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Monday, November 13, 2006

The Chief in Miami

Just back from a lovely evening at the BankUnited Center at the University of Miami, where Chief Justice John Roberts was the inaugural speaker in the University Lecture Series. I understand that the interview of the Chief will be on Nightline tonight. After the jump, I'll provide my reconstruction (via my rough notes) of some of the more amusing or interesting parts of Roberts' remarks that he gave to the audience initially and in answer to Jan Greenburg's subsequent questions.

Roberts opened with a disclaimer that he doesn't like to tell lawyer jokes anymore: the lawyers in the audience don't think the jokes are funny and the non-lawyers don't think they're jokes. He then noted that he couldn't refuse the invitation to the U of M from his former co-clerk for Rehnquist, Dean Colson, the Chairman of UM's Trustees, because it presented the chance to "put a good friend in the awkward position of having to say nice things about me."

After his introductory remarks, which reminded the audience of the (essential? aspirational?) distinction between law and politics, the Chief sat down for an interview with ABC's Jan Greenburg, who helped provide a revealing look "underneath the robes" of the Chief. For one thing, he clarified that, contra the press reports, his son Jack was not dancing but rather playing Spiderman during the conference in which 43 announced Judge Roberts' nomination to the SCT.

When asked what powers the Chief had as against the other Justices, Roberts correctly noted he had little authority but that "you can always give all the tax cases to a justice if you want to punish him." He said he tried to be fair in dividing the work load between the interesting cases and the "dogs." He also observed that with all the transition in the last year, it took a while to get the kinks out at conference: apparently it took a few times for Justice Breyer to remember not to answer the door in conferences and for the now junior Justice Alito to learn to answer the door.

In terms of managing those judicial conferences, he provided some insight into the back and forth: no one is able to speak twice until all have spoken once. In trying to police the civility of the room, he has had to rule that facial expressions (such as a rolling of the eyes) count as a "second" talking, and they are to be kept to an absolute minimum.

He also noted that his path to the Court was somewhat fortuitous. He was a history concentrator when he was an undergrad at Harvard and was quite smitten by the subject, thinking he wanted perhaps to be a history teacher. He then noted there weren't many jobs for history teachers, and so he became more interested in legal history and law, generally, especially during and after his first year of law school at HLS.

As to the substance, Roberts remarked on how his first year on the Court has surprised him in subtle ways: he hadn't earlier seen how the SCT has served as a magnet for foreign members of the judiciary in emerging democracies, which are struggling to implement the rule of law through an independent judiciary. (I had half-expected him to follow up by saying that he's begun to read more decisions of foreign courts, but then I woke up from my fantasy.)

He described his goal as Chief in terms familiar to Cass Sunstein's minimalism: he expressed a clear preference for narrow opinions with as many justices signed on to them as possible in part because "boldness is not a virtue of the judiciary." The small but sturdy steps approach he favored in the adjudication of one case at a time provides more guidance to lower court judges and to practitioners trying to guide the behavior of their clients.

As to his role models on the Court, he said he admired Justice Jackson's power with prose, the prodigious intellects of Frankfurter and Holmes, and the ability of someone like Brennan to bring a Court together.

Anyway, if you have the chance, you should check out the interview when it appears on the web. The Chief is emphatically a bright and congenial person, with a quick wit and a warm way about him. He didn't stir the pot of substantive controversy, but the interview will give you a better sense of who he is and how he is evolving after only one year under his belt as Chief.

Update: Here's the report from the AP (Hat tip to Howard Bashman)

Posted by Administrators on November 13, 2006 at 10:40 PM in Constitutional thoughts, Dan Markel | Permalink


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I continue to think that it's probably a mistake to see the Chief as a minimalist, for reasons I offered after his Georgetown speech.

Posted by: Simon | Nov 14, 2006 7:59:02 AM

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