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Special Coverage: A Fireside Chat with Chief Justice John Roberts · Bloomberg Law

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  Speaker 3: Bloomberg Law with June Grosso from Bloomberg Radio.
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  Speaker 4: Welcome to a special edition of the Bloomberg Law Show.
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  Speaker 4: I'm June Grosso. In a few minutes, Chief Justice John
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  Speaker 4: Roberts is going to participate in a fireside chat in Buffalo,
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  Speaker 4: New York. It's part of the anniversary events for the
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  Speaker 4: US District Court for the Western District of New York,
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  Speaker 4: which is celebrating its one hundred and twenty fifth anniversary.
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  Speaker 4: The Chief Justice was born in Buffalo and spent his
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  Speaker 4: early childhood years there, and he's going to be talking
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  Speaker 4: with Judge Joseph Fallardo, a federal judge in the Western
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  Speaker 4: District who's known the Chief for more than forty years.
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  Speaker 4: We'll bring that conversation to you live as soon as
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  Speaker 4: it begins. My guest is constitutional law expert Harold Krant,
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  Speaker 4: a professor at the Chicago Kent College of Law. How
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  Speaker 4: the Chief has done a lot of these q and
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  Speaker 4: as over the years, often at law schools or judiciary conferences,
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  Speaker 4: but I don't recall one that was live. Is it
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  Speaker 4: sort of outside the chief's comfort zone.
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  Speaker 2: I think he's trying to take an opportunity to ensure
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  Speaker 2: that the Court is viewed as an independent player and
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  Speaker 2: is viewed with some respect. Obviously, there's no secret that
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  Speaker 2: the Court has taken a hit in terms of its
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  Speaker 2: reputation over the last five to ten years, and particularly
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  Speaker 2: now there's tumultuous times because of the confrontation potential confrontation
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  Speaker 2: with the Trump administration. I think he's taking every opportunity
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  Speaker 2: to talk and be seen as an independent, constructive force
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  Speaker 2: in the American system.
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  Speaker 4: So this comes at a time, as you sort of
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  Speaker 4: mentioned there, when the judiciary is under attack. Last week,
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  Speaker 4: Justice Katanji Brown Jackson denounced what she called relentless attacks
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  Speaker 4: on the federal judiciary, saying efforts to intimidate judges are
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  Speaker 4: threatening the constitution and the rule of law. And all
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  Speaker 4: through this, the Chief has issued just one statement pushing
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  Speaker 4: back against President Trump's call to impeach a federal judge
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  Speaker 4: that he called a radical left lunatic. It was a
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  Speaker 4: rare public signal from the Chief. Should we expect something
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  Speaker 4: more in that vein tonight.
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  Speaker 2: I don't think it's going to be the entire focus
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  Speaker 2: of the talk, but I absolutely expect that the Chief
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  Speaker 2: to take this opportunity to try to remind the listeners
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  Speaker 2: and viewers of how important judicial independence is, and I
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  Speaker 2: think it is ever more important.
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  Speaker 4: And I wonder if you'll address the threats against judges
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  Speaker 4: that are on the rise, judges particularly who have ruled
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  Speaker 4: against the Trump administration and their families. For instance, there
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  Speaker 4: were more than six hundred calls and emails that flooded
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  Speaker 4: Rhode Island Judge John McConnell's courthouse, including death threats and
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  Speaker 4: menacing messages taunting his family after he ruled against Trump
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  Speaker 4: on the freeze on federal grants. That's according to Reuter's
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  Speaker 4: and the Chief has mentioned this before in his end
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  Speaker 4: of year statements.
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  Speaker 2: I wouldn't be surprised. I mean, what we've seen here
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  Speaker 2: is largely unprecedented, not completely, but largely unprecedent in our history.
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  Speaker 2: And the idea that you intimidate judges, or even the
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  Speaker 2: idea of impeaching judges with whom you disagree, undermines the whole,
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  Speaker 2: very fabric of what we hope to be an independent judiciary.
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  Speaker 2: So my guess is that the Chief Justices again will
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  Speaker 2: not focus entirely on these attacks, but that somehow he
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  Speaker 2: will weave them into the conversation.
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  Speaker 4: And I'm assuming there won't be any aggressive questioning by
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  Speaker 4: his friend of forty years. Maybe the questions are even
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  Speaker 4: discussed beforehand.
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  Speaker 2: That would be my guess as well.
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  Speaker 4: The Trump administration has filed an unprecedented number of emergency
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  Speaker 4: requests with the Supreme Court twelve emergency requests in its
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  Speaker 4: first one hundred and one days, and that's more than
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  Speaker 4: during the entirety of the George W. Bush and Obama
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  Speaker 4: administrations combined, and even before this, several justices have complained
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  Speaker 4: in the past about the impact of the Court's growing
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  Speaker 4: emergency or shadow docket and the cases they're deciding without
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  Speaker 4: briefing and argument, So that seems to be a pro
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  Speaker 4: problem that's percolating.
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  Speaker 2: Yeah, the trend is clear, and it does put a
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  Speaker 2: monkey ranch into the orderly system of arguments, deliberations and
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  Speaker 2: then written opinions. To the Court's credit, originally, in the
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  Speaker 2: last couple of years, it decided these so called shadow
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  Speaker 2: docket cases without any kind of written decisions, sometimes just
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  Speaker 2: in order. And now at least it's trying to give
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  Speaker 2: some explanation or rationale for why deciding what it, you know,
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  Speaker 2: whatever it does. And the difficulty in the shadow docket
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  Speaker 2: is not just the lack of argument or the lack
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  Speaker 2: of opinions, is that the court is rushed. It's got
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  Speaker 2: all of its normal work to do, and in these
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  Speaker 2: preliminary postures of these cases, lots of important issues are
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  Speaker 2: decided and it's not always clear about the court's reasoning
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  Speaker 2: and what should happen next. So this shadow docket is
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  Speaker 2: creating a kind of confusion, and Theydministration is pressuring the
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  Speaker 2: Court with all of its requests, and I think they're
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  Speaker 2: going to continue. I foresee that this may go right
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  Speaker 2: through the summer and require the Court to act even
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  Speaker 2: when it's normally on recess.
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  Speaker 4: And perhaps it will extend the length of the court session,
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  Speaker 4: because the court usually ends by the end of June.
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  Speaker 4: Last year it ended July first, But now they've scheduled
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  Speaker 4: an argument session for the middle of May on Trump's
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  Speaker 4: birthright citizenship executive order. So I mean it might even
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  Speaker 4: cause the normal docket to get slowed down.
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  Speaker 2: Absolutely, and I foresee other case. And we're in an
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  Speaker 2: unprecedented time. I think there's about two hundred and twenty
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  Speaker 2: cases now focused against the Trump administration pending, and obviously
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  Speaker 2: in any case, there could be a nationwide injunction. And
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  Speaker 2: if there's a nationwide injunction, that usually will spark this
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  Speaker 2: effort by the Trump Department of Justice to seek an
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  Speaker 2: emergency stay from the nationwide injunction. And that's the dynamic
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  Speaker 2: that seeing right now. Congress is considering whether to pare
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  Speaker 2: down the power of courts to issue nationwide injunctions. There
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  Speaker 2: are excellent arguments on both sides of that issue, but
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  Speaker 2: that really is the reality now because every time a
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  Speaker 2: nationwide injunction is issued that will ben against the Trump administration,
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  Speaker 2: it will force the administration's hands and most of the
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  Speaker 2: time that they're going to come to the Supreme Court
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  Speaker 2: to ask for relief. So far, it's a mixed record
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  Speaker 2: in the Supreme Court during these first hundred days, and
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  Speaker 2: I think that that will probably continue, and my guess
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  Speaker 2: is we'll continue through the summer.
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  Speaker 4: We are waiting to hear from Chief Justice John Roberts
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  Speaker 4: in a q and a session in Buffalo, New York
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  Speaker 4: called a fireside chat. He's going to be talking with
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  Speaker 4: federal Judge Joseph Volardo, who's a federal judge in the
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  Speaker 4: Western District, which is selling its one hundred and twenty
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  Speaker 4: fifth anniversary. I've been talking to Harold Krantz, professor at
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  Speaker 4: the Chicago Kent College of Law. How an opinion yesterday
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  Speaker 4: not an opinion in order yesterday sort of veered from
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  Speaker 4: what you were describing before because there was absolutely no explanation.
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  Speaker 4: It was in order allowing the Trump administration to start
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  Speaker 4: discharging transgender service members, and there were three descents, but
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  Speaker 4: no written explanation from either the conservative justices in the
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  Speaker 4: majority or the three dissenting members on a question that
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  Speaker 4: I think a lot of people would be wondering why
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  Speaker 4: the Court lifted an injunction, and in doing so, the
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  Speaker 4: status quo will be disturbed because the transgender members of
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  Speaker 4: the military will now be starting to be discharged.
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  Speaker 2: Yeah, And I think the from a legal perspective, everybody
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  Speaker 2: is left wondering what has motivated the majority's decision, because
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  Speaker 2: there are two principal components of this injunctive relief. One
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  Speaker 2: is likelihood of success on the merits or the other
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  Speaker 2: is likelihood of irreparable injury. The court may view a
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  Speaker 2: discharge as being not rising to a level of irreparable
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  Speaker 2: injury because ultimately the service members can be reinstated and
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  Speaker 2: they can receive back pay. That's one possibility. It may
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  Speaker 2: not be the reason. Otherwise, they may decide that it's
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  Speaker 2: a strong the government has a strong case on the merits,
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  Speaker 2: namely that the equal protection claim that's been raised by
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  Speaker 2: these servicemen service individuals, they may find to be very weak,
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  Speaker 2: even though to many observers it's quite at least strong,
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  Speaker 2: even if it's not victorious. So people are left shaking
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  Speaker 2: their heads as to what motivated the court's decision. And
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  Speaker 2: only in the future will I think this may be
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  Speaker 2: in a different case, will the court's reasoning become clear.
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  Speaker 4: And also I was really surprised that there wasn't one
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  Speaker 4: dissenting opinion from the three liberal justices who did dissent,
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  Speaker 4: but there was no opinion. I thought there might be
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  Speaker 4: some kind of sort of outrage type opinion saying that,
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  Speaker 4: you know, this isn't the way we should go.
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  Speaker 2: Yeah, And just as Katanji Brown Jackson is the one
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  Speaker 2: that's been the most articulate on the issue of how
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  Speaker 2: this is not the way that the Court should decide
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  Speaker 2: important questions with real world consequences, and maybe she just
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  Speaker 2: didn't want to repeat herself, or maybe she wanted to
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  Speaker 2: save the ammunition for another day. And obviously many people
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  Speaker 2: have looked at this birthright citizenship issue that's being heard
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  Speaker 2: on May fifteenth as really one of the most sort
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  Speaker 2: of bellcow of all the executive orders, and so maybe
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  Speaker 2: she wants to save her rhetoric for that case, though
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  Speaker 2: I tend to think she's going to be the majority
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  Speaker 2: of that case. But maybe I'm getting ahead of myself.
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  Speaker 4: Well, because that case. I was also surprised that they
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  Speaker 4: scheduled oral argument, because that's a case where every judge,
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  Speaker 4: I think four out of four judges who ruled on
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  Speaker 4: it below Federal Court judges found that it was, you know,
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  Speaker 4: an unconstitutional executive order. So why is the Supreme Court
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  Speaker 4: taking that particular case.
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  Speaker 2: They are bending backwards to some extent to try to
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  Speaker 2: give the Trump administration the benefit of the doubt, to
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  Speaker 2: give them a chance to tell their side of the story.
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  Speaker 2: They know how important this is to the Trump administration,
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  Speaker 2: because it was, at least in some people's minds, the
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  Speaker 2: signature the executive order. Of all the amazing executive orders
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  Speaker 2: that we've seen, that's the only thing I can think of,
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  Speaker 2: because you're right, there is no there's no need. There's
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  Speaker 2: also put in the circuits, there is no real reason
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  Speaker 2: to decide the case other than a respect for the administration.
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  Speaker 2: And I think that is something that is consistent with
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  Speaker 2: Chief Justicebert's sort of view is he wants to make
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  Speaker 2: sure that the administration gets every fair chance, but he
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  Speaker 2: also wants mutual respect. He wants to get respect back
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  Speaker 2: from the Trump administration, and maybe this is part of
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  Speaker 2: his strategy.
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  Speaker 4: I'm hanging over this, and I don't think this will
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  Speaker 4: be a question that will be asked. But the fact
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  Speaker 4: that last Sunday on Meet the Press, I believe it
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  Speaker 4: was the President of the United States said he wasn't sure,
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  Speaker 4: he didn't know if he had to uphold the Constitution
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  Speaker 4: of the United States, and in his last term he
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  Speaker 4: would talk about his Article two powers. So that seemed
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  Speaker 4: like a really strange statement to make, and I think
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  Speaker 4: that people will be thinking about that, although I doubt
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  Speaker 4: that the Chief Justice is going to comment on that.
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  Speaker 2: Yeah, I would be shocked and the Chief Justice comment
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  Speaker 2: on about meet the press. But it almost sounded to
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  Speaker 2: me as more presidential Trump's rambling, because I think that
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  Speaker 2: he knows that the Constitution applies to him. I mean,
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  Speaker 2: he may interpret the Constitution differently than others, and that's
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  Speaker 2: it right to a certain large extent, except not in
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  Speaker 2: a particular decided case or controversy, but in general, he
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  Speaker 2: can disagree with others views of the Constitution, but he
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  Speaker 2: knows it applies to him, even if there are different
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  Speaker 2: views of what in fact Article two or two process means.
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  Speaker 4: And there's been a lot of talk lately. I mean
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  Speaker 4: you could if you google it, you'll see so many
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  Speaker 4: articles on what happens if the president doesn't obey a
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  Speaker 4: court order. And you know, we've seen in various instances
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  Speaker 4: that you know, it seemed like critics say that the
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  Speaker 4: Trump administration hasn't been obeying all court orders. So at
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  Speaker 4: what point does the judiciary, you know, take a strong stance,
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  Speaker 4: perhaps start issuing different kind kinds of you know, start
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  Speaker 4: subpoenaing people and perhaps holding people in civil or criminal content.
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  Speaker 4: I mean, what do you think it will take before
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  Speaker 4: that happens.
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  Speaker 2: That's the course, the start of the constitutional crisis. I
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  Speaker 2: still hope that it doesn't occur and that the cooler
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  Speaker 2: heads will prevail, but I certainly wouldn'tly would bet against
• 14:23
  Speaker 2: myself and that there may be a crisis at some point.
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  Speaker 2: We came closest, probably in the Breaco Garcia case you
• 14:30
  Speaker 2: call the instance where someone, unfortunately the Maryland individual was
• 14:34
  Speaker 2: mistakenly deported to El Salvador, where he's still languishing, evidently,
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  Speaker 2: and the court there ordered a return to the United States,
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  Speaker 2: and the administration evidently sort of just sort of ignored it.
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  Speaker 2: And the Supreme Court did come in there and said
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  Speaker 2: as a compromise that the administration must at least facilitate
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  Speaker 2: his return to the United States. They try to sort
• 15:01
  Speaker 2: of dodge a direct confrontation by using the term facilitate,
• 15:06
  Speaker 2: which is somewhat of a more ambiguous term as opposed
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  Speaker 2: to ordering his return by a particular date. So the
• 15:13
  Speaker 2: court's aware and it doesn't want to have this direct confrontation,
• 15:17
  Speaker 2: but it knows it's lurking out there. And you know,
• 15:21
  Speaker 2: the courts have very few levers to pull in terms.
• 15:25
  Speaker 2: As you pointed out, civil contempt is certainly one of them.
• 15:29
  Speaker 2: Fiery rhetoric is another, and we've seen some judges amp
• 15:33
  Speaker 2: up their rhetoric. But at the end of the day,
• 15:37
  Speaker 2: as Andrew Jackson reportedly said one hundred and fifty years ago,
• 15:42
  Speaker 2: the enforcement powers rest with the president, not with the courts.
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  Speaker 4: And a perfect time to end that quot and that answer,
• 15:50
  Speaker 4: because right now the Chief Justice is taking his seat.
• 15:54
  Speaker 4: They're sitting in large chairs sort of like you'd see
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  Speaker 4: in a judge's chamber, and he's sitting down now at
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  Speaker 4: two applause, let's listen.
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  Speaker 5: Well, it's it's really is an honor to be here
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  Speaker 5: with you and to rekindle our old friendship that started
• 16:13
  Speaker 5: forty seven years ago.
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  Speaker 1: Wow, yeah, long time, you haven't aged, haven't aged a bit? No,
• 16:18
  Speaker 1: you haven't. You haven't haven't.
• 16:19
  Speaker 5: Changed a bit. So so folks from Buffalo are very
• 16:23
  Speaker 5: proud to say that you're a native son here you
• 16:27
  Speaker 5: spent the first ten years of your life in Hamburg, right,
• 16:30
  Speaker 5: what do you remember about growing up in Buffalo?
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  Speaker 1: It's cold.
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  Speaker 3: No, the memories were refreshed earlier this morning. I went
• 16:39
  Speaker 3: back and visited my boyhood home, which was a lot
• 16:44
  Speaker 3: smaller than I remember, and it was near the fair
• 16:50
  Speaker 3: grounds for those of you around here, and we would
• 16:52
  Speaker 3: I remember hearing the call to the post, you know,
• 16:56
  Speaker 3: the when they were because they did racing there on weekends.
• 17:01
  Speaker 3: And we would set up lawn chairs in the driveway
• 17:04
  Speaker 3: because when they had concerts too, and about the concert
• 17:07
  Speaker 3: without having to pay for it.
• 17:08
  Speaker 5: So where'd you go to school?
• 17:11
  Speaker 1: Saint Brendette's.
• 17:12
  Speaker 5: Yeah, and that's where my wedding was. Oh yeah, so
• 17:16
  Speaker 5: we closed the closed last week. Yeah, I heard, That's
• 17:19
  Speaker 5: what I heard. So when we were in law school
• 17:23
  Speaker 5: and particularly on the Law Review, people saw you as
• 17:27
  Speaker 5: very bright, a good writer, ambitious in going places. Did
• 17:31
  Speaker 5: you let yourself dream about being on the Supreme Court then?
• 17:34
  Speaker 1: No?
• 17:35
  Speaker 3: No, I didn't dream about being a judge. I didn't
• 17:39
  Speaker 3: dream about being a lawyer. Before then. I was going
• 17:41
  Speaker 3: to go to uh graduate school to study in history
• 17:46
  Speaker 3: and true story. I was taking a cab back from
• 17:49
  Speaker 3: Logan Airport to the campus, and the cab driver asked
• 17:52
  Speaker 3: me what I did and I told him I was
• 17:54
  Speaker 3: a history major at Harvard.
• 17:56
  Speaker 1: He said, I was a history major at Harvard.
• 18:00
  Speaker 3: Yeah, that's why I said, where are those where's that
• 18:06
  Speaker 3: law school application file? But uh, when I got to
• 18:11
  Speaker 3: law school, I found out that I liked it, but
• 18:13
  Speaker 3: I certainly didn't want to be a a judge. And then, uh,
• 18:19
  Speaker 3: you know, ended up clerking and working at in the
• 18:23
  Speaker 3: government and in law firm for a while, and you know,
• 18:27
  Speaker 3: it just sort of happened that you end up in
• 18:29
  Speaker 3: a position where someone decides to nominate you to be
• 18:33
  Speaker 3: a judge. And by that time I had been practicing
• 18:35
  Speaker 3: long enough I thought it would be a good, good change,
• 18:37
  Speaker 3: and that worked out, and then you know, the Supreme
• 18:40
  Speaker 3: Court fortuitously came long after that.
• 18:43
  Speaker 5: Yeah, so your your career started as in was by
• 18:48
  Speaker 5: and large as an appellate lawyer.
• 18:50
  Speaker 1: How how did that happen?
• 18:52
  Speaker 3: Well, I came off of the government work that I
• 18:54
  Speaker 3: had been doing. I had spent a total of seven
• 18:57
  Speaker 3: years between the clerkships and at stint in the Justice
• 19:01
  Speaker 3: Department and some time at the White House Counsel's Office.
• 19:05
  Speaker 3: So when I left that I'd been out seven or
• 19:07
  Speaker 3: eight years and hadn't really practiced normal law, and I
• 19:12
  Speaker 3: didn't want to start, you know, the seminar whatever for
• 19:16
  Speaker 3: first year students to learn how to take a deposition.
• 19:19
  Speaker 3: So I went around at law firms and they would say,
• 19:22
  Speaker 3: what do you want to do? I said, well, the
• 19:23
  Speaker 3: one thing I thought I could do. I said, I
• 19:25
  Speaker 3: want to do a pellet work. And they said, oh, okay,
• 19:27
  Speaker 3: you know, if the case you're handling goes on appeal,
• 19:29
  Speaker 3: you can do a pellet work. And I said, no, no,
• 19:30
  Speaker 3: I only want to do a pellet work. And nobody
• 19:33
  Speaker 3: was buying that until I ran into a fellow named
• 19:38
  Speaker 3: Barrett Prettyman, who that's what he did. It was at
• 19:41
  Speaker 3: the firm of Hogan and Hartson, and he was an amazing,
• 19:45
  Speaker 3: amazing man, and I decided I would like to work
• 19:50
  Speaker 3: with him, and that was fine with him.
• 19:52
  Speaker 1: He had been extraordinary life.
• 19:55
  Speaker 3: The courthouse in DC is named after his father, who
• 19:59
  Speaker 3: was a very prominent judge. But Barrett, at age eighteen,
• 20:05
  Speaker 3: left you know, high.
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  Speaker 1: School in d C.
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  Speaker 3: And went to England and then joined the Patent's Army,
• 20:10
  Speaker 3: you know, you know, hurtling toward Berlin and they were
• 20:16
  Speaker 3: ambushed and his unit found themselves in these.
• 20:20
  Speaker 1: Fox holes, terrible cold.
• 20:24
  Speaker 3: Through the night, and the you know Germans are sort
• 20:27
  Speaker 3: of picking them off one by one.
• 20:29
  Speaker 1: And he swore that if he made it to the morning,
• 20:33
  Speaker 1: he would wake up happy every day. And he made
• 20:38
  Speaker 1: it through.
• 20:38
  Speaker 3: He had frostbite. They took him back to the you know,
• 20:43
  Speaker 3: back to Belgium. His the rest of his unit went
• 20:45
  Speaker 3: in and they were going right into the Battle of
• 20:47
  Speaker 3: the Bulge and they were all killed.
• 20:50
  Speaker 1: So he kept his he kept his file.
• 20:52
  Speaker 3: As far as I could tell, it was a very
• 20:54
  Speaker 3: upbeat person, very very you know, pretty much everybody else
• 21:00
  Speaker 3: there were law walls had pictures of you know, fox
• 21:03
  Speaker 3: hunting or old English judges, and you know, he had
• 21:06
  Speaker 3: pictures of clients like Truman Capoti and Catherine Anne Porter
• 21:09
  Speaker 3: and really and he had a great, great attitude, and
• 21:14
  Speaker 3: I really enjoyed practicing law with him, and.
• 21:17
  Speaker 5: He woke up happy every day even after he started
• 21:19
  Speaker 5: working with you.
• 21:20
  Speaker 3: Yeah, I never heard that, yeah, yeah.
• 21:27
  Speaker 5: So so I said, you were a hard worker on
• 21:30
  Speaker 5: the lower of you and you really were, but you
• 21:33
  Speaker 5: had some time for fun as well. And I told
• 21:37
  Speaker 5: Tim Metzlaf, who's a professor Duke that I would ask
• 21:40
  Speaker 5: you to tell these folks about pencil ball.
• 21:44
  Speaker 3: Yeah, Tom, and I spent more time playing pencil ball
• 21:48
  Speaker 3: at the law review than working on the law review stuff.
• 21:50
  Speaker 1: It was a very complicated thing.
• 21:51
  Speaker 3: You get a little piece of paper and put some
• 21:54
  Speaker 3: tape around it, and then with pencils. Somebody would pitch
• 21:57
  Speaker 3: the ball and you try to hit it with a pencil, and.
• 21:59
  Speaker 5: You have to this elaborate scoring system too. Right, a
• 22:01
  Speaker 5: triple if you got in the waistbasket, it was a triple. Right,
• 22:04
  Speaker 5: if it ended up sticking to the ceiling, it was
• 22:07
  Speaker 5: a homer.
• 22:07
  Speaker 1: I forget. Well, yeah, it was very complicated.
• 22:09
  Speaker 5: They never let me play.
• 22:10
  Speaker 1: The rules evolved as each game went on.
• 22:12
  Speaker 5: I was an underclassman, so they never let me play,
• 22:15
  Speaker 5: but they played the pencil ball game. So you interviewed
• 22:20
  Speaker 5: for clerkships yourself, and you now interview candidates for clerkships.
• 22:25
  Speaker 5: Any pointers you have for folks when they.
• 22:28
  Speaker 3: Interviewed, Well, one year when I was interviewing people, I
• 22:33
  Speaker 3: was looking with law clerks and probably you do as well.
• 22:36
  Speaker 3: You want people with some degree of self reliance and confidence.
• 22:40
  Speaker 1: So I thought.
• 22:43
  Speaker 3: Laid out a dozen half glazed and half powdered donuts
• 22:48
  Speaker 3: out in the waiting area, and I figured one it
• 22:52
  Speaker 3: would be a good sign of whoever.
• 22:54
  Speaker 1: It was liked donuts.
• 22:56
  Speaker 3: And also if they had enough selfish insurance to have one,
• 23:01
  Speaker 3: even though their hands would have glazing or powder on them.
• 23:04
  Speaker 3: When they came in end of the day, a dozen
• 23:07
  Speaker 3: doughnuts still there. So everybody, everybody failed that. Now, I
• 23:12
  Speaker 3: had some bad experiences of my own.
• 23:15
  Speaker 1: This goes.
• 23:16
  Speaker 3: It was back when they were some justices were still
• 23:18
  Speaker 3: hiring people right out of law school, and Justice White
• 23:22
  Speaker 3: was one of them, and I was scheduled for an
• 23:24
  Speaker 3: interview with him, and I went down to Washington and
• 23:28
  Speaker 3: they had just opened the new metro system just opened,
• 23:32
  Speaker 3: and you know, you put your money in and you
• 23:34
  Speaker 3: get a fair card and all that. I don't think
• 23:36
  Speaker 3: they do this anymore. I'm sure they fixed it back then.
• 23:39
  Speaker 3: But all I had was you know, a twenty, you know,
• 23:44
  Speaker 3: and put it in and got put in the fair.
• 23:47
  Speaker 3: It was forty cents to Union Station, so I got
• 23:51
  Speaker 3: nineteen dollars and sixty cents in quarters or whatever. It
• 23:56
  Speaker 3: was like in Las Vegas, the coort it just kept
• 23:58
  Speaker 3: punching out, but you know I was a law student.
• 24:02
  Speaker 1: I wasn't going to leave him there.
• 24:03
  Speaker 3: So I put some here and some in here in
• 24:06
  Speaker 3: these other pockets. And I walked into Justice White's chambers
• 24:10
  Speaker 3: and I was jiggling, jingling, you know, A jingle kind
• 24:14
  Speaker 3: of looks strange at me, you know, And I crossed
• 24:16
  Speaker 3: my legs and a dollar fifty I didn't get I didn't.
• 24:24
  Speaker 1: Get an offer from that.
• 24:25
  Speaker 5: Tom Metzloff got that job, right, he cleared, Yeah.
• 24:28
  Speaker 1: Dad, tom My pencil ball opponent got the job.
• 24:31
  Speaker 6: Yeah.
• 24:31
  Speaker 5: Yeah. So you really are a terrific writer. And you
• 24:36
  Speaker 5: were back in law school as well. I still remember
• 24:39
  Speaker 5: you're telling me that if I had a sentence that
• 24:42
  Speaker 5: had three prepositional phrases or more, go back and rewrite
• 24:45
  Speaker 5: the sentence because the sentence needed rewriting. Where'd you learn
• 24:51
  Speaker 5: to write? And is there any one person who your
• 24:54
  Speaker 5: credit for teaching you how to write? Well?
• 24:57
  Speaker 1: I think the way to learn to write is to
• 24:58
  Speaker 1: read good writing.
• 25:01
  Speaker 3: And I read a lot. I liked Conrad, I liked
• 25:05
  Speaker 3: and Elmore Leonard. I mean, Joseph Conrad if you want
• 25:07
  Speaker 3: to write long and flowing, elegant sentences, and Elmore Leonard
• 25:11
  Speaker 3: if you like punchy sentences, and I think that helped
• 25:15
  Speaker 3: a lot.
• 25:16
  Speaker 1: When it came to writing briefs. Though I had a
• 25:21
  Speaker 1: secret weapon.
• 25:22
  Speaker 3: I have three sisters, none of them are none of
• 25:26
  Speaker 3: them is a lawyer, and yet they're, you know, very bright,
• 25:30
  Speaker 3: and I would send, for most cases, a copy of
• 25:34
  Speaker 3: the draft brief to them and ask them to read it.
• 25:37
  Speaker 3: Read it once, and then I called them and ask
• 25:40
  Speaker 3: them what it was about and who should win? And
• 25:43
  Speaker 3: if you're writing, isn't clear enough for somebody who is
• 25:46
  Speaker 3: an intelligent layperson to get through it and to understand,
• 25:51
  Speaker 3: you know, basically what's going on. I mean, you know,
• 25:54
  Speaker 3: they wouldn't say, oh, you know, under Arrista this or that,
• 25:56
  Speaker 3: but they say, you know, the guy who you know,
• 25:59
  Speaker 3: you know is driving the truck, you know should have
• 26:01
  Speaker 3: looked left and he looked right, and you know the
• 26:04
  Speaker 3: safety break didn't work so the other person could pay
• 26:06
  Speaker 3: and if it was the right answer, and you know,
• 26:09
  Speaker 3: because I see it today and I bet you do too.
• 26:11
  Speaker 3: When you read so many briefs and read them carefully.
• 26:15
  Speaker 3: But it's not like you can devote as much attention
• 26:18
  Speaker 3: to you know, becover.
• 26:19
  Speaker 1: In many cases you're hearing.
• 26:21
  Speaker 3: So you want to make sure that somebody who's going
• 26:23
  Speaker 3: to read through it once, maybe a little more quickly
• 26:26
  Speaker 3: than you'd like, really gets the gist of what you want.
• 26:31
  Speaker 3: The other thing I'd liked to do is read aloud
• 26:35
  Speaker 3: and again, no matter how complicated it was, you should
• 26:37
  Speaker 3: be able to stand up and read it to somebody
• 26:40
  Speaker 3: and have them basically follow. I mean, otherwise your sentences
• 26:44
  Speaker 3: are too convoluted, not direct enough. And I think those
• 26:48
  Speaker 3: are two things that serve me. Well, you still trying.
• 26:52
  Speaker 5: To do that.
• 26:52
  Speaker 4: You're listening to Chief Justice John Roberts in a conversation
• 26:56
  Speaker 4: with federal Judge Joseph Bullard.
• 26:58
  Speaker 3: Complaining and walking down the halls. They're reading out loud
• 27:02
  Speaker 3: and they.
• 27:03
  Speaker 5: They don't do that. But you're trying to make your
• 27:07
  Speaker 5: decisions accessible.
• 27:09
  Speaker 3: Well, and yeah, and I'll tell you, I mean, it's
• 27:10
  Speaker 3: not in their cases where you know, you don't necessarily
• 27:14
  Speaker 3: study every brief and if you can't, if you file
• 27:17
  Speaker 3: a brief and you can't, I can't read through it once.
• 27:21
  Speaker 1: You know it's gonna be okay.
• 27:22
  Speaker 3: I've got to read through it twice, and you know,
• 27:24
  Speaker 3: sit down with a law clerk and say.
• 27:26
  Speaker 1: What do you think this is about?
• 27:28
  Speaker 3: I think people place too much emphasis on like showing
• 27:31
  Speaker 3: off their intellectual sophistication or the nuances, instead of just
• 27:37
  Speaker 3: being very direct in your writing. And I always think,
• 27:40
  Speaker 3: particularly in the cert petitions, when I was doing those,
• 27:44
  Speaker 3: it's very hard. I don't know what the rate is now,
• 27:46
  Speaker 3: two percent or less than that, get granted. I always
• 27:50
  Speaker 3: thought it was important to put something in that would
• 27:53
  Speaker 3: catch somebody's eye. Even I had a case once involving
• 28:00
  Speaker 3: mining in Alaska, and it involves something called the Red
• 28:03
  Speaker 3: dog mine out in the middle of Alaska, and so
• 28:09
  Speaker 3: I figured maybe it would help. So I put in
• 28:11
  Speaker 3: the first page and a half is about why it
• 28:13
  Speaker 3: was called the Red dog mine. And it was because
• 28:17
  Speaker 3: you get these stories in Alaska where somebody has to
• 28:20
  Speaker 3: fly out to get emergency insulin and they fly and
• 28:23
  Speaker 3: this was the flying back of the guy who had
• 28:25
  Speaker 3: his plane. He always had this red dog, you know,
• 28:28
  Speaker 3: in his plane, and the plane coming back crashes, but
• 28:31
  Speaker 3: the dog, you know, survives, the pilot doesn't, and the
• 28:34
  Speaker 3: dog runs to the village and they, you know, they
• 28:36
  Speaker 3: get the insulin and all that and and then hopefully
• 28:39
  Speaker 3: you'll read on and it's about some mining regulations or something.
• 28:43
  Speaker 3: And when one of the but hear me when I
• 28:46
  Speaker 3: got on the court. The first thing Justice O'Connor said
• 28:50
  Speaker 3: to me when we were sitting down for lunch, and I.
• 28:51
  Speaker 1: Said, I love that story about the dog.
• 28:57
  Speaker 3: But I mean they denied certain but that you know
• 29:00
  Speaker 3: that happened, but they read it.
• 29:02
  Speaker 1: But I bet you finished reading it too.
• 29:05
  Speaker 5: So when I write decisions, I tell my law clerks that,
• 29:09
  Speaker 5: you know, half the people who read the decision are
• 29:11
  Speaker 5: going to think I'm an idiot because they lost. But
• 29:13
  Speaker 5: I want them to at least understand why I'm an idiot,
• 29:16
  Speaker 5: at least why I made the decision that I made
• 29:19
  Speaker 5: in the case. Because I think it's important to write
• 29:22
  Speaker 5: so that it's accessible for people, and judges, you know,
• 29:26
  Speaker 5: do the same thing. I think.
• 29:28
  Speaker 1: I think.
• 29:29
  Speaker 5: So let's talk about something a little more important, a
• 29:33
  Speaker 5: little more substantive. I think most judges would agree that
• 29:37
  Speaker 5: judicial independence is crucial.
• 29:41
  Speaker 1: Do you agree?
• 29:42
  Speaker 5: What do you think? Oh?
• 29:43
  Speaker 1: Yeah, I mean it's central the.
• 29:46
  Speaker 3: Only real political science innovation in our constitution. I mean,
• 29:53
  Speaker 3: you know, parliaments have been around for eight hundred years,
• 29:56
  Speaker 3: and obviously executives is the establishment of an independent judiciary.
• 30:05
  Speaker 3: Even places you think are similar to ours like England.
• 30:09
  Speaker 3: The judiciary in England was part of Parliament. I mean
• 30:14
  Speaker 3: they sat in the House of Lords and because Parliament
• 30:18
  Speaker 3: was supreme. But in our constitution, judges and the judiciary
• 30:24
  Speaker 3: is a co equal branch of government, separate from the others,
• 30:28
  Speaker 3: with the authority to interpret the Constitution as law and
• 30:34
  Speaker 3: strike down obviously acts of Congress or acts of the President.
• 30:39
  Speaker 3: And that innovation doesn't work if it's not. The judiciary
• 30:43
  Speaker 3: is not independent.
• 30:45
  Speaker 1: Its job is to.
• 30:48
  Speaker 3: Obviously decide cases, but in the course of that check
• 30:52
  Speaker 3: the excesses of Congress or of the executive and that
• 30:55
  Speaker 3: does require degree of independence.
• 31:05
  Speaker 5: What do you think of these costs for impeachment of
• 31:07
  Speaker 5: judges based on the decisions that they've made.
• 31:11
  Speaker 3: Well, I've already spoken to that, and you know, impeachment
• 31:13
  Speaker 3: is not how you registered disagreement with decisions.
• 31:17
  Speaker 5: That's what you're for, right, That's what you're there for.
• 31:20
  Speaker 1: That's what we're there for.
• 31:22
  Speaker 5: So lots of decisions that you make interpreting the Constitution
• 31:27
  Speaker 5: have have real life, practical consequences. So just as a
• 31:31
  Speaker 5: for example, the Second Amendment decisions result in more people
• 31:35
  Speaker 5: having guns, and the Obamacare decision resulted in more people
• 31:41
  Speaker 5: having health insurance. Oberg Fell resulted in more same sex marriages.
• 31:48
  Speaker 5: Do you think about those practical consequences when you're interpreting
• 31:52
  Speaker 5: the constitution? And should justices think about those practical consequences
• 31:58
  Speaker 5: when they're interpreting the words. Gast is.
• 32:02
  Speaker 3: Mainly no to both of those questions, because if you
• 32:09
  Speaker 3: do that, you know, with one exception I'll talk about later,
• 32:14
  Speaker 3: But if you do that, you're kind of putting yourself
• 32:16
  Speaker 3: in the place of the legislator. You can say, for example,
• 32:21
  Speaker 3: a consequence of the Second Amendment decisions are or more
• 32:28
  Speaker 3: people have guns and so there's more you know, accidental shootings,
• 32:33
  Speaker 3: more shootings. Or you can say the consequence is that
• 32:36
  Speaker 3: more people are armed and therefore they're in a better
• 32:39
  Speaker 3: position if there's for an invasion, as there was with
• 32:42
  Speaker 3: the bridge shortly after the adoption of the Second Amendment,
• 32:45
  Speaker 3: So that that's a good thing. Now, if you decide
• 32:47
  Speaker 3: one of those or the other based on your view
• 32:50
  Speaker 3: of what you think is best, you would be substituting
• 32:52
  Speaker 3: your own view for that of the people who wrote
• 32:54
  Speaker 3: the constitution. So no, I don't think that's not a
• 32:58
  Speaker 3: big part of at least how I do my job
• 33:01
  Speaker 3: sort of what a purpose of this approach is what
• 33:05
  Speaker 3: people would call that, because I think you're making yourself
• 33:09
  Speaker 3: the arbiter of what people were trying to accomplish in
• 33:12
  Speaker 3: that law. When you really need to be doing is
• 33:14
  Speaker 3: sitting down and reading it, you know, and its appropriate
• 33:17
  Speaker 3: context and trying to figure out what they what they meant.
• 33:20
  Speaker 3: Now one extreme, if an interpretation you adopt leads to
• 33:24
  Speaker 3: some absurd result that nobody could plausibly of intended, then yeah,
• 33:28
  Speaker 3: then the the the consequences make a difference. But I
• 33:32
  Speaker 3: think it's more important to figure out what the people
• 33:35
  Speaker 3: who wrote the law had in mind and what they
• 33:39
  Speaker 3: meant by the words they used, rather than think what
• 33:43
  Speaker 3: is this type of legislation for? Because then the you know,
• 33:47
  Speaker 3: the interpretation goes flips flip flops.
• 33:51
  Speaker 5: So the courthouse here in Buffalo is named for Robert Jackson,
• 33:56
  Speaker 5: and you clerked for Justice Renquist, right, Justicehrenk quiz clerk
• 34:00
  Speaker 5: for Justice Jackson, So you're sort of his grandson.
• 34:04
  Speaker 1: Sort of.
• 34:05
  Speaker 5: You know, well, yeah, do that have any special meaning
• 34:09
  Speaker 5: for you? I mean, I know one of the photos,
• 34:11
  Speaker 5: one of the portraits you have hanging, one of the
• 34:15
  Speaker 5: four portraits you have hanging in the the Justices conference
• 34:19
  Speaker 5: in the conference room is Jackson. Yeah, yeah, would you
• 34:21
  Speaker 5: talk about that a little bit?
• 34:22
  Speaker 3: Well, sure, I mean, obviously one of the more remarkable
• 34:25
  Speaker 3: members of the Court in our in our history. Part
• 34:29
  Speaker 3: of the reason they's in our conference room is he was,
• 34:34
  Speaker 3: you know, the solicitor General who argued before the Court,
• 34:36
  Speaker 3: the attorney General, you know, in charge of the branch
• 34:39
  Speaker 3: of justice and the administration, the prosecutor at Nuremberg, which
• 34:44
  Speaker 3: was very controversial on the Court. His colleagues did not
• 34:46
  Speaker 3: think that was necessarily something he should be should be doing. Uh.
• 34:52
  Speaker 3: And obviously one of the great justices. I mean, his
• 34:54
  Speaker 3: his eloquence is really extraordinary. His eloquence at Nuremberg was
• 35:00
  Speaker 3: was extraordinary. So yeah, I think it's a great grandfather
• 35:04
  Speaker 3: to have. Now the other the other portraits John Marshall
• 35:10
  Speaker 3: Harlan is there, and I just think somebody who's parents
• 35:16
  Speaker 3: name him John Marshall, who then lives up to it
• 35:19
  Speaker 3: and ends up on the Supreme Court, deserves an incredible painting.
• 35:23
  Speaker 3: And seriously, all his his pronouncements in number of areas
• 35:27
  Speaker 3: of the law I think are really remarkable.
• 35:30
  Speaker 5: He was at dissenter and plus he wasn't he.
• 35:32
  Speaker 4: Yes, Yeah, you're listening to Chief Justice John Roberts who
• 35:36
  Speaker 4: was having a conversation with Federal Judge Joseph Folardo. And
• 35:41
  Speaker 4: the topics are wide ranging.
• 35:43
  Speaker 3: I had five colleagues on the Court from New York,
• 35:46
  Speaker 3: so I figured I had to give him some New
• 35:47
  Speaker 3: Yorker on the law. And then of course the great
• 35:50
  Speaker 3: Chief John Marshall as well.
• 35:52
  Speaker 5: Yeah. So I read a speech that you gave to
• 35:57
  Speaker 5: your son's graduating class. It talked about the importance of
• 36:01
  Speaker 5: getting to know the folks who work at the school,
• 36:04
  Speaker 5: the custodial staff, the janitorial staff, those kinds of things.
• 36:08
  Speaker 5: Why is that important and why was it important enough
• 36:11
  Speaker 5: for you to give that message to your son and
• 36:13
  Speaker 5: his classmates.
• 36:16
  Speaker 3: Well, it was eighth grade, and it's a time when
• 36:19
  Speaker 3: they need to learn a lot of things.
• 36:22
  Speaker 1: And I mean it's.
• 36:24
  Speaker 3: Important just it's basic courtesy, but also it's important to
• 36:28
  Speaker 3: appreciate that, no matter high and mighty you might think
• 36:33
  Speaker 3: you are or others might that, there are other people
• 36:36
  Speaker 3: that are doing things that are just as vital to the.
• 36:40
  Speaker 1: You know, functioning of our.
• 36:43
  Speaker 3: World and as anybody else, and all the people who
• 36:47
  Speaker 3: work at the Supreme court are part of the process
• 36:51
  Speaker 3: that ends up in our articulation of what the law is,
• 36:56
  Speaker 3: and whether it's the Chief Justice or somebody in the
• 37:00
  Speaker 3: print shop or one of the law clerks or anybody else.
• 37:04
  Speaker 3: And I think if you lose sight of that, that's
• 37:07
  Speaker 3: a that's a real, real shame. And uh, you know,
• 37:10
  Speaker 3: I do think again, particularly eighth grade is a good
• 37:14
  Speaker 3: place to learn that way.
• 37:15
  Speaker 5: Did you do that when you were in school? Did
• 37:17
  Speaker 5: you did you get to know those folks when when
• 37:18
  Speaker 5: you were in.
• 37:19
  Speaker 3: Oh sure, yeah, yeah, but in eighth grade, I mean
• 37:23
  Speaker 3: you know those those people.
• 37:25
  Speaker 5: Were the boss. Yeah, that's exactly right, It's exactly right.
• 37:29
  Speaker 1: You know.
• 37:29
  Speaker 5: Sometimes I'll have folks who cleaning the office will come
• 37:33
  Speaker 5: in and apologize to me for coming in cleaning the office.
• 37:35
  Speaker 5: And I said, if you folks don't do this, I
• 37:37
  Speaker 5: can't do my job. So you know, it's as you say,
• 37:40
  Speaker 5: it's all.
• 37:41
  Speaker 1: Yeah, I apologize for making such a mess.
• 37:43
  Speaker 5: Which so you talked about a few minutes ago reading
• 37:52
  Speaker 5: petitions for curchary and briefs. What's the sort of criteria
• 37:56
  Speaker 5: that you use for deciding whether you want to take
• 38:00
  Speaker 5: a case job other than writing about red dogs. What
• 38:05
  Speaker 5: jumps out, are you.
• 38:06
  Speaker 3: Well, And it's pretty clear that it doesn't really matter
• 38:12
  Speaker 3: how right or wrong it is. I mean, the one
• 38:14
  Speaker 3: thing you could say in a certain petition that's not
• 38:16
  Speaker 3: a good idea is how horribly wrong this is. Because
• 38:20
  Speaker 3: the first message that comes across to us is that, well,
• 38:23
  Speaker 3: if it's that wrong, we don't have to worry about it.
• 38:26
  Speaker 3: They'll follow it. Mistake has been made. But one thing
• 38:29
  Speaker 3: that's certain, it's not our job. We're not a court
• 38:31
  Speaker 3: of error in the sense that we correct mistakes. So
• 38:36
  Speaker 3: what we're looking for are conflicting decisions on the same
• 38:41
  Speaker 3: law that have to be fixed. I mean, if one
• 38:43
  Speaker 3: person beds this law and says you can't do this,
• 38:45
  Speaker 3: and the other person says no, no, it means you
• 38:47
  Speaker 3: can't do this. It should mean the same thing across
• 38:51
  Speaker 3: the country. And so that's more the type of case
• 38:53
  Speaker 3: we would take to resolve that disagreement. So people want
• 38:58
  Speaker 3: to get their cases heard, need to have somebody who's
• 39:01
  Speaker 3: good at explaining why we need a greater degree of
• 39:05
  Speaker 3: uniformity this. You know, you can't say in New York
• 39:08
  Speaker 3: some particular expense is tax deductible, but in California it's not.
• 39:12
  Speaker 1: So a lot of the cases we get are actually
• 39:14
  Speaker 1: not that glamorous.
• 39:15
  Speaker 3: They're not that interesting because there are a lot of
• 39:17
  Speaker 3: areas of federal law, like you know, patent law and
• 39:20
  Speaker 3: copyright law, tax law, all sorts of things, and when
• 39:22
  Speaker 3: those disagreements come up, we're the only ones who can
• 39:25
  Speaker 3: fix it. So a lot of our docket is pretty mundane.
• 39:29
  Speaker 5: Is there something too, though? Putting something in the cert
• 39:33
  Speaker 5: petition that will catch the judges? I like the red
• 39:35
  Speaker 5: Dog story. I mean you find yourself when when you
• 39:40
  Speaker 5: read something like that that has something that catches your
• 39:43
  Speaker 5: eye drawn to it a little more.
• 39:45
  Speaker 1: Oh sure, yeah, I mean, you know, we take whatever
• 39:48
  Speaker 1: it is.
• 39:48
  Speaker 3: I don't know what the number is, one and a
• 39:49
  Speaker 3: half percent of all the curt petitions. You've got to
• 39:52
  Speaker 3: do something to stand out of the crowd, you know,
• 39:55
  Speaker 3: unless you have a really good case that may be
• 39:59
  Speaker 3: enough to ge at our attention. But other than that,
• 40:02
  Speaker 3: and it makes sense, you have to be a good
• 40:04
  Speaker 3: writer if you're there. I mean, obviously our law clerks
• 40:07
  Speaker 3: read somewhere all the petitions and they write summaries, but
• 40:11
  Speaker 3: we read from those summaries ones that we think, you know,
• 40:15
  Speaker 3: might be likely candidates and you know, it's very hard
• 40:18
  Speaker 3: to pick out the right ones.
• 40:22
  Speaker 5: Some of your colleagues have written autobiographies. Have you started
• 40:26
  Speaker 5: yours yet?
• 40:27
  Speaker 3: No?
• 40:27
  Speaker 5: Are you gonna? No? Why?
• 40:30
  Speaker 1: Why?
• 40:30
  Speaker 5: Why not?
• 40:31
  Speaker 3: I think my life is very interesting to be I'm
• 40:39
  Speaker 3: not sure it's terribly interesting to anyone else. And now
• 40:43
  Speaker 3: that's not true of some ofmic colleagues. Justice Thomas's autobiography
• 40:48
  Speaker 3: is absolutely gripping. If you haven't read it and are
• 40:51
  Speaker 3: at all interested in the court, you should. It's such
• 40:53
  Speaker 3: an extraordinary story. I really couldn't put it down. But
• 40:58
  Speaker 3: I don't think I don't think I have that.
• 41:03
  Speaker 5: That in me. Let's talk about your your role in
• 41:10
  Speaker 5: terms of you as a public figure. Obviously, you're very recognizable.
• 41:17
  Speaker 5: People know who you are. It's you have to be
• 41:20
  Speaker 5: on all the time, like now, uh, And how do
• 41:24
  Speaker 5: you separate that from your private life? How do you
• 41:26
  Speaker 5: how do you keep some privacy in your life and
• 41:31
  Speaker 5: have this kind of bigger than life role as Chief
• 41:34
  Speaker 5: Justice the United States?
• 41:35
  Speaker 1: Well recognizable.
• 41:38
  Speaker 3: My wife and I run vacation in Portugal last year
• 41:42
  Speaker 3: and another American sort of came up to us and
• 41:44
  Speaker 3: he's looked at me and says, I know.
• 41:46
  Speaker 1: You, I know who you are.
• 41:49
  Speaker 3: You're John Bahner, and so you know they were sitting
• 41:55
  Speaker 3: next I had to spend the whole evening pretending to
• 41:58
  Speaker 3: be John Bayner. So when you say readily recognizable, really not,
• 42:04
  Speaker 3: to be honest with you, it's getting worse though in general,
• 42:09
  Speaker 3: just because you know, the work of the court is
• 42:12
  Speaker 3: getting to a higher degree of publicity.
• 42:15
  Speaker 1: So it is a problem.
• 42:18
  Speaker 3: I will say ninety nine percent of the interactions I've
• 42:22
  Speaker 3: had with people, they come up and say hello, which
• 42:23
  Speaker 3: is fine, and so that's that's good. But we're not
• 42:27
  Speaker 3: as recognizable as you might think among a crowd of
• 42:31
  Speaker 3: judges and lawyers.
• 42:32
  Speaker 5: Yeah, but.
• 42:34
  Speaker 1: In the public at large, not much of them.
• 42:37
  Speaker 5: So some of your colleagues have retired. You ever think
• 42:41
  Speaker 5: about that. I mean, you're too young now, but some
• 42:44
  Speaker 5: day would you No? No, because you love because you
• 42:48
  Speaker 5: love what you do too much.
• 42:50
  Speaker 1: You know, I'm going out feet first.
• 42:53
  Speaker 3: It's just I am too good. Well, no, now I
• 42:58
  Speaker 3: say that now. I mean, I'm sure if your health
• 43:00
  Speaker 3: declines and all, and if you recognize that you're a
• 43:03
  Speaker 3: burden to the court rather than part of an assist
• 43:08
  Speaker 3: to everybody, then you know it'll be time to go.
• 43:12
  Speaker 1: I have very good friends that were.
• 43:17
  Speaker 3: For a long time, many years, and I've sat down
• 43:20
  Speaker 3: with them and you know, said, I want, you know,
• 43:23
  Speaker 3: appropriate time, because you don't always notice that you're slipping.
• 43:27
  Speaker 3: I want the you know, two of you to tell
• 43:29
  Speaker 3: me if it's it's time to go. It's a long pause,
• 43:32
  Speaker 3: and at once the two of them said it's.
• 43:34
  Speaker 1: Time to go. So I said, all right, never mind.
• 43:39
  Speaker 5: How funny I have that.
• 43:42
  Speaker 1: It is kind of she's going to tell me.
• 43:44
  Speaker 5: She hadn't said anything yet. Maybe after this she will.
• 43:50
  Speaker 3: It is surprising how rare it has been on the
• 43:53
  Speaker 3: court for that to become an issue. Really just a
• 43:56
  Speaker 3: handful of times. I think it's because it's a collegial
• 44:02
  Speaker 3: both in a technical sense and in a popular sense,
• 44:05
  Speaker 3: group of people that you develop relationships where if the
• 44:10
  Speaker 3: people do come, there have been times when somebody has
• 44:13
  Speaker 3: stayed a little longer than they should.
• 44:15
  Speaker 1: Then the other colleagues come and it's.
• 44:17
  Speaker 3: Always really worked out. So I don't think that's going
• 44:21
  Speaker 3: to be a problem.
• 44:25
  Speaker 1: But it is. Yeah, I mean, I still feel pretty healthy.
• 44:29
  Speaker 5: Do you love what you do? I mean, you really do.
• 44:31
  Speaker 3: It's exciting to get up, you know, every morning and
• 44:34
  Speaker 3: go into work.
• 44:35
  Speaker 5: It doesn't seem like work when it's like that, right some.
• 44:38
  Speaker 1: Days, some days it does. But it's nice that we have.
• 44:45
  Speaker 3: A break in the summer. Louis brandeis one of our
• 44:50
  Speaker 3: great justices, said that he could do the twelve months
• 44:54
  Speaker 3: worth of work in ten months, but he couldn't do
• 44:58
  Speaker 3: it in twelve months. And I think there's a lot
• 45:01
  Speaker 3: of wisdom in that we work at very close quarters
• 45:04
  Speaker 3: on very important issues, on very sensitive issues at work.
• 45:08
  Speaker 1: That is is hard to do, and.
• 45:12
  Speaker 3: We do need a little break from each other, but
• 45:15
  Speaker 3: it does. It's interesting, it really is creates such a
• 45:19
  Speaker 3: strong bond. I'm sure people, you know, listening to the
• 45:22
  Speaker 3: news or reading our decisions, particularly you know, decisions that
• 45:25
  Speaker 3: come out in May and June, maybe think, boy, those
• 45:28
  Speaker 3: people really must, you know, hate each other. They must
• 45:31
  Speaker 3: be at hammer and tong the whole time, and we don't.
• 45:35
  Speaker 3: I mean, the dealing with the type of cases we
• 45:39
  Speaker 3: do and their significance, it's something only those nine people
• 45:43
  Speaker 3: can can know. Whether you take something as basic and
• 45:47
  Speaker 3: fundamental as whether somebody lives or dies you share that
• 45:52
  Speaker 3: in a very intimate way, or whether whatever else that
• 45:56
  Speaker 3: is the most important issue facing the public, and even
• 45:59
  Speaker 3: if you are on opposite sides more often than not,
• 46:04
  Speaker 3: and we're not most of more of our decisions are
• 46:07
  Speaker 3: unanimous than anything else people lose lose sight of. But
• 46:12
  Speaker 3: it is a strong, a strong bond.
• 46:15
  Speaker 5: I think when Justice Skinsburg and Justice Scalia were on
• 46:20
  Speaker 5: the court together and their friendship got some publicity, I
• 46:24
  Speaker 5: think people got to understand that a little bit more
• 46:28
  Speaker 5: because RBG was taught publicly about it a lot, and
• 46:32
  Speaker 5: and just how fond she was of Justice Scalia and
• 46:36
  Speaker 5: vice versa, even though they were at opposite ends of
• 46:39
  Speaker 5: lots of decisions.
• 46:40
  Speaker 3: Yeah, and a lot goes into that. And you know,
• 46:43
  Speaker 3: you have more in common with some colleagues than others. Sure,
• 46:46
  Speaker 3: so I do things with some of my colleagues that
• 46:48
  Speaker 3: I don't with the other and vice versa.
• 46:52
  Speaker 1: But it is, it is a bond.
• 46:53
  Speaker 3: And you know, and their their issues and discussions you
• 46:57
  Speaker 3: don't I don't share with with with my wife, and
• 47:00
  Speaker 3: I know others don't just because they find it easier
• 47:03
  Speaker 3: not to know, you know, in terms of that, so
• 47:05
  Speaker 3: they don't have to worry about it. But so it
• 47:08
  Speaker 3: is a it's a small group. The bonds of real
• 47:13
  Speaker 3: affection and friendship and shared experience are very very strong,
• 47:20
  Speaker 3: and I think we try very hard not to let
• 47:24
  Speaker 3: disagreements of the moment break that.
• 47:27
  Speaker 5: So you've been on the court for twenty years, Yeah,
• 47:31
  Speaker 5: and you were a circuit judge for a couple of
• 47:33
  Speaker 5: years before that. Read a lot of district district court
• 47:37
  Speaker 5: decisions over the years, So I'm looking for a little advice. Now,
• 47:41
  Speaker 5: what what what? What can you tell district judges about
• 47:45
  Speaker 5: the decisions they write that might might help us?
• 47:49
  Speaker 1: Yeah, brevity is good.
• 47:56
  Speaker 6: And I think it's it's you knowing to this, particularly
• 48:03
  Speaker 6: with the district court.
• 48:04
  Speaker 3: We recognize there was a primary responsibility of the district
• 48:07
  Speaker 3: courts to deal with the facts, and we don't want
• 48:10
  Speaker 3: to be second guessing the facts.
• 48:13
  Speaker 1: And so that's.
• 48:15
  Speaker 3: An important thing to address if it's going to be
• 48:17
  Speaker 3: in the opinion, to make it clear what findings you've
• 48:20
  Speaker 3: made about what.
• 48:21
  Speaker 1: And and and and and and what hasn't.
• 48:25
  Speaker 3: And then I remember Justice Renquist, for whom my clerk
• 48:30
  Speaker 3: was very adamant about that he was a very.
• 48:32
  Speaker 1: Good trial lawyer. He said, you don't want to waste
• 48:37
  Speaker 1: too much time, you.
• 48:38
  Speaker 3: Know, on on the law if you're the facts are
• 48:43
  Speaker 3: more important than the law, and then you know, the
• 48:46
  Speaker 3: as it moves up, people are focused more on the
• 48:49
  Speaker 3: on the facts he tried. When he was in my
• 48:53
  Speaker 3: position as chief Justice, he was remembering his days fondly
• 48:56
  Speaker 3: as a trial lawyer, and he assigned himself to a
• 49:00
  Speaker 3: district court in Virginia to hear a trial, just to
• 49:07
  Speaker 3: kind of get back on the saddle in that way,
• 49:09
  Speaker 3: and souf and he did, and it was he issued
• 49:12
  Speaker 3: a decision, and they appealed, and the Fourth Circuit reversed him.
• 49:16
  Speaker 1: Is that right?
• 49:18
  Speaker 5: And he never did it again.
• 49:20
  Speaker 1: No.
• 49:21
  Speaker 3: But the only thing that made him mad, and he
• 49:24
  Speaker 3: was really upset about it is that they issued it
• 49:26
  Speaker 3: as a percurate on opinion. Nobody had the guts to
• 49:30
  Speaker 3: put their name on it.
• 49:33
  Speaker 5: You ever think about doing that, trying to be a
• 49:35
  Speaker 5: trigiant No, because well you didn't try cases, so no
• 49:38
  Speaker 5: difference there. Yeah. So you became chief Justice in two
• 49:43
  Speaker 5: thousand and five, you worked with Justice o'cannor, and then yeah,
• 49:48
  Speaker 5: Justice Skinsburg, and now there are more women on the
• 49:51
  Speaker 5: court than ever. Has that changed the dynamic or the
• 49:55
  Speaker 5: culture of the court in any way.
• 50:00
  Speaker 1: No, It'll be my honest answer, I don't think it has.
• 50:03
  Speaker 3: I'm sure, when Justice O'Connor came on as the first woman,
• 50:07
  Speaker 3: that had all sorts of consequences.
• 50:08
  Speaker 1: And changes, and.
• 50:12
  Speaker 3: But you know, now, to be honest, I don't think
• 50:15
  Speaker 3: in terms of the dynamic at conference or the discussions
• 50:18
  Speaker 3: and all that, I just don't think it makes a difference.
• 50:23
  Speaker 3: I wouldn't say that our conferences or our discussions are different,
• 50:26
  Speaker 3: because I would say it's different because those particular individuals
• 50:31
  Speaker 3: are there and they all come and bring different perspectives
• 50:35
  Speaker 3: and all. But I don't think I would say it's
• 50:37
  Speaker 3: different than because they're women.
• 50:41
  Speaker 5: So there's been a lot of criticism of some decisions
• 50:46
  Speaker 5: because they have not they've changed precedent, right the abortion
• 50:52
  Speaker 5: decision most recently, in other decisions like that, But that
• 50:56
  Speaker 5: happens all the time, right, I mean, there's lots of
• 50:59
  Speaker 5: times when courts have precedent that they that they think
• 51:05
  Speaker 5: needs to be changed for whatever reason. What kind of
• 51:07
  Speaker 5: criteria do you apply to that yourself?
• 51:11
  Speaker 3: Well, first of all, there's a lot of misconception on
• 51:15
  Speaker 3: that subject. The see if I make sure I get
• 51:21
  Speaker 3: these numbers right, in recent study, the war in court
• 51:25
  Speaker 3: overruled I think three three point two decisions on average.
• 51:31
  Speaker 5: You know a year the.
• 51:33
  Speaker 3: Burger Court actually had a little bit more than I
• 51:35
  Speaker 3: think they did, three point six percent a year. The
• 51:41
  Speaker 3: rank was court moved down a little bit, only two
• 51:44
  Speaker 3: point four cases number percent cases a year, and in
• 51:50
  Speaker 3: the past twenty years the number has been one point six.
• 51:55
  Speaker 3: So people have a different, at somewhat wrong view of
• 52:00
  Speaker 3: how many cases are being overturned now. We take fewer
• 52:03
  Speaker 3: cases now than they did before, but the number of
• 52:06
  Speaker 3: important ones that would be subject to overruling are the same.
• 52:09
  Speaker 1: So a lot of people talk as if we're overruling
• 52:13
  Speaker 1: a lot more.
• 52:14
  Speaker 3: It's the lowest it's been since the fifties, and sort of,
• 52:20
  Speaker 3: and some cases should be.
• 52:23
  Speaker 1: I mean, aren't you glad that you know Brown versus.
• 52:25
  Speaker 3: Board of Education overruled Plessy or that Cats overruled Olmsted.
• 52:30
  Speaker 3: So the idea that it's invariably a bad thing to
• 52:33
  Speaker 3: overrule precedent is I think quite mistaken. At the same time,
• 52:39
  Speaker 3: you can't do it willy nilly just because you know,
• 52:42
  Speaker 3: you look at a case and you think, gosh, I
• 52:44
  Speaker 3: would have had that principle come out.
• 52:47
  Speaker 1: The other way. That doesn't mean you overturn it.
• 52:50
  Speaker 3: Starry decisive is an important part of our work. The
• 52:54
  Speaker 3: law is supposed to be predictable, so you need a
• 52:57
  Speaker 3: special justification before you want to overrule a case.
• 53:01
  Speaker 1: Other than that you just happen to think, I think
• 53:03
  Speaker 1: it's wrong.
• 53:04
  Speaker 5: We were talking about the Barnett case a little while ago,
• 53:07
  Speaker 5: and that was a case that overruled a decision Justice
• 53:11
  Speaker 5: frankfurt Or made just a few years before go bite
• 53:14
  Speaker 5: this or whatever. Yeah, and so yeah, it's been around
• 53:17
  Speaker 5: for a long time.
• 53:19
  Speaker 3: Yeah, So when you do that, you have to the
• 53:21
  Speaker 3: first thing has to be that it's clearly wrong. The
• 53:25
  Speaker 3: second thing has to be does that make a difference.
• 53:28
  Speaker 3: I mean, if, for example, you say you can't figure
• 53:30
  Speaker 3: out what the filing deadline is, you know, is it
• 53:33
  Speaker 3: ten days under the rule or is it twelve days?
• 53:36
  Speaker 1: You have to decide it.
• 53:37
  Speaker 3: But you shouldn't come back and say, oh, it should
• 53:40
  Speaker 3: have been twelve days, not ten days.
• 53:42
  Speaker 1: So we're going to overrule that.
• 53:43
  Speaker 3: I mean, that's something that most cases, many cases, it's
• 53:47
  Speaker 3: more important that they be decided than that to be
• 53:49
  Speaker 3: decided right, whether it's ten or twelve days, is a
• 53:52
  Speaker 3: case like that. So it has to be a case
• 53:53
  Speaker 3: where it really makes an important ongoing difference. And be
• 53:58
  Speaker 3: significant enough to the league system that it justified to
• 54:02
  Speaker 3: overturn the approach. But it's not something you want to
• 54:05
  Speaker 3: do very often.
• 54:07
  Speaker 5: Can you talk a little bit about your experience clerking
• 54:09
  Speaker 5: for Judge Friendly and Justice Ranquist.
• 54:14
  Speaker 3: Yeah, two wonderful years in my life and two totally
• 54:18
  Speaker 3: different experiences. And I have to say, at a very
• 54:23
  Speaker 3: personal level, the chance to clerk with Judge Friendly was
• 54:25
  Speaker 3: very important. I graduated from law school in nineteen seventy nine,
• 54:30
  Speaker 3: and this may be just the way I looked at it,
• 54:33
  Speaker 3: but maybe it was because I you know, you know,
• 54:38
  Speaker 3: being a lawyer was a second choice for me in general.
• 54:43
  Speaker 3: But the law was a very cynical enterprise back then,
• 54:48
  Speaker 3: I think, and you know, in some ways it's good.
• 54:51
  Speaker 1: In other facts, it was very instrumental.
• 54:57
  Speaker 3: People were using law as kind of a vehicle to
• 54:59
  Speaker 3: achieve a particular objective, which there's nothing wrong with that
• 55:02
  Speaker 3: at all. That's a lot of people, you know, do that,
• 55:05
  Speaker 3: but also in a cynical way, and law was not
• 55:09
  Speaker 3: regarded as something of sort of moral value from one
• 55:17
  Speaker 3: of another word. And so I felt frankly that maybe
• 55:20
  Speaker 3: this had not been a good choice. This wasn't something
• 55:23
  Speaker 3: that was uplifting. If you had a particular agenda you
• 55:27
  Speaker 3: wanted to pursue it good it could help.
• 55:29
  Speaker 1: You do that. But then I went and you know,
• 55:32
  Speaker 1: was at the elbow.
• 55:32
  Speaker 3: Of this extraordinarily great man, one of the most remarkable judges,
• 55:37
  Speaker 3: and he saw it differently. He really looked at it
• 55:41
  Speaker 3: as a valuable gift that we had inherited for ordering
• 55:49
  Speaker 3: society in a reasonable way. And he was somebody who
• 55:52
  Speaker 3: was totally a political the most brilliant judge of his generation,
• 55:59
  Speaker 3: Richard and didn't appoint him to the Supreme Court because
• 56:02
  Speaker 3: he thought he would be soft on crime, and he
• 56:05
  Speaker 3: would have been from Nixon's perspective. He would have applied
• 56:07
  Speaker 3: the law as it should be and meant some criminals
• 56:11
  Speaker 3: were going to go free and others worked. But and
• 56:15
  Speaker 3: he was able to sort of construct certainly in his opinions,
• 56:19
  Speaker 3: which lawyers here know were remarkable. Realized that this was
• 56:25
  Speaker 3: a system that had internal coherence and that was really
• 56:29
  Speaker 3: a gift, and it needed people who are willing to
• 56:33
  Speaker 3: view it in those terms rather than this is how
• 56:35
  Speaker 3: I'm going to use it to get to a particular result.
• 56:38
  Speaker 3: So that was where I kind of I left my
• 56:40
  Speaker 3: cynicism about the work that we as lawyers and judges
• 56:46
  Speaker 3: do and appreciated that it had a greater worth, and
• 56:50
  Speaker 3: just in terms of writing was it was a remarkable
• 56:54
  Speaker 3: gifted writer. He would come off of the bench after
• 56:57
  Speaker 3: argument and sit down with legal pasth I had two
• 57:00
  Speaker 3: of them, one for text, one for footnotes or notes,
• 57:04
  Speaker 3: and just start writing and finish it one day or
• 57:07
  Speaker 3: two days, and the secretary would type it up and
• 57:10
  Speaker 3: give it to one of his law clerks and we'd
• 57:12
  Speaker 3: look at it and say, well, what.
• 57:13
  Speaker 1: Does he want us to do?
• 57:15
  Speaker 3: And he would have some ideas and look at it.
• 57:18
  Speaker 3: So that was a really remarkable year. And then with Ranquist,
• 57:22
  Speaker 3: it was no. Renquist was the generation between Friendly was
• 57:27
  Speaker 3: kind of like almost like two generations. Who's older and
• 57:30
  Speaker 3: I was just out of law school and Ranquist was
• 57:32
  Speaker 3: kind of right in the middle, and.
• 57:36
  Speaker 1: A different approach.
• 57:37
  Speaker 3: His writing is crystal clear, very direct, and had the
• 57:45
  Speaker 3: same sort of appreciation and I don't mean to overuse
• 57:51
  Speaker 3: these sorts of words with reverence for what the law does,
• 57:54
  Speaker 3: but was very you know, direct and analytic, and you
• 57:58
  Speaker 3: sort of knew exactly how it was structured and where
• 58:00
  Speaker 3: it was going. So it was a nice experience for
• 58:03
  Speaker 3: me to have two very different people and they really
• 58:06
  Speaker 3: admired each other. They In fact, I got the clerkship
• 58:11
  Speaker 3: with Renquist because he and Friendly were at a conference
• 58:14
  Speaker 3: together and I think, you know, Justice Renquist asked Judge
• 58:20
  Speaker 3: Friendly if he had any good law clerks and he
• 58:24
  Speaker 3: mentioned one, and I guess somebody else.
• 58:26
  Speaker 1: Hired that one and they mentioned.
• 58:29
  Speaker 3: And so anyway, I don't mean to be long winded
• 58:33
  Speaker 3: about it, but you do kind of look back at
• 58:37
  Speaker 3: that and see these sort of formative influences in your
• 58:40
  Speaker 3: in your life and are grateful for them.
• 58:44
  Speaker 5: Does the way you deal with your clerks by and
• 58:48
  Speaker 5: large mirror the way they dealt with you?
• 58:52
  Speaker 1: No, No, I wouldn't say that.
• 58:55
  Speaker 5: One.
• 58:56
  Speaker 1: When you're in the middle of it.
• 58:57
  Speaker 3: It's kind of hard to be self conscious and appreciate it.
• 59:00
  Speaker 1: I mean, I don't.
• 59:02
  Speaker 3: The one thing I do know is that the four
• 59:05
  Speaker 3: clerks really do form quite a common bond. And rnquists
• 59:09
  Speaker 3: used to talk to us about how that was, and
• 59:12
  Speaker 3: he said, it's because the clerks are united by a
• 59:14
  Speaker 3: common enemy and so and I really it's kind of
• 59:20
  Speaker 3: hard when you're in the middle of it to see
• 59:22
  Speaker 3: how you know, they might view the experience.
• 59:26
  Speaker 5: How do you work with your clerks.
• 59:28
  Speaker 1: It really varies from case to case. You know.
• 59:32
  Speaker 3: Sometimes if the facts are a little complicated, I'll want
• 59:36
  Speaker 3: them to take a look at the record more than
• 59:38
  Speaker 3: they might otherwise. Sometimes, if I feel comfortable that I
• 59:43
  Speaker 3: know the law in an area, I'll have them do that.
• 59:49
  Speaker 1: But I would go in.
• 59:50
  Speaker 3: Much more carefully because I'm probably wrong about it. I
• 59:53
  Speaker 3: want to make sure that I'm not letting errors that
• 59:56
  Speaker 3: might have crept in affect my mind standing.
• 1:00:01
  Speaker 1: And then we'll go back and forth.
• 1:00:02
  Speaker 3: Sometimes I'll draft something and they'll look at it and
• 1:00:05
  Speaker 3: they don't have the problem I had with Judge Friendly there.
• 1:00:08
  Speaker 1: It's come back pretty extensive.
• 1:00:10
  Speaker 5: Sometimes I'll encourage that, right, I mean, I'm sure you
• 1:00:14
  Speaker 5: ask them.
• 1:00:14
  Speaker 1: Well, what's the point otherwise?
• 1:00:16
  Speaker 5: Right? Exactly how?
• 1:00:18
  Speaker 3: And sometimes I'll want to look at the facts a
• 1:00:20
  Speaker 3: little bit more. But then when we get closer to
• 1:00:24
  Speaker 3: the end, I have all four of them sit down
• 1:00:27
  Speaker 3: together and we all go over the draft of the opinions.
• 1:00:31
  Speaker 3: So you have somebody who's sort of been looking at
• 1:00:34
  Speaker 3: it very carefully. Hopefully I'm one of those people too,
• 1:00:37
  Speaker 3: And then the others who have just kind of like
• 1:00:39
  Speaker 3: read it. So in a way, it's like, you know,
• 1:00:42
  Speaker 3: when I talked about doing briefs, you want to make
• 1:00:44
  Speaker 3: sure that someone sort of putting eyes on it for
• 1:00:47
  Speaker 3: the first time, can really figure out.
• 1:00:48
  Speaker 5: What it's How do you decide which clerk works on
• 1:00:51
  Speaker 5: which case.
• 1:00:51
  Speaker 1: I leave that entirely up to them.
• 1:00:52
  Speaker 5: They make close decisions.
• 1:00:54
  Speaker 4: Yeah, you're listening to Chief Justice John Roberts in a
• 1:00:57
  Speaker 4: fireside chat in Buffalo, New York with Joseph Belardo. Is
• 1:01:01
  Speaker 4: still part of the celebration of the one hundred and
• 1:01:04
  Speaker 4: twenty five years of the Western District.
• 1:01:06
  Speaker 3: Of New York that the system is developed where we
• 1:01:09
  Speaker 3: get these very very bright people to work very very
• 1:01:12
  Speaker 3: hard and they come up with such great work products.
• 1:01:18
  Speaker 5: And when you hire clerks, have they generally clerked for
• 1:01:22
  Speaker 5: a district judge or a circuit judge? First? Oh? Sure? Always?
• 1:01:26
  Speaker 1: Always?
• 1:01:26
  Speaker 5: Yeah, So unlike Justice White, who that was kind of
• 1:01:29
  Speaker 5: the fading out of that experience, I think, And you know.
• 1:01:33
  Speaker 1: You want to get the view of a judge who's.
• 1:01:36
  Speaker 3: Been with them for a year, I think, because that
• 1:01:39
  Speaker 3: helps a lot.
• 1:01:42
  Speaker 5: In one year clerkships.
• 1:01:44
  Speaker 3: Absolutely, you don't want them to get too good. I
• 1:01:47
  Speaker 3: mean that's the case now very seriously. I mean, you
• 1:01:50
  Speaker 3: don't want them to get too good at what you're
• 1:01:52
  Speaker 3: supposed to do.
• 1:01:53
  Speaker 1: You want to make sure that you are the one
• 1:01:55
  Speaker 1: doing the work.
• 1:01:56
  Speaker 3: Yes, they're going to help you on what the cases
• 1:01:59
  Speaker 3: say about this or how the facts look on this issue,
• 1:02:02
  Speaker 3: but you don't want them to get too good because because.
• 1:02:05
  Speaker 5: You think there's a danger of you using them as
• 1:02:08
  Speaker 5: a crutch too much.
• 1:02:09
  Speaker 3: Yeah, you want to make sure that issue doesn't really
• 1:02:12
  Speaker 3: come up now. So and also it's a real valuable
• 1:02:18
  Speaker 3: thing for me and I know other justices to have
• 1:02:21
  Speaker 3: these sorts of to be a little more attuned to
• 1:02:24
  Speaker 3: what's going on in the law schools. And you know,
• 1:02:28
  Speaker 3: having a fresh batch every year you learn more about
• 1:02:31
  Speaker 3: you know, what the teachers are teaching and what the
• 1:02:35
  Speaker 3: students are interested in.
• 1:02:36
  Speaker 1: And then they go out.
• 1:02:37
  Speaker 3: So I have now people that clerk for me twenty
• 1:02:40
  Speaker 3: years ago. They're in the you know, the midst of
• 1:02:44
  Speaker 3: their professional career, leaders in the bar, or leaders in academia,
• 1:02:49
  Speaker 3: or leaders in business, and they're real listening boards. We
• 1:02:53
  Speaker 3: have a reunion every year. It's coming up in a
• 1:02:56
  Speaker 3: couple of weeks. Hopefully we'll have a good turnout. We
• 1:02:58
  Speaker 3: usually do and you learn from them all that's going on.
• 1:03:02
  Speaker 3: You know, what's going on in the law firms, and
• 1:03:04
  Speaker 3: the people who are there will let you know what
• 1:03:07
  Speaker 3: are they teaching in law.
• 1:03:08
  Speaker 5: Schools these days?
• 1:03:09
  Speaker 3: And they'll let you know what are you teaching in
• 1:03:10
  Speaker 3: law schools these days? And it's nice to have that pipeline.
• 1:03:14
  Speaker 3: I mean now I have almost one hundred out there
• 1:03:16
  Speaker 3: at different stages, and it keeps you attuned to what's
• 1:03:18
  Speaker 3: going on.
• 1:03:19
  Speaker 5: I mentioned to you earlier today that I have you
• 1:03:22
  Speaker 5: to thank you and Dave Lee Brown, who is the
• 1:03:25
  Speaker 5: president of the Review, to thank for my clerkship. You
• 1:03:28
  Speaker 5: sent me to or suggested that I apply tog Ervin
• 1:03:31
  Speaker 5: Goldberg down in Dallas, Texas, and that was the best
• 1:03:35
  Speaker 5: professional year of my life because, as I said to
• 1:03:38
  Speaker 5: you earlier today, was a wonderful experience kind of being
• 1:03:42
  Speaker 5: a judge, but not having the buck stop with you,
• 1:03:44
  Speaker 5: so the pressure is not there, but the wonderful part
• 1:03:47
  Speaker 5: of the job is and that makes clerking, I think,
• 1:03:52
  Speaker 5: a really unique experience. So let's get to the Our
• 1:03:58
  Speaker 5: time is running out. Let's get to the heart of
• 1:04:01
  Speaker 5: what I want to talk to you about. There's a
• 1:04:02
  Speaker 5: lot of buffalo bills fans here, yeah listen. Uh, and
• 1:04:11
  Speaker 5: and when the playoffs come around, there's a lot of
• 1:04:14
  Speaker 5: calls to go against us. Are you going to be
• 1:04:22
  Speaker 5: around to handle some emergency appeals this season? You know,
• 1:04:27
  Speaker 5: we're getting tired of the same old thing happening to us.
• 1:04:30
  Speaker 5: A year after that hour, Yeah, I.
• 1:04:32
  Speaker 1: Can see that. Yeah, Well, I uh was here long enough.
• 1:04:36
  Speaker 3: I know I had a poster in my my room
• 1:04:39
  Speaker 3: of Jack Kemp and quarter back and and I think
• 1:04:42
  Speaker 3: I think Darryl Monica was there yep too, and uh,
• 1:04:46
  Speaker 3: Pete Gogolak, who was the first soccer style yep kicker,
• 1:04:51
  Speaker 3: even Cookie Gilchrist if I'm remembering that. So that was
• 1:04:54
  Speaker 3: what was posting my Well, but I you know, I
• 1:04:56
  Speaker 3: left when I was ten and we moved to, you know,
• 1:05:00
  Speaker 3: in Indiana. The Chicago was the closest place. So I
• 1:05:03
  Speaker 3: you're a Bears fan, I'm a Bears fan. But but look,
• 1:05:10
  Speaker 3: when I was growing up, it was Dick Butkus, Mike
• 1:05:14
  Speaker 3: Ditka and really if he hadn't blown out his knee,
• 1:05:18
  Speaker 3: the greatest running back in NFL Hillas Gail Sayers and
• 1:05:23
  Speaker 3: we were near. They had different connections with They would
• 1:05:26
  Speaker 3: come and talk at our are the grade school even
• 1:05:29
  Speaker 3: and because we were in in Indiana but on the
• 1:05:32
  Speaker 3: lake and that people liked to go there, and it
• 1:05:35
  Speaker 3: was just.
• 1:05:36
  Speaker 5: Yeah, I say, Gail Sayers, I think was the most
• 1:05:40
  Speaker 5: beautiful runner I've ever seen. He was. He just was
• 1:05:42
  Speaker 5: so graceful and so much fun to watch. And it
• 1:05:46
  Speaker 5: was a shame that he blew out his name.
• 1:05:47
  Speaker 3: Yeah, I have a signed helmet of his, not of his,
• 1:05:49
  Speaker 3: it's a bear's helmet that he signed in my chambers.
• 1:05:53
  Speaker 5: Very cool. Yeah, well, thank you so much for doing this.
• 1:05:57
  Speaker 5: This is an honor for me, and this was a
• 1:06:00
  Speaker 5: very pleasurable hour.
• 1:06:02
  Speaker 1: So well, not at all.
• 1:06:03
  Speaker 3: Thank you for having me, give me the opportunity to
• 1:06:06
  Speaker 3: go back and see my boyhood home and you know,
• 1:06:09
  Speaker 3: we kindle memories of Buffalo.
• 1:06:12
  Speaker 1: I appreciate it.
• 1:06:13
  Speaker 5: We're proud.
• 1:06:13
  Speaker 1: Thank you all for being.
• 1:06:18
  Speaker 5: Thanks so great.
• 1:06:21
  Speaker 4: So you're listening to Chief Justice John Roberts in a
• 1:06:24
  Speaker 4: conversation with federal Judge Joseph Volardo in order to celebrate
• 1:06:29
  Speaker 4: the one hundred and twenty fifth anniversary of the US
• 1:06:31
  Speaker 4: District Court for the Western District of New York. The
• 1:06:34
  Speaker 4: Chief Justice talked a lot about his personal background in
• 1:06:38
  Speaker 4: the law, his clerking and by the way, he said
• 1:06:41
  Speaker 4: he's not thinking of retiring anytime soon. He's going out
• 1:06:45
  Speaker 4: feet first. He emphasized the importance of judicial independence and
• 1:06:50
  Speaker 4: talked about the importance of good writing search petitions. I'm
• 1:06:53
  Speaker 4: joined by Professor Harold Crunch of the Chicago Kent College
• 1:06:57
  Speaker 4: of Law. Hal there was a lot about his personal background,
• 1:07:01
  Speaker 4: not as much about what's been happening at the Supreme Court.
• 1:07:05
  Speaker 4: He was ready for the question about the Court changing precedent,
• 1:07:10
  Speaker 4: and the abortion decision was mentioned. He had the numbers
• 1:07:14
  Speaker 4: saying it was the Roberts Court had the lowest rate
• 1:07:17
  Speaker 4: of overturning cases in the last fifty years, but didn't
• 1:07:22
  Speaker 4: get to the question about the abortion case.
• 1:07:27
  Speaker 2: And I think he's right that sometimes overturning the case
• 1:07:31
  Speaker 2: is in the nation's best interest. And he's also right
• 1:07:35
  Speaker 2: that the percentage of which the Roberts Court has overturned
• 1:07:39
  Speaker 2: cases is probably not out of kilter. But then it's
• 1:07:43
  Speaker 2: up to everybody to decide the merits of the cases.
• 1:07:46
  Speaker 2: And I think the issue is not simply the question
• 1:07:50
  Speaker 2: of precedent and story decisives. It is what people think
• 1:07:53
  Speaker 2: about decisions such as Dobbs.
• 1:07:56
  Speaker 4: Also, what I found interesting is he was asked whether
• 1:08:00
  Speaker 4: you think about, as a justice the consequences, the practical
• 1:08:04
  Speaker 4: consequences of your decision, and for example, if it's a
• 1:08:07
  Speaker 4: Second Amendment case, that more people will possibly get guns,
• 1:08:12
  Speaker 4: and he said, no, you don't think about the practical decisions.
• 1:08:18
  Speaker 2: And I noted that too, And I can't believe what
• 1:08:22
  Speaker 2: he said on this particular point. I mean, give you
• 1:08:24
  Speaker 2: an example. I mean, we talked before the fireside chat
• 1:08:29
  Speaker 2: started that just the most recent decision with respect to
• 1:08:33
  Speaker 2: the discharge of trans people from the military, that very
• 1:08:38
  Speaker 2: decision is about consequences because of the procedural posture of
• 1:08:42
  Speaker 2: the case. You couldn't decide that case without assessing directly
• 1:08:47
  Speaker 2: what the consequences will be. And indeed, the consequences of
• 1:08:50
  Speaker 2: the presidential immunity decision he wrote about directly in terms
• 1:08:55
  Speaker 2: of defending his decision as to this almost absolutelymmunity for presidence,
• 1:09:02
  Speaker 2: and he addressed it, you center, and in the decision itself.
• 1:09:07
  Speaker 2: So I thought that was a little odd. I think
• 1:09:09
  Speaker 2: what he was trying to say is that the justices
• 1:09:14
  Speaker 2: are not politicians. I think that's important to re affirm
• 1:09:18
  Speaker 2: that role, and that the justices shouldn't say we want
• 1:09:22
  Speaker 2: to have this policy for the nation. So I agree
• 1:09:24
  Speaker 2: with them on that point. But I do think it's
• 1:09:26
  Speaker 2: difficult to say that justices can operate or do operate
• 1:09:31
  Speaker 2: without thinking about the consequences.
• 1:09:33
  Speaker 4: And we talked before he spoke about whether he would
• 1:09:36
  Speaker 4: address some of the more controversial things that have been happening,
• 1:09:40
  Speaker 4: and they asked him, I mean, just the judge Blardo
• 1:09:43
  Speaker 4: asked him about the impeachment of judges, the request to
• 1:09:47
  Speaker 4: impeach judges based on their decisions, and he got out
• 1:09:50
  Speaker 4: of that. He got the answer out so quickly it
• 1:09:54
  Speaker 4: was just over before it started.
• 1:09:57
  Speaker 2: Yeah, but he did address it. I mean he said that,
• 1:10:00
  Speaker 2: at least from the Supreme courts perspective, the way to
• 1:10:03
  Speaker 2: deal with adventurous judges who are on the circuit courts
• 1:10:08
  Speaker 2: or the district courts is to appeal or CURCHERAA or
• 1:10:11
  Speaker 2: some other measure or mandamus in order to get that
• 1:10:14
  Speaker 2: kind of correction from justices. And obviously, in our society,
• 1:10:19
  Speaker 2: we believe that impeachment is for high crimes and misdemeanors
• 1:10:22
  Speaker 2: that's in the Constitution, is not because you disagree with
• 1:10:25
  Speaker 2: the decision. So it was a question. He reaffirmed his
• 1:10:28
  Speaker 2: stance about the importance of judicial independence, but certainly the
• 1:10:33
  Speaker 2: fireside check, so.
• 1:10:36
  Speaker 4: How he's emphasized the importance of judicial independence, and that's
• 1:10:41
  Speaker 4: something that we've heard from him over and over throughout
• 1:10:44
  Speaker 4: the years, the importance of judicial independence. It becomes particularly
• 1:10:48
  Speaker 4: important in the age that we're living in.
• 1:10:53
  Speaker 5: Yeah.
• 1:10:53
  Speaker 2: Absolutely, And obviously they didn't want to get it would
• 1:10:56
  Speaker 2: have been inappropriate to get into involved in that sort
• 1:10:59
  Speaker 2: of political tension between the executive branch and the judicial
• 1:11:03
  Speaker 2: branch currently, but he did, and I think he did
• 1:11:06
  Speaker 2: this fucial independence in our society. He said that's one
• 1:11:13
  Speaker 2: of the most cardinal important aspects of features, I should say,
• 1:11:18
  Speaker 2: of our constitution.
• 1:11:20
  Speaker 4: Just a few minutes left here. Do you have anything
• 1:11:23
  Speaker 4: that stood out to you besides what we've discussed.
• 1:11:26
  Speaker 2: Absolutely, I had no idea that the Chief Justice was
• 1:11:29
  Speaker 2: a Bears fan.
• 1:11:33
  Speaker 4: They love to talk about sports in these conversations. Every
• 1:11:36
  Speaker 4: time there's one of these Q and a's, the end
• 1:11:38
  Speaker 4: up talking about sports, and particularly because they're from Buffalo.
• 1:11:42
  Speaker 4: So now we know that he has a Gail Sayers
• 1:11:44
  Speaker 4: signed helmet in his office. That's something that we always
• 1:11:48
  Speaker 4: wanted to know.
• 1:11:50
  Speaker 5: It's been great to go.
• 1:11:52
  Speaker 4: It's been great having you on Hell. Thanks so much
• 1:11:54
  Speaker 4: for taking the hour to talk with us, and I'm
• 1:11:58
  Speaker 4: sure we'll be talking again soon. That's Professor Harold Krent
• 1:12:02
  Speaker 4: of a Chicago Kent College of Law. He's an expert
• 1:12:04
  Speaker 4: on constitutional law. And that's if the edition of the
• 1:12:09
  Speaker 4: Bloomberg Law Show coming up. Next, We're going to hear
• 1:12:12
  Speaker 4: from Bloomberg Wealth with David Rubinstein in our podcast Spotlight
• 1:12:17
  Speaker 4: on Bloomberg Radio. Remember you can always get the latest
• 1:12:20
  Speaker 4: legal news by listening to our Bloomberg Law podcast. You
• 1:12:23
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• 1:12:27
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• 1:12:31
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• 1:12:36
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