Interview With Chief Justice Roberts

And then the writing of the opinion, I mean, we don't decide it finally until the opinion comes out. It's really quite wrong to view it as we decide it, then we write an opinion to explain what we've decided.

The opinion writing is very much a part of it and as a court of appeals judge and on the Supreme Court, there's been instances where you may have thought strongly this way and you try to write the opinion and, as judges say, it just doesn't write and it doesn't write because it's not right, and you circulate a memo saying, 'I know I was assigned the opinion that come out this way, but I think we ought to come out the other way and here is why,' and decisions get changed and that's the way it's supposed to be.

CRAWFORD GREENBURG: Does that happen often, though? Once the opinion author may change his mind, has that happened since you've been…?

ROBERTS: Not often, I wouldn't say, but it's certainly not unusual and it's not unusual in most judges' experience. We talk to other judges on the courts of appeals. I mean, it is the one thing that makes the work of our branch of government different. We have an obligation to give a reasoned explanation for what we do.

In many ways, people talk about how secret our branch is. You know, nobody else is in the conference room; nobody participates in the internal deliberations. In many ways, we're the most transparent of all the branches.

Legislators can vote for whatever reasons they have. People in the Executive Branch take action for a wide variety of reasons. We have to spell out in our opinions exactly why we're doing what we're doing and you can look at it and criticize it. Everybody else can look at it and criticize it and understand it, and it's an important constraint on our authority.

CRAWFORD GREENBURG: After you've had your conference and you've got a sense of where the other justices are, do you call them on the phone or walk down the hall? Do you guys talk back and forth, lobby for votes? Or is it all in the writing?

CHIEF JUSTICE ROBERTS: Lobby for votes is not how I would put it, because, again, we don't have much to lobby with, right? I mean, it's not as if, you know, vote this way in this case and I'll vote your way in another case.

That's unlike, again, the other branches and that's perfectly fine and healthy elsewhere. But, again, it varies and it varies from individual to individual. In some cases, if you feel a particular explanation wasn't adequately conveyed in conference, you might sit down with somebody and say, "I want to explain why I think this" or somebody might come back to you and say, "Look, you made this point and here's why I think that's not quite right."

Some people are more comfortable doing that in writing, as drafts of the opinion are circulating and we do that a lot, countless drafts, and the opinion comes in and page after page of comments, change this, change that.

But, again it is an important part of the process and if you've got seven votes of people who agree with you, you may look at the pages of suggestions from the ninth justice a little differently than if you've got three people who agree with you and you need a fifth vote to make a court.

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