Chief Justice of
Russia, they were by visiting, trying to I don’t think learn so much as draw inspiration
from the Court.
[00:42:44] But if the Court confines itself to the vision that the founders had of
the judicial branch, of interpreting the law, applying the law, and not exercising political
judgment, it will be the least dangerous branch, because they don’t have an agenda of
their own. They sit back. Again, it’s the point I made earlier about the other branches.
They get up and decide what they’re going to do, what their priorities should be. We sit
back and wait for the next case. We don’t have that type of initiative. And we’re
supposed to decide it according to the rule of law, not our political views. As long as we
do that, I think it will continue to be the least dangerous branch and the one that the
founders envisioned.
Unidentified: [00:43:25] Interesting. Thank you, sir.
Unidentified: [00:43:26] I’d like to follow up on this question of foreign courts. Many
of those foreign courts refer to decisions of our Supreme Court in their decisions. The
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members of our Supreme Court have vigorously debated the use of foreign decisions in
the interpretation of the United States Constitution. Should there be global traffic, so to
speak, in constitutional interpretation? Should the United States be a net importer or a
net exporter of constitutional decision making?
Roberts: [00:43:56] Well, it’s a debate that is—“raging” is too strong a word, but it is an
active debate, and I think it’s one that is fueled by mutual misunderstanding. Nobody
doubts—I don’t know of anyone who disputes the idea that we have a lot to learn from
the judiciaries of other countries. If, for example, the case the Israeli Supreme Court has
issued a decision about the rights of individuals in a time of war, of terror, of course we
need to look at that and see how they’ve approached the issue in deciding how we should
approach the issue. I really don’t think there’s a dispute about that. And if the Court in
Germany has a persuasive analysis of how to reconcile particular rights, well, we ought to
look at that just as we look at a Law Review article or a professor’s book or anything
else. The dispute comes in, though, when you talk about—
[End of recording]
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