-- JAN CRAWFORD GREENBURG: Well, thank you for sitting down with me tonight for this very intimate conversation about your life and the law before 3,000 members of the U family, I guess, we have here tonight.
I thought that we could start by looking back to the summer of 2005. Justice O'Connor had just announced her retirement and the president was getting ready to make his first nomination to the Supreme Court, and you got on a plane and went to London.
CHIEF JUSTICE JOHN CHIEF JUSTICE ROBERTS: Yes. Yeah, I was so confident of my prospects that I decided to leave the country.
CRAWFORD GREENBURG: So you were teaching a class.
CHIEF JUSTICE ROBERTS: I was. I was teaching a class at University College in London and I got a call that I needed to come back. They asked if I could come back for an interview with the president. It turns out I could and Thursday, got on a plane and came back for the interview on Friday. Saturday, flew back to London to pick up my teaching responsibilities and Sunday night got a call that I needed to be on the first plane back Tuesday morning.
CRAWFORD GREENBURG: Now when you left on Saturday, you left DC, no one said, you know, 'don't go,' so did you think then…?
CHIEF JUSTICE ROBERTS: Well, I didn't know how quickly they were going to make their decision. I very much enjoyed the interview with the president, but I didn't leave feeling I was going to have a new job.
CRAWFORD GREENBURG: How long did it last?
CHIEF JUSTICE ROBERTS: The interview? A good bit more than an hour, not two hours, but more than an hour.
CRAWFORD GREENBURG: And did you have a sense of what he was looking for or what kind of qualities he…?
CHIEF JUSTICE ROBERTS: First of all, I very much enjoyed it. It surprised me. He has a wonderful way of putting people at ease. I felt very comfortable talking with him. I was very impressed by the points he was making and the kind of questions he was asking, and I left feeling very upbeat, not so much about my chances, but about the process and the sort of things that the president was interested in.
CRAWFORD GREENBURG: What was an example of a question he asked?
CHIEF JUSTICE ROBERTS: Well, I haven't talked to anybody about what actually happened during the interview and I don't think I should. I think that's a private matter between the president and me.
But from the point of view, I was a judge at the time and a lawyer who practiced a lot before the Supreme Court, and I thought the sort of issues he was raising were exactly the kind of things you'd want someone who had the responsibility of making this appointment to be focusing on.
CRAWFORD GREENBURG: Okay so then you flew back to London on Saturday, then you said you got the phone call the next day?
CHIEF JUSTICE ROBERTS: The next day, that I needed to be on the first flight back Tuesday. So I kind of scrambled. I had to teach the class Monday morning and got up at 3:30 in the morning London time Tuesday to catch the first flight out of Heathrow. Now, I don't know if you all remember, but in 2005 was when they had the very horrible subway bombings in London and where I was teaching was right near there. So it was cordoned off and I was coming back for good. I only had a couple more classes, so I wasn't going to come back.
So I had all my stuff and I'm wandering around the streets of London at 3:30 in the morning trying to get a cab to get back, finally get it, get to Heathrow and go into the terminal, where my plane is, and I'm passing this long line of people and I remember feeling very sorry for them, because they obviously had some difficulty that they were waiting in line and this line snaking around.
And then as I turned right, you know, I noticed the line was turning right, too, and, sure enough, it was my flight that was the problem. All the computers were down, and I got turned around and went back to the end of the line.
CRAWFORD GREENBURG: Were you worried that if you missed your flight, you're not going to be…?
CHIEF JUSTICE ROBERTS: Well, I was sure that things were moving and the White House was a very efficient operation and I'm sure if I wasn't there, they'd just go down the list and take whoever was next.
So I was getting a little nervous. Eventually, they checked everybody on and I had a long flight back, got into…
CRAWFORD GREENBURG: Again, you didn't know.
CHIEF JUSTICE ROBERTS: No. There were no promises that anything was going to happen. It was kind of, you just sort of have to be present to win, but it doesn't mean that you're going to get anything.
CRAWFORD GREENBURG: You knew if you stayed you weren't going to be the nominee.
CHIEF JUSTICE ROBERTS: Right, and I remember we landed and I was going through customs in Dulles and on the Blackberry, I got an urgent message to call the White House right away. And if you've been to Dulles, customs, you know, every 10 feet, they have this big sign saying, "If you use a cell phone, it will be confiscated immediately." So I couldn't do that.
I couldn't very well jump out of the line at customs without attracting a lot of attention. But then I finally got through and I called and they said I needed to be home by 12:30 for a phone call.
CRAWFORD GREENBURG: And what time was it?
CHIEF JUSTICE ROBERTS: It was 11:40 exactly and it takes exactly that long to get from Dulles to my house. So I had just enough time. I remember diving into the first cab, yelling out where I needed to go and the cab driver turning around and saying, "This is my first day on the job. Where is this place, Chevy Chase?"
But I was yelling directions at him the whole time and I got home at 12:30, threw a bunch of money at him that I think were English pounds. And as I walked in the door, the phone was ringing and it was the call from the White House.
CRAWFORD GREENBURG: And the White House, was it the president on the line?
CHIEF JUSTICE ROBERTS: No, it wasn't. It was his counsel, Harriet Miers. And I have to tell you, I'm a nervous enough sort that my first reaction is, well, this isn't good news, because if they were going to offer me the job, it would be the president calling.But then I chatted with her for a little while and then she put me on hold and then the president came on and offered me the job.
CRAWFORD GREENBURG: What did you say?
CHIEF JUSTICE ROBERTS: I said yes.
CRAWFORD GREENBURG: So you went down to the White House, got ready, and then I guess, at some point, it was time to go out and the president was going to introduce you to the nation. How long had you been awake at that point?
CHIEF JUSTICE ROBERTS: Almost 24 hours, you know, 3:30 in London, whatever that translates at, but I was certainly going on adrenaline.
CRAWFORD GREENBURG: So you go out, reporters and cameras everywhere and the president is heaping praise on you and your wife and children are there and your 5-year-old son starts fidgeting…
CHIEF JUSTICE ROBERTS: Well, I'm there standing and the president is announcing the nomination. I'm trying to think what to say in response and I look over and see my wife and two children. Then I look over and see my wife and one child. And it wasn't our fault, to be perfectly honest. It was late, it was past their bedtime.
CRAWFORD GREENBURG: Was it around 9:00?
CHIEF JUSTICE ROBERTS: It was 9:00 and we didn't realize. I kind of thought, when they said, "Please, bring the kids," sure. And it's an important moment, I figured they should be there, but I kind of assumed they'd be off, like way in the back up there or something while it was all going on.
And jus before the announcement, someone told Jane, "All right, go after the kids and stand there right next to the lectern." And Jane immediately said, "Well, that's not a very good idea," but it was boom, boom, boom and they were standing there.People think Jack was dancing. He was not dancing. He was being Spiderman. He was shooting the webs off…
CRAWFORD GREENBURG: But did he think the cameras were there for him? Was he performing?
CHIEF JUSTICE ROBERTS: Yes, you know, there were spotlights and he figured, 'I might as well take advantage of it.' And I remember thinking—well, what I was thinking was what any father and husband would think, which is why isn't Jane doing anything. And later on, on the ride home, she explained, and I think quite correctly, that if she had tried to do anything, there was no telling what Jack would have done and it would have escalated a little bit.
But the cameras were at the president's shoulders and above, so we got through it all right.
CRAWFORD GREENBURG: Could you hear the president or was it distracting?
CHIEF JUSTICE ROBERTS: No. I kind of pretended it wasn't happening and just tried to listen to what was going on.
CRAWFORD GREENBURG: So you got the kids home, got them in bed. Then you spent the next month or six weeks getting ready for your hearings?
CHIEF JUSTICE ROBERTS: Yes.
CRAWFORD GREENBURG: And then the weekend before they were to begin, the chief justice died?
CHIEF JUSTICE ROBERTS: Yes. It was a Saturday night and the hearings—before Labor Day, the hearings were supposed to start Tuesday. So I had actually gone to bed early to get rested up for them and Jane came up and woke me up and told me the sad news.
CRAWFORD GREENBURG: And, of course, you had clerked for Chief Justice Rehnquist when he was associate justice with Dean. When did you get the sense that the president was thinking about you and was planning to nominate you to take your old boss's place?
CHIEF JUSTICE ROBERTS: The next day he called, the president called and asked me to come down to the White House to talk to him then.
CRAWFORD GREENBURG: And you went down that afternoon?
CHIEF JUSTICE ROBERTS: Went down and we talked that afternoon. He didn't make a decision, at least didn't share it with me until the next morning.
CRAWFORD GREENBURG: So that was right before he announced?
CHIEF JUSTICE ROBERTS: Yes, yes.
CRAWFORD GREENBURG: Because he announced it that next morning?
CHIEF JUSTICE ROBERTS: That morning, the morning of Labor Day, yes.
CRAWFORD GREENBURG: And then the next day, you were a pallbearer and you helped carry Rehnquist's casket into the great hall of the Supreme Court?
CHIEF JUSTICE ROBERTS: Yes.
CRAWFORD GREENBURG: How did you process, I mean, if that had been a movie, it would almost be—here you are taking your, almost too much. How did you process all that?
CHIEF JUSTICE ROBERTS: Well, you know, my own situation kind of gets put on the back burner. He was a great man who served his country very well his whole life and it was quite amazing, first, to have the opportunity to bring his casket up into the court for the last time.
I remember thinking, I know several of us did, it really was emblematic of the man. It was a plain pine casket, unvarnished, with the flag over it, of course, and that was, I thought, a very fitting tribute, because he was very straightforward and plain and very much a patriot. So it was very appropriate.
And you could tell, carrying the casket up past the other justices, the other court employees, the other clerks, how much he meant to so many of them and I was just very fortunate to be able to participate in that.
CRAWFORD GREENBURG: Many people have suggested that the chief justice very much looked forward to sitting on the bench with one of his former clerks. If he had lived until after you were confirmed, you two would have been sitting on the bench together. You would have taken Justice O' Connor's seat. Did you ever talk to him about that?
CHIEF JUSTICE ROBERTS: We didn't talk about it, no. I had a very nice note from him, though, referring to that, just saying he was looking forward to sitting with me.CRAWFORD GREENBURG: And what were your feelings about it?
CHIEF JUSTICE ROBERTS: Well, I also was very much looking forward to it. You know, he was such an important person in my life, not only gave me the opportunity to be one of his law clerks, but I had the opportunity to argue in front of him many times.He wasn't always a friendly questioner and I certainly didn't always get his vote, but it gave me a great deal of respect for him from a different perspective, not only seeing him function as a justice, but also being an advocate in front of him was a very different perspective.
CRAWFORD GREENBURG: Do you ever just stop and think I am the chief justice of the United States? Has that sunk in for you?
CHIEF JUSTICE ROBERTS: You know I appreciate that it's a very important responsibility, but it's one of those things I think, if you think about it too much, it can be paralyzing. You have the job to do to try to decide the cases according to the rule of law as best as you can, to work with the other justices toward that end, and you don't want to think about it too much.But it's almost every day that it…
CRAWFORD GREENBURG: Well, it is every day.
CHIEF JUSTICE ROBERTS: … that I leave my office kind of through a side door that takes me past the formal entrance and there's a little brass plaque on the door that says "the chief justice," and I still kind of feel that I have to be a little quiet so I don't disturb him.
CRAWFORD GREENBURG: He's in there working away on cases. So, how's it changed your life? You were a lawyer, then a Federal Appellate Court Judge, do people recognize you?
CHIEF JUSTICE ROBERTS: Yes, every now and then and whenever my wife tells me I have to go out on an errand to pick up bread and milk or whatever, I always tell her, 'well, I can't, I can't get down there I'll get recognized.' But people, by and large, are very supportive and very friendly and I appreciate the good wishes that I get.
CRAWFORD GREENBURG: So do you still watch football?
CHIEF JUSTICE ROBERTS: When I can. You know, we try not to have too much television on. It's hard to tell your kids, 'you can't watch television, it's bad for you,' and then to lie down and watch the football game.
CRAWFORD GREENBURG: But that's the sports exemption, you know you make the exception for sports, and news of course, ABC News.
CHIEF JUSTICE ROBERTS: And news, yes, yes.
CRAWFORD GREENBURG: So you still make your kids' lunch, you take them to school, but you just don't go on errands because now you have a great excuse.
CHIEF JUSTICE ROBERTS: Whenever I can. It is a great thing about having young children, is that they don't really care whether you're the chief justice or whatever, and they do make sure that you have a good perspective on life and what's important.
CRAWFORD GREENBURG: Now, you grew up, you're a small town boy from Indiana and you went up to Harvard for college?
CHIEF JUSTICE ROBERTS: Yes.
CRAWFORD GREENBURG: Was that a difficult transition?
CHIEF JUSTICE ROBERTS: It was a significant one, you know, because I did grow up in a small town and I remember the flight back for Christmas, I think, vacation the first year, was the first time I had flown on an airplane, for example. I remember when it landed being very frightened. It just didn't sound like something a plane ought to be doing. But I've learned that's normal. And it turns your head. It's an impressive place.
CRAWFORD GREENBURG: But it was the '70s, there were protests, upheaval. Did you participate in that?
CHIEF JUSTICE ROBERTS: No, and I remember, to be honest, being a little taken aback. It was kind of the post, just barely the post-Vietnam era and I remember there were some demonstrations, really quite sympathetic to the Viet Kong, and I remember thinking that wasn't right, that whatever the merits of the dispute and whether we should be there or not, I didn't understand celebrations in favor of our enemies.But it was a big campus and there were people of wide variety of views and I think there were some people who felt as I did and there were obviously ones who felt otherwise.
CRAWFORD GREENBURG: Did you feel like you were more conservative? When did you realize you didn't see things eye to eye with the protestors?
CHIEF JUSTICE ROBERTS: Probably when I was there. I mean, it was the first time. Harvard was a lot different than Indiana and I didn't certainly view myself as conservative or really politically conscious or involved in any way, until I went there and kind of reacted against the orthodoxy that was established there.
CRAWFORD GREENBURG: And did you speak out? Did you try to speak out against the protests?
CHIEF JUSTICE ROBERTS: No, no. You know, I was kind of taking a lot of it in. It was all quite a bit new to me and I certainly talked with my classmates about things, but that was the extent of it.
CRAWFORD GREENBURG: So you never felt like the lone voice crying in the wilderness?
CHIEF JUSTICE ROBERTS: No, I wouldn't say that.
CRAWFORD GREENBURG: As a lawyer in Washington, some people have said that you also keep your views pretty close to the vest—that you weren't outspoken in terms of being a conservative or a liberal. Some people weren't quite sure what to make of you when you were first nominated. Is that just your style or was that a deliberate…?
CHIEF JUSTICE ROBERTS: I don't know. I think it's more a function of personality. Certainly, in Washington, there are a lot of people that feel the need to tell you their views on everything the moment they meet you and that's Washington and that's understandable.
But my own view is that there is a lot more to life than politics and people are interesting in different ways and I just don't think it's necessarily the number one item on everybody's agenda.
CRAWFORD GREENBURG: Now, you had argued before the justices.
CHIEF JUSTICE ROBERTS: Yes.
CRAWFORD GREENBURG: Some of them, 39 times. What was it like going straight onto the court as the boss?
CHIEF JUSTICE ROBERTS: Well, first of all, you need to understand that the chief justice is unlike any other boss I've ever had. I have the same vote that everyone else does and we decide things as a collegial body after consultation.
The chief justice really doesn't have a lot of authority of the sort that would cause you to refer to him as a boss.
CRAWFORD GREENBURG: You can't tell Justice Scalia what to do?
CHIEF JUSTICE ROBERTS: You know, I don't think anybody can tell Justice Scalia what to do. No, the only authority I have of any real significance is that I do get to assign the opinions. Now, you can always give all the tax opinions to a justice, if you want to punish them.
CRAWFORD GREENBURG: Have you done that so far?
CHIEF JUSTICE ROBERTS: Not yet. But, you know, it is an important responsibility, because you can exercise some, hopefully, power of persuasion in getting the court to try to function as a court, which I think is very important. But that's a responsibility really that all of the justices have.
I think we're most effective when we operate and function as a court rather than nine separate individuals and I think we all need to do what we can to work toward that end.
CRAWFORD GREENBURG: So when you're assigning an opinion, you're in the majority, and you get to pick a justice, how do you make that decision? What do you factor into that decision?
CHIEF JUSTICE ROBERTS: Actually, it's a very complicated process and it takes place on a Friday afternoon, at the end of our argument session. You want to be fair, first of all. Everybody should get an assignment. You want to be fair in the workload. Some cases are harder than others. You want to make sure that somebody doesn't have two very hard cases in a row but it's balanced out. You have to be fair in the interest level.
You know, we hear 80 cases a year, 10 of which might of interest to your viewers, your readers, the others more mundane. You want to make sure everyone has their fair share of interesting cases and has their fair share of what we call the dogs, the uninteresting cases.
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.
CHIEF JUSTICE ROBERTS: It's been a fascinating education for me. It was obviously the one part of the process that I hadn't observed before as a lawyer or as a clerk, because when we sit at conference, it's just the nine justices. We conference twice a week. We hear arguments Monday, Tuesday and Wednesday.Wednesday afternoon, we'll have a conference about the cases argued on Monday. Friday we'll have a conference about the cases argued Tuesday and Wednesday. We go in order of seniority. So I start, you know, this case is about whatever, I think we should do this for this reason or these reasons.
CRAWFORD GREENBURG: So you actually vote and say this is the way I think the case should come out?
CHIEF JUSTICE ROBERTS: Yes, and it should be reversed or affirmed or vacated, whatever. Then the next senior justice, John Stevens, who's been on the court for more 30 years and has a lot of experience that I don't have, will state his views and either agree or disagree or even if he agrees, may have different reasons.Then we go in order to Justice Scalia, Justice Kennedy, Justice Souter, and so on, until we finish up with Justice Alito. And the junior-most justice, they've always said it's an unusual position, most times, things are pretty much settled and decided by the time you get to the ninth justice and people are kind of moving on to the next case, which is a little disappointing to them.
But there are those times when it's four to four and then people are very much interested in what the junior justice has to say. But you may have heard that the junior justice, since there are only justices in the room, has the responsibility of answering the door if someone knocks with a message or a cup of coffee for somebody.
CRAWFORD GREENBURG: So does he have to go get the coffee?
CHIEF JUSTICE ROBERTS: No, no, but someone will bring it. But there's a knock on the door and he has to get up. And it took him the longest amount of time, because before Justice Alito and I joined the court, the group had been together for 11 years, the longest time in history for a nine member court, and Justice Breyer had been the junior justice that whole time.
The first time there was a knock on the door, when Justice Alito was the junior justice, Justice Breyer popped right up and walks over and it took several conferences before Justice Breyer learned not to answer the door and Justice Alito learned to do it.
CRAWFORD GREENBURG: So when you're in the conference, have you made any changes or are you doing it the same way as your predecessor?
CHIEF JUSTICE ROBERTS: It's hard for me to say, because I obviously wasn't there before and the proceedings in the conference are kept very confidential, other than what I just said.
So it's hard for me to say. The one thing I will say, though, is that, one, I found the conference sessions very edifying, because as I said, not having participated in them before, you never quite know what to expect. But the discussion is one at a very high level.
It's hard work, I have to say, in terms of what's hard about the job, getting ready for the conference has struck me as really the hard part of my work. And second of all, it's done in a very collegial way.
The others have said this and I can confirm, I mean, I've never heard an angry word at the conference, even though we discuss issues that people feel very strongly about and are very sensitive issues, if the discussion is had at the highest level.
CRAWFORD GREENBURG: So what do the other justices call you?
CHIEF JUSTICE ROBERTS: You mean when I'm not in the room?
CRAWFORD GREENBURG: When you're sitting around the table. How do you refer to each other?
CHIEF JUSTICE ROBERTS: Well, we call each other by our first names, except they call me "chief." That's the tradition, and they have from the beginning. I think it's more a tribute to the office.
And it's also convenient, because otherwise there would be two Johns in the group and we'd never know who they were talking about, John Stevens.
CRAWFORD GREENBURG: Do you ever have to tell a justice to be quiet?
CHIEF JUSTICE ROBERTS: We do have a rule. One of the strict rules, which I think is a very important one, is that nobody gets to speak twice until everyone has spoken once. That prevents it from degenerating into squabbling.
And I have had to rule on whether facial expressions count as talking twice. You know, rolling the eyes and stuff like that.
CRAWFORD GREENBURG: And what did you decide?
CHIEF JUSTICE ROBERTS: Yes, we need to keep those to a minimum.
But, no, some cases are easier than others and, in some cases, things move pretty quickly. I think we should do this for this reason and others agree and then others are more involved and it's not at all unusual for someone who's speaking fifth or sixth to say, 'You know, I have a different view of this. I think we ought to look at it from this perspective and decide it on this basis,' and then sometimes we'll have to go around again, because you want to give other people a chance to react to that.
But it's hard. Anytime you get nine people together, whether it's at a party or it's in the conference room of the Supreme Court, you do have to maintain some order, or it does kind of degenerate into squabbling pretty quickly.
CRAWFORD GREENBURG: And it's not like they're that opinionated or anything…CHIEF JUSTICE ROBERTS: People have strong views, but remember we're lawyers and as Holmes once said, 'Certitude is not the test of certainty.' It's not how strongly you feel about it, but how effective you can be in explaining the reasoning and getting others to understand the reasoning and if they disagree, they don't just disagree and say, 'Well, I don't agree with that,' they try to explain why and it's a very important part of the process.
People wonder, 'When do you make up your mind?' Well, we don't make up our minds until the opinion is released. The briefs are an important part of it. You can read the briefs and you look at it one way and then you see the other side's brief and you think, 'Oh, that's a little different.'
The argument's a very important part of it. We don't make up our minds before argument, so we learn a lot there. It's also the first time we learn what the other justices are thinking. We don't talk about the cases much, if at all, beforehand.So you suddenly learn at argument, 'Oh, Justice Ginsburg thinks that jurisdictional issue is important, I should look at that again,' and you're going to hear from the lawyers and they may point out particular things.
And when you go to conference, you learn more and you learn, for example, a justice who was asking a lot of questions on a particular point may have come to the view that, 'Well, it doesn't really matter after all and I have a different view,' and that goes into it.
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.
So it's a very important part of the process to get the feedback. Some of it's oral, some times you walk down the hall to try to say, and you get a memo from someone and you don't quite understand it. You certainly will walk down the hall and say, 'I don't quite get it. What are you trying to say here or what am I missing?'
Other times, you pick up the phone. So there's a lot of exchanging that goes on.
CRAWFORD GREENBURG: Some of your colleagues have suggested that you've loosened things up a bit. There's more discussion in conference, even on the bench you don't cut the lawyers off as quickly as your predecessor did. How do you see yourself as different than Chief Justice Rehnquist?
CHIEF JUSTICE ROBERTS: Well, I don't know if that's true or not that it's looser in that respect. I hope I have a little bit of sympathy for the lawyers arguing in front of the court, since it wasn't too long ago that I was trying to make a living doing that, and it's very difficult.
The arguments are quite—anyone who hasn't been to an argument really should. It's a good show and it's very tough on the lawyers, because you get a lot of questions and they're all on different subjects. Just because justice so-and-so is focused on the jurisdictional issue doesn't mean the next question isn't going to be from a different justice on an entirely different question, and the lawyer's got to be able to respond effectively to all of that.
And, you know, it's no secret we're communicating with each other through the lawyers. It's quite common for a lawyer to get a question and before the lawyer can answer, another justice to pop in, "Well, isn't the answer to that this."
CRAWFORD GREENBURG: Justice Scalia does that. And Justice Souter does it.
CHIEF JUSTICE ROBERTS: Well, they all do and the other justice will say, "Well, if you answer that, then you'd have to say, well, what's the answer to this." And before the lawyer can say, the other justice will pop in again.
You know, you feel like you're at Wimbledon or something, just watching the back and forth. But it's an exciting exchange, but we do get a lot out of it, particularly if the lawyers are good and I think we're very fortunate these days. We have a very good Supreme Court bar that, by and large, is quite helpful in moving us along in the decisional process.
CRAWFORD GREENBURG: So how are you different than Chief Justice Rehnquist? How do you think you'll be different as a justice and as chief?
CHIEF JUSTICE ROBERTS: You know it's hard for me to say, primarily because I can't look ahead and see what I will be like. It's a continual educational process. I hope I will be a better chief justice my second year than I was my first year.You learn things. You learn that certain approaches might work and might not work and I'll hopefully get better at it as I go on. So it's hard for me to tell. And I think Chief Justice Rehnquist changed, as well. Certainly, he was doing things differently toward the end of his time on the court than he was before.
CRAWFORD GREENBURG: What's an example?
CHIEF JUSTICE ROBERTS: Well, he moved from being an associate justice to the chief justice and I think, as a chief justice, he appreciated that he had some responsibilities to try to deal with the court as a court, a responsibility that he might not have felt as directly when he was an associate justice.I think that comes with the territory.
CRAWFORD GREENBURG: So do you think you would have been different as a justice if you had been taking Justice O'Connor's place in terms of the way you would right your opinions?
CHIEF JUSTICE ROBERTS: You know your view of the law doesn't change no matter what position you're occupying on the bench. But I do think it's natural for someone who's a chief justice to feel a certain responsibility for making sure the court functions well as a court, bring as many justices on board a particular opinion and decision as possible, try to make sure the court speaks with as much a single voice as it can, and to make sure that everybody's participating as fully as possible in the collegial process.
I think it's just natural that a chief justice would feel that responsibility.
CRAWFORD GREENBURG: Alright. The chief justice. He did have those stripes on his robe. He had gold bars on his robe. You didn't, you're different that way.
CHIEF JUSTICE ROBERTS: Yes, with different sartorial tastes I guess. I decided early on that you have to earn the stripes. So I left them off.
CRAWFORD GREENBURG: Now that was because of opera, right?
CHIEF JUSTICE ROBERTS: Well, he says he went and saw a Gilbert and Sullivan performance, where the Lord Chancellor was there and had the stripes and I've heard different stories. As I understand it, his idea is this would be a good thing for all of the justices to put these stripes on their robes and he proposed it and, of course, as you might expect, the other eight were horrified.
And Justice Rehnquist could be a stubborn man and I think he liked them and he was going to keep them on no matter what the other eight did, and so he kept them on.
CRAWFORD GREENBURG: Do you like opera?
CHIEF JUSTICE ROBERTS: I go to the opera. It's mostly my wife that's a bigger fan, I'd say, than I am. I like the big opera. I want a lot of people on stage, elephants and marching stuff, and the modern stuff I don't care for.
CRAWFORD GREENBURG: So what kind of music do you like? Do you have an I-pod?
CHIEF JUSTICE ROBERTS: No, no. I'm not as technologically adept as you might think. Some of the other justices are much more sophisticated with the electronics than I am.
CRAWFORD GREENBURG: But you use a computer.
CHIEF JUSTICE ROBERTS: Yes, yes, I do.
CRAWFORD GREENBURG: You write your opinions on a computer.
CHIEF JUSTICE ROBERTS: No, I don't, no.
CRAWFORD GREENBURG: By hand?
CHIEF JUSTICE ROBERTS: By hand, yes.
CRAWFORD GREENBURG: All of your drafts.
CHIEF JUSTICE ROBERTS: Yes, all by hand. I don't type on the computer or edit. Law students who went to law school really just a couple years after I did were brought up all on the computers and that's how they do it, but I was still part of the older school.
CRAWFORD GREENBURG: How do you do the footnotes?
CHIEF JUSTICE ROBERTS: You just say it goes in the footnotes and circle it.
CRAWFORD GREENBURG: Thinking about after you finished clerking for the chief justice, you went and worked in the Reagan Administration and then you worked in the HW Bush Administration.
CHIEF JUSTICE ROBERTS: Right.
CRAWFORD GREENBURG: And as part of that you actually interviewed judges or perspectives. What kind of qualities were you looking for? What questions did you ask?
CHIEF JUSTICE ROBERTS: There were a bunch of us. As part of the judicial selection process, a bunch of people would interview candidates for judgeships and we'd ask different things.
I always tried to ask a question, a trick question of some kind, where they would think the answer you wanted, the more politically appealing answer, from your point of view, was one thing, but the answer that the law required was something else, and, of course, I always wanted to make sure that these were people who would give the answer that the law required and not perhaps the more politically appealing answer.So you'd try to find different questions that would bring that out. You'd ask other simple questions, like who their favorite justice was. That's a common question. There are no right answers, but you want to try to see if this is someone who understands the differences and perspectives of different justices and if they have a favorite, they have a good reason for it and can defend it.
CRAWFORD GREENBURG: Now do you remember interviewing Sam Alito?
CHIEF JUSTICE ROBERTS: I do, I do, yes, when he was up for the Court of Appeals in Philadelphia.
CRAWFORD GREENBURG: Do you remember who he said his favorite justice was?
CHIEF JUSTICE ROBERTS: He said it was Justice Rehnquist, which was a good answer, for me. But, you know, he also had good reasons for that, as well.
CRAWFORD GREENBURG: And what would you say if someone asked you that question?
CHIEF JUSTICE ROBERTS: You know, they did ask me that question a little over a year ago during the hearings and I find it hard to pick one justice. There are different attributes of different justices that I admire.
I wish I could write as well as Justice Jackson writes. I wish I had as a prodigious an intellect as someone like Frankfurter or Holmes. I wish I was as good at bringing people together as both Justice Brennan and Justice Rehnquist were.But pulling all those different things together in one package is a lot to ask and I certainly don't think I can do that, but there are a lot of models to emulate in those different areas.
CRAWFORD GREENBURG: Now during your hearings, you said that you didn't think courts should solve all of society's problems, that they should have a more restrained view. Why not? You've got these smart people, you're up there on the bench and some of these are really hard questions.
CHIEF JUSTICE ROBERTS: Well, you know, it gets back to something I mentioned earlier about last week when we voted. Think back to the framers who drafted the Constitution. These were people who literally risked everything to gain the right to govern themselves, certainly risked all their material well-being and risked their lives in the struggle for independence.
And the thought that the first thing they would do when they got around to drafting a Constitution would be to say, 'Let's take all the hard issues in our society and let's turn them over to nine unelected people who aren't politically accountable and let them decide,' that would have been the farthest thing from their mind.
I have enormous respect for the authority carried by the people across the street in Congress. Hundreds of thousands of people, millions of people have voted for them and put their confidence in their judgment.
Not a single person has voted for me and if we don't like what the people in Congress do, we can get rid of them, and if you don't like what I do, it's kind of too bad. And that is, to me, an important constraint. It means that I'm not there to make a judgment based on my personal policy preferences or my political preferences.
The only reason I'm protected from those political pressures is because I'm supposed to make a decision based on the law. And so I don't think it would be a good idea to turn all the hard issues over to the courts. Those hard issues belong in Congress, they belong in the Executive Branch.
The courts have the responsibility to make sure both of those branches abide by the legal limits in the Constitution, but that's it.
CRAWFORD GREENBURG: When do you think the court has gone too far?
CHIEF JUSTICE ROBERTS: Well, I think it has. There are examples certainly throughout our history. Perhaps one of the smarter people to sit on the Supreme Court, Chief Justice Taney decided he knew the answer and he was going to solve this troubling slavery question and you get the Dred Scott decision, one of the great disasters in American history.
That's a good example of where the court thought it was the one that was charged with the responsibility of deciding these important issues and it was going to contribute to the resolution of that controversy. It led to nothing but grief.
I think there are other examples where the court's gone beyond deciding the issue according to law and intruded into the political sphere and it's caused all sorts of trouble.
CRAWFORD GREENBURG: What about something more recent that 150 years?
CHIEF JUSTICE ROBERTS: Well, you know, I'm more comfortable talking about bad decisions a 150 years ago than more recently, just because they could come up.
CRAWFORD GREENBURG: Do you think that, in your remarks you were talking about the least dangerous branch, do you think that the Supreme Court still is the least dangerous branch?
CHIEF JUSTICE ROBERTS: Well, it certainly occupies a role in American life far beyond what it did at the time of the founding. I mean, just think how often people say reflexively, whenever there's an important social issue or political controversy, 'Well, the Supreme Court's going to decide that' or 'We're going to take it all the way up to the Supreme Court.'
The first reaction of people ought to be, 'I'm going to call my Congressperson about that' or 'I'm going to talk to my Senator or my governor or representative or somebody in the Executive Branch.'
The great gift of the founding generation was the right of self-government. We shouldn't give it up so easily to think that all the important issues are going to be decided by the Supreme Court.
CRAWFORD GREENBURG: President Bush said that he wanted to nominate judges in the mold of Justice Thomas and Justice Scalia. Do you think that he succeeded?
CHIEF JUSTICE ROBERTS: You know, I have a great deal of admiration for both Justice Scalia and Justice Thomas and that admiration and respect has only deepened over the past year I've had the opportunity to sit with them.
But all of the justices are their own people and we're individual justices and we don't like to be thought of as being like each other. I know it's convenient for those of you in the media to sort of group us together and talk about it that way, but that's not how we decide cases.
We don't sit in little clumps as one group or another group. We sit…
CRAWFORD GREENBURG: You don't have the leftwing and the rightwing and the center?
CHIEF JUSTICE ROBERTS: No, we don't.
CRAWFORD GREENBURG: And how do you get to be that swing justice anyway?
CHIEF JUSTICE ROBERTS: Well, you know, in different cases, different justices can occupy the position of deciding between the majority and the minority. It is not an accurate depiction of how we go about our work. I appreciate it might be easy shorthand for people to try to understand how the results look, but we approach them as individuals.
We operate as a collegial court. We try to get as much benefit from the wisdom that everybody has to offer as we can.
CRAWFORD GREENBURG: Which Justice would you say most closely resembles your views in terms of the constitution?
CHIEF JUSTICE ROBERTS: I will not pick out any one, because there are some that have a similar view in some areas and others in other areas. Not everybody has the same view of the First Amendment, which I know is of very great importance to those of you in the media, as they have of the Seventh Amendment, which is the right to a jury trial, as they have in the due process clause.
Each of the justices has a different perspective. What's important, I think, is to try to bring people together as much as possible to present a uniform view of the court, but everybody has a different perspective to offer and I don't think we're like anyone across the board.
CRAWFORD GREENBURG: Now we've got a few questions from students as president Shalala said, so I'm going to read you a few.
Patty Garvito, who's a junior from Miami asked 'What was your favorite and least favorite class in college?
CHIEF JUSTICE ROBERTS: You know I was a history major. I loved the history classes. The course I took in modern English history was my favorite. I had to take a science course to satisfy that and that was, fortunately, a physics course that was called physics for poets, which was a little lighter. But it was still my least favorite.
CRAWFORD GREENBURG: When did you decide on a career in law?
CHIEF JUSTICE ROBERTS: Not until I was in law school.
CRAWFORD GREENBURG: Let me rephrase that question.. Why did you go to law school?
CHIEF JUSTICE ROBERTS: I enjoyed history very much and I would have liked to have been a history teacher, but there weren't any jobs and so I thought I should go to law school and maybe even teach legal history. But I found I enjoyed the first year of law school very much.
It had a sharpness to it, a discipline that had been missing from the more academic pursuits as a history major in college that I really enjoyed, and so I gave up the history then and focused on the law.
CRAWFORD GREENBURG: Quite a few students asked because they have aspirations of being a Supreme Court justice themselves some day, when did you first start thinking, 'I'd like to be a judge or justice?'
CHIEF JUSTICE ROBERTS: You know, when I was a lawyer, arguing in front of the court for many years, you begin to think about what it must be like on the other side. You spend your career trying to focus arguments, develop reasoning to appeal to people on the bench, and, you know, when I had done that for many years, I began to think, "Well, it might be nice to have the opportunity to do that."
The one thing I would say, when you look, certainly, at the Supreme Court and other benches around the country, judges come to the court from a wide variety of backgrounds. It's one of the real pluses of the Supreme Court.
We have people who spent a lot of time practicing law before they got the court, people who had an academic career teaching law, people who had a career in state government, people who ran an agency, like Justice Thomas, people who had more of a career in business had been on the court, like Justice Powell, and those different backgrounds, it's enormously helpful when we get to the point of having to make a decision.
CRAWFORD GREENBURG: Alright I've got another question from Stephanie Kaplan who's a first year law student from Miami and she say's 'with only one female on the bench now, Justice Ginsburg, what do you say to women who fear their rights could be diminished by a male?'
CHIEF JUSTICE ROBERTS: Well, you remember we had the debate, maybe people don't, about nuclear proliferation with the Soviet Union and there was always a debate about how many missiles the United States had and how many missiles the Soviet Union had, and there was a concept of throw weight, which is it's not the numbers, it's the force that's involved, and Justice Ginsburg certainly carries a lot of throw weight on the court.
I think diversity on the court is an important feature. As I was just saying, I think we have a very diverse bench in terms of the backgrounds of the people. I'm sure in the future there will be more women on the bench than just one.
CRAWFORD GREENBURG: Well, I think we probably have time for one more question, so I'm going to follow up on something that Dean was talking about earlier. Were you really a great football player?
CHIEF JUSTICE ROBERTS: I was very small, I was very slow. But there were exactly 25 males in my high school senior class. So if there had been 26, I probably wouldn't have made the football team. But with 25, I was able to make it.
CRAWFORD GREENBURG: Thank you so much. And thank you all for coming.
CHIEF JUSTICE ROBERTS: Thank you.