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Bloomberg Law with June Grosso from Bloomberg Radio.
Welcome to a special edition of the Bloomberg Law Show. I'm June Grosso. In a few minutes, Chief Justice John Roberts is going to participate in a fireside chat in Buffalo, New York. It's part of the anniversary events for the US District Court for the Western District of New York, which is celebrating its one hundred and twenty fifth anniversary.
The Chief Justice was born in Buffalo and spent his early childhood years there, and he's going to be talking with Judge Joseph Fallardo, a federal judge in the Western District who's known the Chief for more than forty years. We'll bring that conversation to you live as soon as it begins. My guest is constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law. How the Chief has done a lot of these q and as over the years, often at law schools or judiciary conferences,
but I don't recall one that was live. Is it sort of outside the chief's comfort zone.
I think he's trying to take an opportunity to ensure that the Court is viewed as an independent player and is viewed with some respect. Obviously, there's no secret that the Court has taken a hit in terms of its reputation over the last five to ten years, and particularly now there's tumultuous times because of the confrontation potential confrontation
with the Trump administration. I think he's taking every opportunity to talk and be seen as an independent, constructive force in the American system.
So this comes at a time, as you sort of mentioned there, when the judiciary is under attack. Last week, Justice Katanji Brown Jackson denounced what she called relentless attacks on the federal judiciary, saying efforts to intimidate judges are threatening the constitution and the rule of law. And all through this, the Chief has issued just one statement pushing back against President Trump's call to impeach a federal judge that he called a radical left lunatic. It was a
rare public signal from the Chief. Should we expect something more in that vein tonight.
I don't think it's going to be the entire focus of the talk, but I absolutely expect that the Chief to take this opportunity to try to remind the listeners and viewers of how important judicial independence is, and I think it is ever more important.
And I wonder if you'll address the threats against judges that are on the rise, judges particularly who have ruled against the Trump administration and their families. For instance, there were more than six hundred calls and emails that flooded Rhode Island Judge John McConnell's courthouse, including death threats and menacing messages taunting his family after he ruled against Trump
on the freeze on federal grants. That's according to Reuter's and the Chief has mentioned this before in his end of year statements.
I wouldn't be surprised. I mean, what we've seen here is largely unprecedented, not completely, but largely unprecedent in our history. And the idea that you intimidate judges, or even the idea of impeaching judges with whom you disagree, undermines the whole, very fabric of what we hope to be an independent judiciary. So my guess is that the Chief Justices again will not focus entirely on these attacks, but that somehow he will weave them into the conversation.
And I'm assuming there won't be any aggressive questioning by his friend of forty years. Maybe the questions are even discussed beforehand.
That would be my guess as well.
The Trump administration has filed an unprecedented number of emergency requests with the Supreme Court twelve emergency requests in its first one hundred and one days, and that's more than during the entirety of the George W. Bush and Obama administrations combined, and even before this, several justices have complained in the past about the impact of the Court's growing emergency or shadow docket and the cases they're deciding without briefing and argument, So that seems to be a pro
problem that's percolating.
Yeah, the trend is clear, and it does put a monkey ranch into the orderly system of arguments, deliberations and then written opinions. To the Court's credit, originally, in the last couple of years, it decided these so called shadow docket cases without any kind of written decisions, sometimes just in order. And now at least it's trying to give some explanation or rationale for why deciding what it, you know,
whatever it does. And the difficulty in the shadow docket is not just the lack of argument or the lack of opinions, is that the court is rushed. It's got all of its normal work to do, and in these preliminary postures of these cases, lots of important issues are decided and it's not always clear about the court's reasoning and what should happen next. So this shadow docket is creating a kind of confusion, and Theydministration is pressuring the Court with all of its requests, and I think they're
going to continue. I foresee that this may go right through the summer and require the Court to act even when it's normally on recess.
And perhaps it will extend the length of the court session, because the court usually ends by the end of June. Last year it ended July first, But now they've scheduled an argument session for the middle of May on Trump's birthright citizenship executive order. So I mean it might even cause the normal docket to get slowed down.
Absolutely, and I foresee other case. And we're in an unprecedented time. I think there's about two hundred and twenty cases now focused against the Trump administration pending, and obviously in any case, there could be a nationwide injunction. And if there's a nationwide injunction, that usually will spark this effort by the Trump Department of Justice to seek an emergency stay from the nationwide injunction. And that's the dynamic that seeing right now. Congress is considering whether to pare
down the power of courts to issue nationwide injunctions. There are excellent arguments on both sides of that issue, but that really is the reality now because every time a nationwide injunction is issued that will ben against the Trump administration, it will force the administration's hands and most of the time that they're going to come to the Supreme Court
to ask for relief. So far, it's a mixed record in the Supreme Court during these first hundred days, and I think that that will probably continue, and my guess is we'll continue through the summer.
We are waiting to hear from Chief Justice John Roberts in a q and a session in Buffalo, New York called a fireside chat. He's going to be talking with federal Judge Joseph Volardo, who's a federal judge in the Western District, which is selling its one hundred and twenty fifth anniversary. I've been talking to Harold Krantz, professor at
the Chicago Kent College of Law. How an opinion yesterday not an opinion in order yesterday sort of veered from what you were describing before because there was absolutely no explanation.
It was in order allowing the Trump administration to start discharging transgender service members, and there were three descents, but no written explanation from either the conservative justices in the majority or the three dissenting members on a question that I think a lot of people would be wondering why the Court lifted an injunction, and in doing so, the status quo will be disturbed because the transgender members of the military will now be starting to be discharged.
Yeah, And I think the from a legal perspective, everybody is left wondering what has motivated the majority's decision, because there are two principal components of this injunctive relief. One is likelihood of success on the merits or the other is likelihood of irreparable injury. The court may view a discharge as being not rising to a level of irreparable injury because ultimately the service members can be reinstated and they can receive back pay. That's one possibility. It may
not be the reason. Otherwise, they may decide that it's a strong the government has a strong case on the merits, namely that the equal protection claim that's been raised by these servicemen service individuals, they may find to be very weak, even though to many observers it's quite at least strong, even if it's not victorious. So people are left shaking
their heads as to what motivated the court's decision. And only in the future will I think this may be in a different case, will the court's reasoning become clear.
And also I was really surprised that there wasn't one dissenting opinion from the three liberal justices who did dissent, but there was no opinion. I thought there might be some kind of sort of outrage type opinion saying that, you know, this isn't the way we should go.
Yeah, And just as Katanji Brown Jackson is the one that's been the most articulate on the issue of how this is not the way that the Court should decide important questions with real world consequences, and maybe she just didn't want to repeat herself, or maybe she wanted to
save the ammunition for another day. And obviously many people have looked at this birthright citizenship issue that's being heard on May fifteenth as really one of the most sort of bellcow of all the executive orders, and so maybe she wants to save her rhetoric for that case, though I tend to think she's going to be the majority of that case. But maybe I'm getting ahead of myself.
Well, because that case. I was also surprised that they scheduled oral argument, because that's a case where every judge, I think four out of four judges who ruled on it below Federal Court judges found that it was, you know, an unconstitutional executive order. So why is the Supreme Court taking that particular case.
They are bending backwards to some extent to try to give the Trump administration the benefit of the doubt, to give them a chance to tell their side of the story. They know how important this is to the Trump administration, because it was, at least in some people's minds, the signature the executive order. Of all the amazing executive orders that we've seen, that's the only thing I can think of,
because you're right, there is no there's no need. There's also put in the circuits, there is no real reason to decide the case other than a respect for the administration. And I think that is something that is consistent with Chief Justicebert's sort of view is he wants to make sure that the administration gets every fair chance, but he also wants mutual respect. He wants to get respect back from the Trump administration, and maybe this is part of his strategy.
I'm hanging over this, and I don't think this will be a question that will be asked. But the fact that last Sunday on Meet the Press, I believe it was the President of the United States said he wasn't sure, he didn't know if he had to uphold the Constitution of the United States, and in his last term he
would talk about his Article two powers. So that seemed like a really strange statement to make, and I think that people will be thinking about that, although I doubt that the Chief Justice is going to comment on that.
Yeah, I would be shocked and the Chief Justice comment on about meet the press. But it almost sounded to me as more presidential Trump's rambling, because I think that
he knows that the Constitution applies to him. I mean, he may interpret the Constitution differently than others, and that's it right to a certain large extent, except not in a particular decided case or controversy, but in general, he can disagree with others views of the Constitution, but he knows it applies to him, even if there are different views of what in fact Article two or two process means.
And there's been a lot of talk lately. I mean you could if you google it, you'll see so many articles on what happens if the president doesn't obey a court order. And you know, we've seen in various instances that you know, it seemed like critics say that the
Trump administration hasn't been obeying all court orders. So at what point does the judiciary, you know, take a strong stance, perhaps start issuing different kind kinds of you know, start subpoenaing people and perhaps holding people in civil or criminal content. I mean, what do you think it will take before that happens.
That's the course, the start of the constitutional crisis. I still hope that it doesn't occur and that the cooler heads will prevail, but I certainly wouldn'tly would bet against myself and that there may be a crisis at some point.
We came closest, probably in the Breaco Garcia case you call the instance where someone, unfortunately the Maryland individual was mistakenly deported to El Salvador, where he's still languishing, evidently, and the court there ordered a return to the United States, and the administration evidently sort of just sort of ignored it. And the Supreme Court did come in there and said as a compromise that the administration must at least facilitate
his return to the United States. They try to sort of dodge a direct confrontation by using the term facilitate, which is somewhat of a more ambiguous term as opposed to ordering his return by a particular date. So the court's aware and it doesn't want to have this direct confrontation, but it knows it's lurking out there. And you know, the courts have very few levers to pull in terms. As you pointed out, civil contempt is certainly one of them.
Fiery rhetoric is another, and we've seen some judges amp up their rhetoric. But at the end of the day, as Andrew Jackson reportedly said one hundred and fifty years ago, the enforcement powers rest with the president, not with the courts.
And a perfect time to end that quot and that answer, because right now the Chief Justice is taking his seat. They're sitting in large chairs sort of like you'd see in a judge's chamber, and he's sitting down now at two applause, let's listen.
Well, it's it's really is an honor to be here with you and to rekindle our old friendship that started forty seven years ago.
Wow, yeah, long time, you haven't aged, haven't aged a bit? No, you haven't. You haven't haven't.
Changed a bit. So so folks from Buffalo are very proud to say that you're a native son here you spent the first ten years of your life in Hamburg, right, what do you remember about growing up in Buffalo?
It's cold.
No, the memories were refreshed earlier this morning. I went back and visited my boyhood home, which was a lot smaller than I remember, and it was near the fair grounds for those of you around here, and we would I remember hearing the call to the post, you know, the when they were because they did racing there on weekends. And we would set up lawn chairs in the driveway because when they had concerts too, and about the concert without having to pay for it.
So where'd you go to school?
Saint Brendette's.
Yeah, and that's where my wedding was. Oh yeah, so we closed the closed last week. Yeah, I heard, That's what I heard. So when we were in law school and particularly on the Law Review, people saw you as very bright, a good writer, ambitious in going places. Did you let yourself dream about being on the Supreme Court then?
No?
No, I didn't dream about being a judge. I didn't dream about being a lawyer. Before then. I was going to go to uh graduate school to study in history and true story. I was taking a cab back from Logan Airport to the campus, and the cab driver asked me what I did and I told him I was a history major at Harvard.
He said, I was a history major at Harvard.
Yeah, that's why I said, where are those where's that law school application file? But uh, when I got to law school, I found out that I liked it, but I certainly didn't want to be a a judge. And then, uh, you know, ended up clerking and working at in the government and in law firm for a while, and you know, it just sort of happened that you end up in a position where someone decides to nominate you to be
a judge. And by that time I had been practicing long enough I thought it would be a good, good change, and that worked out, and then you know, the Supreme Court fortuitously came long after that.
Yeah, so your your career started as in was by and large as an appellate lawyer.
How how did that happen?
Well, I came off of the government work that I had been doing. I had spent a total of seven years between the clerkships and at stint in the Justice Department and some time at the White House Counsel's Office. So when I left that I'd been out seven or eight years and hadn't really practiced normal law, and I didn't want to start, you know, the seminar whatever for first year students to learn how to take a deposition. So I went around at law firms and they would say,
what do you want to do? I said, well, the one thing I thought I could do. I said, I want to do a pellet work. And they said, oh, okay, you know, if the case you're handling goes on appeal, you can do a pellet work. And I said, no, no, I only want to do a pellet work. And nobody was buying that until I ran into a fellow named
Barrett Prettyman, who that's what he did. It was at the firm of Hogan and Hartson, and he was an amazing, amazing man, and I decided I would like to work with him, and that was fine with him.
He had been extraordinary life.
The courthouse in DC is named after his father, who was a very prominent judge. But Barrett, at age eighteen, left you know, high.
School in d C.
And went to England and then joined the Patent's Army, you know, you know, hurtling toward Berlin and they were ambushed and his unit found themselves in these.
Fox holes, terrible cold.
Through the night, and the you know Germans are sort of picking them off one by one.
And he swore that if he made it to the morning, he would wake up happy every day. And he made it through.
He had frostbite. They took him back to the you know, back to Belgium. His the rest of his unit went in and they were going right into the Battle of the Bulge and they were all killed.
So he kept his he kept his file.
As far as I could tell, it was a very upbeat person, very very you know, pretty much everybody else there were law walls had pictures of you know, fox hunting or old English judges, and you know, he had pictures of clients like Truman Capoti and Catherine Anne Porter and really and he had a great, great attitude, and I really enjoyed practicing law with him, and.
He woke up happy every day even after he started working with you.
Yeah, I never heard that, yeah, yeah.
So so I said, you were a hard worker on the lower of you and you really were, but you had some time for fun as well. And I told Tim Metzlaf, who's a professor Duke that I would ask you to tell these folks about pencil ball.
Yeah, Tom, and I spent more time playing pencil ball at the law review than working on the law review stuff.
It was a very complicated thing.
You get a little piece of paper and put some tape around it, and then with pencils. Somebody would pitch the ball and you try to hit it with a pencil, and.
You have to this elaborate scoring system too. Right, a triple if you got in the waistbasket, it was a triple. Right, if it ended up sticking to the ceiling, it was a homer.
I forget. Well, yeah, it was very complicated.
They never let me play.
The rules evolved as each game went on.
I was an underclassman, so they never let me play, but they played the pencil ball game. So you interviewed for clerkships yourself, and you now interview candidates for clerkships. Any pointers you have for folks when they.
Interviewed, Well, one year when I was interviewing people, I was looking with law clerks and probably you do as well. You want people with some degree of self reliance and confidence.
So I thought.
Laid out a dozen half glazed and half powdered donuts out in the waiting area, and I figured one it would be a good sign of whoever.
It was liked donuts.
And also if they had enough selfish insurance to have one, even though their hands would have glazing or powder on them. When they came in end of the day, a dozen doughnuts still there. So everybody, everybody failed that. Now, I had some bad experiences of my own.
This goes.
It was back when they were some justices were still hiring people right out of law school, and Justice White was one of them, and I was scheduled for an interview with him, and I went down to Washington and they had just opened the new metro system just opened, and you know, you put your money in and you get a fair card and all that. I don't think they do this anymore. I'm sure they fixed it back then. But all I had was you know, a twenty, you know, and put it in and got put in the fair.
It was forty cents to Union Station, so I got nineteen dollars and sixty cents in quarters or whatever. It was like in Las Vegas, the coort it just kept punching out, but you know I was a law student.
I wasn't going to leave him there.
So I put some here and some in here in these other pockets. And I walked into Justice White's chambers and I was jiggling, jingling, you know, A jingle kind of looks strange at me, you know, And I crossed my legs and a dollar fifty I didn't get I didn't.
Get an offer from that.
Tom Metzloff got that job, right, he cleared, Yeah.
Dad, tom My pencil ball opponent got the job.
Yeah.
Yeah. So you really are a terrific writer. And you were back in law school as well. I still remember you're telling me that if I had a sentence that had three prepositional phrases or more, go back and rewrite the sentence because the sentence needed rewriting. Where'd you learn to write? And is there any one person who your credit for teaching you how to write? Well?
I think the way to learn to write is to read good writing.
And I read a lot. I liked Conrad, I liked and Elmore Leonard. I mean, Joseph Conrad if you want to write long and flowing, elegant sentences, and Elmore Leonard if you like punchy sentences, and I think that helped a lot.
When it came to writing briefs. Though I had a secret weapon.
I have three sisters, none of them are none of them is a lawyer, and yet they're, you know, very bright, and I would send, for most cases, a copy of the draft brief to them and ask them to read it. Read it once, and then I called them and ask them what it was about and who should win? And if you're writing, isn't clear enough for somebody who is an intelligent layperson to get through it and to understand,
you know, basically what's going on. I mean, you know, they wouldn't say, oh, you know, under Arrista this or that, but they say, you know, the guy who you know, you know is driving the truck, you know should have looked left and he looked right, and you know the safety break didn't work so the other person could pay and if it was the right answer, and you know, because I see it today and I bet you do too. When you read so many briefs and read them carefully.
But it's not like you can devote as much attention to you know, becover.
In many cases you're hearing.
So you want to make sure that somebody who's going to read through it once, maybe a little more quickly than you'd like, really gets the gist of what you want. The other thing I'd liked to do is read aloud and again, no matter how complicated it was, you should be able to stand up and read it to somebody and have them basically follow. I mean, otherwise your sentences are too convoluted, not direct enough. And I think those are two things that serve me. Well, you still trying.
To do that.
You're listening to Chief Justice John Roberts in a conversation with federal Judge Joseph Bullard.
Complaining and walking down the halls. They're reading out loud and they.
They don't do that. But you're trying to make your decisions accessible.
Well, and yeah, and I'll tell you, I mean, it's not in their cases where you know, you don't necessarily study every brief and if you can't, if you file a brief and you can't, I can't read through it once.
You know it's gonna be okay.
I've got to read through it twice, and you know, sit down with a law clerk and say.
What do you think this is about?
I think people place too much emphasis on like showing off their intellectual sophistication or the nuances, instead of just being very direct in your writing. And I always think, particularly in the cert petitions, when I was doing those, it's very hard. I don't know what the rate is now, two percent or less than that, get granted. I always thought it was important to put something in that would
catch somebody's eye. Even I had a case once involving mining in Alaska, and it involves something called the Red dog mine out in the middle of Alaska, and so I figured maybe it would help. So I put in the first page and a half is about why it was called the Red dog mine. And it was because you get these stories in Alaska where somebody has to fly out to get emergency insulin and they fly and this was the flying back of the guy who had
his plane. He always had this red dog, you know, in his plane, and the plane coming back crashes, but the dog, you know, survives, the pilot doesn't, and the dog runs to the village and they, you know, they get the insulin and all that and and then hopefully you'll read on and it's about some mining regulations or something. And when one of the but hear me when I got on the court. The first thing Justice O'Connor said to me when we were sitting down for lunch, and I.
Said, I love that story about the dog.
But I mean they denied certain but that you know that happened, but they read it.
But I bet you finished reading it too.
So when I write decisions, I tell my law clerks that, you know, half the people who read the decision are going to think I'm an idiot because they lost. But I want them to at least understand why I'm an idiot, at least why I made the decision that I made in the case. Because I think it's important to write so that it's accessible for people, and judges, you know, do the same thing. I think.
I think.
So let's talk about something a little more important, a little more substantive. I think most judges would agree that judicial independence is crucial.
Do you agree?
What do you think? Oh?
Yeah, I mean it's central the.
Only real political science innovation in our constitution. I mean, you know, parliaments have been around for eight hundred years, and obviously executives is the establishment of an independent judiciary. Even places you think are similar to ours like England. The judiciary in England was part of Parliament. I mean they sat in the House of Lords and because Parliament
was supreme. But in our constitution, judges and the judiciary is a co equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down obviously acts of Congress or acts of the President. And that innovation doesn't work if it's not. The judiciary is not independent.
Its job is to.
Obviously decide cases, but in the course of that check the excesses of Congress or of the executive and that does require degree of independence.
What do you think of these costs for impeachment of judges based on the decisions that they've made.
Well, I've already spoken to that, and you know, impeachment is not how you registered disagreement with decisions.
That's what you're for, right, That's what you're there for.
That's what we're there for.
So lots of decisions that you make interpreting the Constitution have have real life, practical consequences. So just as a for example, the Second Amendment decisions result in more people having guns, and the Obamacare decision resulted in more people having health insurance. Oberg Fell resulted in more same sex marriages. Do you think about those practical consequences when you're interpreting the constitution? And should justices think about those practical consequences
when they're interpreting the words. Gast is.
Mainly no to both of those questions, because if you do that, you know, with one exception I'll talk about later, But if you do that, you're kind of putting yourself in the place of the legislator. You can say, for example, a consequence of the Second Amendment decisions are or more people have guns and so there's more you know, accidental shootings,
more shootings. Or you can say the consequence is that more people are armed and therefore they're in a better position if there's for an invasion, as there was with the bridge shortly after the adoption of the Second Amendment, So that that's a good thing. Now, if you decide one of those or the other based on your view of what you think is best, you would be substituting your own view for that of the people who wrote
the constitution. So no, I don't think that's not a big part of at least how I do my job sort of what a purpose of this approach is what people would call that, because I think you're making yourself the arbiter of what people were trying to accomplish in that law. When you really need to be doing is sitting down and reading it, you know, and its appropriate context and trying to figure out what they what they meant.
Now one extreme, if an interpretation you adopt leads to some absurd result that nobody could plausibly of intended, then yeah, then the the the consequences make a difference. But I think it's more important to figure out what the people who wrote the law had in mind and what they meant by the words they used, rather than think what is this type of legislation for? Because then the you know, the interpretation goes flips flip flops.
So the courthouse here in Buffalo is named for Robert Jackson, and you clerked for Justice Renquist, right, Justicehrenk quiz clerk for Justice Jackson, So you're sort of his grandson.
Sort of.
You know, well, yeah, do that have any special meaning for you? I mean, I know one of the photos, one of the portraits you have hanging, one of the four portraits you have hanging in the the Justices conference in the conference room is Jackson. Yeah, yeah, would you talk about that a little bit?
Well, sure, I mean, obviously one of the more remarkable members of the Court in our in our history. Part of the reason they's in our conference room is he was, you know, the solicitor General who argued before the Court, the attorney General, you know, in charge of the branch of justice and the administration, the prosecutor at Nuremberg, which was very controversial on the Court. His colleagues did not think that was necessarily something he should be should be doing. Uh.
And obviously one of the great justices. I mean, his his eloquence is really extraordinary. His eloquence at Nuremberg was was extraordinary. So yeah, I think it's a great grandfather to have. Now the other the other portraits John Marshall Harlan is there, and I just think somebody who's parents name him John Marshall, who then lives up to it and ends up on the Supreme Court, deserves an incredible painting.
And seriously, all his his pronouncements in number of areas of the law I think are really remarkable.
He was at dissenter and plus he wasn't he.
Yes, Yeah, you're listening to Chief Justice John Roberts who was having a conversation with Federal Judge Joseph Folardo. And the topics are wide ranging.
I had five colleagues on the Court from New York, so I figured I had to give him some New Yorker on the law. And then of course the great Chief John Marshall as well.
Yeah. So I read a speech that you gave to your son's graduating class. It talked about the importance of getting to know the folks who work at the school, the custodial staff, the janitorial staff, those kinds of things. Why is that important and why was it important enough for you to give that message to your son and his classmates.
Well, it was eighth grade, and it's a time when they need to learn a lot of things.
And I mean it's.
Important just it's basic courtesy, but also it's important to appreciate that, no matter high and mighty you might think you are or others might that, there are other people that are doing things that are just as vital to the.
You know, functioning of our.
World and as anybody else, and all the people who work at the Supreme court are part of the process that ends up in our articulation of what the law is, and whether it's the Chief Justice or somebody in the print shop or one of the law clerks or anybody else. And I think if you lose sight of that, that's a that's a real, real shame. And uh, you know, I do think again, particularly eighth grade is a good place to learn that way.
Did you do that when you were in school? Did you did you get to know those folks when when you were in.
Oh sure, yeah, yeah, but in eighth grade, I mean you know those those people.
Were the boss. Yeah, that's exactly right, It's exactly right.
You know.
Sometimes I'll have folks who cleaning the office will come in and apologize to me for coming in cleaning the office. And I said, if you folks don't do this, I can't do my job. So you know, it's as you say, it's all.
Yeah, I apologize for making such a mess.
Which so you talked about a few minutes ago reading petitions for curchary and briefs. What's the sort of criteria that you use for deciding whether you want to take a case job other than writing about red dogs. What jumps out, are you.
Well, And it's pretty clear that it doesn't really matter how right or wrong it is. I mean, the one thing you could say in a certain petition that's not a good idea is how horribly wrong this is. Because the first message that comes across to us is that, well, if it's that wrong, we don't have to worry about it. They'll follow it. Mistake has been made. But one thing that's certain, it's not our job. We're not a court
of error in the sense that we correct mistakes. So what we're looking for are conflicting decisions on the same law that have to be fixed. I mean, if one person beds this law and says you can't do this, and the other person says no, no, it means you can't do this. It should mean the same thing across the country. And so that's more the type of case
we would take to resolve that disagreement. So people want to get their cases heard, need to have somebody who's good at explaining why we need a greater degree of uniformity this. You know, you can't say in New York some particular expense is tax deductible, but in California it's not.
So a lot of the cases we get are actually not that glamorous.
They're not that interesting because there are a lot of areas of federal law, like you know, patent law and copyright law, tax law, all sorts of things, and when those disagreements come up, we're the only ones who can fix it. So a lot of our docket is pretty mundane.
Is there something too, though? Putting something in the cert petition that will catch the judges? I like the red Dog story. I mean you find yourself when when you read something like that that has something that catches your eye drawn to it a little more.
Oh sure, yeah, I mean, you know, we take whatever it is.
I don't know what the number is, one and a half percent of all the curt petitions. You've got to do something to stand out of the crowd, you know, unless you have a really good case that may be enough to ge at our attention. But other than that, and it makes sense, you have to be a good
writer if you're there. I mean, obviously our law clerks read somewhere all the petitions and they write summaries, but we read from those summaries ones that we think, you know, might be likely candidates and you know, it's very hard to pick out the right ones.
Some of your colleagues have written autobiographies. Have you started yours yet?
No?
Are you gonna? No? Why?
Why?
Why not?
I think my life is very interesting to be I'm not sure it's terribly interesting to anyone else. And now that's not true of some ofmic colleagues. Justice Thomas's autobiography is absolutely gripping. If you haven't read it and are at all interested in the court, you should. It's such an extraordinary story. I really couldn't put it down. But I don't think I don't think I have that.
That in me. Let's talk about your your role in terms of you as a public figure. Obviously, you're very recognizable. People know who you are. It's you have to be on all the time, like now, uh, And how do you separate that from your private life? How do you how do you keep some privacy in your life and have this kind of bigger than life role as Chief Justice the United States?
Well recognizable.
My wife and I run vacation in Portugal last year and another American sort of came up to us and he's looked at me and says, I know.
You, I know who you are.
You're John Bahner, and so you know they were sitting next I had to spend the whole evening pretending to be John Bayner. So when you say readily recognizable, really not, to be honest with you, it's getting worse though in general, just because you know, the work of the court is getting to a higher degree of publicity.
So it is a problem.
I will say ninety nine percent of the interactions I've had with people, they come up and say hello, which is fine, and so that's that's good. But we're not as recognizable as you might think among a crowd of judges and lawyers.
Yeah, but.
In the public at large, not much of them.
So some of your colleagues have retired. You ever think about that. I mean, you're too young now, but some day would you No? No, because you love because you love what you do too much.
You know, I'm going out feet first.
It's just I am too good. Well, no, now I say that now. I mean, I'm sure if your health declines and all, and if you recognize that you're a burden to the court rather than part of an assist to everybody, then you know it'll be time to go.
I have very good friends that were.
For a long time, many years, and I've sat down with them and you know, said, I want, you know, appropriate time, because you don't always notice that you're slipping. I want the you know, two of you to tell me if it's it's time to go. It's a long pause, and at once the two of them said it's.
Time to go. So I said, all right, never mind.
How funny I have that.
It is kind of she's going to tell me.
She hadn't said anything yet. Maybe after this she will.
It is surprising how rare it has been on the court for that to become an issue. Really just a handful of times. I think it's because it's a collegial both in a technical sense and in a popular sense, group of people that you develop relationships where if the people do come, there have been times when somebody has stayed a little longer than they should.
Then the other colleagues come and it's.
Always really worked out. So I don't think that's going to be a problem.
But it is. Yeah, I mean, I still feel pretty healthy.
Do you love what you do? I mean, you really do.
It's exciting to get up, you know, every morning and go into work.
It doesn't seem like work when it's like that, right some.
Days, some days it does. But it's nice that we have.
A break in the summer. Louis brandeis one of our great justices, said that he could do the twelve months worth of work in ten months, but he couldn't do it in twelve months. And I think there's a lot of wisdom in that we work at very close quarters on very important issues, on very sensitive issues at work.
That is is hard to do, and.
We do need a little break from each other, but it does. It's interesting, it really is creates such a strong bond. I'm sure people, you know, listening to the news or reading our decisions, particularly you know, decisions that come out in May and June, maybe think, boy, those people really must, you know, hate each other. They must be at hammer and tong the whole time, and we don't. I mean, the dealing with the type of cases we do and their significance, it's something only those nine people
can can know. Whether you take something as basic and fundamental as whether somebody lives or dies you share that in a very intimate way, or whether whatever else that is the most important issue facing the public, and even if you are on opposite sides more often than not, and we're not most of more of our decisions are unanimous than anything else people lose lose sight of. But it is a strong, a strong bond.
I think when Justice Skinsburg and Justice Scalia were on the court together and their friendship got some publicity, I think people got to understand that a little bit more because RBG was taught publicly about it a lot, and and just how fond she was of Justice Scalia and vice versa, even though they were at opposite ends of lots of decisions.
Yeah, and a lot goes into that. And you know, you have more in common with some colleagues than others. Sure, so I do things with some of my colleagues that I don't with the other and vice versa.
But it is, it is a bond.
And you know, and their their issues and discussions you don't I don't share with with with my wife, and I know others don't just because they find it easier not to know, you know, in terms of that, so they don't have to worry about it. But so it is a it's a small group. The bonds of real affection and friendship and shared experience are very very strong, and I think we try very hard not to let disagreements of the moment break that.
So you've been on the court for twenty years, Yeah, and you were a circuit judge for a couple of years before that. Read a lot of district district court decisions over the years, So I'm looking for a little advice. Now, what what what? What can you tell district judges about the decisions they write that might might help us?
Yeah, brevity is good.
And I think it's it's you knowing to this, particularly with the district court.
We recognize there was a primary responsibility of the district courts to deal with the facts, and we don't want to be second guessing the facts.
And so that's.
An important thing to address if it's going to be in the opinion, to make it clear what findings you've made about what.
And and and and and and what hasn't.
And then I remember Justice Renquist, for whom my clerk was very adamant about that he was a very.
Good trial lawyer. He said, you don't want to waste too much time, you.
Know, on on the law if you're the facts are more important than the law, and then you know, the as it moves up, people are focused more on the on the facts he tried. When he was in my position as chief Justice, he was remembering his days fondly as a trial lawyer, and he assigned himself to a district court in Virginia to hear a trial, just to kind of get back on the saddle in that way, and souf and he did, and it was he issued a decision, and they appealed, and the Fourth Circuit reversed him.
Is that right?
And he never did it again.
No.
But the only thing that made him mad, and he was really upset about it is that they issued it as a percurate on opinion. Nobody had the guts to put their name on it.
You ever think about doing that, trying to be a trigiant No, because well you didn't try cases, so no difference there. Yeah. So you became chief Justice in two thousand and five, you worked with Justice o'cannor, and then yeah, Justice Skinsburg, and now there are more women on the court than ever. Has that changed the dynamic or the culture of the court in any way.
No, It'll be my honest answer, I don't think it has.
I'm sure, when Justice O'Connor came on as the first woman, that had all sorts of consequences.
And changes, and.
But you know, now, to be honest, I don't think in terms of the dynamic at conference or the discussions and all that, I just don't think it makes a difference. I wouldn't say that our conferences or our discussions are different, because I would say it's different because those particular individuals are there and they all come and bring different perspectives and all. But I don't think I would say it's different than because they're women.
So there's been a lot of criticism of some decisions because they have not they've changed precedent, right the abortion decision most recently, in other decisions like that, But that happens all the time, right, I mean, there's lots of times when courts have precedent that they that they think needs to be changed for whatever reason. What kind of criteria do you apply to that yourself?
Well, first of all, there's a lot of misconception on that subject. The see if I make sure I get these numbers right, in recent study, the war in court overruled I think three three point two decisions on average.
You know a year the.
Burger Court actually had a little bit more than I think they did, three point six percent a year. The rank was court moved down a little bit, only two point four cases number percent cases a year, and in the past twenty years the number has been one point six. So people have a different, at somewhat wrong view of how many cases are being overturned now. We take fewer cases now than they did before, but the number of important ones that would be subject to overruling are the same.
So a lot of people talk as if we're overruling a lot more.
It's the lowest it's been since the fifties, and sort of, and some cases should be.
I mean, aren't you glad that you know Brown versus.
Board of Education overruled Plessy or that Cats overruled Olmsted. So the idea that it's invariably a bad thing to overrule precedent is I think quite mistaken. At the same time, you can't do it willy nilly just because you know, you look at a case and you think, gosh, I would have had that principle come out.
The other way. That doesn't mean you overturn it.
Starry decisive is an important part of our work. The law is supposed to be predictable, so you need a special justification before you want to overrule a case.
Other than that you just happen to think, I think it's wrong.
We were talking about the Barnett case a little while ago, and that was a case that overruled a decision Justice frankfurt Or made just a few years before go bite this or whatever. Yeah, and so yeah, it's been around for a long time.
Yeah, So when you do that, you have to the first thing has to be that it's clearly wrong. The second thing has to be does that make a difference. I mean, if, for example, you say you can't figure out what the filing deadline is, you know, is it ten days under the rule or is it twelve days?
You have to decide it.
But you shouldn't come back and say, oh, it should have been twelve days, not ten days.
So we're going to overrule that.
I mean, that's something that most cases, many cases, it's more important that they be decided than that to be decided right, whether it's ten or twelve days, is a case like that. So it has to be a case where it really makes an important ongoing difference. And be significant enough to the league system that it justified to overturn the approach. But it's not something you want to do very often.
Can you talk a little bit about your experience clerking for Judge Friendly and Justice Ranquist.
Yeah, two wonderful years in my life and two totally different experiences. And I have to say, at a very personal level, the chance to clerk with Judge Friendly was very important. I graduated from law school in nineteen seventy nine, and this may be just the way I looked at it, but maybe it was because I you know, you know, being a lawyer was a second choice for me in general. But the law was a very cynical enterprise back then, I think, and you know, in some ways it's good.
In other facts, it was very instrumental.
People were using law as kind of a vehicle to achieve a particular objective, which there's nothing wrong with that at all. That's a lot of people, you know, do that, but also in a cynical way, and law was not regarded as something of sort of moral value from one of another word. And so I felt frankly that maybe this had not been a good choice. This wasn't something that was uplifting. If you had a particular agenda you wanted to pursue it good it could help.
You do that. But then I went and you know, was at the elbow.
Of this extraordinarily great man, one of the most remarkable judges, and he saw it differently. He really looked at it as a valuable gift that we had inherited for ordering society in a reasonable way. And he was somebody who was totally a political the most brilliant judge of his generation, Richard and didn't appoint him to the Supreme Court because he thought he would be soft on crime, and he
would have been from Nixon's perspective. He would have applied the law as it should be and meant some criminals were going to go free and others worked. But and he was able to sort of construct certainly in his opinions, which lawyers here know were remarkable. Realized that this was a system that had internal coherence and that was really a gift, and it needed people who are willing to view it in those terms rather than this is how I'm going to use it to get to a particular result.
So that was where I kind of I left my cynicism about the work that we as lawyers and judges do and appreciated that it had a greater worth, and just in terms of writing was it was a remarkable
gifted writer. He would come off of the bench after argument and sit down with legal pasth I had two of them, one for text, one for footnotes or notes, and just start writing and finish it one day or two days, and the secretary would type it up and give it to one of his law clerks and we'd look at it and say, well, what.
Does he want us to do?
And he would have some ideas and look at it. So that was a really remarkable year. And then with Ranquist, it was no. Renquist was the generation between Friendly was kind of like almost like two generations. Who's older and I was just out of law school and Ranquist was kind of right in the middle, and.
A different approach.
His writing is crystal clear, very direct, and had the same sort of appreciation and I don't mean to overuse these sorts of words with reverence for what the law does, but was very you know, direct and analytic, and you sort of knew exactly how it was structured and where it was going. So it was a nice experience for me to have two very different people and they really
admired each other. They In fact, I got the clerkship with Renquist because he and Friendly were at a conference together and I think, you know, Justice Renquist asked Judge Friendly if he had any good law clerks and he mentioned one, and I guess somebody else.
Hired that one and they mentioned.
And so anyway, I don't mean to be long winded about it, but you do kind of look back at that and see these sort of formative influences in your in your life and are grateful for them.
Does the way you deal with your clerks by and large mirror the way they dealt with you?
No, No, I wouldn't say that.
One.
When you're in the middle of it.
It's kind of hard to be self conscious and appreciate it.
I mean, I don't.
The one thing I do know is that the four clerks really do form quite a common bond. And rnquists used to talk to us about how that was, and he said, it's because the clerks are united by a common enemy and so and I really it's kind of hard when you're in the middle of it to see how you know, they might view the experience.
How do you work with your clerks.
It really varies from case to case. You know.
Sometimes if the facts are a little complicated, I'll want them to take a look at the record more than they might otherwise. Sometimes, if I feel comfortable that I know the law in an area, I'll have them do that.
But I would go in.
Much more carefully because I'm probably wrong about it. I want to make sure that I'm not letting errors that might have crept in affect my mind standing.
And then we'll go back and forth.
Sometimes I'll draft something and they'll look at it and they don't have the problem I had with Judge Friendly there.
It's come back pretty extensive.
Sometimes I'll encourage that, right, I mean, I'm sure you ask them.
Well, what's the point otherwise?
Right? Exactly how?
And sometimes I'll want to look at the facts a little bit more. But then when we get closer to the end, I have all four of them sit down together and we all go over the draft of the opinions. So you have somebody who's sort of been looking at it very carefully. Hopefully I'm one of those people too, And then the others who have just kind of like
read it. So in a way, it's like, you know, when I talked about doing briefs, you want to make sure that someone sort of putting eyes on it for the first time, can really figure out.
What it's How do you decide which clerk works on which case.
I leave that entirely up to them.
They make close decisions.
Yeah, you're listening to Chief Justice John Roberts in a fireside chat in Buffalo, New York with Joseph Belardo. Is still part of the celebration of the one hundred and twenty five years of the Western District.
Of New York that the system is developed where we get these very very bright people to work very very hard and they come up with such great work products.
And when you hire clerks, have they generally clerked for a district judge or a circuit judge? First? Oh? Sure? Always?
Always?
Yeah, So unlike Justice White, who that was kind of the fading out of that experience, I think, And you know.
You want to get the view of a judge who's.
Been with them for a year, I think, because that helps a lot.
In one year clerkships.
Absolutely, you don't want them to get too good. I mean that's the case now very seriously. I mean, you don't want them to get too good at what you're supposed to do.
You want to make sure that you are the one doing the work.
Yes, they're going to help you on what the cases say about this or how the facts look on this issue, but you don't want them to get too good because because.
You think there's a danger of you using them as a crutch too much.
Yeah, you want to make sure that issue doesn't really come up now. So and also it's a real valuable thing for me and I know other justices to have these sorts of to be a little more attuned to what's going on in the law schools. And you know, having a fresh batch every year you learn more about you know, what the teachers are teaching and what the students are interested in.
And then they go out.
So I have now people that clerk for me twenty years ago. They're in the you know, the midst of their professional career, leaders in the bar, or leaders in academia, or leaders in business, and they're real listening boards. We have a reunion every year. It's coming up in a couple of weeks. Hopefully we'll have a good turnout. We usually do and you learn from them all that's going on.
You know, what's going on in the law firms, and the people who are there will let you know what are they teaching in law.
Schools these days?
And they'll let you know what are you teaching in law schools these days? And it's nice to have that pipeline. I mean now I have almost one hundred out there at different stages, and it keeps you attuned to what's going on.
I mentioned to you earlier today that I have you to thank you and Dave Lee Brown, who is the
president of the Review, to thank for my clerkship. You sent me to or suggested that I apply tog Ervin Goldberg down in Dallas, Texas, and that was the best professional year of my life because, as I said to you earlier today, was a wonderful experience kind of being a judge, but not having the buck stop with you, so the pressure is not there, but the wonderful part of the job is and that makes clerking, I think, a really unique experience. So let's get to the Our
time is running out. Let's get to the heart of what I want to talk to you about. There's a lot of buffalo bills fans here, yeah listen. Uh, and and when the playoffs come around, there's a lot of calls to go against us. Are you going to be around to handle some emergency appeals this season? You know, we're getting tired of the same old thing happening to us. A year after that hour, Yeah, I.
Can see that. Yeah, Well, I uh was here long enough.
I know I had a poster in my my room of Jack Kemp and quarter back and and I think I think Darryl Monica was there yep too, and uh, Pete Gogolak, who was the first soccer style yep kicker, even Cookie Gilchrist if I'm remembering that. So that was what was posting my Well, but I you know, I left when I was ten and we moved to, you know, in Indiana. The Chicago was the closest place. So I
you're a Bears fan, I'm a Bears fan. But but look, when I was growing up, it was Dick Butkus, Mike Ditka and really if he hadn't blown out his knee, the greatest running back in NFL Hillas Gail Sayers and we were near. They had different connections with They would come and talk at our are the grade school even and because we were in in Indiana but on the lake and that people liked to go there, and it was just.
Yeah, I say, Gail Sayers, I think was the most beautiful runner I've ever seen. He was. He just was so graceful and so much fun to watch. And it was a shame that he blew out his name.
Yeah, I have a signed helmet of his, not of his, it's a bear's helmet that he signed in my chambers.
Very cool. Yeah, well, thank you so much for doing this. This is an honor for me, and this was a very pleasurable hour.
So well, not at all.
Thank you for having me, give me the opportunity to go back and see my boyhood home and you know, we kindle memories of Buffalo.
I appreciate it.
We're proud.
Thank you all for being.
Thanks so great.
So you're listening to Chief Justice John Roberts in a conversation with federal Judge Joseph Volardo in order to celebrate the one hundred and twenty fifth anniversary of the US District Court for the Western District of New York. The Chief Justice talked a lot about his personal background in the law, his clerking and by the way, he said he's not thinking of retiring anytime soon. He's going out feet first. He emphasized the importance of judicial independence and
talked about the importance of good writing search petitions. I'm joined by Professor Harold Crunch of the Chicago Kent College of Law. Hal there was a lot about his personal background, not as much about what's been happening at the Supreme Court. He was ready for the question about the Court changing precedent,
and the abortion decision was mentioned. He had the numbers saying it was the Roberts Court had the lowest rate of overturning cases in the last fifty years, but didn't get to the question about the abortion case.
And I think he's right that sometimes overturning the case is in the nation's best interest. And he's also right that the percentage of which the Roberts Court has overturned cases is probably not out of kilter. But then it's up to everybody to decide the merits of the cases. And I think the issue is not simply the question of precedent and story decisives. It is what people think about decisions such as Dobbs.
Also, what I found interesting is he was asked whether you think about, as a justice the consequences, the practical consequences of your decision, and for example, if it's a Second Amendment case, that more people will possibly get guns, and he said, no, you don't think about the practical decisions.
And I noted that too, And I can't believe what he said on this particular point. I mean, give you an example. I mean, we talked before the fireside chat started that just the most recent decision with respect to the discharge of trans people from the military, that very decision is about consequences because of the procedural posture of the case. You couldn't decide that case without assessing directly
what the consequences will be. And indeed, the consequences of the presidential immunity decision he wrote about directly in terms of defending his decision as to this almost absolutelymmunity for presidence, and he addressed it, you center, and in the decision itself. So I thought that was a little odd. I think what he was trying to say is that the justices are not politicians. I think that's important to re affirm that role, and that the justices shouldn't say we want
to have this policy for the nation. So I agree with them on that point. But I do think it's difficult to say that justices can operate or do operate without thinking about the consequences.
And we talked before he spoke about whether he would address some of the more controversial things that have been happening, and they asked him, I mean, just the judge Blardo asked him about the impeachment of judges, the request to impeach judges based on their decisions, and he got out of that. He got the answer out so quickly it was just over before it started.
Yeah, but he did address it. I mean he said that, at least from the Supreme courts perspective, the way to deal with adventurous judges who are on the circuit courts or the district courts is to appeal or CURCHERAA or some other measure or mandamus in order to get that kind of correction from justices. And obviously, in our society, we believe that impeachment is for high crimes and misdemeanors that's in the Constitution, is not because you disagree with
the decision. So it was a question. He reaffirmed his stance about the importance of judicial independence, but certainly the fireside check, so.
How he's emphasized the importance of judicial independence, and that's something that we've heard from him over and over throughout the years, the importance of judicial independence. It becomes particularly important in the age that we're living in.
Yeah.
Absolutely, And obviously they didn't want to get it would have been inappropriate to get into involved in that sort of political tension between the executive branch and the judicial branch currently, but he did, and I think he did this fucial independence in our society. He said that's one of the most cardinal important aspects of features, I should say, of our constitution.
Just a few minutes left here. Do you have anything that stood out to you besides what we've discussed.
Absolutely, I had no idea that the Chief Justice was a Bears fan.
They love to talk about sports in these conversations. Every time there's one of these Q and a's, the end up talking about sports, and particularly because they're from Buffalo. So now we know that he has a Gail Sayers signed helmet in his office. That's something that we always wanted to know.
It's been great to go.
It's been great having you on Hell. Thanks so much for taking the hour to talk with us, and I'm sure we'll be talking again soon. That's Professor Harold Krent of a Chicago Kent College of Law. He's an expert on constitutional law. And that's if the edition of the Bloomberg Law Show coming up. Next, We're going to hear from Bloomberg Wealth with David Rubinstein in our podcast Spotlight on Bloomberg Radio. Remember you can always get the latest
legal news by listening to our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify and at Bloomberg dot com Slash podcast, Slash Law, and don't forget to subscribe to the podcast and listen every evening at six pm Wall Street Time to The Bloomberg Law Show