And, also, more significantly, you do have to take into account what the basis is. I think it's important to have as many people supporting a decision of the court as possible. So if you had one justice articulating a basis for a decision at conference, when we talk about it, that you think eight people will agree with, and you have another justice that comes out the same way, but only five people are going to agree with that approach, I want to make sure to assign that to the former justice to try to get as many people as possible to sign onto that opinion. All of those factors enter into it.
CRAWFORD GREENBURG: Does that mean that some justices might get assignments, you know, some justices tend to think more boldly in terms of the law and pushing the law…?
CHIEF JUSTICE ROBERTS: Well, you know, if you're going up a list of what virtues are important when you're deciding a Supreme Court opinion, issuing an opinion, deciding a case, I have to say that I think boldness is going to be closer to the bottom and not the top.
The more justices that can agree on a particular decision, the more likely it is to be decided on a narrow basis, and I think that's a good thing when you're talking about the development of the law, that you proceed as cautiously as possible. Yes, I'm sure there are occasions when a bold decision is appropriate, but boldness is really kind of a virtue that you look for in the other branches and not in the Judicial Branch, I think.
CRAWFORD GREENBURG: So does that mean Justice Scalia will be getting the tax cases?
CHIEF JUSTICE ROBERTS: No, and I wouldn't identify, across the board, some justices as being bolder as a matter of course than others. It really is a case-by-case consideration and in some areas, I think, again, the more cautious approach, the narrower approach, the approach that can get as many justices as possible to sign on to it is the preferred one.
CRAWFORD GREENBURG: And why is that?
CHIEF JUSTICE ROBERTS: Well, for example, I was a lower court judge for a couple of years. It's a lot easier to follow a nine to nothing Supreme Court opinion than it is to figure out what the court means when there are three justices in the plurality and two in the concurrence and one that's concurring in part and dissenting in part and three others doing...
It provides better guidance to the lower courts. I was a practicing lawyer for a longer time. It provides better guidance to lawyers. If you're sitting down with clients and trying to tell them what the law is, you have a lot more confidence if you've got a decision from the Supreme Court that's nine to nothing or eight to one than you do if you have to try to read the tea leaves and figure out what a majority really meant. It also contributes, I think, to stability in the law. A nine to nothing, eight to one decision is much less likely to be subject to reconsideration later on and I think that's important, too.
CRAWFORD GREENBURG: Let's back up just a minute. Because before you assign the opinions, you sit around a table in a conference room and discuss them. Tell us about that.