10th Circuit Fireside Chat 2022 - Justice Roberts

John G. Roberts, Jr., Chief Justice of the United States Supreme Court, reflected on his career and work as a judge at the Tenth Circuit Bench-Bar Conference Fireside Chat on September 2, 2022. This podcast features excerpts from that discussion.

 Incoming Tenth Circuit Chief Judge Jerome A. Holmes and outgoing Chief Judge Timothy M. Tymkovich interviewed Justice Roberts for this program. 

 Justice Roberts began by responding to news media comments about the Supreme Court’s legitimacy after decisions during the 2021-22 Term changing established precedents. Those decisions included the Court’s landmark ruling overturning abortion rights established in Roe v. Wade, 410 U.S. 113 (1973), in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. __ (2022). 

 This podcast also features Justice Roberts’ comments about: 

1)         his role presiding over the Judicial Conference of the United States and serving as Chancellor of the Smithsonian Institution; 

2)         his work in the early 1980’s as a law clerk for Justice William Rehnquist, including law clerks’ basketball games in that era with Justice Byron White; 

3)         his work in private practice and the U.S. Solicitor General’s office as an appellate specialist before becoming a judge; 

4)         why he enjoys the job as Supreme Court Chief Justice, and his explanation of the behind-the-scenes collegiality which exists among the current justices;  

5)         how he seeks to write court decisions that are clear for both lawyers and non-lawyers; and

6)         how he deals with welcoming new justices to the Court and its decision making process, and with the stress of deciding complex cases.

Transcript

Leah C. Schwartz  00:00

Hello, and welcome to Tales from the 10th. A podcast about the rich history, culture and contributions of the 10th circuit courts, brought to you by the US Court of Appeals for the 10th circuit, and the 10th circuit Historical Society. I'm your host, Leah Schwartz, 

Tina Howell  00:15

And I'm producer Tina Howell emerging technologies librarian for the 10th circuit. 

Leah C. Schwartz  00:19

Here are some highlights of that interview with Chief Justice Roberts. Conducting an interview are 10th circuit judges Tymkovich and Holmes. Justice Roberts discussed his career before becoming a judge, including his time as a law clerk to Justice Rehnquist. And as an appellate advocate. He also shared his perspective on collegiality within the Supreme Court. The interview began with his recollection as chief on the turbulent 2021-22 Court term during which the Supreme Court issued several major decisions, including the Dobbs case, on the right to an abortion.

Judge Timothy Tymkovich  01:01

We're coming off the last term, it was a momentous year for the court, many important cases, many security concerns, attention from Congress attention from the media, one of the terms maybe for the history book. You became chief in 200 and you've been our leader for 17 years on the Supreme Court. But if you could reflect on the past year, and really on your tenure as Chief Justice, give us your thoughts about what its like. 

Justice Roberts  01:28

Well, the last year was an unusual one and difficult in many respects. It was gut wrenching every morning to drive into a Supreme Court with barricades around it. And it was unnatural when we took the bench after doing just the audio arguments, took the bench without the public present. But I don't really reflect too much on those sorts of things. But I think with my colleagues, we're all working to move beyond them. The barricades are down. And when we take the bench that first Monday in October at 10am, the public will be there to watch us. I think just moving forward from things that were unfortunate in the year is the best way to respond to it.  There is one thing though, that looking back on the year and how it's been addressed in a number of places, that does cause me a little bit of concern. The court has always decided controversial cases, the decisions have always been subjected to intense criticism, and that is entirely appropriate. Citizens feel free to criticize our opinions and how we do our work but lately, the criticism is phrased in terms of, you know, because of these opinions, it calls into question the legitimacy of the court. And I think it's a mistake to view those criticisms in that light, the legitimacy of the court rests on the fact that it satisfies the requirements of the statute and that the Constitution needs as John Marshall put it, somebody to say what the law is and that's the role of the Supreme Court. And that role doesn't change simply because people disagree with this opinion, or that opinion, or disagree with a particular mode of jurisprudence. So obviously, people can say what they want, but and they're certainly free to criticize the Supreme Court. And if they want to say that its legitimacy is unquestioned they're free to do so. But I don't understand the connection between opinions that people disagree with and the legitimacy of the court. If the court doesn't retain its legitimate function of interpreting the Constitution. I'm not sure who would take up that mantle, you don't want the political branches, telling you what the law is, and you don't want public opinion to be the guide of what the appropriate decision is. So yes, the all of our opinions are open to criticism. In fact, our members do a great job of criticizing from time to time, but simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.

Leah C. Schwartz  04:03

Justice Roberts also briefly explained his role presiding over the Judicial Conference of the United States, and serving as Chancellor of the Smithsonian Institution. 

Judge Holmes  04:13

Would you give us some insight into the role of the Judicial Conference and its importance to the judiciary? 

Justice Roberts  04:20

Sure, it's our way of taking care of our own house comes from President Taft when he was Chief Justice, who thought that the judicial system was chaotic disorder. And it was different budgets for different courts, Congress interfering with what the rules are, no sense of what budgetary requirements were. And so he was the driving force behind the Judicial Conference, which took over the responsibilities that had been dispersed in different places in Congress. As as many of you know a very important committee on the budget on rules. You imagine a situation with Congress, passing the rules that are going to apply in the courts, and the conference has served a very valuable role in making sure that dealing with the needs of our institution are handled by people who know what is up because they're working in that institution. And again, all the people here who serve on the different committees their work is very valuable. And I'm grateful for it. As I'm sure all of us, all of us are. 

Judge Timothy Tymkovich  05:16

We had a wonderful dinner before this event, and you were talking about your service as Chancellor of the Smithsonian. I just thought you're the chief justice of the United States. Sounds like there's a lot of things that come with the job. So that sounds like a particularly interesting aspect of the job. And I'm just wondering, you're at the Smithsonian, maybe you're at the National Geographic, what else do you do? Tell us about that? 

Justice Roberts  05:40

Well, when people ask me, What's the best part of being Chief Justice, I say it's that you get to be the Chancellor of the Smithsonian. It is the largest research educational and curatorial Institute in the world. It does extraordinary scientific research, you're probably most familiar with its museums. The Board of Regents, which governs it is the collection of the most impressive people you can imagine. In again, the science, the research field, the art field, the field of philanthropy. It's a wonderful collection of people. By historical accident, I get to preside over their meetings, I really know little about what the expertise is needed, which I think can be beneficial. They often have to kind of I'm sure it won't put it this way, but dumb things down. But it requires them to think about how common people would look at what they do. On the other hand, they're great experts in what they do. I am not you all know the old saying that there's no such thing as a dumb question. Well, apparently there are. And I ask them. I'm very proud of the association with them. And it has resulted in some wonderful moments for me. I got to put my hand on John J's robe, which is in the Smithsonian, the curator was not looking at the time because we're not supposed to do that. And one of my favorite moments, Wynton Marsalis was performing at one of our ceremonies, and I thought that it would be a great thing if he could use Louis Armstrong's trumpet in performing. The curator, again, was not too keen on the idea. But we got the trumpet for him. And it was such a joy to watch him play. And to think of the history behind it. It's a great side gig and I'm happy to have it.

Judge Holmes  07:23

It sounds like it.

Leah C. Schwartz  07:24

Justice Roberts worked as a law clerk for Justice William Rehnquist, from 1980 to 1981. He shared a few memories about Justice Rehnquist, as well as his time playing on the Supreme Court's basketball court with Justice Byron White. 

Judge Holmes  07:40

When they were talking about your bio, they mentioned your time clerking for then Justice Rehnquist. Would you share a little bit about that experience in your time there? 

Justice Roberts  07:49

Sure, it was in the first place harder than the other clerks because he only had three clerks, the others had, with the one exception, the others had four. He liked to play tennis. And so we each did 30% More work. So we could play, play tennis. He was ahead of his time in ways that I don't think are readily apparent to people he would often say in a very, Rehnquistian turn of phrase that,"If you want to spend time with your young children, you have to do it when they're young." His point was, was quite accurately captured in that you can't keep putting it off. And before his time, he would take, I don't know if they called them sabbaticals, but he would take month long periods with his family to travel around, and leave, leave work behind. He was a wonderful, often eccentric, thoroughly enjoyable boss. I knew him  of course, as an associate justice, but I think he did great services chief too.

Judge Timothy Tymkovich  08:49

Tell us about your interactions with Justice White, and what you remember about his role and service on the court is

Justice Roberts  08:57

My principal interaction, I think I still have the bruises. I played basketball against him a couple of times, he took a couple of Clerks and I had my two co-clerks and I and all and play and I didn't realize that in his era, it was perfectly legal to sort of throw somebody's against the wall. Dirty styled, set a jump shot, it was it was really exciting to be that position. I remembered it would be great getting to know another justice because we're going to be playing basketball. The conversation with Justice White consisted of three words. In the beginning, he would come in and say, "Let's play!" And at the end, he'd say, "Thanks." That was my relationship with Justice White.

Judge Timothy Tymkovich  09:44

A terse Westerner for sure.

Justice Roberts  09:46

 Yeah.

Judge Holmes  09:48

We talked about your clerkship experience with Justice Rehnquist. Do you think the job of being a law clerk on the Supreme Court has changed much since you were a law clerk there?

Justice Roberts  10:00

Oh sure, first I have to remember not to date myself, but we didn't have computers, we didn't have word processors. You know, we dictated memos and the second secretary would type them up with a number of, you know, carbon sheets and she was only going to do one draft, and there weren't going to be a lot of edits or changes. So you had to do things and she wasn't going to take more than six pages. Today, they have the databases, all the word processing the research facilities. So the memos are quite a bit longer. It's changed what lawyers do. I mean, back when I was a lawyer, it was still a big part of the job to find the law. I mean, you're looking through the digests, and you're coming upon the big case. And now everybody gets all the law with the push of a button. And the job is different. Now you've got to cull stuff a lot more. So the jobs changed, changed quite a bit.

Judge Holmes  10:50

Logistically, were you able to dictate in the same area? Or were you able to or did you have to move around? 

Justice Roberts  10:56

Well, the three Rhenquist clerks at the time were in one big room. And so we would get the petitions, I think it was Monday morning, it might have been Tuesday, because the court was hearing 140 cases at the time, you kind of had to get the cert memos out of the way that morning or it'd be a tough week. So one of us would stay in the room another would go into a storage closet for privacy and the third one actually wandered the halls dictating. That room has actually been cut up now with the court and you can't use it that way.

Leah C. Schwartz  11:26

Justice Roberts worked as an appellate specialist from 1986 to 2003, both in the United States Solicitor General's office and in private practice. He commented on the role of a specialized group of lawyers who argue in the United States Supreme Court.

Judge Timothy Tymkovich  11:42

Well, you know, before you joined the court, you were one of the leading advocates in the Supreme Court, boutique bar, if you will. And I think you were probably one of the innovators of creating an appellate practice that was really, really specialized in advocacy and persuasion aimed at the Supreme Court. What was your evolution to, you know, kind of an appellate specialist at the Supreme Court level? You know, we have a lot of appellate advocates in the audience, certainly a lot of judges, what did you see as the skill set that you brought and developed that made you particularly effective in an appellate arena?

Justice Roberts  12:15

Well, you know, I had worked in the government for a while before going into private practice. So I had put a lot of years in, and from the clerkships and other things, I thought I knew how to read cases and write briefs. And I sure didn't know how to try cases at that point. So when I was looking for a job, that's kind of how I tried to market myself. I would say most people weren't terribly interested. You know, you'd go to the places and they were so well, the lawyers who try cases, do the appeals. That's how it works. And I said, Well, I don't know how to try cases. And so I'd go down to the next firm, and it's the same thing. And I eventually came upon the guy at the law firm of Hogan and Hartson named Barrett Prettyman, who had pretty much an exclusively appellate practice or counseling practice. And he took me on and I got to work on the kinds of cases I was interested in, things I thought I could do. Other people were doing similar sorts of things in the profession at the time, people like you heard of Rex Lee, and all who, who, obviously was a brilliant lawyer, I lost one case to him nine to nothing. So he must have been brilliant. He was setting up a separate Appellate Group and another firm and all that, and it just kind of caught on to the point that people who do it now it's kind of a recognized practice, and they make a whole lot more money than I did back then.

Judge Timothy Tymkovich  13:30

Yeah. Do you think the Supreme Court does drive a really specialty practice? I think it does. But what's your perspective on the court?

Justice Roberts  13:38

I miss and I know some of my colleagues miss the idea of, you know, the lawyer coming from a small town in Iowa to Washington to argue his case in the Supreme Court and, and all that. I certainly like to see that when you know, they do a good job. It's so hard, though, to compete with people do it full time and for a sole practitioner, a small firm to be able to devote the time you need to argue a case it's really asking, asking a lot.

Leah C. Schwartz  14:07

Justice Roberts briefly explained why he enjoys serving as a Supreme Court Justice and his work with the seven justices who have joined the court after him.

Judge Timothy Tymkovich  14:17

What would you say to those out in the audience that may be interested or mentoring somebody that might want to serve in a public position?

Justice Roberts  14:26

Well, as for me, I have a job that allows me to do the kind of work that I enjoy with wonderful colleagues in the service of a country that I love for as long as I want. And when I'm ready to retire, they'll still pay me. You know, it's a great it's as good a job as I can imagine. You know, of course, it's difficult for people, they have other responsibilities you need to educate your children and take care of other people and, but it is a wonderful opportunity for public service. And as far as other opportunities to serve, I think people should try to find an opportunity to do that, whether it's long term or short term and give back something to to the country if they're able to do that. And there are a lot of opportunities to do that.

Judge Holmes  15:16

During your tenure as Chief Justice, you've seen a remarkable seven new colleagues join the court. What has it been like as chief, managing and welcoming those new colleagues?

Justice Roberts  15:30

I think my colleagues, new and old would be amused by the idea that my job involves managing them. In terms of welcoming new colleagues, it's a joint effort by the eight people who are there. I think we're a very warm and welcoming court, we have our hazing rituals for new colleagues. Justice Jackson is the new member of the cafeteria committee. I'm sure she'll do a great job there until a new colleague comes along. I do remember when I was new, the first day on the job and my colleagues came and visited me to tell me how the court worked. I got about 12 different views from the eight of them. But it's an amazing group of people. It's an extraordinary institution where you have people from different backgrounds, different parts of the country, different views on the law, different views on a lot of things thrown together for you know, as long as 20-25 years to deal with some of the most important issues facing the country. And I find it endlessly fascinating how we sort of find a way to get along. I don't want to say they're arranged marriages. But it's a fascinating, dynamic. And I think all of us do the best we can to make sure it works smoothly. And I find it hard to believe that I've had seven new colleagues that time has moved pretty quickly. And we're certainly going to miss Justice Breyer, he, probably more than any of us was one who was focused on the relationships among justices on the court. The stories about him are endless, but I'll only share one. I sitting on the bench. And I'm sure justice Gorsuch will remember this all of a sudden, somebody's phone rang. And the next thing you know, Justice Breyer is fumbling with his shirt, turning off his phone. That was too bad. But again, it happened again, the next week, the phone went off again. So we got one of the metal detectors and put it in the entryway where we go from the conference room onto the bench and put, you know, Justice Breyers name on top with an arrow down. So the rest of us could go in, but he had to go through the metal detector, I thought was pretty funny. Anyway,

Judge Timothy Tymkovich  17:54

Do you remember what your contribution was to the cafeteria committee?

Justice Roberts  17:58

You know, the interesting thing is it's done by seniority and the Chief Justice is designated as the most senior for protocol. So I skipped cafeteria committee altogether.

Leah C. Schwartz  18:09

Justice Roberts also commented on the collegiality that exists among the justices behind the scenes, despite their disagreements deciding cases. He also spoke to the challenge of seeking consensus among nine justices, compared to just three existing on our court of appeal panels.

Judge Timothy Tymkovich  18:27

What's something about the supreme court processes that the public probably is not aware of that you could share with us?

Justice Roberts  18:34

Well, I think it's it's something very important at a general level, which is I think, people don't always understand how our process works, and how much it involves joint work among ourselves. The Friday before our first Monday, we'll conduct an investiture ceremony for our new colleague who will repeat the formal oath of office. And at the end of it, I will with a traditional greeting, wish her a long and happy career in our common calling. And I have always understand that to be not just common calling in the sense that we're both judges, but that we're in it together. We're engaged in a common endeavor. And that is how we function we do shake hands traditionally, before conference and before going on to the bench. Chief Justice Melville Fuller established that custom and it's a good one. We struggled a little bit with it and COVID we did various things. Some people were shaking hands, others, fist pumps and somebody introduced elbows which I discouraged because we're in our black robes we look like a bunch of crows flopping around. And we work that way. We do discuss the issues in conference. There's never been a voice raised raised in anger in our conference room, and we work seriously together in thoughtful memos about each other's positions. There's no sappy facade of, you know, fake affection or anything. But it's a respect shown by direct explanation of positions and and responses to them. And the product is ours. You know, it's not my opinion, it's not Justice Gorsuch's opinion, it's the opinion of the court. And so we're working together in a common enterprise. And, you know, when we we go on the bench, and an opinion is announced, and a dissent is there, and you read it, and it's really sharp, but those two people come back and they go into the dining room and have lunch, where we talk about all sorts of things, the only rules, we don't talk about work. And I think it's just the nature of having the nine people engaged in this common enterprise, that it does create a bond. And it is a common calling. That's how we work. It's different. I think, then other people work in other positions. And that's something I would like people to know, I think if they just look, read the opinions, they may think there's some harsh views. If they listen to the commentary back and forth. People might see it differently. But we have a common calling and we act like it.

Judge Holmes  21:07

What is something that you're looking forward to in the upcoming term?

Justice Roberts  21:12

Well, it's more when I'm hoping not to. It's, you know, I'm looking forward to having a court without barricades. I'm looking forward to seeing the public in court. You know, we have a nice batch of cases coming along, we're getting the point, we've got to start working on those and getting ready for those. But nothing special, I think. The more normal, the better.

Judge Timothy Tymkovich  21:38

Before you were elevated to the Supreme Court, you were on a circuit court, of course and I just wonder if you could really compare and contrast the case discussions at the circuit level versus the Supreme Court the kind of differences in the decision making or drafting process or consensus building process between kind of a smaller three, three judge court versus a permanently en banc, nine member court.

Justice Roberts  22:04

Well, three is easier than nine. It's, it's easy, you just sit down in the office and you come to some agreement and, or not, and put it put it together. Nine is different. We obviously discuss the cases in person in conference. But after that the nature of it is we do spend a lot of time in memos that I don't remember spending a lot of time on in the DC Circuit, except once the opinion process got started. There's sort of a protocol that you talk to everybody, through the memos you did this sort of carving out groups is generally not considered the best way to bring the court together as a whole. We deal with that same nine, the same cases as opposed to different groups of three. So for the golfers out there, it's kind of like the Masters, which is a different tournament, because you look at it and you could say, four years ago, you know, I use the seven iron on this shot. And in our business, we can say I remember in this other case, that this is the best way to approach or this is what justice so and so wanted to do. And you don't really have that on the Court of Appeals.

Leah C. Schwartz  23:09

Roberts also commented briefly on how both as an appellate advocate and as a judge, he seeks to write arguments or decisions that are clear for non lawyers, people like his sisters. He also explained how he enjoys speaking to law school audiences and how he loves learning from students he addresses. 

Justice Roberts  23:27

For me, one of the most important things is who you're writing for. And I've always had a good answer for that both with when I was writing briefs, and when I was writing qnd now when I'm writing opinions, which I'm writing for my sisters, they are intelligent people with active interest in civic affairs, but they're not lawyers. And they don't necessarily read newspapers that keep them up to date on what the law is about. But I want somebody in that position to be able to read the opinion, and understand what it's about. Accessibility is an important objective for me. And when I was writing briefs, every now and then I would ask them to read this brief and tell me what it's about. And I wasn't looking for a particular intricate analysis but if they could say, Okay, this is what the problem is, you know, this is why you should win and that was what I was looking for.

Judge Timothy Tymkovich  24:16

You have an opportunity to travel the country and travel the world and talk to various audiences. Do you see, part of the job is explaining the role of the court and the rule of law to broader audiences?

Justice Roberts  24:29

The greatest benefit of my getting out, frankly, goes the other way. I particularly like to go to law schools and talk to the law students, and I learned more from that than perhaps they do. And that's a good place for judges to go because it's, I try to take a temperature of the level of cynicism and the level of, you know, interest in the law and how they view it. And I think that's important for me, and for my colleagues to know. I've missed coming to events like this during during COVID. Frankly, it's a night nice break from Washington when you can get away. And it's also a good opportunity to get a good sense of what fellow judges are doing out in the country.

Leah C. Schwartz  25:09

Finally, Roberts also shared his experience dealing with the stress of designing complex cases. And the process of welcoming new justices to the court's internal discussions.

Judge Holmes  25:20

Many of our cases are stressful and time consuming, and even emotionally draining. What do you do to find personal balance after writing difficult opinion and sort of hitting the reset button and preparing to go forward?

Justice Roberts  25:35

Well, we're talking about Justice Rehnquist and this is one thing that he really emphasized quite a bit, which is when something's done, it's done. You know, I remember asking him well, do you ever stew over these opinions and, and all that. And he said, "No, I mean, I did the best I could and if I thought too much about the past opinions, I'd never be able to carry on in the beginning." So you know, I don't know, I don't know if that's a good thing or not. But frankly, when they're done, they're done. And it's on to the next thing. And as far as resetting, we all have, you know, family situations in life. And you know, the kids are away from home now but that was always a good, they had a lot going on that you could reset. So I don't think it's that much of a problem. 

Judge Timothy Tymkovich  26:22

You have a new Justice starting this year, you've had four new justices since 2017. So a lot of change in a relatively short period of time. You've had this sequential series of new justices, what's it like when a new Justice comes on the court, which you're going to experience again, and October of 2022?

Justice Roberts  26:44

I think what it causes the rest of us to do is kind of up our game a little bit. It's almost like the new in-law at Thanksgiving dinner. And it makes sense. I mean, if we've been together for however many years, you know, Justice Gorsuch knows what I think about a particular issue. I know what he thinks about it, we don't have to go through and rehearse it every time. But now there's a new a new person there. And I think each of us will be a little more careful and explaining why we think what we think. It will be new to her that we do. And so, you know, they'll they'll be a little bit more, cause us to think about what we're doing, if we have to articulate it and learn again, what our different colleagues think. I think that's a very, very good thing. And it's pretty doesn't take very long, I mean, the position of that Justice Jackson will be in as the ninth justice it's often the case, you know, we go in order of seniority, when things get to her, the vote is eight to nothing people are kind of flipping their notes to the next case before she's had an opportunity to say much. But on the other hand, when it's four to four, and it gets to her, people are listening pretty carefully. So it's an interesting position on the court. It can be terribly important. She's going to be a wonderful justice has a delightful, delightful family and I'm really looking forward to working with her.

Leah C. Schwartz  27:59

This episode was produced and edited by Tina Howell. Subscribe and download at the Historical Society's website 10thcircuithistory.org or at Apple podcasts, Spotify or Stitcher. Special thanks to Greg Kerwin, Brent Cohen, Stacey Guillon and Diane Bauersfeld. Thanks so much for listening