The 2018 Stein Lecture: John G. Roberts, Jr., Chief Justice of the United States

ladies and gentlemen please welcome University of Minnesota President Eric Kaler thank you and good afternoon everyone and welcome to the University of Minnesota what a special honor it is to have the Chief Justice of the United States John G Roberts jr. with us today and it's our privilege also to be joined by Vice President Walter Mondale that is always a Minnesota applause maligne thank you and members of our Board of Regents including Dave chair chair David McMillan Regents Anderson besom Cohen Shu Johnson Omari and Rocha thank you for joining us today and thank you very much to professor and former Dean Robert Stein for generously endowed this annual lecture series this lecture series is a very special asset for our University of Minnesota students our law school programs and our broader campus community because it enables us to hear from distinguished leaders of the bench and the bar mr. Chief Justice we are grateful to have you here today and hear your thoughts on behalf of the entire University of Minnesota community I thank you for visiting us and I welcome you and it's now my pleasure to introduce the distinguished leader of our University of Minnesota law school dean Gary Jenkins good afternoon and thank you president Kaler well what a turnout it is my enormous pleasure and privilege to welcome you all to this great conversation between our own professor Robert Stein and our distinguished guests Chief Justice of the Supreme Court John G Roberts jr. before I introduce our guest a few housekeeping notes first if you have a mobile phone with you which surely you don't because you know that you weren't supposed to but if you do please make sure that it's turned off and put away and that really means no tweeting no texting until you're done this is think of this as a moment to bring your whole self to the event second please note that this session is being recorded it will be rebroadcast and is open to the media for this lecture the law school is following rules of courtroom decorum accordingly disruptive activities are not permitted during presentations as we begin our lecture I hope everyone inside the auditorium will be mindful that while we of course on our free speech and understand and endorse the right of students and other community members to make their voices heard on issues of public concern it should be done in a way that does not interfere with the rights of other students to benefit from educational opportunities and of course exposing our students to the insights of key government officials and policy makers as an essential part of our core academic mission here at the law school as President Kaler mentioned the stein lecture series which brings prominent jurists to the university was established and funded by Bob and Sandy Stein while I introduce Bob more fully in a moment we are pleased to have sandy as well as other members of the stein family here with us today and I want to thank Bob and Sandy as a couple for their vision and generous [Applause] so let me tell you a bit about our interlocutor Bob Stein is the Everett Fraser professor of law he has been affiliated with this law school for sixty years he first walked through our doors as a first-year law student 60 years ago this fall he graduated in the class of 1961 at the top of his class joined the faculty fifty-four years ago and has become a nationally recognized teacher and scholar with a focus on trusts and estates and the rule of law he has served as vice president of the university Dean of the law school for fifteen years an executive director of the American Bar Association for twelve years and he is a distinguished commissioner from Minnesota to the uniform law Commission Bob embodies the law schools core values of scholarly excellence leadership and making a difference to the state and the nation today he'll be engaged in conversation with someone who I doubt needs much of a formal introduction of course I'm talking about the leader of our third branch of government and someone who for all intents and purposes serves as the lead representative of the legal establishment like all leaders the Chief Justice faces a variety of challenges and changes in fact many commentators and scholars have noted that we are living in a time when American political and democratic institutions are undergoing stress testing like never before survey data reveals that American attitudes about as well as our trust and confidence in our Congress the presidency the press and even the court are worrisome levels yet the US Constitution envisions a judiciary as a guard against the transitory will of the people and if the words liberty or equality or fairness or justice are to have any meeting an independent judiciary is essential in order for the checks and balances of our tripartite system to be effective an independent judiciary is essential and the Chiefs immediate predecessor and a mentor described judicial independence as one of the crown jewels of our Republic but judicial independence isn't assured it doesn't come about by itself it is nurtured and protected by people particularly lawyers and jurists who make indispensable contributions to law and justice it needs to borrow a phrase defenders of the faith in the in the judiciary and Chief Justice Roberts is our lead Statesman in that fight and our bulwark our nation's 17th Chief Justice a product of the Midwest Indiana bred a graduate of Harvard College and Harvard Law himself a former law clerk for a chief justice a former government lawyer a renowned Supreme Court advocate and private practice and a former federal appeals court judge he understands not only the strength but also the fragility of judicial independence and the court better than anyone lawyers have been leaders in the United States dominating Congress our nation state houses lawyers run many of our great civic and nonprofit organizations historically we've even been an important force in the corporate boardroom but first and foremost we lead through the courts and the judicial system and I know we all look forward to hearing the thoughts of our leader of the US Supreme Court so thank you mr. Chief Justice for honoring us with your visit and please join me once again and welcoming Chief Justice John Roberts thank you thank you very much I appreciate that thank you thank you very much thank you before I sit down with professor Stein for the main event I thought I would spend a moment or two touching upon the contentious events in Washington of recent weeks I will not criticize the political branches we do that often enough in our opinions but what I would like to do briefly is emphasize how the judicial branch is how it must be very different I have great respect for our public officials after all they speak for the people and that commands a certain degree of humility from those in the US in the judicial branch who do not we do not speak for the people but we speak for the Constitution our role is very clear we are to interpret the Constitution and laws of the United States and ensure that the political branches act within them that job obviously requires independence from the political branches the story of the Supreme Court would be very different without that sort of independence without independence there is no brown versus board of education without independence there is no West Virginia versus Barnette where the court held that the government could not compel schoolchildren to salute the flag and without independence there is no steel seizure case where the court held the President Truman was subject to the Constitution even in a time of war now the court has from time to time aired and erred greatly but when it has it has been because the court yielded to political pressure as in the Korematsu case shamefully upholding the internment during during World War two of Japanese American citizens those of us on the court know that the best way to do our job is to work together in a collegial way now I'm not talking about mere civility although that helps I am instead talking about a shared commitment to a genuine exchange of ideas and views through each step of the decision process we need to know at each step that we are in this together there is a concrete expression of that collegiality in a tradition at the court that has prevailed for over a century before we go on to the bench to hear argument in the case and before we go into the conference room to discuss a case we pause for a moment and shake each other's hand it's a small thing perhaps but is it is a repeated reminder that as our newest colleague put it we do not sit on opposite sides of an aisle we do not caucus in separate rooms we do not serve one party or one interest we serve one nation and I want to assure all of you that we will continue to do that to the best of our abilities whether times are calm or contentious thanks very much thank you well let me welcome you to the University of Minnesota law school thank you for being here she lighted his Roberts thank you I'm glad we have good weather for you today I think you told me the last time you were in Minnesota it was January it was in January to argue a case in the Court of Appeals I came in on Sunday and I had never been to the Court of Appeals here before and I always like to go you know visit the venue before the day of argument we were staying I think in the st. Paul hotel her so anyway the courthouse was very close so I figured I'd just go take a look maybe five blocks after about two blocks I turned back and said hey I'm sure I'm sure I'll find it in the morning well my wife lived shortly after law school worked here as she puts it for three winters well we're delighted you're here and that we have a wonderful sunny day to welcome ank you while you're here and to all of you students attorneys and friends totally filling this 2700 seat auditorium thank you all for being here as well and welcome this is the format we're going to follow this afternoon the Chief Justice and I will have a conversation until about five o'clock and following my questions there will be an opportunity for you to ask Chief Justice Roberts questions microphones have been placed on both sides of the main floor of the auditorium for you to ask your questions of the Chief Justice please remain in your seats during my conversation with the Chief Justice so mr. Chief Justice let it begin our conversation with this question your position Chief Justice of the United States is position recognized in the Constitution and the Associate Justice positions have been created by statute indeed the size of the court has changed during time from the original six all the way up to ten during the Lincoln administration and it's been at nine for the last 150 years how is your position as chief justice different the other eight associate positions well the most important difference is that I get ten thousand extra dollars yes it started the important stuff it in many ways it's different in the in the most important it's not I have one vote I participate in the decision-making of the court like any of the associate justices I have other responsibilities some of which are absolutely fascinating I am something called the Chancellor of the Smithsonian which means I preside at their board of regents meetings and it's absolutely fascinating because I'm not expected to know anything about what they're talking about but you get to participate I am the chairman of the Judicial Conference that is the body that establishes rules and regulations and policies for the lower federal courts and that takes a good amount of time to it's those are the most important do you speak first in your conferences after a case I do I do so I have some responsibilities to you know lay out the case and then and and I control the not control I monitor the discussion I insist that nobody speaks twice till everyone's spoken once I try if there's a you know extended discussion to make sure both sides have a chance to sort of fully air their their agreements or disagreements one of the powers you have as chief justice is to assign the writing of the opinion if you're in the majority in a case what considerations influence you which justice should receive the assignment well there are several and I should say I enjoy that part of the process very much it's it's it's like a riddle or a puzzle to try to get everything to fit together the first thing is a Jewess jurisprudential consideration for example you could have eight people voting to affirm but for a variety of different reasons I need to make sure that the assignment goes to somebody who commands the most votes even though they're they're voting in favor of the same result getting the work done is an important consideration if it's April and one of my colleagues has three opinions that haven't circulated yet I'll be reluctant to give that colleague a new opinion I'll give it to somebody else who's more likely to get it done on time I'd like to make sure they have a mix of easy opinions and hard opinions unanimous opinions and closely divided opinions big opinions in terms of things that are interesting more broadly and what we call the dogs that aren't I like to make sure there's a mix in subject matter I don't want at the end of the year to look and see that justice so and so has done only criminal law opinions that's that's not a good outcome and I even try to make sure that there's not a steady repetition of people being on the opposite side of opinions they're writing so if two people have had you know it's sort of what we put passes for a knock-down-drag-out and at the court I'll try to make sure they have joined each other's respective opinions in the next assignments and it's it's like one of those I don't know if they're popular anymore Rubik's cubes that as soon as you get things lined up on one axis okay there everybody has the right mix of unanimous and and divided cases you turn around and find out well but that leaves so-and-so with nothing but business cases so you want to switch that and it's a nice puzzle and I feel good when it gets pulled together correctly did the justices Lobby you and say gee I like that case they don't and it's it's something I appreciate very much I think they understand that there are a lot of factors that go into it and that it wouldn't be very helpful for them to suggest that they'd like one case or another and I also think they appreciate that I would regard that as a bad thing if they were to ask for a decision so they wouldn't like to get it you made some remarks at the Fourth Circuit Court of Appeals conference earlier this summer and said quote I feel some obligation to be something of an honest broker among my colleagues and won't necessarily go out of my way to pick fights you would sort of sublimate your views can you explain what you were sure sure it's well if you just think of it in the conference room we're all around a nice table and there's we're having a healthy debate about a case someone has to kind of moderate it and I will although I'll have views probably one way or the other sort of not jump in right away because then people would think you know try to be fair in terms of you can talk now and then you and you and if I were jumping in on one side or another that would be a pretty hard role to fulfill so you know I'm going to have an opportunity to express my views and I will but at least initially I kind of like to make sure the views get fully aired and and you know it's hard to do if you're one of the ones talking yeah the courts at for the first time this term just over two weeks ago on the first Monday in October and this year there were eight justices on the court when you first sat and that was also true a couple of years ago when Justice Scalia died and before justice course each was appointed what if any are the differences when the court sits with eight justices as opposed to nine well it's all excuse me it's a lot harder very few courts have an even number of Justices for obvious reasons and in the federal system if it's a tied vote really nothing gets done the decision stays as it was its affirmed by an equally divided Court but there's no opinion there's no guidance it's a real waste of time for everybody so even when our initial vote is four to four we try to find ways to do something that moves the case along in other words it may not be a decision on the issue that we'd hope to decide but if there's some area in which we can come to agreement you know sometimes perhaps perhaps an insignificant issue but one that has to be resolved we'll do that just so the the case continues rather than being sent back without any residents resolution at all now the court is now back to nine justices as a result of justice Kavanagh as confirmation as new member of the court succeeding Justice Kennedy can you describe how the court changes every time there's a new member that joins the court the first thing that happens I think is that the eight who were there before behave themselves better it really it is like having a new in-law and Thanksgiving dinner you know Uncle Fred will put on a clean shirt the sort of thing but and there was certainly evidence this past Monday the number of people commented to me that the oral argument was very well conducted usually people are jumping on each other's questions but nobody was doing that but it also I think causes the rest of us to sort of take a harder look at some things that we might have taken for granted you know for 13 years I've been explaining my view of a particular clause to my colleagues they know it they know what I think and now you get somebody new and you kind of have to explain it a little more thoroughly because he or she hasn't heard it yet and it causes you to take another look at it so I think there's a lot of I wouldn't go so far as to say re-examination but a a new articulation of a particular view and that may cause others to look at it a little more carefully before we move on off of this subject I would like to ask you to comment about the departure of Justice Kennedy from the court who served the court so long and was a senior member of the court at the time he retired he was an extraordinarily consequential justice in terms of his impact on the law but he was first and foremost an incredibly kind and decent man to all of his colleagues particularly and my responsibilities as chief justice as someone who had been there for a long period of time extremely thoughtful careful considerate there's something he did that in a tribute that's coming out by me in the Harvard Law Review to him that I set forth he compiled a list of readings that he thought was essential as it was for his grandchildren as they were growing up for people to read to understand the concept of liberty it goes all the way from you know ancient Greek readings up to the movie Legally Blonde it works it believe me it actually works okay what where he has it so I'd really recommend people to get a real sense of his the understanding of the Constitution and Liberty and the scope of his learning to get a hold of the list I don't know when the Law Review is going to have it out but you can I'm sure you can get it online it would be it's a remarkable reading list to give you an insight not only into Liberty and under our Constitution but a remarkably well read very decent individual I'm gonna miss him well he had a big impact on many of us when he he heard I was going to teach a course in great cases at the law school as I left the ABA he said let me see that list what people they're picking out and he insisted that a couple of cases be added to that list in his opinion many of the people in the public don't know very much about the Supreme Court I recall surveys when I was at the American Bar Association finding that as many as fifteen percent of the public couldn't name a single justice on the Supreme Court Anne Annenberg Center found that study found that ten percent of those surveyed identified Judge Judy as a justice on the Supreme Court is this lack of knowledge about the court a problem in your opinion well yes and no the lack of knowledge about how the Supreme Court functions and in particular how it is different from the political branches is very unfortunate I think too many people think that when we reach a decision on a case it's pretty much the same as Congress reaching a decision on a question of policy and of course it's not that at all it's very different and people need to know that but I'm not bothered by the fact that they can't name people in in some sense I think that's probably a very good thing we wear black robes to convey the notion that our individual views personality does not have anything to do with the function we have to play in terms of coming to a correct decision on the law so I don't feel any need to have people know the individuals who are performing the work of the court but they do need to know how the work of the court is different from that of other entities in the government are there times when you move in public when you're not recognized by oh sure generally I'm not and and interestingly when I am I would say almost 99% of the time the people who come up to me are very nice they either say something how much they like what I do and even the ones I don't keep track of how many but who don't agree with me they'll come up and say they appreciate my service but they don't agree and sometimes they'll be very effusive in in praise for an opinion of the court and say how great the court was when it did this and how important it was and how pleased they are and I just don't have the heart to tell them I was in dissent do you think that allowing cameras in the court would be helpful in the work of the court or getting more people familiar with how the court operates I think it'd be very helpful in getting more people familiar with how the court operates but that's not our job to educate people our job is to carry out our role under the Constitution to interpret the Constitution and laws according to the rule of law and I think that having cameras in the courtroom would impede that process we think the process works pretty well I think if there were cameras that the lawyers would act differently I think frankly some of my colleagues would act differently and that would affect what we think is a very important and well-functioning part of the decision process I don't think there are a lot of public institutions frankly that have been improved in how they do business by cameras senator Howard Baker told told me at one point that he thought the televising of the Senate proceedings I think he used a strong word I'm sure it's not right whether it's ruined or certainly hurt the proceedings in the Senate people have an absolute right to know what we're doing and that's true in courts around the country we have an open courtroom I think it's to a certain extent unfortunate that we're not televised because I think most people would be pleased with what they saw in terms of how seriously we take our work and the high level at which the exchange is conducted but I do think it would have an adverse effect on our job under the Constitution and that has to come first now you release your oral recordings as the next week after the argument right right transcript is available within an hour and the oral recordings at the end of the week the opinions of the court receive a great deal of comment some favorable and some extremely critical but the justices let their opinions speak for their decision are you ever tempted to respond to a criticism that you think is really wrongheaded and the creek just doesn't get what the issue was and what you decided and how do you deal with criticism of your opinions well I try not to read it frankly I mean but well in most of the cases if you sit for the regular commentators you can figure out what they're going to say once you see the byline and the good thing about life tenure is that it really doesn't bother you that much and in some cases it's unlikely that the criticism will be any harsher than you know in the dissent from my opinion whatever but you know frankly I'd read legal commentary in other words things that I think will show you know a thoughtful analysis of you know things that might have been written better or and to see if there's an understanding about what I was trying to do but sort of popular criticism or not you know I assume the worst and feel there's no reason reason to read the rest we had a session with students earlier today and one of the students asked a question and if you don't mind I'll ask it again we'll see if my answers do you ever look back and think no darn it I got it wrong before and wish I had decided differently well I'll get the same answer because it's the true one and I always worry it might sound harsh or something or worse but the answer is no my former boss and predecessor chief justice rehnquist once talked to me and my fellow law clerks about that and said you know there's just too much in front of you that if you start wringing your hands about something in the past you'll just never be able to to keep up now sometimes the case is pertinent again if they put a new press issue comes up and it's one of the precedents you do look at it again and maybe at that point you see that well it may not be as compelling as you thought and may not be appropriate to follow it but in terms of just thinking I mean I'm sure I've made mistakes it's it's a human enterprise and no one's going to be perfect so I'm sure among my decisions in the past are some that aren't aren't right but you know second thoughts and looking back on them know and in terms of mistakes and errors you know people think maybe that I'm being smarmy when I say it but I'm not it's a great comfort to me that I have my colleagues and I can't do anything unless I get four very very bright hard-working accomplished individuals to agree with me so that's that's sort of as much protection as I can get against error who are you writing to when you write your opinion are you writing to your colleagues the other justices to explain why you take that position or do you write the lawyers that argued the case you're writing to the law professors to explain how you're expanding the doctrine are you writing to the public who who's the audience for your opinion I'm writing for my three sisters they are not lawyers they're intelligent laypeople they're not in Washington they like to keep up with things in government and civic affairs but it's not a preoccupation for them and I would like somebody in that position to be able to understand what their Supreme Court has done so I'd like to think and I'm sure this is an area in which I don't succeed all the time that the opinions are accessible they don't need to know the nuances but if they can read an opinion and say at the end okay I understand what the issue was I understand how it came out and I have some idea of why that's that's what I'm writing for now you know I think maybe sometimes that means the lawyers are disappointed that I didn't you know chase every rabbit down every hole of the nuances of some arguments that they think should have been addressed and certainly I'm sure the law professors think that but but I think that's the that's the proper audience we we our job we work for the public and they ought to be able to understand our product I'd like to ask you about a local connection you you quoted a famous Minnesotan who has won a Nobel Prize for Literature in one of your opinions Bob Dylan can you tell us about that opinion and why you quoted Bob Dylan was it just to make the opinion more interesting no and I should say I had a wonderful that I hadn't seen this sort of seven story mural down the street before but I enjoyed that enjoyed that no it was again I guess along the same lines to make a particular point accessible and the the opinion was about legal concept of standing which is that our jurisdiction is limited to actual cases and controversies and therefore you have to have something at stake in a controversy before we're allowed to decide it and it was a situation where a particular company was complaining about something but it turned out they didn't have a concrete stake in it and I thought that would be a good way of elucidating that concept in you know English terms well I said when you have nothing you've got nothing to lose and I got into a little debate with the New York Times about it because they said well what he said is when you ain't got nothing you've got nothing to lose and it turns out that that is what most people understand from the singing but if you look at the actual published lyrics it just says when you got nothing you got nothing you had it right which is which makes better sense I mean you when you ain't got no it's kind of a double negative that's actually wrong and so I talk I'm going back and forth with the correspondent from The Times and I said finally no I'm looking at the actual publicly published lyrics I'm more of a textualist what I didn't hear from Bob Dylan about yeah well maybe you will one of the connections I wanted to ask you about back in the 60s Bob Dylan sang at a place the scholar and dinky town just blocks from where we are right now and under his a given name Bobby Zimmerman so some of us who were here on campus at that time had a chance to hear him then what the the last time I saw him was in Washington at Wolf Trap and I took my kids who are 17 and 18 just a few years ago now and he's sang his latest album which was a collection of like Perry Como and Sinatra songs they didn't understand what it was all about and to be candid I didn't understand what it was all about either but one of the comments you made when you became Chief Justice is that you hope to achieve greater consensus on the court you hope there would be more 9 to 0 decisions 8 to 1 7 to 2 rather than 5 to 4 do you feel in 13 years now that you've been Chief Justice that that consensus has developed and if it has is that due to deciding cases more narrowly so you can bring more justices on board well I'd have to say it's a project in progress still some years it's it's that we've had a bigger number in other years not and has more to do I think with the nature of the cases than anything else I still think it's an important objective one because I think judicial decisions should be narrower rather than broader and the way to do that is to try to get as many people on board as you can that you know if you're going to reach a broad decision that's going to cover all sorts of different factual scenarios a lot of people aren't going to say well wow I'm not quite sure I agree with that and then they might write something narrower but if you keep it narrow that it only has decides what's absolutely necessary to be decided usually you can get more people to agree with that one of our most important decisions Brown versus Board of Education is a perfect example of that Earl Warren worked extremely hard to get everybody on board because he wanted it to be a unanimous decision to send a clear message to the American people that were turning a page as a matter of law and he was able to do that and I don't and a lot of lawyers and even judges don't appreciate this but the opinion in Brown versus Board of Education was I think 11 pages long and Warren said you know if he'd written one more paragraph people were going to start splintering off you pay a price for that and you did in brown as well which you have a lot of issues in the area that aren't resolved and and need to be you know spend in many cases a generation resolving but Warren thought it was more important to keep everybody together and as a result wrote an opinion while revolutionary was in its own terms really narrow what US versus Nixon be another example of that yeah I think so and you know and it's true even in little minor ERISA tax cases there again I think courts sometimes get trouble when they try to sweep more broadly than necessary and trying to get as many people on board forces you to have a narrower opinion you bring up ERISA of my mind thanks are there cases that you think the Supreme Court's not uniquely suited to decide where they involve complex issues highly technical issues where the court might make a decision that would have ramifications that may not be known to the nine justices or even the clerks who may be public law people that don't have a corporate background or background in that area you know my answer I think it's it's no because usually no matter how complex and involved the the legal issue the case may seem it implicates a broader legal question about you know the Costanzo it may be complicated but the question is going to be well how do you go about reading the statute what sources do you look at in a particular case we don't take technical legal cases because we'd like technical legal cases there usually because they implicate a broader question when I was practicing law this is a speech I gave a lot of times because I was not an expert in any area of the law I like to think of myself as somebody who is good arguing in a particular court in the Supreme Court and so I'd have to you know convince someone who comes in with an important trademark case who could hire the world's leading expert in trademark law or me and I would tell him look the Supreme Court does not think your case is a big deal for trademark law it thinks your case is a big deal for how regulations relate to the statute how a particular provision in statutes should be read so you need somebody who you know can look at it in that broader perspective that the justices do and you know I'd say half the time they'd say well I actually want somebody who knows something about trademark and that was understand but then it would be and and you know they would get there in front of the court and either to their to expert in trademark law and the justices just aren't that interested in a lot of those nuances and sometimes they would just be speaking over each other do you think the media tends to focus too much on sharply divided five to four decisions well I mean they've got their own audience to worry about so I'm sure they focus on you know what's important to them it's not that they focus too much on five to four decisions and and I don't mean to be critical of our press card in fact you know I can be curmudgeonly I wish I could be critical of them but they're very very good and it's partly because they are a dedicated core and we're fortunate in terms of having the public understand what we do that we have people there who know how to read Supreme Court opinions and and all that but in some instances and with other reporters you'll have a decision that's sharply divided in five to four the first thing will tell you it was sharply divided five to four then they'll have an interview with somebody from it's an environmental case they'll have an interview from somebody from industry or somebody from the Sierra Club one of the sides thinks it's a horrible disaster the other a great victory and then you'd have other commentary then you flip over and you know maybe before the end of the story you'll see that what was involved is an interpretation of a particular statute and you don't see the statutory language until almost the end if at all and I and if anybody had looked at it they would see what the language said and the reasonable person would see oh I can see I can see what the problem was they don't know if that means this or that but instead it has to be portrayed more in a in a political way that I suppose somebody must think is more readily understandable but from the courts perspective I would just like to see the one sentence that caused people to split so that the people could reasonable people again one of my sisters could look at that and see yeah I see why there are two sides to that story we've talked before in this series about the collegiality on the court and that there is great collegiality even as passions about the cases cause deep divisions in our country can you talk a little bit about the collegiality is on the court as you see it right now and whether you take any steps to foster that collegiality I think the collegiality on the court is very very good we do think we are in this important enterprise together there are some ways in in which the nine of us are surprisingly similar in terms of you know what we come from two different law schools and all sorts of things that really are a surprise other ways in which we're very different and the collegiality is very good we spent in in many ways it's it's unlike any other job there aren't many jobs where everybody is doing exactly the same thing I mean if you're at a company and you're in sales you're all in sales but you're selling to different people and all that kind of thing here we do exactly the same thing we read the same briefs we go to the same arguments we read the same cases and that does cause a real bond to develop between you and also because of obvious reasons we're often the only people we can talk to about certain subjects because you know you don't want to talk about a lot of different things with members of the public certainly not politics or other things like that but we can talk to each other about it and again that helps form a bond and I think we appreciate the pressures that each other are under and that creates a certain amount of empathy that you might not have in other enterprises there have been times on the court when there have been unpleasant people there and that's made life unpleasant because you do work in such close quarters but now is not one of those times yeah I'm thinking way back when justice Jackson was in nürnberg and wrote a letter to the New York Times criticizing justice blacks yeah that hasn't happened yet in terms of things we do together we have lunch together any argument day any conference day which works out to about half the days in a month we have lunch together it's in a lovely dining room we have very nice plates and all that and on the plate you put the food you got in the cap from the cafeteria but the one rule that I enforce there is that we don't talk about work so it's a nice opportunity to learn about different things you can learn about how the Phillies are doing from Justice Alito and the latest performance of Traviata from Justice Ginsburg and all sorts of things that people like to talk about and and it's a nice break from from work and also it's very important that the term runs you know for ten months we don't leave until we're done we're usually done before the fourth of July and then we leave Washington and we don't see each other except for occasional overlapping for two months and as Justice Brandeis I think it was put it he said he could do the twelve months worth of work in ten months but he couldn't do it in twelve months we need a little break from each other and we get it what about after a particularly sharp five case five to four with a sheriff descent do you sense any coldness between the justices maybe wrote the majority opinion and the dissent is it take a little bit of time to work that out or or nom know to be honest and again it's something my predecessor mentioned once when I think goes back to when I was clerking we were all excited oh this is a very big case and this and that and he said you know we had a very big case last here and we're going to have a very big case next year and if you start getting you know causing those big cases to interfere with your personal relationships it's it's going to be a very long career so they're big cases obviously we take them seriously and we work very hard on them as we do on all the cases but I've not seen a situation where it's sort of come between two colleagues in a way that interfered with their relationship with you how would you describe your style as chief justice you have you studied the style of some of your predecessors and tried to incorporate things that you thought they did well I have I remember when I just after I'd been confirmed and went into the court and was looking at the conference room in our two conference rooms we have the first eight Chief Justice's portraits in one and the last eight in the other and I was walking around and imagining them sort of looking down in horror like who is this guy but the one thing that struck me is that I had no idea who half of them were and I think many people would I there's a lovely portrait of Morrison wait in the first conference room who was the chief justice for a dozen years and hundreds of lawyers would be and I asked that would be in the room I said who is that nobody had any idea including law professors and then you know how how many know you know John Rutledge or Oliver Ellsworth or or Morrison weight or Melville fuller or even Fred Vinson I thought have thought it really would want been one of the devastating questions during my confirmation hearings if one of the senators okay you're gonna be the 17th Chief Justice if you get through name as many of the 16 as you can what that would have been very embarrassing there'll be 16 and I so anyway that you get back to your question so I did try to study those and figure out you know who would who they were and learn a little bit about them and I think there were valuable lessons you know you need some people cheat at John Marshall insisted that the justices live in the same boarding house in Washington and he was one of the largest importers of Madeira in North America and they would discuss the cases over dinner and everybody everybody loved him my predecessor was very pleasant very direct and very fair and I think those are very important traits for a chief justice to have because as a chief justice you know you hold the reins of power you know but if you tug on them too tightly you'll find out they're not attached to anything and so you do have to kind of appreciate that in figuring out a style of leadership that works you mentioned who knows who Chief Justice Morris and weight is Mandir Lee er that Justice Kennedy wanted a couple of cases included in the course and one was a hick whoa now that was Chief Justice Morrison wait right one of the first Fourteenth Amendment cases that cited let's talk a little bit about the workload of the court in the past year the 2017 term the court decided about 75 cases give or take and that's pretty typical for the last few years when you clerked for Justice Rehnquist about 35 years ago the court decided about twice as many cases every year right right why is the court deciding so fewer cases these days and obviously there the justice decide which case is to take but do you have on your court some colleagues who want to take more cases yes we certainly have the capacity to do it we can I thought at the time when I was a law clerk 150 was a little too much you were hearing four cases a day and I thought the quality of the work deteriorated when you're getting close to the end and have a lot more on your plate but we can do more I'm one of the ones who think we should do more but the cases aren't there in the sense we have particular criteria for the cases we want to take obviously if any court finds an act of Congress unconstitutional we will take it we think as a matter of comedy to the branches across the street we should be the ones to say that if any court is and other than that it's their conflicts I mean if the court in California decides that under this tax provision in federal law this is deductible and the court in New York under the same provision says no it's not those are most of the cases we take that's the bulk of our business and for whatever reason you know that isn't happening as often as it did in the past about 9,000 or so applications for cert closer to 8,000 though but it's still still a lot I think technology actually might have something to do with it I know in the olden days when I was clerking cases would come up and you you you you got the impression that they disagreed with each other because they didn't know all of the law that was out there and if they had known it would be maybe a little different but now with the push of a button lawyers know every case that's out there and so maybe the lower courts are finding ways to reconcile their differences without the need for us you argued more cases before the Supreme Court as an advocate than any other justice who's been appointed I believe what do you know now that you didn't know then about the court that would have perhaps favorably influenced how you argued cases well you know I it's more a question of believing what people told you people always tell you that you should be brief and succinct in your brief writing and but it's only one I had to read all the briefs that I began to appreciate how serious that advice was our word limits they're worthless but they come out to about 50 pages a brief and you pick up a brief and it's 50 pages long you pick up the next brief and it's 50 pages long it's 50 pages it's 50 pages it's 35 pages whoa you stop and the first thing you do is you look at the cover and you see who the lawyer isn't you say well I I like her you know and the next thing the next thing you do is you you think and realize well and she must have a lot of confidence in her arguments because she gets them in in 35 pages and doesn't need all the extra pages and it's invariably not only shorter but well better written because it has the arguments and it's more succinct and it doesn't have all the all the distractions so that's one thing I would say it would have taken more seriously the advice to keep things short and I would have taken more seriously the advice during oral argument to have a little dispassion and distance from your case and not to be extraordinarily combative I mean the witch and I see it all the time an oral argument here you you ask a question and the first thing the lawyer does is resist the implication that's guy mean you're asking a hard question they want to test the limits of your argument and you say oh that's not what's going on in this case and of course we know that's not what's going on that's why it's called a hypothetical and and you know or they push back and they don't cooperate and that immediately erect a wall between the justice and the lawyer do you have to fight yes to fight now to get you to answer the question if you are more welcoming and say okay well I you know yes no first of all and explain it it becomes a process where the two of you are kind of working together to figure figure it out and you as a lawyer have an opportunity to get involved rather than just pushing back who's who's asking the most questions on the court these days now that Justice Scalia isn't there any statistics on that recently there are you know you have to kind of be careful how you judge them because well it's not me and I can show you that but there's sort of running time and number of questions you can ask five questions in a short amount of time or you can ask one question that takes up a lot amount of time and I just wouldn't want to comment on okay I didn't think you would last term you wrote an opinion in a viewer the majority opinion a case involving the scope of the Fourth Amendment in the digital age the very important case because you talk about that case and the challenges of new technology ensuring constitutional cases sure it's a carpenter was the name of the case and it involved telephone companies have surprisingly detailed records about where you've been for the last several years where your phone's been technically but that's usually where you've been and the question was what do the police have to do to get access to those records and the the case was a very good example of how compelling the evidence was they got the phone records of this one person who was in five different locations over a period of time and each time he was there the bank was robbed and you sort of put it together it's a pretty strong case before the jury but the question is what did the police have to do and the well-established law was well you're out of luck because they're not your records they're the phone companies and the police can go and get get them from them with a simple subpoena rather than a search warrant and and I unfortunately others on the court who joined the majority thought that that doctrine that had developed at a time when people were you know had what we're talking about her papers and records really didn't make any sense given the new technology where the the companies automatically had information you did not in any real sense want to share and allowing access to that without the protections of the Fourth Amendment would really leave all of us with much diminished privacy so you had to look at the question basically about what what do you think the drafters of the Fourth Amendment would have thought about that about the government having access to information about every place you've been for the five years I mean they were worried about British soldiers kicking down the door and rifling through their desks and I asked this question of you know teenagers others I know I mean what what would you regard is a greater invasion of privacy someone coming into your house and looking through what's in your desk or someone looking through what's in your iPhone and the answer is always the same and so it seemed to make sense to me that the Fourth Amendment at least the doctrines that had developed under it should be adjusted to take account of modern technology and you know that is a is going to be the challenge for those of us on the court going forward not just in privacy areas such as that but certainly in speech areas I mean what does it mean now to send a message over the Internet in terms of hate speech libel anything like that obviously technology in terms of commercial technology you have I forget what the number is in in a sort of iPhone or something how many separate patents are you know implicated in that and what are the antitrust implications of that all sorts of things so and it's a challenge for I mean I remember when I was at the Supreme Court the excitement when they brought in the very first word processor and and so it's a challenge for us to be able to keep up with enough knowledge about the technology to be able to you know correctly decide some of these cases well we're at five o'clock which we could go further ourselves but we said we would take questions from students or others in the audience for the next 15 minutes or so good if you have a question could you go to either side of the auditorium and if you would queue up behind the microphone there and I'll try to alternate from one side to the other so let me see is someone behind the microphone let me over here let's start on the left side Oh take our left there they are okay I thank you for taking my question currently I am excuse me just if you're a student just say whether you're 1 l 2 L 3 or L M or actually pre-law currently in political science okay I'm currently in a digital lock class and we were talking about the Socratic method and how people some people are four and some people are against it what's your opinion on that and is it still viable and today in law school yeah it's one of those things if it's done well I'm in favor of it if it's not it's a disaster I mean maybe not everybody knows this is the Socratic method is like the professor going around and asking questions and grilling students and their answers and you know trying to pursue a line of discussion through questions that develops you know makes makes a point about law and in law school I had both types of people I had somebody who was remarkable at it the whole class was excited they knew they could be called on at any minute and they were all participating in this great educational exercise but you it you do have to be very good at it then you had people who aren't and they were just would ask a question and you'd answer and then they would say and and the person would try to say something I mean that was not moving the discussion forward but I liked it and it's good training to be a lawyer I mean if you're in court you know you're going to get a lot of questions you have to think quickly on your feet and and it's good to have that kind of practice and also to develop confidence I mean all of us are nervous in in class and other settings and sort of participating and you know you don't want a lawyer who isn't isn't confident so it's a good skill to develop but they got to be good at it and it's it's getting harder and harder to find people who do it because partly because of the change in law a lot of people think they're more and more lock horses that convey information as opposed to you know how to think under stress and I think the latter may be more important than just getting a particular bunch of information and your head thank you sir a question on the side hi I'm a 1l here at the University um thank you mr. Stein for having us all here Thank You mr. chief justice for taking the time to speak with us sure my question is based on your opening statements you said that the Supreme Court's role is to serve the Constitution not the people right however many people have come to rely on the Supreme Court as the court of last resort when in justices political and justices can't be solved through politics either due to gridlock or other means do you believe based on your view of what the Supreme Court should be that that reliance on the Supreme Court to have that rule is that role is mistaken no the point I was trying to make and the examples that I gave is that an important part of our role is to support viewpoints that are not thus the viewpoints that are dominant with the majority for example I'm pretty sure at the time that West Virginia versus Barnette was decided that if you took a poll most people would say schoolchildren should be forced to salute the flag and say the Pledge of Allegiance but because we have a Supreme Court independent of political pressure the court was able to say no under the First Amendment the child and the child's parents can't be forced to express views that they don't agree with and the same thing perhaps in the steel seizure case President Truman needed a piece in the in the labor area in connection with the Korean War and again I don't know what the vote would have been about whether or not he should be able to take over the production capacity so those were all meant as examples of the role of the court to protect minority rights against the majority so and that is what I meant by saying that we don't speak for the people we don't take a poll about what we think is the right result we speak for a constitution that was designed to protect minority interests against the majority thank you over to the side Chief Justice Roberts out did you identify yourself oh yes my name is Elijah I'm an undergraduate student at the University of Minnesota studying sociology of law criminology and deviance let me here first want to thank you for hosting us and Chief Justice thank you for coming um my question is as someone who's looking to go into law school and very much once the pass succeed in law school the most popular advice I've been given by other law students is what advice when I ask them what advice do you give for someone who wants to go to law school the most popular answer is don't assume I'd by my question to you chief justices what motivated you to go to law school and what motivated you to get through law school well what motivated me to go to law school is that there were not a lot of jobs for history teachers I had hoped to pursue a career in academia and in 1976 when I got out of college that was a fool's errand there just were not any jobs available even you know assuming you're going to go down and get a doctorate degree before you could teach and I thought what they were doing in law school sounded a little bit like history they look at old cases and you know maybe maybe that's how it would work out and so I went to law school and I just I just really enjoyed it I loved it I loved the process of taking a set body of law and trying to find particulars the conduct in it and and the thinking and I didn't leave history behind it's what I like to do when I'm looking for you know recreational things to read but the idea of being a historian you know wasn't in the cards anymore how to get through it it's tough I found working with other law students was very helpful whether you form a you know formal study group or just sort of sit down with people from time to time to go through your reactions to what the teacher is trying to instill the only thing I would say is it used to be the case when I was in law school and I think it may be still the case as well you should think long and hard about why you want to go to law school I think to be honest my case it worked out alright but I would not recommend the people just you know go to law school because you wanted to do something else and they were just kind of looking for something else to do you really should have a good idea of what you want I will be honest with you one it's a it's very very hard the profession is hard that the only advice I give to people now is said if you want to go to law school make sure you're going to do really well because it's hard for the market is hard and the law profession is changing that even good lawyers the you know the business part of it is not very often not very attractive but have a good sense about why you want to go to law school and and try to keep your eyes on that there there are a lot of lawyers working who are pretty unhappy because they didn't think about why they wanted to go to law school and even if they did by the time they think you they get out and they're figuring out what to do as a lawyer they kind of forgot why they went to law school and end up doing things that are not at all like what they thought they would would like to do so I mean you know it's a tough choice any career decision at this stage is but I would spend a lot of time talking to lawyers and law students and try to figure out for yourself why it is that you want to go to law school thank you question over on this side first like to say thank you for hosting this and Chief Justice thank you so much for being here my name is Kate Siebert and I'm a senior here at the U studying political science and I'd like to know if you think that having more women on the court has impacted the way that you look at cases kind of your viewpoint on that you know you know I guess I don't really know I mean I understand the argument that you know it brings a different perspective and and changes it on the other hand it may but I would say it's subconscious in the sense that I don't hear anything and think oh that's a particularly female perspective on the in terms of the legal work and the presentation I don't see a difference maybe I'm just not attuned to it but you know I think my female colleagues perform pretty much the same way my male colleagues do and I think that's pretty much it I don't I don't see any difference in their legal analysis or or anything like that back to the this side thanks your honor my name is Kayla I'm a 1l here so you've said in the past that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race I'm curious what do you think race is what account of race do you think is correct what do I think race is yeah what makes someone a member of a particular race well I don't know I mean that's actually a very difficult question I guess they're looking at in some of the affirmative action areas in terms of what types of categories ought to be given preferences and what it takes to qualify for particular preferences but I don't know in particular any more than that over on this side I thank you mr. chief justice for coming all the way out here my name is Benjamin I am a freshman here at the University of Minnesota and I just wanted to touch on something briefly that you mentioned and that was about your personal beliefs conflicting with the way that you may decide in certain opinions and I was wondering if you to give it just a brief example about some case that you decided or you voiced your opinion in one way but personally felt completely different oh sure there are lots of them I wrote the opinion in a case I think it was called Westboro Baptist Church and this was an extraordinarily offensive group they would protest at funerals for servicemen in the most vulgar way and you know thinking of it asked what my personal view is if you you have these you know a family that just wants to bury their son or daughter who's died you know 18 or 19 year old died in the war or in and is being buried and they have these vulgar protesters criticizing the son or daughter in the most offensive ways you know I throw them in and lock away lock them up and throw away the key as far as I'm concerned but that's not as far as the First Amendment was concerned and my job was to apply the First Amendment the protesters were on the public sidewalk they had a particular point of view as offensive as it was and so I wrote the opinion for the court I think the vote was eight to one upholding their right to to protest in that matter I didn't like it but I've thought and as my colleagues did that that was the right answer and there are a surprising number of cases that are like that the flag burning I don't like the idea that people burn the American flag you know it's a sin it's more of a symbol for our nation than for most others because we don't have sort of a common identity either as you know French or Italian we don't have the common religion it's the Constitution the flag that kind of unites us you know and why does somebody have to burn it and offend all these other people on the other hand again the First Amendment was pretty clear and so I thought that was the the court reached the right result in that case and again I don't want to be glib but the the reality is as I found it I think many do it's actually not that hard it's what lawyers do every day people who defend you know people accused of murder obviously don't you know don't may not like their client if his he or she's guilty or or whatever but lawyers you know do separate themselves from their job as part of the legal process so it happens surprisingly often and I don't find it you know you find it hard I don't like it that that's what well I mean that's not true either I do like it that the First Amendment allows allows this type of activity it's the activity I don't like and but you can't allow that to interfere with your interpretation of the First Amendment let's do one last question from this side hi my name is Annika Inga and I'm a 1l at the University of Minnesota law school my question goes to your introduction where you said that previously the court has erred and following policy I was wondering if you could say in what way the court now and the justices do or can do in the future what they can do to avoid that that was perhaps not done before well that's a great question because you do look back on these mistakes and in retrospect you think well that was you know that was pretty obviously obviously a mistake and you know you'd like to think that if you were in their position at the time that you would have done something different but you know it requires a fair degree of arrogance to say I wouldn't have done that when when others do you know I don't know excuse me again my greatest comfort is is my colleagues but there were nine members of the court you know for Korematsu and and everything else and you know I don't know that there's a magic formula for making sure you don't don't make a mistake other than work as hard as you can looking at the materials we have and the principles underlying the Constitution and listen as carefully as you can to the views of all of your colleagues and do the best you can well please join me in thanking Chief Justice John Roberts thank you thanks very much bye fish

Channel: University of Minnesota Law School

Views: 52,899

Rating: 4.4251966 out of 5

Keywords: John G. Roberts, John Roberts, Chief Justice Roberts, Stein lecture, law, law school, university of minnesota law school, Minnesota Law, northrop, northrop auditorium, united states supreme court, supreme court justice, lecture, conversation, bob stein

Id: 9i3RwW0y_kE

Length: 75min 37sec (4537 seconds)

Published: Mon Oct 22 2018