tv Chief Justice Roberts Remarks at University of Minnesota Law School CSPAN November 23, 2018 12:17am-1:29am EST
-- martin vanen buren even looks a lot like him. sanctionso organize to get northerners and southerners in political alliances. >> sunday night at 8:00 eastern on c-span's q&a. supreme court chief justice john roberts talked about the importance of an independent judiciary and took questions. [applause] justice roberts: thank you. thank you very much. i appreciate that.
thank you. 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 i appreciate that. thank you. 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. people, and that commands a certain degree of humility from those of 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 v. board of education. without independence, there is no west virginia v. barnette, where the court held the government could not compel schoolchildren to salute the flag. without independence, there is no steel seizure case, where the court held president truman was subject to the constitution, even in a time of war. while the court has from time to time erred and erred greatly, but when it has, it is because the court yielded to political pressure, as in the korematsu case, shamefully upholding the
internment during world war ii 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. i'm not talking about mere civility, although that helps. i'm instead talking about a shared commitment to a genuine exchange of ideas and views through each step of the 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 of the court that has prevailed for over a century. before we go onto the bench to hear argument in the case, before we go into a conference room to discuss the case, we pause for a moment to shake each each other's hands.
it is a small thing, perhaps, but 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. 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. [applause] prof. stein: well, let me welcome you to the university of minnesota law school. thank you for being here. justice roberts: delighted. thank you. prof. stein: i am glad that we have good weather for you today. [laughter] prof. stein: i think you told me the last time you were in
we were staying in the st. paul hotel, i think. anyway, the courthouse was very close, and i thought i would walk about five blocks and after two blocks, i turned back and said i am sure i will find it in the morning. [laughter] justice roberts: my wife went to law school here, as she puts it, for three winters. [laughter] prof. stein: we are delighted you are here, and we have a wonderful sunny day to welcome you. and to all of you, students, attorneys, friends, totally filling this 2700 seat auditorium, thank you all for being here as well and welcome. this is the format we will follow this afternoon. the chief justice and i will have a conversation until about 5:00.
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. mr. chief justice, let us begin our conversation with this question. your position, chief justice of the united states, is a 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 10 during the lincoln administration, and it has been at nine for the last 150 years. how is your position as chief justice different from the other eight associate positions? justice roberts: the most
important difference is i get 10,000 extra dollars. [laughter] justice roberts: let's start with the important stuff. [laughter] justice roberts: in many ways it is different. in the most important, it is not. i have one vote. i participate in the decision-making of the court, like 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. it's absolutely fascinating, i mean, because i'm not expected to know anything about what they are talking about but do get to participate. i am a 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, too. those are the most important things. prof. stein: do you speak first in your conferences after a case? justice roberts: i do, i do, so
i have some responsibility to lay out the case and i control the -- not control -- i monitor the discussion. i insist that nobody speaks twice until everyone has spoken once. i try, if there is an extended discussion, to make sure both sides have a chance to fully air their agreements or disagreements. prof. stein: one of the powers you have as chief justice is to assign the writing of the opinion if you are in the majority of a case. what considerations influence you which justice should receive the assignment? justice roberts: well, there are several, and i should say i enjoy that part of the process very much. it's like a riddle or puzzle to try to get everything to fit together. the first thing is jurisprudential consideration. for example, you could have eight people voting to affirm, but for a variety of reasons, i need to make sure the assignment goes to somebody who commands
the most votes, even though they are voting in favor of the same result. getting the work done is an important consideration. if it is april, and one of my colleagues has three opinions that have not circulated yet, i will be reluctant to give that colleague a new opinion. i will give it to somebody else who is more likely to get it done on time. i 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. [laughter] justice roberts: i like to make sure there is a mix of subject matter. i do not want all to go to justice so-and-so. i even try to make sure there not a steady repetition of people being on the opposite
side of opinions they are writing. if two people have had in the past a knockdown drag out in the court, i try to make sure they employ each other's respected opinions in the next assignments. it's like one of those -- i don't know if they are popular anymore -- rubik's cubes. as soon as you get things lined up on one axis, everyone has the right mix of unanimous and divided cases, you turn around and find out that that leaves so-and-so with nothing but business cases. so you want to switch that. it is a nice puzzle. i feel good when it goes correctly. prof. stein: do the justices lobby you? justice roberts: they don't, and i appreciate that. i think they understand that there are a lot of factors that go into it, and it would not be helpful for them to suggest they would 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, and they would not likely get it. prof. stein: you made some remarks at the fourth circuit court of appeals this summer and said "i feel some obligation to be something of an honest broker among my colleagues and will not necessarily go out of my way to pick fights." can you explain what you were saying? justice roberts: sure. think of it as a conference room. we are all around a nice table, having a healthy debate about a case. someone has to kind of moderate, and i will -- although i will have views probably one way or the other -- sort of not jump in right away, because then people would think -- i try to be fair in terms of you can talk now and you and you, and if i were jumping in on one side or the other, that would be a pretty hard role to fulfill.
i'm going to have an opportunity to express my views, and i will, but at least initially, i like to make sure the views get fully aired, and it's hard to do if you are one of the ones talking. prof. stein: yes. the court sat 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 gorsuch was appointed. justice roberts: right. prof. stein: what, if any, are the differences when the corsets -- when the court sits with eight justices as opposed to nine? justice roberts: well, it's a lot harder. very few courts have an even number of justices, for obvious reasons, and in the federal system, if it is a tie vote, nothing gets done. the decision stays as it was, it is affirmed by an equally-divided court, but there's no opinion, no guidance. it's a real waste of time for
everybody. even when our initial vote is 4-4, we try to find ways that do something that moves the case along. in other words, it may not be a decision on the issue we had hoped to decide, but if there is some area in which we can come to agreement, sometimes perhaps an insignificant issue, but one that has to be resolved, we will do that just so the case continues rather than be sent back without any resolution at all. prof. stein: the court is back to nine justices as a result of justice kavanaugh's confirmation, succeeding justice kennedy. can you describe how the court changes every time a new member joins the court? justice roberts: the first thing that happens i think is the eight who were there before behave themselves better. [laughter] justice roberts: it's like having a new in-law at thanksgiving dinner. uncle fred will put on a clean shirt.
that was certainly evidenced this past monday. a 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 also i think it causes the rest of us to take a hard look at some things we might have taken for granted. for 13 years, i've been explaining my view of a particular clause to my colleagues. they know it. they know what i think. now you get somebody new, and you have to explain it a little more thoroughly, because he or she has not heard it yet, and it causes you to take another look at it. i would not go so far as to say it causes re-examination, but a new articulation of a particular view, and that may cause others to look at it a little bit more carefully. prof. stein: before we move off the subject, i would like to ask you to comment about the
departure of justice kennedy from the court. he served the court for so long and was the senior member of the court at the time he retired. justice roberts: 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, in particular helped me in 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 in a tribute coming out -- by me in the harvard law review coming out. he compiled a list of reading that he thought was essential. 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 ancient greek readings up to the movie "legally blonde." [laughter] justice roberts: it works. believe me. it very much works. i would like people to get a hold of the list. i don't know when the law review will have it out, but i'm sure you can get it online. 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 going to miss him. prof. stein: well, he had a big impact on many of us. when 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 look at that list." [laughter] prof. stein: he insisted that a couple of cases be added to that list in his opinion. many of the people in the public
do not know very much about the supreme court. i recall surveys when i was at the american bar association finding that as many as 15% of the public could not name a single justice on the supreme court. as many as 10% of those surveyed identified judge judy as a justice on the supreme court. [laughter] prof. stein: is this lack of knowledge about the court a problem in your opinion? justice roberts: 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. people need to know that, but i'm not bothered by the fact that they cannot name people.
in some sense, i think that's probably a very good think. --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 the correct decision on the law, so i don't feel the 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. prof. stein: are there times when you have moved in public when you are not recognized? justice roberts: oh, sure. generally i'm not, and i would say when i am, almost 99% of the time, people who come up to me are very nice. they either say how much they like what i do, and even the ones -- i don't keep track of how many -- who don't agree with me, they will say they appreciate my service, but they don't agree. sometimes they will be very effusive in praise for an
opinion of the court saying 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. [laughter] prof. stein: do you think allowing cameras in the court would be helpful in the work of the court or getting more people familiar with how the court operates? justice roberts: i think it would be very helpful getting people familiar with how the court operates, but that's not our job. our job is not 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 do not think there are a lot of public institutions, frankly, that have been improved in how they do business by cameras. senator howard baker told me at one point that he thought the televising of the senate proceedings -- he used a strong word. i'm sure it's not right, whether it's "ruined" -- certainly hurt the proceedings. 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 is to a certain extent unfortunate that we are 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
affect on our job under the constitution, and that has to come first. prof. stein: you release your oral recordings the next week after the argument? justice roberts: right. transcript is available within an hour and the oral recordings within the week. prof. stein: the opinions of the court receive a great deal of comment, some favorable, 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 critic just does not get with the issue was and what you decided? how do you deal with criticism of your opinions? justice roberts: well, i try not to read it, frankly. in most of the cases, for the regular commentators, you can figure out what they are going to say once you see the byline. the good thing about life tenure is that it really doesn't bother you much. [laughter]
justice roberts: in some cases, it's unlikely the criticism will be any harsher than the dissent from my opinion. i read legal commentary. in other words, things i think will show a thoughtful analysis of things that might have been written better and to see if there was an understanding of what i tried to do, but popular criticism or not, i assume the worst and feel there's no reason to read the rest. prof. stein: we had a session with students earlier today, and one of the students asked a question, and if you don't mind, i will ask it again -- justice roberts: we will see if my answer is the same. [laughter] prof. stein: do you ever look back and think "darn it," that you got it wrong before? and wish i had decided differently? justice roberts: i will give the same answer because it's the true one, and i always worry it will sound harsh or something,
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 there's just too much in front of you that if you start wringing your hands about something in the past, you will just never be able to keep up. sometimes the case is pertinent again. if a new issue comes up and it's one of the precedents, you do look at it again, and maybe at that point, you see it may not be as compelling as you thought and may not be appropriate to follow it, but in terms of thinking -- i mean, i'm sure i made mistakes. it's a human enterprise, and no one is going to be perfect, and i am sure among my decisions past, there are some that are not right, but second thoughts and looking back on them, no. 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 cannot do anything unless i get four very bright, hard-working, accomplished individuals to agree with me, so that is as much protection as i can get against error. prof. stein: who are you writing to when you write your opinion? are you writing to your colleagues, to the other justices to explain why you take that position, or do you write to lawyers that argue the case? are you writing to the law professors to explain how you are expanding the doctrine? are you writing to the public? who is the audience for your opinion? justice roberts: i'm writing for my three sisters. they are not lawyers. they are intelligent lay people. they are 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 someone
in that position to be able to understand what their supreme court has done. i would 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 keep -- if they can read an opinion and say in the end, "ok, i understand what the issue was, and i understand how it came out and have some idea of why," that is what i'm writing for. i think maybe sometimes that means the lawyers are disappointed that i did not chase every rabbit down every hole with the nuances of some arguments that they think should have been addressed, and i'm certainly sure some of the law professors think that, but i think that is the proper audience. our job -- we work for the public, and they ought to be able to understand our product. prof. stein: i would like to ask
you about a local connection. you quoted a famous minnesotan who has won a nobel prize for literature in one of your opinions -- bob dylan. [laughter] prof. stein: can you tell us about that opinion and why you quoted bob dylan? was it just to make the opinion more interesting? justice roberts: no. [laughter] justice roberts: and i should say i had a wonderful -- i had not seen the seven-story mural down the street before, but i enjoyed that. it was, again, i guess, along the same lines, to make a particular point accessible. the opinion was about the 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 are allowed to decide it. it was a situation where a particular company was complaining about something, but they did not have a concrete
stake in it. i thought that would be a good way of elucidating that concept. prof. stein: and you said? justice roberts: i said when you have nothing, you have nothing to lose. i got into a little debate with the "new york times" about it. they said "when you ain't got nothing, you have nothing to lose." when you look at the actual published lyrics, it went "when you have nothing to lose, you have nothing to lose." prof. stein: you got it right. justice roberts: which makes more sense. when you ain't got nothing, it is a double negative. i'm going back and forth with the correspondent from the "times." i said i am looking at the actual published lyrics. i am more of a textualist. [laughter] justice roberts: i did not hear from bob dylan about it. [laughter] prof. stein: maybe you will.
one of the connections i wanted to ask you about, back in the performed herean under his given name, bobby zimmerman, some of us were here on campus. we had a chance to hear him and then. justice roberts: the last time i heard him, i took my kids. he sang his latest album, it was a collection of como and -- of perry como and sinatra songs. they did not understand what it was all about, and to be candid, i did not know what it was all about, either. [laughter] prof. stein: one of the things when you became chief justice is you hope to achieve greater consensus on the court. you hoped there would be more
9-0 decisions rather than 5-4. do you feel in 13 years now that you have been chief justice that that consensus has developed, and if it has, is due to deciding cases more narrowly so you can bring more justices on board? it is a project and process. some years we have had bigger numbers. other years, not. it has more to do with the nature of the cases than anything else. i still think it is an objective. i think judicial decisions should be narrower rather than broader. the way to do that is to get as many people on board as you can. if you are going to reach a broad decision that will cover all sorts of different factual scenarios, a lot of people are going to say, whoa, i am not quite sure i agree with that. they might write something narrower. if you keep it in narrow, it
only decides what is absolutely necessary to be decided. usually you can get more people to agree with that. one of our most important decisions, brown v. board of education, is a perfect example of that. earl warren worked very 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 we are turning a page as a matter of law. he was able to do that. a lot of lawyers and judges do not appreciate this, but the opinion in brown v. board of education was 11 pages long. warren said if he had written one more paragraph, people will start splintering off. you pay a price for that, and you did in brown as well, where you have a lot of issues in the area that are not resolved and you need to spend a generation resolving. warren thought it was more important to keep everyone together. as a result, wrote an opinion,
while revolutionary, was in its own terms, very narrow. prof. stein: would u.s. v. nixon be another example of that? justice roberts: yes. i think so. it is true even in little minor tax cases. i think courts get in trouble when they try to sweep more broadly than necessary. trying to get as many people on board as necessary forces you to have a narrow opinion. prof. stein: are there cases that you think the supreme court is not uniquely suited to decide? where the involve complex issues, highly-technical issues? where they have ramifications that may not be known to the nine justices or even the clerks? where they do not have a background in that area? justice roberts: my answer is no.
because usually, no matter how complex and involved the legal issue, the case may seem, it indicates a broader question. the statute may be complicated, but the question will be -- how 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 like technical legal cases, they are usually because they implicate a broader question. when i was practicing law, this was 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 was good for arguing in a particular court, in the supreme court. i would have to convince someone who comes in with an important trademark case, who could hire the world's leading expert in trademark law or me.
i would tell him, look, the supreme court does not think that the case is a big deal for how regulation relates to the statute and have particular provision and statutes should be read. you need someone who reads it like justices do. half of the time, they would say that i want somebody who knows something about trade law. [laughter] justice roberts: and that was understandable. they would get there in front of the court, and there are two experts in trademark law. the justices are not that interested in a lot of those. a lot of times, then they would be speaking over each other. prof. stein: do you think the media tries to focus too much on sharply divided 5-4 decisions? justice roberts: they have their own audience to worry about so i'm sure they focus on what is important to them. it is not that they focus too much on 5-4 decisions.
i don't mean to be critical of our press corps. in fact, i can be curmudgeonly. i wish i could be critical of them. but they are very, very good. it is partly because they are a dedicated corps. we are fortunate that we have people there who know how to read supreme court opinions and all of that. but, in some instances and with other reporters, you will have a decision that is sharply divided 5-4. the first thing they will tell you is it is sharply divided 5-4. then they will have an interview with somebody, if it is an environmental case, then they will have an in a field from somebody within the industry or the sierra club. one of the sides thinks it is a horrible disaster, the other side a victory. maybe before the end of the story, you will see what was involved was an interpretation of a particular statute, and you
don't see the statute until the end, if at all. if anybody had looked at it, they would see what the language said, and a reasonable person would see what the problem was. it doesn't have to be this or that. it has to be portrayed more in a more political way. somebody must think is more readily understandable. from the court perspective, i would like to see the sentence that caused people to split. so reasonable people, like one of my sisters, could see why there's two sides to that story. prof. stein: we talked before in this series about collegiality on the court. and heard that there is great collegiality, even as passions about the case cause deep divisions in our country. can you talk a little bit about the collegiality on the court as you see it right now? also, whether you would take any steps to foster that
collegiality? justice roberts: 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 which the nine of us are surprisingly similar in terms of coming from two different law schools. all sorts of things that really are a surprise. other ways in which we are very different. the collegiality is very good. in many ways, it is unlike any other job. there are not many jobs where everybody is doing the exact same thing. if you are at a company and you are in sales, you are all in sales, but you are selling to different people. we do the same thing. we read the same briefs and go to the same arguments and read the same cases. that does cause a real bond to develop between you. and also, because of obvious
reasons, we are often the only people we can talk to about certain subjects. 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. that forms a bond. we appreciate the pressures that we are under. that creates a certain amount of empathy that you may not have in other enterprises. there have been times on the court when there have been unpleasant people there. that has made life unpleasant. because you do work in such close quarters. now is not one of those times. prof. stein: i am thinking way back when justice jackson was in nuernberg and wrote a letter to the "new york times" criticizing justice black. [laughter] justice roberts: that has not happened yet. in terms of things we have done together, we have lunch together.
any argument day, any conference day, which works out to half a day in a month. we have lunch together. it is in a lovely dining room. we have very nice plates and all of that. on the plate, you would put the food you got in the cafeteria. the one rule that i enforce there is that we don't talk about work. it is a nice opportunity to learn about different things. you can learn how the phillies are doing from justice alito. the latest play from justice ginsburg. there are all sorts of things that people like to talk about. it is a nice break from work. also, it is very important that the term runs for 10 months. we don't leave until we are done. we are usually done before the fourth of july. then we leave washington. we don't see each other except for occasional overlapping for two months.
as justice brandeis, i think it was, put it, he said he could do the 12 months' worth of work in 10 months, but he could not do it in 12 months. we need a little break from each other, and we get it. prof. stein: what about after a particularly sharp case -- 5-4 with a sharp dissent? do you sense any coolness between the justices? does it take a little time to work that out? justice roberts: no, to be honest. and again, it is something my predecessor mentioned once. i think it goes back to when i was clerking. we were all excited. this was a very big case. he said we had a very big case last year, and we will have a very big case next year. if you start getting -- causing those big cases to interfere with your personal relationships, it is going to be
a very long career. there are big cases. obviously we take them seriously and we work very hard on them. as we do in all the cases. but i have not seen a situation where it comes between two colleagues and interferes with their relationship. prof. stein: how would you describe your style as chief justice? have you studied the style of your predecessors and trying to incorporate things that you've seen that they did well? justice roberts: i have. i remember when i was looking at the conference room, there are two conference rooms. there are the first eight chief justices in one. the last eight in the other. i was walking around and i imagined them looking down in horror thinking, who is this
guy? the one thing that struck me is that i had no idea who half of them were. i think many people would. there is a lovely portrait of morrison waite. he was a chief justice for a dozen years. hundreds of lawyers would be in the room. i said, who is that? nobody had any idea. including law professors. how many know john rutledge? or oliver ellsworth? or morrison waite? fred vincent? i would have thought it would have been one of the devastating questions during my confirmation hearings. if one of the senators -- ok you will be the 17th chief justice if you get through. name as many of the 16 as you can. [laughter] justice roberts: that would have been very embarrassing. to get back to your question, i did try to study those and figure out who they were and learn a little bit about them. i think there were valuable lessons.
some people cheated. john marshall insisted that the justices live in the same boarding house. he was one of the largest importers of madeira in north america. they would discuss the cases over dinner and everybody loved him. my predecessor was very pleasant and very direct and very fair. i think those are very important traits for a chief justice to have. as a chief justice, you hold the reins of power. if you tug on them too tightly, you will find out they are not attached to anything. you do have to kind of appreciate that and the style of leadership that works. prof. stein: you mentioned -- i mentioned earlier that justice kennedy wanted a couple of
cases. one of the first 14th amendment cases cited. let's talk about the workload of the court. in the past year, the 2017 term, the court decided about 75 cases, give or take. that is typical of the last few years. when you clerked for justice rehnquist 35 years ago, the court decided about twice as many cases every year. why is the court deciding so few cases these days, and obviously justices decide which case to take, but do you have on your court some colleagues who want to take more cases? justice roberts: yes, we have the capacity to do it. we can. i thought at the time when i was a law clerk, 150 was too much. hearing four cases a day.
i thought the quality of the work deteriorated when getting close to the end and have a lot more on your plate. we can do more. i am one of the ones who think we should do more. but the cases are not there. 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. there is a matter of comity to the branches across the street. we should be the ones to say that. other than that, the conflicts. if the court in california decides that this tax provision is deductible and under the same provision in the court of new york says no it's not, those are most of the cases we take. that is the bulk of our business. for whatever reason, that is not happening as often as it did in the past. prof. stein: there are about 9000 applications are so to clerk? justice roberts: closer to 8000. that is still a lot. i think the technology may have something to do with it.
in the olden days, when i was clerking, cases would come up and you got the impression that they disagreed with each other because they did not know all of the law that was out there. if they had known, maybe it would be different. now with the push of a button lawyers know every case that is out there, so lower courts are finding ways to reconcile the differences without the need for us. prof. stein: you argued more cases than any other justice who has been appointed. i believe. what do you know now that you did not know then about the court that would have favorably influenced how you argued cases? justice roberts: it is more a question of believing what people told you. people always tell you that you should be brief and succinct in your brief writing. it was only when i had to read all the briefs that i would
appreciate how serious that advice was. the word limits come at 250 pages a brief. you pick up a brief and it is 50 pages long. you pick up the next one and it is 50 pages long. over and over it is 50 pages long. then you say -- it's the one at 35 pages. the first thing you do is look at who the lawyer is and say i like her. [laughter] justice roberts: and the next thing you do is you think and realize, she must have a lot of confidence in her arguments. because she gets them in in 35 pages. and doesn't need the extra pages. it is invariably not only shorter but better written because it has the arguments and is more succinct, and it doesn't have all the distractions. that is one thing. i would have taken it 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 to not be extraordinarily combative. i see it all the time. in oral arguments, you ask a question, and the first thing the lawyer does is resist the implication. you are asking a hard question. they want to test the limits of your argument. you say, that is not what is going on in this case. we know that is not what is going on. that is why it is called the hypothetical. [laughter] justice roberts: or they push back, and that erects a wall between the justice and the lawyer. you have to fight now to get you to answer the questions. if you are more welcome, you say ok, yes, no, first of all. and explain it. it becomes a process where the two of you are working together to figure it out. you as a lawyer have an opportunity to get involved rather than just pushing back. prof. stein: who is asking the most questions on the court these days? now that justice scalia isn't there? any statistics on that?
justice roberts: there are. you have to be careful how you judge them. it is not me, i can ensure you that. there is 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 of time. i would not want to comment on that. [laughter] prof. stein: i did not think you would. last term, you wrote an opinion involving the scope of the fourth amendment in the digital age. a very important case. could you talk about the case? and the challenges of new technology in constitutional cases? prof. stein: -- justice roberts: sure. carpenter was the name of the case. it involved telephone companies. telephone companies have surprisingly detailed records
about where you have been for the last several years. where your phone has been technically, but that is usually where you have been. and the question is what police have to do to get access to those records? the case was compelling. they got the phone records of this one person who was in five different locations over a period of time. each time he was there, a bank was robbed. you put it together, it is a pretty strong case before the jury. but the question is, what do the police have to do? areestablished law is, you out of luck, they are not your records, they are the phone company's. the police can get them with a simple subpoena rather than a search warrant. i unfortunately -- others who joined the majority thought that doctrine had developed at a time
when people -- what we are talking about our papers and records did not make any sense given the new technology. where the companies automatically had information you did not want to share, and allowing access to that without the protection of fourth amendment would leave us with much diminished privacy. you had to look at the question basically about what you thought the drafters of the fourth amendment would have thought about that. about the government having access to information about every place you have been for the last five years. they were worried about british soldiers kicking down the door and rifling through their desks. i asked this question of teenagers and other people i know. what would you regard as a greater invasion of privacy? someone coming in your house and looking through your desk, or looking through your iphone? the answer is always the same. it seems to make sense to me
that the fourth amendment -- at least the doctrines under it should be adjusted to take account of modern technology. that will be the challenge for those of us on the court, not just in privacy areas such as that, but certainly in speech areas. what does it mean 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 an iphone or something, how many separate patents are implicated in that. what are the antitrust implications of that? all sorts of things. it is a challenge. i remember when i was at the supreme court when they brought in the first word processor. it is a challenge for us to keep up with enough knowledge about the technology to be able to
correctly decide some of these cases. prof. stein: we are at 5:00. i wish we could go further ourselves. we said we would take questions from students or others in the audience. for the next 15 minutes or so. if you have a question, go to either side of the auditorium. if you would queue up behind the microphone and i will try to alternate from one side to the other. is someone behind the microphone? over here, let's start on the left side. >> thank you for taking my question. currently -- prof. stein: excuse me. if you're a student, say you are l1, l2, l3. >> i am prelaw, political science.
i'm currently in a judicial law class. we were talking about the socratic method and how some people are for it and some are against it. what is your opinion on that? is it still viable? justice roberts: it is one of those things if it is done well, i am in favor of it. if it is not, it is a disaster. this is the socratic method. this is like the professor going around and grilling students for answers and trying to pursue a line of discussion. it makes a point about law. in law school i had somebody who was remarkable at it. the class was excited and knew they could be called on at any minute. they were all participating in this great educational exercise. you do have to be very good at it. you have people who are not and they would ask a question and you would answer and they would say, and?
the person would try to say something. that was not moving the discussion forward. but i like it. it is good training to be a lawyer. if you are in court, you're going to get a lot of questions. you have to think quickly on your feet. it is good to have that practice. also to develop confidence. all of us are nervous. and in other settings where we are participating. you don't want lawyer who is not confident. it is a good skill to develop. but they have to be good at it. it is getting harder and harder to find people who do it. partly because of the change in law. a lot of people think that there are a lot of forces that convey information. as opposed to how to think under stress. i think the latter could be more important than just getting a particular bunch of information in your head. >> thank you. prof. stein: is there a question on the side? >> thank you mr. stein for
having us on here. -- as all here. thank you, chief justice, for taking the time to speak with us. my question is about your opening statements. you said that the supreme court role was to serve the constitution, not the people. however, many people have come to rely on the supreme court has as the court of last resort when injustices, political injustices can't be solved through politics due to gridlock or other means. do you believe based on your view of what the supreme court should be that the reliance on the supreme court, to have that role is mistaken? justice roberts: no. the point i was trying to make in the examples i gave was the important part of our role is to support viewpoints that are not the viewpoints that are dominant with the majority. for example, i am pretty sure that in west virginia versus barnett was decided, 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 the supreme court independent of political pressure, the court was able to say no under the first amendment. that child and the child's parents cannot be forced to express views that they don't agree with. the same thing perhaps in the steel seizure case. president truman needed a piece in the labor area in connection with the korean war. i don't know what the vote would have been about whether or not he should be able to take over the production capacity. those were all meant as examples of the role of the court to protect minority rights against the majority. 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 designed to protect minority interests against the majority.
justice roberts: -- prof. stein: over to the side. >> my name is elijah. i am an undergraduate student at university of minnesota. i am studying sociology and criminal law. thank you for hosting us. chief justice, thank you for coming. my question is, as someone looking to go into law school and wants to succeed, the most popular advice i have been given, when i was asked someone -- when i asked someone who wants to go to law school? the most popular answer is don't. [laughter] my question to you, chief justice, is what motivated you to go to law school, and what motivated you to get through law school? [laughter] justice roberts: what motivated me to go to law school is that there were not a lot of jobs for history teachers. [laughter] justice roberts: i had hoped to
pursue a career in academia. in 1976, when i got out of college, that was a fool's errand. there were not any jobs available. even assuming you would go down and get a doctorate degree before you could teach. i thought what they were doing in law school sounded a little bit like history. they look at old cases. maybe that is how it would work out. i went to law school. i just really enjoyed it. i loved the process of taking a set body of law and trying to find particular guides to the conduct in it and the thinking. i did not leave history behind. that is what i like to do when i was looking for recreational things to read. the idea of being a historian was not in the cards anymore. how to get through it? it is tough. i found that working with other
law students was very helpful. whether you formed a study group or sitting 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 and i thinkchool, it may be still the case as and, you should think long hard about why you want to go to law school. be honest, my case, it word out all right. but -- [laughter] >> ha ha! recommend that people just go to law school because you wanted to do something else and you're just looking for something else to do. you really should have a good idea of what you want. i will be honest with you. it's very hard. the profession is hard. the only advice i give to people to lawif you want to go school, make sure you're gonna do really well, because it's market ishe -- the hard and the law profession is
changing. even good lawyers, you know, the it is notart of very -- often not very attract tiff. have a -- attractive. but have a good sense of why you to law school and try to keep your eyes on that. there are a lot of lawyers are pretty unhappy because they didn't think about why they wanted to go to law school. even if they did, by the time they get out and they're figuring out what to do as a kind of forgot why they went to law school and end are not atings that all what they thought they'd like to do. so it's a tough choice. at thiser decision stage is. but i would spend a lot of time talking to lawyers and law 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? >> i'd first like to say thank you for hosting this. justice, thank you so much for being here. >> sure. >> my name is kate. here, studying political science.
i'd like to know if you think that having more women on the impacted the way that you look at cases, kind of your viewpoint on that. >> yeah. you know, i guess i don't really know. i understand the argument that it brings a different perspective and changes it. may, but ir hand, it say it's subconscious in the sense that i don't hear anything and think, oh, that's a peculiarly female perspective on the law. in terms of the legal work and presentation, i don't see a difference. maybe i'm just not attune to it. but i think my female colleagues perform pretty much the same way colleagues do. and i think that's pretty much it. difference iny their legal analysis or anything like that.
>> back to this side. >> thanks. your honor, my name is caleb. i'm a 1l here. so you said in the past that the way to stop discrimination on 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 correct? >> what do i think race is? >> yeah. what makes someone a member of a particular race? >> well, i don't know. that's actually a very difficult question. guess they're looking at, in some of the affirmative action terms of what types of be givens ought to 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. >> thank you, mr. chief justice, the way out here. my name is benjamin. i am a freshman here at the university of minnesota. i just wanted to touch on something briefly that you
mentioned. that was about your personal beliefs conflicting with the way that you may decide in certain opinions. was wondering if you'd give just a brief example about some case that you decided or voiced your opinion in one way but personally you felt completely different. >> oh, sure. there are lots of them. in a case --pinion westnk it was called burrough baptist church. a extraordinarily offensive group. they would protest at funerals the mostce men, in vulgar way. thinking of it, asked what my personal view is, if you have, you know, a family that just wants to bury their son or has died, you know, 18 or 19-year-old, decide or -- died in the war
and is being buried and they vulgar protesters criticizing the son or daughter most offensive ways, you know, throw them in and lock them up and throw away the key, concerned.'m but that's not as far as the first amendment was concerned. themy job was to apply first amendment. the protesters were on the public sidewalk. they had a particular point of view, as offensive as it was, so i wrote the opinion for the court. i think the vote was 8-1, right to protest in that manner. i didn't like it. but i thought, and as my colleagues did, that that was the right answer. are surprising number of cases that are like that. flag burning. idea thatke the people burn the american flag, you know. symbol for our nation than for others, because
we don't have sort of a common as, you know,r french or italian. we don't have a common religion. the constitution, the flag that kind of unite us. why does somebody have to burn offend all these other people? on the other hand, the first iendment was pretty clear, so thought the court reached the right result in that case. don't want to be glib, but the reality is, as i found it, and i it's actually not that hard. it's what lawyers do every day. defend, you know -- people accused of murder may not like't -- their client, if he or she is guilty or whatever, but lawyers, know, do separate themselves from their job as part of the legal process. so it happens surprisingly often i don't find it -- you know, you find it hard. i don't like it that that's i mean, that's not
true either. i do like it that the first allows this type of activity. it's the activity i don't like. you can't allow that to interfere with your interpretation of the first amendment. >> let's do one last question from this side. >> hi. i'm a 1l at the university of minnesota law school. yourestion goes to introduction where you said that previously the court has erred policy.wing i was wondering if you could say in what ways the court now and or can do in the future what they can do to avoid that? perhaps not done before? >> well, that's a great question. do look back on these mistakes and, in retrospect, you well, that was pretty obviously a mistake. and, you know, you'd like to theirthat if you were in position at the time, that you
would have done something different. but, you know, it requires a degree of arrogance to say i wouldn't have done that, when others do. you know, i don't know. excuse me. myin, my greatest comfort is colleagues. have were nine members to court for everything else, and i don't know that there's a magic formula for making sure you don't make a mistake other than can, lookingas you at the materials we have, and theprinciples underlying constitution and listen as carefully as you can to the views of all your colleagues and can.e best you >> well, please join me in chief justice john roberts today. [applause] >> thank you. thank you. thanks so much. i appreciate it. thank you.
[applause] roberts justice responding to trump's comments, we don't have obama judges or trump judges. what we do have is a group of dedicated judges doing their level best, that independent judiciary something we should be thankful for. spending thanksgiving at mar-a-lago, president trump tweeted justice roberts and say what he wants, but the ninth circuit is a total disaster. it is out of control, has a horrible reputation, is overturned more than any circuit than any in the country, 75 --
79%, and is used to get an almost guaranteed result. they are making our country unsafe. of a great law enforcement professionals must be allowed to do their jobs. if not, there will be only bedlam, chaos, injury, and death. we want the constitution as written. saturday night on c-span, photojournalists who covered the last three presidential campaigns shared some of their favorite images. here, carolyn remembers following hillary clinton in 2008. >> we went to a bar. >> crowd point, indiana. >> that's exactly where it is. that's a shot of crown royal. she picked what she wanted to have. oneet to the bar, and it's of those otr's. that's the owner of the bar and white there watching her.
if she goes to a bar, she's going to have to drink. doing is being with people in their own spaces and identifying and reacting. and what you want to get is that interaction if you can get it. so i blew off the rest of the bar, thinking she's going to go drink. andt myself behind the bar sell where they were clearing a space for her. and i planted myself and waited. she showed up and is eyeing the shot of crown royal. [laughter] and they loved her for drinking the crown royal. she drank it and you know she's had it before. it was a nice moment. >> damon winter from the new york times and check from getty images talking about covering presidential campaigns with carolyn caster saturday at 8:00 p.m. eastern, here on c-span
c-span.org, or listen on our free c-span radio app. president trump talk to members of the u.s. military across the world by conference call this face giving. he also received -- this thanksgiving. he also responded to reporters. this is nearly 50 minutes. president trump: over in the united states as you know, and you are celebrating it where you are throughout the world and we will talk to you individually. we are honored to be joined by great patriots. you are great patriots representing each branch of the armed services. melania and i want to express our gratitude for the sacrifices you make to defend our nation. while you're away from your loved ones, i hope you will take