On the 217th anniversary of the first session of the U.S. Supreme Court, Chief Justice Roberts is speaking to the first-year Constitutional Law classes at Northwestern Law School.
In an easygoing talk without notes, Roberts began by making some relatively conventional comments about Marbury and judicial review, observations more in the traditional “heroic” mode that dominated Marbury scholarship until the last few years. After about 10 minutes, he began taking questions.
UPDATE: After 10-15 minutes, Roberts is now taking questions--and he is exceptionally impressive.
Roberts made some interesting comments about having a Constitutional Court, such as many European countries have. He favors a court of law that decides non-Constitutional cases as well, in essence because it leads to more disciplined (not his word) decisionmaking. Further, Roberts said that having Constitutional courts tends to lead to [some] eminent politicians being selected, instead of the sorts of lawyers chosen for our Court. "They function as part of the political process." Yet, as he argues, "The Constitution is law." [It is unclear how strongly as a descriptive matter Roberts believes that the U.S. Supreme Court is a court of law rather than a political court, but certainly he wants it to function as what he calls "a court of law."]
2d UPDATE: Robert then began telling some stories about the institutional weakness of the Court 1790-1800 (including one that I didn’t know about [John] Rutledge attempting suicide).
Then he mentioned the lack of public knowledge about the Court: If you look at polls, you see that “Everybody knows Judge Judy is on the Supreme Court.”
Asked about cameras in oral arguments, he offered these words: “Justice Souter said, ‘Over my dead body,’ and we all like Justice Souter.”
People say that televising proceedings would “educate the public about what the Court does. But our job is not to educate the public; it is to decide cases.”
3rd UPDATE: Asked about the practice of some members of Congress saying that they would leave it to the Court to decide whether their proposed law is unconstitutional. Roberts replied: “That is an abdication of their responsibility and their oath. All three branches have the same responsibility.”
But he noted: “I like to think that the judiciary is the least interested of the three branches at least where the case doesn’t directly involve the judiciary.”
4th UPDATE: Roberts called the Senate's role in questioning nominees during the appointment process "pretty disreputable." [Roberts had previously noted its early use by segregated Senators to slow down the aftermath of Brown v. Board of Educ.] I will post more on the last 15 minutes of questions and answers when I get a chance in a few hours.
5th UPDATE (Thursday evening): Perhaps the most interesting exchange was in response to a question from a student about the Supreme Court’s application of international law. (I do not have good notes on this, so my characterization may not be even a good paraphrase of what Roberts and the student said.)
Roberts, seeming to interpret the question as asking about foreign law, asked the student about a situation where most of the rest of the world treated the interpretation of an issue or norm in one way (that may differ from how it is treated in the U.S.). The student replied that this sounded like customary international law. Roberts said he was talking about the exclusionary rule. Other countries do not apply the exclusionary rule. Should the Court deciding a case involving the exclusionary rule say that we have these (U.S.) precedents, but we should put them aside in favor of international norms that do not follow the exclusionary rule? Roberts suggested that people tend to pick and choose which international norms they want to import into U.S. law.
(After the class, one of my colleagues noted that Justice Scalia had made much the same point in one of his dissents. Also, some countries that don’t have the exclusionary rule allow more routine suits against the police for wrongful searches.)
Those who read some of Chief Justice Roberts’s comments as I (imperfectly) note them here should recognize that I mostly mentioned what struck me as the high spots and that he often explained his positions in somewhat more depth than the brief snippets I reported. Without exception Roberts' responses to questions were extraordinarily lucid and quite fascinating. Although I did not necessarily agree with some of what he had to say, I confess that I was terrifically impressed. Compared to the only other Chief Justice whom I had seen during a law school visit (CJ Burger at Virginia in the 1980s), John Roberts was strikingly different: Roberts is straightforward, decent, modest, articulate, and whip-smart.