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Speaker 3: Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 4: Welcome to a special edition of the Bloomberg Law Show.
Speaker 4: I'm June Grosso. In a few minutes, Chief Justice John
Speaker 4: Roberts is going to participate in a fireside chat in Buffalo,
Speaker 4: New York. It's part of the anniversary events for the
Speaker 4: US District Court for the Western District of New York,
Speaker 4: which is celebrating its one hundred and twenty fifth anniversary.
Speaker 4: The Chief Justice was born in Buffalo and spent his
Speaker 4: early childhood years there, and he's going to be talking
Speaker 4: with Judge Joseph Fallardo, a federal judge in the Western
Speaker 4: District who's known the Chief for more than forty years.
Speaker 4: We'll bring that conversation to you live as soon as
Speaker 4: it begins. My guest is constitutional law expert Harold Krant,
Speaker 4: a professor at the Chicago Kent College of Law. How
Speaker 4: the Chief has done a lot of these q and
Speaker 4: as over the years, often at law schools or judiciary conferences,
Speaker 4: but I don't recall one that was live. Is it
Speaker 4: sort of outside the chief's comfort zone.
Speaker 2: I think he's trying to take an opportunity to ensure
Speaker 2: that the Court is viewed as an independent player and
Speaker 2: is viewed with some respect. Obviously, there's no secret that
Speaker 2: the Court has taken a hit in terms of its
Speaker 2: reputation over the last five to ten years, and particularly
Speaker 2: now there's tumultuous times because of the confrontation potential confrontation
Speaker 2: with the Trump administration. I think he's taking every opportunity
Speaker 2: to talk and be seen as an independent, constructive force
Speaker 2: in the American system.
Speaker 4: So this comes at a time, as you sort of
Speaker 4: mentioned there, when the judiciary is under attack. Last week,
Speaker 4: Justice Katanji Brown Jackson denounced what she called relentless attacks
Speaker 4: on the federal judiciary, saying efforts to intimidate judges are
Speaker 4: threatening the constitution and the rule of law. And all
Speaker 4: through this, the Chief has issued just one statement pushing
Speaker 4: back against President Trump's call to impeach a federal judge
Speaker 4: that he called a radical left lunatic. It was a
Speaker 4: rare public signal from the Chief. Should we expect something
Speaker 4: more in that vein tonight.
Speaker 2: I don't think it's going to be the entire focus
Speaker 2: of the talk, but I absolutely expect that the Chief
Speaker 2: to take this opportunity to try to remind the listeners
Speaker 2: and viewers of how important judicial independence is, and I
Speaker 2: think it is ever more important.
Speaker 4: And I wonder if you'll address the threats against judges
Speaker 4: that are on the rise, judges particularly who have ruled
Speaker 4: against the Trump administration and their families. For instance, there
Speaker 4: were more than six hundred calls and emails that flooded
Speaker 4: Rhode Island Judge John McConnell's courthouse, including death threats and
Speaker 4: menacing messages taunting his family after he ruled against Trump
Speaker 4: on the freeze on federal grants. That's according to Reuter's
Speaker 4: and the Chief has mentioned this before in his end
Speaker 4: of year statements.
Speaker 2: I wouldn't be surprised. I mean, what we've seen here
Speaker 2: is largely unprecedented, not completely, but largely unprecedent in our history.
Speaker 2: And the idea that you intimidate judges, or even the
Speaker 2: idea of impeaching judges with whom you disagree, undermines the whole,
Speaker 2: very fabric of what we hope to be an independent judiciary.
Speaker 2: So my guess is that the Chief Justices again will
Speaker 2: not focus entirely on these attacks, but that somehow he
Speaker 2: will weave them into the conversation.
Speaker 4: And I'm assuming there won't be any aggressive questioning by
Speaker 4: his friend of forty years. Maybe the questions are even
Speaker 4: discussed beforehand.
Speaker 2: That would be my guess as well.
Speaker 4: The Trump administration has filed an unprecedented number of emergency
Speaker 4: requests with the Supreme Court twelve emergency requests in its
Speaker 4: first one hundred and one days, and that's more than
Speaker 4: during the entirety of the George W. Bush and Obama
Speaker 4: administrations combined, and even before this, several justices have complained
Speaker 4: in the past about the impact of the Court's growing
Speaker 4: emergency or shadow docket and the cases they're deciding without
Speaker 4: briefing and argument, So that seems to be a pro
Speaker 4: problem that's percolating.
Speaker 2: Yeah, the trend is clear, and it does put a
Speaker 2: monkey ranch into the orderly system of arguments, deliberations and
Speaker 2: then written opinions. To the Court's credit, originally, in the
Speaker 2: last couple of years, it decided these so called shadow
Speaker 2: docket cases without any kind of written decisions, sometimes just
Speaker 2: in order. And now at least it's trying to give
Speaker 2: some explanation or rationale for why deciding what it, you know,
Speaker 2: whatever it does. And the difficulty in the shadow docket
Speaker 2: is not just the lack of argument or the lack
Speaker 2: of opinions, is that the court is rushed. It's got
Speaker 2: all of its normal work to do, and in these
Speaker 2: preliminary postures of these cases, lots of important issues are
Speaker 2: decided and it's not always clear about the court's reasoning
Speaker 2: and what should happen next. So this shadow docket is
Speaker 2: creating a kind of confusion, and Theydministration is pressuring the
Speaker 2: Court with all of its requests, and I think they're
Speaker 2: going to continue. I foresee that this may go right
Speaker 2: through the summer and require the Court to act even
Speaker 2: when it's normally on recess.
Speaker 4: And perhaps it will extend the length of the court session,
Speaker 4: because the court usually ends by the end of June.
Speaker 4: Last year it ended July first, But now they've scheduled
Speaker 4: an argument session for the middle of May on Trump's
Speaker 4: birthright citizenship executive order. So I mean it might even
Speaker 4: cause the normal docket to get slowed down.
Speaker 2: Absolutely, and I foresee other case. And we're in an
Speaker 2: unprecedented time. I think there's about two hundred and twenty
Speaker 2: cases now focused against the Trump administration pending, and obviously
Speaker 2: in any case, there could be a nationwide injunction. And
Speaker 2: if there's a nationwide injunction, that usually will spark this
Speaker 2: effort by the Trump Department of Justice to seek an
Speaker 2: emergency stay from the nationwide injunction. And that's the dynamic
Speaker 2: that seeing right now. Congress is considering whether to pare
Speaker 2: down the power of courts to issue nationwide injunctions. There
Speaker 2: are excellent arguments on both sides of that issue, but
Speaker 2: that really is the reality now because every time a
Speaker 2: nationwide injunction is issued that will ben against the Trump administration,
Speaker 2: it will force the administration's hands and most of the
Speaker 2: time that they're going to come to the Supreme Court
Speaker 2: to ask for relief. So far, it's a mixed record
Speaker 2: in the Supreme Court during these first hundred days, and
Speaker 2: I think that that will probably continue, and my guess
Speaker 2: is we'll continue through the summer.
Speaker 4: We are waiting to hear from Chief Justice John Roberts
Speaker 4: in a q and a session in Buffalo, New York
Speaker 4: called a fireside chat. He's going to be talking with
Speaker 4: federal Judge Joseph Volardo, who's a federal judge in the
Speaker 4: Western District, which is selling its one hundred and twenty
Speaker 4: fifth anniversary. I've been talking to Harold Krantz, professor at
Speaker 4: the Chicago Kent College of Law. How an opinion yesterday
Speaker 4: not an opinion in order yesterday sort of veered from
Speaker 4: what you were describing before because there was absolutely no explanation.
Speaker 4: It was in order allowing the Trump administration to start
Speaker 4: discharging transgender service members, and there were three descents, but
Speaker 4: no written explanation from either the conservative justices in the
Speaker 4: majority or the three dissenting members on a question that
Speaker 4: I think a lot of people would be wondering why
Speaker 4: the Court lifted an injunction, and in doing so, the
Speaker 4: status quo will be disturbed because the transgender members of
Speaker 4: the military will now be starting to be discharged.
Speaker 2: Yeah, And I think the from a legal perspective, everybody
Speaker 2: is left wondering what has motivated the majority's decision, because
Speaker 2: there are two principal components of this injunctive relief. One
Speaker 2: is likelihood of success on the merits or the other
Speaker 2: is likelihood of irreparable injury. The court may view a
Speaker 2: discharge as being not rising to a level of irreparable
Speaker 2: injury because ultimately the service members can be reinstated and
Speaker 2: they can receive back pay. That's one possibility. It may
Speaker 2: not be the reason. Otherwise, they may decide that it's
Speaker 2: a strong the government has a strong case on the merits,
Speaker 2: namely that the equal protection claim that's been raised by
Speaker 2: these servicemen service individuals, they may find to be very weak,
Speaker 2: even though to many observers it's quite at least strong,
Speaker 2: even if it's not victorious. So people are left shaking
Speaker 2: their heads as to what motivated the court's decision. And
Speaker 2: only in the future will I think this may be
Speaker 2: in a different case, will the court's reasoning become clear.
Speaker 4: And also I was really surprised that there wasn't one
Speaker 4: dissenting opinion from the three liberal justices who did dissent,
Speaker 4: but there was no opinion. I thought there might be
Speaker 4: some kind of sort of outrage type opinion saying that,
Speaker 4: you know, this isn't the way we should go.
Speaker 2: Yeah, And just as Katanji Brown Jackson is the one
Speaker 2: that's been the most articulate on the issue of how
Speaker 2: this is not the way that the Court should decide
Speaker 2: important questions with real world consequences, and maybe she just
Speaker 2: didn't want to repeat herself, or maybe she wanted to
Speaker 2: save the ammunition for another day. And obviously many people
Speaker 2: have looked at this birthright citizenship issue that's being heard
Speaker 2: on May fifteenth as really one of the most sort
Speaker 2: of bellcow of all the executive orders, and so maybe
Speaker 2: she wants to save her rhetoric for that case, though
Speaker 2: I tend to think she's going to be the majority
Speaker 2: of that case. But maybe I'm getting ahead of myself.
Speaker 4: Well, because that case. I was also surprised that they
Speaker 4: scheduled oral argument, because that's a case where every judge,
Speaker 4: I think four out of four judges who ruled on
Speaker 4: it below Federal Court judges found that it was, you know,
Speaker 4: an unconstitutional executive order. So why is the Supreme Court
Speaker 4: taking that particular case.
Speaker 2: They are bending backwards to some extent to try to
Speaker 2: give the Trump administration the benefit of the doubt, to
Speaker 2: give them a chance to tell their side of the story.
Speaker 2: They know how important this is to the Trump administration,
Speaker 2: because it was, at least in some people's minds, the
Speaker 2: signature the executive order. Of all the amazing executive orders
Speaker 2: that we've seen, that's the only thing I can think of,
Speaker 2: because you're right, there is no there's no need. There's
Speaker 2: also put in the circuits, there is no real reason
Speaker 2: to decide the case other than a respect for the administration.
Speaker 2: And I think that is something that is consistent with
Speaker 2: Chief Justicebert's sort of view is he wants to make
Speaker 2: sure that the administration gets every fair chance, but he
Speaker 2: also wants mutual respect. He wants to get respect back
Speaker 2: from the Trump administration, and maybe this is part of
Speaker 2: his strategy.
Speaker 4: I'm hanging over this, and I don't think this will
Speaker 4: be a question that will be asked. But the fact
Speaker 4: that last Sunday on Meet the Press, I believe it
Speaker 4: was the President of the United States said he wasn't sure,
Speaker 4: he didn't know if he had to uphold the Constitution
Speaker 4: of the United States, and in his last term he
Speaker 4: would talk about his Article two powers. So that seemed
Speaker 4: like a really strange statement to make, and I think
Speaker 4: that people will be thinking about that, although I doubt
Speaker 4: that the Chief Justice is going to comment on that.
Speaker 2: Yeah, I would be shocked and the Chief Justice comment
Speaker 2: on about meet the press. But it almost sounded to
Speaker 2: me as more presidential Trump's rambling, because I think that
Speaker 2: he knows that the Constitution applies to him. I mean,
Speaker 2: he may interpret the Constitution differently than others, and that's
Speaker 2: it right to a certain large extent, except not in
Speaker 2: a particular decided case or controversy, but in general, he
Speaker 2: can disagree with others views of the Constitution, but he
Speaker 2: knows it applies to him, even if there are different
Speaker 2: views of what in fact Article two or two process means.
Speaker 4: And there's been a lot of talk lately. I mean
Speaker 4: you could if you google it, you'll see so many
Speaker 4: articles on what happens if the president doesn't obey a
Speaker 4: court order. And you know, we've seen in various instances
Speaker 4: that you know, it seemed like critics say that the
Speaker 4: Trump administration hasn't been obeying all court orders. So at
Speaker 4: what point does the judiciary, you know, take a strong stance,
Speaker 4: perhaps start issuing different kind kinds of you know, start
Speaker 4: subpoenaing people and perhaps holding people in civil or criminal content.
Speaker 4: I mean, what do you think it will take before
Speaker 4: that happens.
Speaker 2: That's the course, the start of the constitutional crisis. I
Speaker 2: still hope that it doesn't occur and that the cooler
Speaker 2: heads will prevail, but I certainly wouldn'tly would bet against
Speaker 2: myself and that there may be a crisis at some point.
Speaker 2: We came closest, probably in the Breaco Garcia case you
Speaker 2: call the instance where someone, unfortunately the Maryland individual was
Speaker 2: mistakenly deported to El Salvador, where he's still languishing, evidently,
Speaker 2: and the court there ordered a return to the United States,
Speaker 2: and the administration evidently sort of just sort of ignored it.
Speaker 2: And the Supreme Court did come in there and said
Speaker 2: as a compromise that the administration must at least facilitate
Speaker 2: his return to the United States. They try to sort
Speaker 2: of dodge a direct confrontation by using the term facilitate,
Speaker 2: which is somewhat of a more ambiguous term as opposed
Speaker 2: to ordering his return by a particular date. So the
Speaker 2: court's aware and it doesn't want to have this direct confrontation,
Speaker 2: but it knows it's lurking out there. And you know,
Speaker 2: the courts have very few levers to pull in terms.
Speaker 2: As you pointed out, civil contempt is certainly one of them.
Speaker 2: Fiery rhetoric is another, and we've seen some judges amp
Speaker 2: up their rhetoric. But at the end of the day,
Speaker 2: as Andrew Jackson reportedly said one hundred and fifty years ago,
Speaker 2: the enforcement powers rest with the president, not with the courts.
Speaker 4: And a perfect time to end that quot and that answer,
Speaker 4: because right now the Chief Justice is taking his seat.
Speaker 4: They're sitting in large chairs sort of like you'd see
Speaker 4: in a judge's chamber, and he's sitting down now at
Speaker 4: two applause, let's listen.
Speaker 5: Well, it's it's really is an honor to be here
Speaker 5: with you and to rekindle our old friendship that started
Speaker 5: forty seven years ago.
Speaker 1: Wow, yeah, long time, you haven't aged, haven't aged a bit? No,
Speaker 1: you haven't. You haven't haven't.
Speaker 5: Changed a bit. So so folks from Buffalo are very
Speaker 5: proud to say that you're a native son here you
Speaker 5: spent the first ten years of your life in Hamburg, right,
Speaker 5: what do you remember about growing up in Buffalo?
Speaker 1: It's cold.
Speaker 3: No, the memories were refreshed earlier this morning. I went
Speaker 3: back and visited my boyhood home, which was a lot
Speaker 3: smaller than I remember, and it was near the fair
Speaker 3: grounds for those of you around here, and we would
Speaker 3: I remember hearing the call to the post, you know,
Speaker 3: the when they were because they did racing there on weekends.
Speaker 3: And we would set up lawn chairs in the driveway
Speaker 3: because when they had concerts too, and about the concert
Speaker 3: without having to pay for it.
Speaker 5: So where'd you go to school?
Speaker 1: Saint Brendette's.
Speaker 5: Yeah, and that's where my wedding was. Oh yeah, so
Speaker 5: we closed the closed last week. Yeah, I heard, That's
Speaker 5: what I heard. So when we were in law school
Speaker 5: and particularly on the Law Review, people saw you as
Speaker 5: very bright, a good writer, ambitious in going places. Did
Speaker 5: you let yourself dream about being on the Supreme Court then?
Speaker 1: No?
Speaker 3: No, I didn't dream about being a judge. I didn't
Speaker 3: dream about being a lawyer. Before then. I was going
Speaker 3: to go to uh graduate school to study in history
Speaker 3: and true story. I was taking a cab back from
Speaker 3: Logan Airport to the campus, and the cab driver asked
Speaker 3: me what I did and I told him I was
Speaker 3: a history major at Harvard.
Speaker 1: He said, I was a history major at Harvard.
Speaker 3: Yeah, that's why I said, where are those where's that
Speaker 3: law school application file? But uh, when I got to
Speaker 3: law school, I found out that I liked it, but
Speaker 3: I certainly didn't want to be a a judge. And then, uh,
Speaker 3: you know, ended up clerking and working at in the
Speaker 3: government and in law firm for a while, and you know,
Speaker 3: it just sort of happened that you end up in
Speaker 3: a position where someone decides to nominate you to be
Speaker 3: a judge. And by that time I had been practicing
Speaker 3: long enough I thought it would be a good, good change,
Speaker 3: and that worked out, and then you know, the Supreme
Speaker 3: Court fortuitously came long after that.
Speaker 5: Yeah, so your your career started as in was by
Speaker 5: and large as an appellate lawyer.
Speaker 1: How how did that happen?
Speaker 3: Well, I came off of the government work that I
Speaker 3: had been doing. I had spent a total of seven
Speaker 3: years between the clerkships and at stint in the Justice
Speaker 3: Department and some time at the White House Counsel's Office.
Speaker 3: So when I left that I'd been out seven or
Speaker 3: eight years and hadn't really practiced normal law, and I
Speaker 3: didn't want to start, you know, the seminar whatever for
Speaker 3: first year students to learn how to take a deposition.
Speaker 3: So I went around at law firms and they would say,
Speaker 3: what do you want to do? I said, well, the
Speaker 3: one thing I thought I could do. I said, I
Speaker 3: want to do a pellet work. And they said, oh, okay,
Speaker 3: you know, if the case you're handling goes on appeal,
Speaker 3: you can do a pellet work. And I said, no, no,
Speaker 3: I only want to do a pellet work. And nobody
Speaker 3: was buying that until I ran into a fellow named
Speaker 3: Barrett Prettyman, who that's what he did. It was at
Speaker 3: the firm of Hogan and Hartson, and he was an amazing,
Speaker 3: amazing man, and I decided I would like to work
Speaker 3: with him, and that was fine with him.
Speaker 1: He had been extraordinary life.
Speaker 3: The courthouse in DC is named after his father, who
Speaker 3: was a very prominent judge. But Barrett, at age eighteen,
Speaker 3: left you know, high.
Speaker 1: School in d C.
Speaker 3: And went to England and then joined the Patent's Army,
Speaker 3: you know, you know, hurtling toward Berlin and they were
Speaker 3: ambushed and his unit found themselves in these.
Speaker 1: Fox holes, terrible cold.
Speaker 3: Through the night, and the you know Germans are sort
Speaker 3: of picking them off one by one.
Speaker 1: And he swore that if he made it to the morning,
Speaker 1: he would wake up happy every day. And he made
Speaker 1: it through.
Speaker 3: He had frostbite. They took him back to the you know,
Speaker 3: back to Belgium. His the rest of his unit went
Speaker 3: in and they were going right into the Battle of
Speaker 3: the Bulge and they were all killed.
Speaker 1: So he kept his he kept his file.
Speaker 3: As far as I could tell, it was a very
Speaker 3: upbeat person, very very you know, pretty much everybody else
Speaker 3: there were law walls had pictures of you know, fox
Speaker 3: hunting or old English judges, and you know, he had
Speaker 3: pictures of clients like Truman Capoti and Catherine Anne Porter
Speaker 3: and really and he had a great, great attitude, and
Speaker 3: I really enjoyed practicing law with him, and.
Speaker 5: He woke up happy every day even after he started
Speaker 5: working with you.
Speaker 3: Yeah, I never heard that, yeah, yeah.
Speaker 5: So so I said, you were a hard worker on
Speaker 5: the lower of you and you really were, but you
Speaker 5: had some time for fun as well. And I told
Speaker 5: Tim Metzlaf, who's a professor Duke that I would ask
Speaker 5: you to tell these folks about pencil ball.
Speaker 3: Yeah, Tom, and I spent more time playing pencil ball
Speaker 3: at the law review than working on the law review stuff.
Speaker 1: It was a very complicated thing.
Speaker 3: You get a little piece of paper and put some
Speaker 3: tape around it, and then with pencils. Somebody would pitch
Speaker 3: the ball and you try to hit it with a pencil, and.
Speaker 5: You have to this elaborate scoring system too. Right, a
Speaker 5: triple if you got in the waistbasket, it was a triple. Right,
Speaker 5: if it ended up sticking to the ceiling, it was
Speaker 5: a homer.
Speaker 1: I forget. Well, yeah, it was very complicated.
Speaker 5: They never let me play.
Speaker 1: The rules evolved as each game went on.
Speaker 5: I was an underclassman, so they never let me play,
Speaker 5: but they played the pencil ball game. So you interviewed
Speaker 5: for clerkships yourself, and you now interview candidates for clerkships.
Speaker 5: Any pointers you have for folks when they.
Speaker 3: Interviewed, Well, one year when I was interviewing people, I
Speaker 3: was looking with law clerks and probably you do as well.
Speaker 3: You want people with some degree of self reliance and confidence.
Speaker 1: So I thought.
Speaker 3: Laid out a dozen half glazed and half powdered donuts
Speaker 3: out in the waiting area, and I figured one it
Speaker 3: would be a good sign of whoever.
Speaker 1: It was liked donuts.
Speaker 3: And also if they had enough selfish insurance to have one,
Speaker 3: even though their hands would have glazing or powder on them.
Speaker 3: When they came in end of the day, a dozen
Speaker 3: doughnuts still there. So everybody, everybody failed that. Now, I
Speaker 3: had some bad experiences of my own.
Speaker 1: This goes.
Speaker 3: It was back when they were some justices were still
Speaker 3: hiring people right out of law school, and Justice White
Speaker 3: was one of them, and I was scheduled for an
Speaker 3: interview with him, and I went down to Washington and
Speaker 3: they had just opened the new metro system just opened,
Speaker 3: and you know, you put your money in and you
Speaker 3: get a fair card and all that. I don't think
Speaker 3: they do this anymore. I'm sure they fixed it back then.
Speaker 3: But all I had was you know, a twenty, you know,
Speaker 3: and put it in and got put in the fair.
Speaker 3: It was forty cents to Union Station, so I got
Speaker 3: nineteen dollars and sixty cents in quarters or whatever. It
Speaker 3: was like in Las Vegas, the coort it just kept
Speaker 3: punching out, but you know I was a law student.
Speaker 1: I wasn't going to leave him there.
Speaker 3: So I put some here and some in here in
Speaker 3: these other pockets. And I walked into Justice White's chambers
Speaker 3: and I was jiggling, jingling, you know, A jingle kind
Speaker 3: of looks strange at me, you know, And I crossed
Speaker 3: my legs and a dollar fifty I didn't get I didn't.
Speaker 1: Get an offer from that.
Speaker 5: Tom Metzloff got that job, right, he cleared, Yeah.
Speaker 1: Dad, tom My pencil ball opponent got the job.
Speaker 6: Yeah.
Speaker 5: Yeah. So you really are a terrific writer. And you
Speaker 5: were back in law school as well. I still remember
Speaker 5: you're telling me that if I had a sentence that
Speaker 5: had three prepositional phrases or more, go back and rewrite
Speaker 5: the sentence because the sentence needed rewriting. Where'd you learn
Speaker 5: to write? And is there any one person who your
Speaker 5: credit for teaching you how to write? Well?
Speaker 1: I think the way to learn to write is to
Speaker 1: read good writing.
Speaker 3: And I read a lot. I liked Conrad, I liked
Speaker 3: and Elmore Leonard. I mean, Joseph Conrad if you want
Speaker 3: to write long and flowing, elegant sentences, and Elmore Leonard
Speaker 3: if you like punchy sentences, and I think that helped
Speaker 3: a lot.
Speaker 1: When it came to writing briefs. Though I had a
Speaker 1: secret weapon.
Speaker 3: I have three sisters, none of them are none of
Speaker 3: them is a lawyer, and yet they're, you know, very bright,
Speaker 3: and I would send, for most cases, a copy of
Speaker 3: the draft brief to them and ask them to read it.
Speaker 3: Read it once, and then I called them and ask
Speaker 3: them what it was about and who should win? And
Speaker 3: if you're writing, isn't clear enough for somebody who is
Speaker 3: an intelligent layperson to get through it and to understand,
Speaker 3: you know, basically what's going on. I mean, you know,
Speaker 3: they wouldn't say, oh, you know, under Arrista this or that,
Speaker 3: but they say, you know, the guy who you know,
Speaker 3: you know is driving the truck, you know should have
Speaker 3: looked left and he looked right, and you know the
Speaker 3: safety break didn't work so the other person could pay
Speaker 3: and if it was the right answer, and you know,
Speaker 3: because I see it today and I bet you do too.
Speaker 3: When you read so many briefs and read them carefully.
Speaker 3: But it's not like you can devote as much attention
Speaker 3: to you know, becover.
Speaker 1: In many cases you're hearing.
Speaker 3: So you want to make sure that somebody who's going
Speaker 3: to read through it once, maybe a little more quickly
Speaker 3: than you'd like, really gets the gist of what you want.
Speaker 3: The other thing I'd liked to do is read aloud
Speaker 3: and again, no matter how complicated it was, you should
Speaker 3: be able to stand up and read it to somebody
Speaker 3: and have them basically follow. I mean, otherwise your sentences
Speaker 3: are too convoluted, not direct enough. And I think those
Speaker 3: are two things that serve me. Well, you still trying.
Speaker 5: To do that.
Speaker 4: You're listening to Chief Justice John Roberts in a conversation
Speaker 4: with federal Judge Joseph Bullard.
Speaker 3: Complaining and walking down the halls. They're reading out loud
Speaker 3: and they.
Speaker 5: They don't do that. But you're trying to make your
Speaker 5: decisions accessible.
Speaker 3: Well, and yeah, and I'll tell you, I mean, it's
Speaker 3: not in their cases where you know, you don't necessarily
Speaker 3: study every brief and if you can't, if you file
Speaker 3: a brief and you can't, I can't read through it once.
Speaker 1: You know it's gonna be okay.
Speaker 3: I've got to read through it twice, and you know,
Speaker 3: sit down with a law clerk and say.
Speaker 1: What do you think this is about?
Speaker 3: I think people place too much emphasis on like showing
Speaker 3: off their intellectual sophistication or the nuances, instead of just
Speaker 3: being very direct in your writing. And I always think,
Speaker 3: particularly in the cert petitions, when I was doing those,
Speaker 3: it's very hard. I don't know what the rate is now,
Speaker 3: two percent or less than that, get granted. I always
Speaker 3: thought it was important to put something in that would
Speaker 3: catch somebody's eye. Even I had a case once involving
Speaker 3: mining in Alaska, and it involves something called the Red
Speaker 3: dog mine out in the middle of Alaska, and so
Speaker 3: I figured maybe it would help. So I put in
Speaker 3: the first page and a half is about why it
Speaker 3: was called the Red dog mine. And it was because
Speaker 3: you get these stories in Alaska where somebody has to
Speaker 3: fly out to get emergency insulin and they fly and
Speaker 3: this was the flying back of the guy who had
Speaker 3: his plane. He always had this red dog, you know,
Speaker 3: in his plane, and the plane coming back crashes, but
Speaker 3: the dog, you know, survives, the pilot doesn't, and the
Speaker 3: dog runs to the village and they, you know, they
Speaker 3: get the insulin and all that and and then hopefully
Speaker 3: you'll read on and it's about some mining regulations or something.
Speaker 3: And when one of the but hear me when I
Speaker 3: got on the court. The first thing Justice O'Connor said
Speaker 3: to me when we were sitting down for lunch, and I.
Speaker 1: Said, I love that story about the dog.
Speaker 3: But I mean they denied certain but that you know
Speaker 3: that happened, but they read it.
Speaker 1: But I bet you finished reading it too.
Speaker 5: So when I write decisions, I tell my law clerks that,
Speaker 5: you know, half the people who read the decision are
Speaker 5: going to think I'm an idiot because they lost. But
Speaker 5: I want them to at least understand why I'm an idiot,
Speaker 5: at least why I made the decision that I made
Speaker 5: in the case. Because I think it's important to write
Speaker 5: so that it's accessible for people, and judges, you know,
Speaker 5: do the same thing. I think.
Speaker 1: I think.
Speaker 5: So let's talk about something a little more important, a
Speaker 5: little more substantive. I think most judges would agree that
Speaker 5: judicial independence is crucial.
Speaker 1: Do you agree?
Speaker 5: What do you think? Oh?
Speaker 1: Yeah, I mean it's central the.
Speaker 3: Only real political science innovation in our constitution. I mean,
Speaker 3: you know, parliaments have been around for eight hundred years,
Speaker 3: and obviously executives is the establishment of an independent judiciary.
Speaker 3: Even places you think are similar to ours like England.
Speaker 3: The judiciary in England was part of Parliament. I mean
Speaker 3: they sat in the House of Lords and because Parliament
Speaker 3: was supreme. But in our constitution, judges and the judiciary
Speaker 3: is a co equal branch of government, separate from the others,
Speaker 3: with the authority to interpret the Constitution as law and
Speaker 3: strike down obviously acts of Congress or acts of the President.
Speaker 3: And that innovation doesn't work if it's not. The judiciary
Speaker 3: is not independent.
Speaker 1: Its job is to.
Speaker 3: Obviously decide cases, but in the course of that check
Speaker 3: the excesses of Congress or of the executive and that
Speaker 3: does require degree of independence.
Speaker 5: What do you think of these costs for impeachment of
Speaker 5: judges based on the decisions that they've made.
Speaker 3: Well, I've already spoken to that, and you know, impeachment
Speaker 3: is not how you registered disagreement with decisions.
Speaker 5: That's what you're for, right, That's what you're there for.
Speaker 1: That's what we're there for.
Speaker 5: So lots of decisions that you make interpreting the Constitution
Speaker 5: have have real life, practical consequences. So just as a
Speaker 5: for example, the Second Amendment decisions result in more people
Speaker 5: having guns, and the Obamacare decision resulted in more people
Speaker 5: having health insurance. Oberg Fell resulted in more same sex marriages.
Speaker 5: Do you think about those practical consequences when you're interpreting
Speaker 5: the constitution? And should justices think about those practical consequences
Speaker 5: when they're interpreting the words. Gast is.
Speaker 3: Mainly no to both of those questions, because if you
Speaker 3: do that, you know, with one exception I'll talk about later,
Speaker 3: But if you do that, you're kind of putting yourself
Speaker 3: in the place of the legislator. You can say, for example,
Speaker 3: a consequence of the Second Amendment decisions are or more
Speaker 3: people have guns and so there's more you know, accidental shootings,
Speaker 3: more shootings. Or you can say the consequence is that
Speaker 3: more people are armed and therefore they're in a better
Speaker 3: position if there's for an invasion, as there was with
Speaker 3: the bridge shortly after the adoption of the Second Amendment,
Speaker 3: So that that's a good thing. Now, if you decide
Speaker 3: one of those or the other based on your view
Speaker 3: of what you think is best, you would be substituting
Speaker 3: your own view for that of the people who wrote
Speaker 3: the constitution. So no, I don't think that's not a
Speaker 3: big part of at least how I do my job
Speaker 3: sort of what a purpose of this approach is what
Speaker 3: people would call that, because I think you're making yourself
Speaker 3: the arbiter of what people were trying to accomplish in
Speaker 3: that law. When you really need to be doing is
Speaker 3: sitting down and reading it, you know, and its appropriate
Speaker 3: context and trying to figure out what they what they meant.
Speaker 3: Now one extreme, if an interpretation you adopt leads to
Speaker 3: some absurd result that nobody could plausibly of intended, then yeah,
Speaker 3: then the the the consequences make a difference. But I
Speaker 3: think it's more important to figure out what the people
Speaker 3: who wrote the law had in mind and what they
Speaker 3: meant by the words they used, rather than think what
Speaker 3: is this type of legislation for? Because then the you know,
Speaker 3: the interpretation goes flips flip flops.
Speaker 5: So the courthouse here in Buffalo is named for Robert Jackson,
Speaker 5: and you clerked for Justice Renquist, right, Justicehrenk quiz clerk
Speaker 5: for Justice Jackson, So you're sort of his grandson.
Speaker 1: Sort of.
Speaker 5: You know, well, yeah, do that have any special meaning
Speaker 5: for you? I mean, I know one of the photos,
Speaker 5: one of the portraits you have hanging, one of the
Speaker 5: four portraits you have hanging in the the Justices conference
Speaker 5: in the conference room is Jackson. Yeah, yeah, would you
Speaker 5: talk about that a little bit?
Speaker 3: Well, sure, I mean, obviously one of the more remarkable
Speaker 3: members of the Court in our in our history. Part
Speaker 3: of the reason they's in our conference room is he was,
Speaker 3: you know, the solicitor General who argued before the Court,
Speaker 3: the attorney General, you know, in charge of the branch
Speaker 3: of justice and the administration, the prosecutor at Nuremberg, which
Speaker 3: was very controversial on the Court. His colleagues did not
Speaker 3: think that was necessarily something he should be should be doing. Uh.
Speaker 3: And obviously one of the great justices. I mean, his
Speaker 3: his eloquence is really extraordinary. His eloquence at Nuremberg was
Speaker 3: was extraordinary. So yeah, I think it's a great grandfather
Speaker 3: to have. Now the other the other portraits John Marshall
Speaker 3: Harlan is there, and I just think somebody who's parents
Speaker 3: name him John Marshall, who then lives up to it
Speaker 3: and ends up on the Supreme Court, deserves an incredible painting.
Speaker 3: And seriously, all his his pronouncements in number of areas
Speaker 3: of the law I think are really remarkable.
Speaker 5: He was at dissenter and plus he wasn't he.
Speaker 4: Yes, Yeah, you're listening to Chief Justice John Roberts who
Speaker 4: was having a conversation with Federal Judge Joseph Folardo. And
Speaker 4: the topics are wide ranging.
Speaker 3: I had five colleagues on the Court from New York,
Speaker 3: so I figured I had to give him some New
Speaker 3: Yorker on the law. And then of course the great
Speaker 3: Chief John Marshall as well.
Speaker 5: Yeah. So I read a speech that you gave to
Speaker 5: your son's graduating class. It talked about the importance of
Speaker 5: getting to know the folks who work at the school,
Speaker 5: the custodial staff, the janitorial staff, those kinds of things.
Speaker 5: Why is that important and why was it important enough
Speaker 5: for you to give that message to your son and
Speaker 5: his classmates.
Speaker 3: Well, it was eighth grade, and it's a time when
Speaker 3: they need to learn a lot of things.
Speaker 1: And I mean it's.
Speaker 3: Important just it's basic courtesy, but also it's important to
Speaker 3: appreciate that, no matter high and mighty you might think
Speaker 3: you are or others might that, there are other people
Speaker 3: that are doing things that are just as vital to the.
Speaker 1: You know, functioning of our.
Speaker 3: World and as anybody else, and all the people who
Speaker 3: work at the Supreme court are part of the process
Speaker 3: that ends up in our articulation of what the law is,
Speaker 3: and whether it's the Chief Justice or somebody in the
Speaker 3: print shop or one of the law clerks or anybody else.
Speaker 3: And I think if you lose sight of that, that's
Speaker 3: a that's a real, real shame. And uh, you know,
Speaker 3: I do think again, particularly eighth grade is a good
Speaker 3: place to learn that way.
Speaker 5: Did you do that when you were in school? Did
Speaker 5: you did you get to know those folks when when
Speaker 5: you were in.
Speaker 3: Oh sure, yeah, yeah, but in eighth grade, I mean
Speaker 3: you know those those people.
Speaker 5: Were the boss. Yeah, that's exactly right, It's exactly right.
Speaker 1: You know.
Speaker 5: Sometimes I'll have folks who cleaning the office will come
Speaker 5: in and apologize to me for coming in cleaning the office.
Speaker 5: And I said, if you folks don't do this, I
Speaker 5: can't do my job. So you know, it's as you say,
Speaker 5: it's all.
Speaker 1: Yeah, I apologize for making such a mess.
Speaker 5: Which so you talked about a few minutes ago reading
Speaker 5: petitions for curchary and briefs. What's the sort of criteria
Speaker 5: that you use for deciding whether you want to take
Speaker 5: a case job other than writing about red dogs. What
Speaker 5: jumps out, are you.
Speaker 3: Well, And it's pretty clear that it doesn't really matter
Speaker 3: how right or wrong it is. I mean, the one
Speaker 3: thing you could say in a certain petition that's not
Speaker 3: a good idea is how horribly wrong this is. Because
Speaker 3: the first message that comes across to us is that, well,
Speaker 3: if it's that wrong, we don't have to worry about it.
Speaker 3: They'll follow it. Mistake has been made. But one thing
Speaker 3: that's certain, it's not our job. We're not a court
Speaker 3: of error in the sense that we correct mistakes. So
Speaker 3: what we're looking for are conflicting decisions on the same
Speaker 3: law that have to be fixed. I mean, if one
Speaker 3: person beds this law and says you can't do this,
Speaker 3: and the other person says no, no, it means you
Speaker 3: can't do this. It should mean the same thing across
Speaker 3: the country. And so that's more the type of case
Speaker 3: we would take to resolve that disagreement. So people want
Speaker 3: to get their cases heard, need to have somebody who's
Speaker 3: good at explaining why we need a greater degree of
Speaker 3: uniformity this. You know, you can't say in New York
Speaker 3: some particular expense is tax deductible, but in California it's not.
Speaker 1: So a lot of the cases we get are actually
Speaker 1: not that glamorous.
Speaker 3: They're not that interesting because there are a lot of
Speaker 3: areas of federal law, like you know, patent law and
Speaker 3: copyright law, tax law, all sorts of things, and when
Speaker 3: those disagreements come up, we're the only ones who can
Speaker 3: fix it. So a lot of our docket is pretty mundane.
Speaker 5: Is there something too, though? Putting something in the cert
Speaker 5: petition that will catch the judges? I like the red
Speaker 5: Dog story. I mean you find yourself when when you
Speaker 5: read something like that that has something that catches your
Speaker 5: eye drawn to it a little more.
Speaker 1: Oh sure, yeah, I mean, you know, we take whatever
Speaker 1: it is.
Speaker 3: I don't know what the number is, one and a
Speaker 3: half percent of all the curt petitions. You've got to
Speaker 3: do something to stand out of the crowd, you know,
Speaker 3: unless you have a really good case that may be
Speaker 3: enough to ge at our attention. But other than that,
Speaker 3: and it makes sense, you have to be a good
Speaker 3: writer if you're there. I mean, obviously our law clerks
Speaker 3: read somewhere all the petitions and they write summaries, but
Speaker 3: we read from those summaries ones that we think, you know,
Speaker 3: might be likely candidates and you know, it's very hard
Speaker 3: to pick out the right ones.
Speaker 5: Some of your colleagues have written autobiographies. Have you started
Speaker 5: yours yet?
Speaker 3: No?
Speaker 5: Are you gonna? No? Why?
Speaker 1: Why?
Speaker 5: Why not?
Speaker 3: I think my life is very interesting to be I'm
Speaker 3: not sure it's terribly interesting to anyone else. And now
Speaker 3: that's not true of some ofmic colleagues. Justice Thomas's autobiography
Speaker 3: is absolutely gripping. If you haven't read it and are
Speaker 3: at all interested in the court, you should. It's such
Speaker 3: an extraordinary story. I really couldn't put it down. But
Speaker 3: I don't think I don't think I have that.
Speaker 5: That in me. Let's talk about your your role in
Speaker 5: terms of you as a public figure. Obviously, you're very recognizable.
Speaker 5: People know who you are. It's you have to be
Speaker 5: on all the time, like now, uh, And how do
Speaker 5: you separate that from your private life? How do you
Speaker 5: how do you keep some privacy in your life and
Speaker 5: have this kind of bigger than life role as Chief
Speaker 5: Justice the United States?
Speaker 1: Well recognizable.
Speaker 3: My wife and I run vacation in Portugal last year
Speaker 3: and another American sort of came up to us and
Speaker 3: he's looked at me and says, I know.
Speaker 1: You, I know who you are.
Speaker 3: You're John Bahner, and so you know they were sitting
Speaker 3: next I had to spend the whole evening pretending to
Speaker 3: be John Bayner. So when you say readily recognizable, really not,
Speaker 3: to be honest with you, it's getting worse though in general,
Speaker 3: just because you know, the work of the court is
Speaker 3: getting to a higher degree of publicity.
Speaker 1: So it is a problem.
Speaker 3: I will say ninety nine percent of the interactions I've
Speaker 3: had with people, they come up and say hello, which
Speaker 3: is fine, and so that's that's good. But we're not
Speaker 3: as recognizable as you might think among a crowd of
Speaker 3: judges and lawyers.
Speaker 5: Yeah, but.
Speaker 1: In the public at large, not much of them.
Speaker 5: So some of your colleagues have retired. You ever think
Speaker 5: about that. I mean, you're too young now, but some
Speaker 5: day would you No? No, because you love because you
Speaker 5: love what you do too much.
Speaker 1: You know, I'm going out feet first.
Speaker 3: It's just I am too good. Well, no, now I
Speaker 3: say that now. I mean, I'm sure if your health
Speaker 3: declines and all, and if you recognize that you're a
Speaker 3: burden to the court rather than part of an assist
Speaker 3: to everybody, then you know it'll be time to go.
Speaker 1: I have very good friends that were.
Speaker 3: For a long time, many years, and I've sat down
Speaker 3: with them and you know, said, I want, you know,
Speaker 3: appropriate time, because you don't always notice that you're slipping.
Speaker 3: I want the you know, two of you to tell
Speaker 3: me if it's it's time to go. It's a long pause,
Speaker 3: and at once the two of them said it's.
Speaker 1: Time to go. So I said, all right, never mind.
Speaker 5: How funny I have that.
Speaker 1: It is kind of she's going to tell me.
Speaker 5: She hadn't said anything yet. Maybe after this she will.
Speaker 3: It is surprising how rare it has been on the
Speaker 3: court for that to become an issue. Really just a
Speaker 3: handful of times. I think it's because it's a collegial
Speaker 3: both in a technical sense and in a popular sense,
Speaker 3: group of people that you develop relationships where if the
Speaker 3: people do come, there have been times when somebody has
Speaker 3: stayed a little longer than they should.
Speaker 1: Then the other colleagues come and it's.
Speaker 3: Always really worked out. So I don't think that's going
Speaker 3: to be a problem.
Speaker 1: But it is. Yeah, I mean, I still feel pretty healthy.
Speaker 5: Do you love what you do? I mean, you really do.
Speaker 3: It's exciting to get up, you know, every morning and
Speaker 3: go into work.
Speaker 5: It doesn't seem like work when it's like that, right some.
Speaker 1: Days, some days it does. But it's nice that we have.
Speaker 3: A break in the summer. Louis brandeis one of our
Speaker 3: great justices, said that he could do the twelve months
Speaker 3: worth of work in ten months, but he couldn't do
Speaker 3: it in twelve months. And I think there's a lot
Speaker 3: of wisdom in that we work at very close quarters
Speaker 3: on very important issues, on very sensitive issues at work.
Speaker 1: That is is hard to do, and.
Speaker 3: We do need a little break from each other, but
Speaker 3: it does. It's interesting, it really is creates such a
Speaker 3: strong bond. I'm sure people, you know, listening to the
Speaker 3: news or reading our decisions, particularly you know, decisions that
Speaker 3: come out in May and June, maybe think, boy, those
Speaker 3: people really must, you know, hate each other. They must
Speaker 3: be at hammer and tong the whole time, and we don't.
Speaker 3: I mean, the dealing with the type of cases we
Speaker 3: do and their significance, it's something only those nine people
Speaker 3: can can know. Whether you take something as basic and
Speaker 3: fundamental as whether somebody lives or dies you share that
Speaker 3: in a very intimate way, or whether whatever else that
Speaker 3: is the most important issue facing the public, and even
Speaker 3: if you are on opposite sides more often than not,
Speaker 3: and we're not most of more of our decisions are
Speaker 3: unanimous than anything else people lose lose sight of. But
Speaker 3: it is a strong, a strong bond.
Speaker 5: I think when Justice Skinsburg and Justice Scalia were on
Speaker 5: the court together and their friendship got some publicity, I
Speaker 5: think people got to understand that a little bit more
Speaker 5: because RBG was taught publicly about it a lot, and
Speaker 5: and just how fond she was of Justice Scalia and
Speaker 5: vice versa, even though they were at opposite ends of
Speaker 5: lots of decisions.
Speaker 3: Yeah, and a lot goes into that. And you know,
Speaker 3: you have more in common with some colleagues than others. Sure,
Speaker 3: so I do things with some of my colleagues that
Speaker 3: I don't with the other and vice versa.
Speaker 1: But it is, it is a bond.
Speaker 3: And you know, and their their issues and discussions you
Speaker 3: don't I don't share with with with my wife, and
Speaker 3: I know others don't just because they find it easier
Speaker 3: not to know, you know, in terms of that, so
Speaker 3: they don't have to worry about it. But so it
Speaker 3: is a it's a small group. The bonds of real
Speaker 3: affection and friendship and shared experience are very very strong,
Speaker 3: and I think we try very hard not to let
Speaker 3: disagreements of the moment break that.
Speaker 5: So you've been on the court for twenty years, Yeah,
Speaker 5: and you were a circuit judge for a couple of
Speaker 5: years before that. Read a lot of district district court
Speaker 5: decisions over the years, So I'm looking for a little advice. Now,
Speaker 5: what what what? What can you tell district judges about
Speaker 5: the decisions they write that might might help us?
Speaker 1: Yeah, brevity is good.
Speaker 6: And I think it's it's you knowing to this, particularly
Speaker 6: with the district court.
Speaker 3: We recognize there was a primary responsibility of the district
Speaker 3: courts to deal with the facts, and we don't want
Speaker 3: to be second guessing the facts.
Speaker 1: And so that's.
Speaker 3: An important thing to address if it's going to be
Speaker 3: in the opinion, to make it clear what findings you've
Speaker 3: made about what.
Speaker 1: And and and and and and what hasn't.
Speaker 3: And then I remember Justice Renquist, for whom my clerk
Speaker 3: was very adamant about that he was a very.
Speaker 1: Good trial lawyer. He said, you don't want to waste
Speaker 1: too much time, you.
Speaker 3: Know, on on the law if you're the facts are
Speaker 3: more important than the law, and then you know, the
Speaker 3: as it moves up, people are focused more on the
Speaker 3: on the facts he tried. When he was in my
Speaker 3: position as chief Justice, he was remembering his days fondly
Speaker 3: as a trial lawyer, and he assigned himself to a
Speaker 3: district court in Virginia to hear a trial, just to
Speaker 3: kind of get back on the saddle in that way,
Speaker 3: and souf and he did, and it was he issued
Speaker 3: a decision, and they appealed, and the Fourth Circuit reversed him.
Speaker 1: Is that right?
Speaker 5: And he never did it again.
Speaker 1: No.
Speaker 3: But the only thing that made him mad, and he
Speaker 3: was really upset about it is that they issued it
Speaker 3: as a percurate on opinion. Nobody had the guts to
Speaker 3: put their name on it.
Speaker 5: You ever think about doing that, trying to be a
Speaker 5: trigiant No, because well you didn't try cases, so no
Speaker 5: difference there. Yeah. So you became chief Justice in two
Speaker 5: thousand and five, you worked with Justice o'cannor, and then yeah,
Speaker 5: Justice Skinsburg, and now there are more women on the
Speaker 5: court than ever. Has that changed the dynamic or the
Speaker 5: culture of the court in any way.
Speaker 1: No, It'll be my honest answer, I don't think it has.
Speaker 3: I'm sure, when Justice O'Connor came on as the first woman,
Speaker 3: that had all sorts of consequences.
Speaker 1: And changes, and.
Speaker 3: But you know, now, to be honest, I don't think
Speaker 3: in terms of the dynamic at conference or the discussions
Speaker 3: and all that, I just don't think it makes a difference.
Speaker 3: I wouldn't say that our conferences or our discussions are different,
Speaker 3: because I would say it's different because those particular individuals
Speaker 3: are there and they all come and bring different perspectives
Speaker 3: and all. But I don't think I would say it's
Speaker 3: different than because they're women.
Speaker 5: So there's been a lot of criticism of some decisions
Speaker 5: because they have not they've changed precedent, right the abortion
Speaker 5: decision most recently, in other decisions like that, But that
Speaker 5: happens all the time, right, I mean, there's lots of
Speaker 5: times when courts have precedent that they that they think
Speaker 5: needs to be changed for whatever reason. What kind of
Speaker 5: criteria do you apply to that yourself?
Speaker 3: Well, first of all, there's a lot of misconception on
Speaker 3: that subject. The see if I make sure I get
Speaker 3: these numbers right, in recent study, the war in court
Speaker 3: overruled I think three three point two decisions on average.
Speaker 5: You know a year the.
Speaker 3: Burger Court actually had a little bit more than I
Speaker 3: think they did, three point six percent a year. The
Speaker 3: rank was court moved down a little bit, only two
Speaker 3: point four cases number percent cases a year, and in
Speaker 3: the past twenty years the number has been one point six.
Speaker 3: So people have a different, at somewhat wrong view of
Speaker 3: how many cases are being overturned now. We take fewer
Speaker 3: cases now than they did before, but the number of
Speaker 3: important ones that would be subject to overruling are the same.
Speaker 1: So a lot of people talk as if we're overruling
Speaker 1: a lot more.
Speaker 3: It's the lowest it's been since the fifties, and sort of,
Speaker 3: and some cases should be.
Speaker 1: I mean, aren't you glad that you know Brown versus.
Speaker 3: Board of Education overruled Plessy or that Cats overruled Olmsted.
Speaker 3: So the idea that it's invariably a bad thing to
Speaker 3: overrule precedent is I think quite mistaken. At the same time,
Speaker 3: you can't do it willy nilly just because you know,
Speaker 3: you look at a case and you think, gosh, I
Speaker 3: would have had that principle come out.
Speaker 1: The other way. That doesn't mean you overturn it.
Speaker 3: Starry decisive is an important part of our work. The
Speaker 3: law is supposed to be predictable, so you need a
Speaker 3: special justification before you want to overrule a case.
Speaker 1: Other than that you just happen to think, I think
Speaker 1: it's wrong.
Speaker 5: We were talking about the Barnett case a little while ago,
Speaker 5: and that was a case that overruled a decision Justice
Speaker 5: frankfurt Or made just a few years before go bite
Speaker 5: this or whatever. Yeah, and so yeah, it's been around
Speaker 5: for a long time.
Speaker 3: Yeah, So when you do that, you have to the
Speaker 3: first thing has to be that it's clearly wrong. The
Speaker 3: second thing has to be does that make a difference.
Speaker 3: I mean, if, for example, you say you can't figure
Speaker 3: out what the filing deadline is, you know, is it
Speaker 3: ten days under the rule or is it twelve days?
Speaker 1: You have to decide it.
Speaker 3: But you shouldn't come back and say, oh, it should
Speaker 3: have been twelve days, not ten days.
Speaker 1: So we're going to overrule that.
Speaker 3: I mean, that's something that most cases, many cases, it's
Speaker 3: more important that they be decided than that to be
Speaker 3: decided right, whether it's ten or twelve days, is a
Speaker 3: case like that. So it has to be a case
Speaker 3: where it really makes an important ongoing difference. And be
Speaker 3: significant enough to the league system that it justified to
Speaker 3: overturn the approach. But it's not something you want to
Speaker 3: do very often.
Speaker 5: Can you talk a little bit about your experience clerking
Speaker 5: for Judge Friendly and Justice Ranquist.
Speaker 3: Yeah, two wonderful years in my life and two totally
Speaker 3: different experiences. And I have to say, at a very
Speaker 3: personal level, the chance to clerk with Judge Friendly was
Speaker 3: very important. I graduated from law school in nineteen seventy nine,
Speaker 3: and this may be just the way I looked at it,
Speaker 3: but maybe it was because I you know, you know,
Speaker 3: being a lawyer was a second choice for me in general.
Speaker 3: But the law was a very cynical enterprise back then,
Speaker 3: I think, and you know, in some ways it's good.
Speaker 1: In other facts, it was very instrumental.
Speaker 3: People were using law as kind of a vehicle to
Speaker 3: achieve a particular objective, which there's nothing wrong with that
Speaker 3: at all. That's a lot of people, you know, do that,
Speaker 3: but also in a cynical way, and law was not
Speaker 3: regarded as something of sort of moral value from one
Speaker 3: of another word. And so I felt frankly that maybe
Speaker 3: this had not been a good choice. This wasn't something
Speaker 3: that was uplifting. If you had a particular agenda you
Speaker 3: wanted to pursue it good it could help.
Speaker 1: You do that. But then I went and you know,
Speaker 1: was at the elbow.
Speaker 3: Of this extraordinarily great man, one of the most remarkable judges,
Speaker 3: and he saw it differently. He really looked at it
Speaker 3: as a valuable gift that we had inherited for ordering
Speaker 3: society in a reasonable way. And he was somebody who
Speaker 3: was totally a political the most brilliant judge of his generation,
Speaker 3: Richard and didn't appoint him to the Supreme Court because
Speaker 3: he thought he would be soft on crime, and he
Speaker 3: would have been from Nixon's perspective. He would have applied
Speaker 3: the law as it should be and meant some criminals
Speaker 3: were going to go free and others worked. But and
Speaker 3: he was able to sort of construct certainly in his opinions,
Speaker 3: which lawyers here know were remarkable. Realized that this was
Speaker 3: a system that had internal coherence and that was really
Speaker 3: a gift, and it needed people who are willing to
Speaker 3: view it in those terms rather than this is how
Speaker 3: I'm going to use it to get to a particular result.
Speaker 3: So that was where I kind of I left my
Speaker 3: cynicism about the work that we as lawyers and judges
Speaker 3: do and appreciated that it had a greater worth, and
Speaker 3: just in terms of writing was it was a remarkable
Speaker 3: gifted writer. He would come off of the bench after
Speaker 3: argument and sit down with legal pasth I had two
Speaker 3: of them, one for text, one for footnotes or notes,
Speaker 3: and just start writing and finish it one day or
Speaker 3: two days, and the secretary would type it up and
Speaker 3: give it to one of his law clerks and we'd
Speaker 3: look at it and say, well, what.
Speaker 1: Does he want us to do?
Speaker 3: And he would have some ideas and look at it.
Speaker 3: So that was a really remarkable year. And then with Ranquist,
Speaker 3: it was no. Renquist was the generation between Friendly was
Speaker 3: kind of like almost like two generations. Who's older and
Speaker 3: I was just out of law school and Ranquist was
Speaker 3: kind of right in the middle, and.
Speaker 1: A different approach.
Speaker 3: His writing is crystal clear, very direct, and had the
Speaker 3: same sort of appreciation and I don't mean to overuse
Speaker 3: these sorts of words with reverence for what the law does,
Speaker 3: but was very you know, direct and analytic, and you
Speaker 3: sort of knew exactly how it was structured and where
Speaker 3: it was going. So it was a nice experience for
Speaker 3: me to have two very different people and they really
Speaker 3: admired each other. They In fact, I got the clerkship
Speaker 3: with Renquist because he and Friendly were at a conference
Speaker 3: together and I think, you know, Justice Renquist asked Judge
Speaker 3: Friendly if he had any good law clerks and he
Speaker 3: mentioned one, and I guess somebody else.
Speaker 1: Hired that one and they mentioned.
Speaker 3: And so anyway, I don't mean to be long winded
Speaker 3: about it, but you do kind of look back at
Speaker 3: that and see these sort of formative influences in your
Speaker 3: in your life and are grateful for them.
Speaker 5: Does the way you deal with your clerks by and
Speaker 5: large mirror the way they dealt with you?
Speaker 1: No, No, I wouldn't say that.
Speaker 5: One.
Speaker 1: When you're in the middle of it.
Speaker 3: It's kind of hard to be self conscious and appreciate it.
Speaker 1: I mean, I don't.
Speaker 3: The one thing I do know is that the four
Speaker 3: clerks really do form quite a common bond. And rnquists
Speaker 3: used to talk to us about how that was, and
Speaker 3: he said, it's because the clerks are united by a
Speaker 3: common enemy and so and I really it's kind of
Speaker 3: hard when you're in the middle of it to see
Speaker 3: how you know, they might view the experience.
Speaker 5: How do you work with your clerks.
Speaker 1: It really varies from case to case. You know.
Speaker 3: Sometimes if the facts are a little complicated, I'll want
Speaker 3: them to take a look at the record more than
Speaker 3: they might otherwise. Sometimes, if I feel comfortable that I
Speaker 3: know the law in an area, I'll have them do that.
Speaker 1: But I would go in.
Speaker 3: Much more carefully because I'm probably wrong about it. I
Speaker 3: want to make sure that I'm not letting errors that
Speaker 3: might have crept in affect my mind standing.
Speaker 1: And then we'll go back and forth.
Speaker 3: Sometimes I'll draft something and they'll look at it and
Speaker 3: they don't have the problem I had with Judge Friendly there.
Speaker 1: It's come back pretty extensive.
Speaker 5: Sometimes I'll encourage that, right, I mean, I'm sure you
Speaker 5: ask them.
Speaker 1: Well, what's the point otherwise?
Speaker 5: Right? Exactly how?
Speaker 3: And sometimes I'll want to look at the facts a
Speaker 3: little bit more. But then when we get closer to
Speaker 3: the end, I have all four of them sit down
Speaker 3: together and we all go over the draft of the opinions.
Speaker 3: So you have somebody who's sort of been looking at
Speaker 3: it very carefully. Hopefully I'm one of those people too,
Speaker 3: And then the others who have just kind of like
Speaker 3: read it. So in a way, it's like, you know,
Speaker 3: when I talked about doing briefs, you want to make
Speaker 3: sure that someone sort of putting eyes on it for
Speaker 3: the first time, can really figure out.
Speaker 5: What it's How do you decide which clerk works on
Speaker 5: which case.
Speaker 1: I leave that entirely up to them.
Speaker 5: They make close decisions.
Speaker 4: Yeah, you're listening to Chief Justice John Roberts in a
Speaker 4: fireside chat in Buffalo, New York with Joseph Belardo. Is
Speaker 4: still part of the celebration of the one hundred and
Speaker 4: twenty five years of the Western District.
Speaker 3: Of New York that the system is developed where we
Speaker 3: get these very very bright people to work very very
Speaker 3: hard and they come up with such great work products.
Speaker 5: And when you hire clerks, have they generally clerked for
Speaker 5: a district judge or a circuit judge? First? Oh? Sure? Always?
Speaker 1: Always?
Speaker 5: Yeah, So unlike Justice White, who that was kind of
Speaker 5: the fading out of that experience, I think, And you know.
Speaker 1: You want to get the view of a judge who's.
Speaker 3: Been with them for a year, I think, because that
Speaker 3: helps a lot.
Speaker 5: In one year clerkships.
Speaker 3: Absolutely, you don't want them to get too good. I
Speaker 3: mean that's the case now very seriously. I mean, you
Speaker 3: don't want them to get too good at what you're
Speaker 3: supposed to do.
Speaker 1: You want to make sure that you are the one
Speaker 1: doing the work.
Speaker 3: Yes, they're going to help you on what the cases
Speaker 3: say about this or how the facts look on this issue,
Speaker 3: but you don't want them to get too good because because.
Speaker 5: You think there's a danger of you using them as
Speaker 5: a crutch too much.
Speaker 3: Yeah, you want to make sure that issue doesn't really
Speaker 3: come up now. So and also it's a real valuable
Speaker 3: thing for me and I know other justices to have
Speaker 3: these sorts of to be a little more attuned to
Speaker 3: what's going on in the law schools. And you know,
Speaker 3: having a fresh batch every year you learn more about
Speaker 3: you know, what the teachers are teaching and what the
Speaker 3: students are interested in.
Speaker 1: And then they go out.
Speaker 3: So I have now people that clerk for me twenty
Speaker 3: years ago. They're in the you know, the midst of
Speaker 3: their professional career, leaders in the bar, or leaders in academia,
Speaker 3: or leaders in business, and they're real listening boards. We
Speaker 3: have a reunion every year. It's coming up in a
Speaker 3: couple of weeks. Hopefully we'll have a good turnout. We
Speaker 3: usually do and you learn from them all that's going on.
Speaker 3: You know, what's going on in the law firms, and
Speaker 3: the people who are there will let you know what
Speaker 3: are they teaching in law.
Speaker 5: Schools these days?
Speaker 3: And they'll let you know what are you teaching in
Speaker 3: law schools these days? And it's nice to have that pipeline.
Speaker 3: I mean now I have almost one hundred out there
Speaker 3: at different stages, and it keeps you attuned to what's
Speaker 3: going on.
Speaker 5: I mentioned to you earlier today that I have you
Speaker 5: to thank you and Dave Lee Brown, who is the
Speaker 5: president of the Review, to thank for my clerkship. You
Speaker 5: sent me to or suggested that I apply tog Ervin
Speaker 5: Goldberg down in Dallas, Texas, and that was the best
Speaker 5: professional year of my life because, as I said to
Speaker 5: you earlier today, was a wonderful experience kind of being
Speaker 5: a judge, but not having the buck stop with you,
Speaker 5: so the pressure is not there, but the wonderful part
Speaker 5: of the job is and that makes clerking, I think,
Speaker 5: a really unique experience. So let's get to the Our
Speaker 5: time is running out. Let's get to the heart of
Speaker 5: what I want to talk to you about. There's a
Speaker 5: lot of buffalo bills fans here, yeah listen. Uh, and
Speaker 5: and when the playoffs come around, there's a lot of
Speaker 5: calls to go against us. Are you going to be
Speaker 5: around to handle some emergency appeals this season? You know,
Speaker 5: we're getting tired of the same old thing happening to us.
Speaker 5: A year after that hour, Yeah, I.
Speaker 1: Can see that. Yeah, Well, I uh was here long enough.
Speaker 3: I know I had a poster in my my room
Speaker 3: of Jack Kemp and quarter back and and I think
Speaker 3: I think Darryl Monica was there yep too, and uh,
Speaker 3: Pete Gogolak, who was the first soccer style yep kicker,
Speaker 3: even Cookie Gilchrist if I'm remembering that. So that was
Speaker 3: what was posting my Well, but I you know, I
Speaker 3: left when I was ten and we moved to, you know,
Speaker 3: in Indiana. The Chicago was the closest place. So I
Speaker 3: you're a Bears fan, I'm a Bears fan. But but look,
Speaker 3: when I was growing up, it was Dick Butkus, Mike
Speaker 3: Ditka and really if he hadn't blown out his knee,
Speaker 3: the greatest running back in NFL Hillas Gail Sayers and
Speaker 3: we were near. They had different connections with They would
Speaker 3: come and talk at our are the grade school even
Speaker 3: and because we were in in Indiana but on the
Speaker 3: lake and that people liked to go there, and it
Speaker 3: was just.
Speaker 5: Yeah, I say, Gail Sayers, I think was the most
Speaker 5: beautiful runner I've ever seen. He was. He just was
Speaker 5: so graceful and so much fun to watch. And it
Speaker 5: was a shame that he blew out his name.
Speaker 3: Yeah, I have a signed helmet of his, not of his,
Speaker 3: it's a bear's helmet that he signed in my chambers.
Speaker 5: Very cool. Yeah, well, thank you so much for doing this.
Speaker 5: This is an honor for me, and this was a
Speaker 5: very pleasurable hour.
Speaker 1: So well, not at all.
Speaker 3: Thank you for having me, give me the opportunity to
Speaker 3: go back and see my boyhood home and you know,
Speaker 3: we kindle memories of Buffalo.
Speaker 1: I appreciate it.
Speaker 5: We're proud.
Speaker 1: Thank you all for being.
Speaker 5: Thanks so great.
Speaker 4: So you're listening to Chief Justice John Roberts in a
Speaker 4: conversation with federal Judge Joseph Volardo in order to celebrate
Speaker 4: the one hundred and twenty fifth anniversary of the US
Speaker 4: District Court for the Western District of New York. The
Speaker 4: Chief Justice talked a lot about his personal background in
Speaker 4: the law, his clerking and by the way, he said
Speaker 4: he's not thinking of retiring anytime soon. He's going out
Speaker 4: feet first. He emphasized the importance of judicial independence and
Speaker 4: talked about the importance of good writing search petitions. I'm
Speaker 4: joined by Professor Harold Crunch of the Chicago Kent College
Speaker 4: of Law. Hal there was a lot about his personal background,
Speaker 4: not as much about what's been happening at the Supreme Court.
Speaker 4: He was ready for the question about the Court changing precedent,
Speaker 4: and the abortion decision was mentioned. He had the numbers
Speaker 4: saying it was the Roberts Court had the lowest rate
Speaker 4: of overturning cases in the last fifty years, but didn't
Speaker 4: get to the question about the abortion case.
Speaker 2: And I think he's right that sometimes overturning the case
Speaker 2: is in the nation's best interest. And he's also right
Speaker 2: that the percentage of which the Roberts Court has overturned
Speaker 2: cases is probably not out of kilter. But then it's
Speaker 2: up to everybody to decide the merits of the cases.
Speaker 2: And I think the issue is not simply the question
Speaker 2: of precedent and story decisives. It is what people think
Speaker 2: about decisions such as Dobbs.
Speaker 4: Also, what I found interesting is he was asked whether
Speaker 4: you think about, as a justice the consequences, the practical
Speaker 4: consequences of your decision, and for example, if it's a
Speaker 4: Second Amendment case, that more people will possibly get guns,
Speaker 4: and he said, no, you don't think about the practical decisions.
Speaker 2: And I noted that too, And I can't believe what
Speaker 2: he said on this particular point. I mean, give you
Speaker 2: an example. I mean, we talked before the fireside chat
Speaker 2: started that just the most recent decision with respect to
Speaker 2: the discharge of trans people from the military, that very
Speaker 2: decision is about consequences because of the procedural posture of
Speaker 2: the case. You couldn't decide that case without assessing directly
Speaker 2: what the consequences will be. And indeed, the consequences of
Speaker 2: the presidential immunity decision he wrote about directly in terms
Speaker 2: of defending his decision as to this almost absolutelymmunity for presidence,
Speaker 2: and he addressed it, you center, and in the decision itself.
Speaker 2: So I thought that was a little odd. I think
Speaker 2: what he was trying to say is that the justices
Speaker 2: are not politicians. I think that's important to re affirm
Speaker 2: that role, and that the justices shouldn't say we want
Speaker 2: to have this policy for the nation. So I agree
Speaker 2: with them on that point. But I do think it's
Speaker 2: difficult to say that justices can operate or do operate
Speaker 2: without thinking about the consequences.
Speaker 4: And we talked before he spoke about whether he would
Speaker 4: address some of the more controversial things that have been happening,
Speaker 4: and they asked him, I mean, just the judge Blardo
Speaker 4: asked him about the impeachment of judges, the request to
Speaker 4: impeach judges based on their decisions, and he got out
Speaker 4: of that. He got the answer out so quickly it
Speaker 4: was just over before it started.
Speaker 2: Yeah, but he did address it. I mean he said that,
Speaker 2: at least from the Supreme courts perspective, the way to
Speaker 2: deal with adventurous judges who are on the circuit courts
Speaker 2: or the district courts is to appeal or CURCHERAA or
Speaker 2: some other measure or mandamus in order to get that
Speaker 2: kind of correction from justices. And obviously, in our society,
Speaker 2: we believe that impeachment is for high crimes and misdemeanors
Speaker 2: that's in the Constitution, is not because you disagree with
Speaker 2: the decision. So it was a question. He reaffirmed his
Speaker 2: stance about the importance of judicial independence, but certainly the
Speaker 2: fireside check, so.
Speaker 4: How he's emphasized the importance of judicial independence, and that's
Speaker 4: something that we've heard from him over and over throughout
Speaker 4: the years, the importance of judicial independence. It becomes particularly
Speaker 4: important in the age that we're living in.
Speaker 5: Yeah.
Speaker 2: Absolutely, And obviously they didn't want to get it would
Speaker 2: have been inappropriate to get into involved in that sort
Speaker 2: of political tension between the executive branch and the judicial
Speaker 2: branch currently, but he did, and I think he did
Speaker 2: this fucial independence in our society. He said that's one
Speaker 2: of the most cardinal important aspects of features, I should say,
Speaker 2: of our constitution.
Speaker 4: Just a few minutes left here. Do you have anything
Speaker 4: that stood out to you besides what we've discussed.
Speaker 2: Absolutely, I had no idea that the Chief Justice was
Speaker 2: a Bears fan.
Speaker 4: They love to talk about sports in these conversations. Every
Speaker 4: time there's one of these Q and a's, the end
Speaker 4: up talking about sports, and particularly because they're from Buffalo.
Speaker 4: So now we know that he has a Gail Sayers
Speaker 4: signed helmet in his office. That's something that we always
Speaker 4: wanted to know.
Speaker 5: It's been great to go.
Speaker 4: It's been great having you on Hell. Thanks so much
Speaker 4: for taking the hour to talk with us, and I'm
Speaker 4: sure we'll be talking again soon. That's Professor Harold Krent
Speaker 4: of a Chicago Kent College of Law. He's an expert
Speaker 4: on constitutional law. And that's if the edition of the
Speaker 4: Bloomberg Law Show coming up. Next, We're going to hear
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