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Chief Justice John Roberts Speaking at Northwestern.--

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.

Tocqueville:
Chuck Schumer would insist that you've been bamboozled, Jim. From the hearings:

"[I]t's important to determine not just the quality of your mind but the fullness of your heart, which to I think a good number of us at least on side of the aisle really mean the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.

It didn't seem much, for instance, to concede that the wording "illegal amigos" was unfortunate, yet you refused to say so.

America has moved in the 21st century what Senator Kennedy called the cramped view of civil rights professed in the early Reagan administration. But you wouldn't admit now in 2005 that any of those views you argued for in the early '80s were misguided with the hindsight of history.

That's troubling.

Second is the refusal of the administration to let us see any documents you wrote when you served as deputy solicitor general, when you were not simply following policy, which you've reminded us in your earlier days there and in the counsel's office, but making it.

This would have given us tremendous insight into who you are, into knowing who you are and what kind of justice you'd make.

But, for what seems to be self-serving reasons, they were refused.

Now this was not your decision. But you carry its burden and I think we all have to consider it when weighing how to vote.

Third, and most important, on the con side, is your refusal to answer so many of our questions.

I know you feel you were more forthcoming than most any other nominee to the high court. I must disagree. You certainly were more forthcoming than a few. Now, for instance, I don't know Justice Scalia's opinion on "Doctor Zhivago," but most answered more relevant questions than you did.

Your refusal to comment on any issue that you thought may come before the court — we learned a lot about your views on older, completely discredited cases, like Lochner and Plessy and Korematsu. But they're not of much help to us.

What we need to know are the kinds of things that are coming before the court now. And it makes it hard to figure out what kind of justice you will be, particularly in light of the fact we have little else to go on.

You did speak at length on many issues and sounded like you were conveying your views to us but when one went back and read the transcript each evening, there was less than met the ear that afternoon.

Perhaps that's the job of a good litigator, but in too many instances it didn't serve the purpose of the hearing.

Having said that about documents and questions, obtaining documents and answering questions are a means to an end, not an end in itself.

In some cases, like Miguel Estrada's nomination, we had no knowledge of his views so we couldn't vote. But here there's clearly some evidence."
2.1.2007 2:11pm
K Parker (mail):
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."
Very nice indeed, but given that amount of common sense it's no wonder Mr. Schumer opposed him.

Oh, and Tocqueville--this is just a conjecture, since you quote Schumer without any comment whatsoever, but if you meant to quote him approvingly, then you surely don't deserve your nom de blog.
2.1.2007 2:21pm
The Emperor (www):
Wow, Chuck Schumer accuses Roberts of having "self-serving reasons." Well, I suppose Schumer is the expert, with his comments quoted above as evidence of that.
2.1.2007 2:25pm
Spartacus (www):
Great coverage, but are you live blogging this from the classroom? Wasn't there a discussion recently on VC on how laptops in law classrooms have deleterious effects?
2.1.2007 2:43pm
Steve:
The bit about cameras strikes me as overly glib. If their job is simply to "decide cases," why have open court proceedings at all? There's a civic value in public access to proceedings, a value that is only enhanced by permitting wider access. There are, of course, countervailing considerations, but that's no excuse for simply dismissing the notion.

I'm not a fan of Senator Specter's bill to require cameras in the Supreme Court - I think they're a separate branch of government that should be allowed to make up their own mind - but when I see how little consideration the Court is willing to give to the arguments for the proposal, it makes me somewhat more sympathetic to Sen. Specter. I'm sure my town zoning board doesn't like their proceedings being televised on local cable - after all, their job is to regulate land use, not to educate the public - but that's just too bad for them.
2.1.2007 2:46pm
reader:
"our job is not to educate the public. it is to decide cases"

ugh. just, ugh.

we like it when there's no scrutiny of how we do things! let's keep it that way!
2.1.2007 2:46pm
advisory opinion:
ugh. just, ugh.

we like it when there's no scrutiny of how we do things! let's keep it that way!


lol?

How do televised proceedings add _substantively_ to scrutiny that we don't already have with recorded oral arguments? The idea that a Justice twitching his nose has substantive legal bearing and therefore needs to be "scrutinized" is an idea without peer in its frivolity.

To dress it up as a serious mode of scrutiny is even sillier.
2.1.2007 3:03pm
Steve:
If you're going to put it that way, what is the argument against televised proceedings that doesn't apply equally to tape recordings? Surely Roberts' glib comment could apply equally to either; the Court's job is to decide cases, you know, not to make audiotapes.
2.1.2007 3:37pm
Adeez (mail):
Right on Steve. I simply don't understand their rationale. Of course, I'm sure they have their articulated reasons. And someone more knowledgeable than I on this subject will hopefully post them. But I doubt they'll persuade me, especially considering audio is permissible.

As for your point that "I think they're a separate branch of government that should be allowed to make up their own mind": I don't think Congress would be overstepping its bounds by such a bill. They do control the judiciary to some degree. Wouldn't it be similar to the legislature's authority to promulgate rules of procedure?

"Freedom" is waning. I'm for any attempt to increase government transparency. This seems like a no-brainer, and I would expect the libertarians here to agree.
2.1.2007 3:47pm
Anderson (mail) (www):
The justices are quite right to fear grandstanding by televised counsel.
2.1.2007 3:47pm
Stuart M. (mail):
Is a transcript of the Chief Justice's speech going to be available?
2.1.2007 3:50pm
Steve:
I didn't hear him argue that television would lead to grandstanding, Anderson. I heard him argue that "our job is to decide cases." (Which, of course, isn't an argument at all.) We could debate the plusses and minuses all day, but as I said above, I don't get the sense from Roberts' flip comment that the Justices are considering the arguments at all. We can always come up with plausible reasons to adhere to tradition, but I can't help but feel like there's a bit of an overstatement of how terrible the consequences of televised argument would be.
2.1.2007 3:52pm
Cornellian (mail):
I remember a newspaper describing Roberts' performance during his confirmation hearing and referring to his "Olympian" command of the Court's precedents. I always thought that Senators were probably a bit fearful of asking him substantive questions about Constitutional law for fear of looking like clueless idiots. That was probably a well grounded fear for all of them, except maybe Specter.
2.1.2007 3:56pm
liberty (mail) (www):
"How do televised proceedings add _substantively_ to scrutiny that we don't already have with recorded oral arguments? "

How many (non legal) people listen to the recorded oral arguments? How many (non legal) people watch CSPAN's America and The Courts?

I know both are small numbers, but I suspect the latter is larger than the former. Scrutiny would increase. Whether that is good or not is a separate question.
2.1.2007 3:59pm
Jonathan1L (mail) (www):
I thought that the Chief was incredible. What an opportunity for my 1L class! Add this to our 1L class's having been taught a legal writing class last semester by Justice Scalia, well... it's just great fortune. :)

A fellow 1L asked me "who's that guy typing in the back?"; I guess it was Prof. Lindgren. Hehe.

The thing that struck me the most about the Chief is that all evidence currently available indicates that he's going to be very fair and prudent in his interpretation of the law. We will see, however, when the Carhartt decision comes out. In person, he's funny, articulate, obviously intelligent, unflappable (for instance, a classmate asked what he thought of the AG's recent remarks; Roberts took the question, smiled, and refused to give an answer ;-).

As for transcripts, I'm not sure the ConLaw class will be transcribed for the public (though I hope the University did for the archives!), but I'm pretty sure the Lecture later this afternoon will be televised on C-SPAN in the coming weeks. At least, I assume that's what the woman from C-SPAN asking where the media were to go was doing.

More later after the lecture.
2.1.2007 4:04pm
Henri LeCompte (mail):
Steve:
I urge you to keep an open mind. I doubt that Robert's quip about "deciding cases" is the sum total of his thought on the subject. Jim Lindgren probably wrote that line because it was memorable, not because it was complete.
2.1.2007 4:04pm
Steve:
I always thought that Senators were probably a bit fearful of asking him substantive questions about Constitutional law for fear of looking like clueless idiots.

The idea that Joe Biden would think to himself "I better not ask this guy about Con Law, he'll clean my clock!" is rather laughable. Not for reasons of expertise, obviously, but of ego.
2.1.2007 4:04pm
JLR (mail):
Roberts called the Senate's role in questioning nominees during the appointment process "pretty disreputable."

I wonder what the context was for Chief Justice Roberts's statement. It is unclear whether he is criticizing the way in which individual Senators handle the Senate confirmation process, or if he is faulting the confirmation process as a whole.
2.1.2007 4:04pm
Steve:
I doubt that Robert's quip about "deciding cases" is the sum total of his thought on the subject.

I doubt it too, to tell you the truth. I'm quite certain CJ Roberts' mental faculties put my own to shame. Frankly, my distaste was directed more towards the commentor who deemed Roberts' answer to be a brilliant, common-sense answer which cleanly disposed of a frivolous topic, whereas I found it disappointingly glib. I still think Roberts has thought through the issue more deeply than Arlen Specter, but I'd still like him to actually make the case.
2.1.2007 4:23pm
Kovarsky (mail):
I think on the subject of cameras in the courtroom, there's just a consensus as to how corrupting it would be, and it's not really up for discussion. I take it the "flippant answer" to be because a "real answer" involves how stupid the public is, which in turn demands stupid news coverage, which in turn distorts good lawyering.
2.1.2007 4:42pm
Kovarsky (mail):
That is not meant at all as a partisan remark, by the way.
2.1.2007 4:43pm
pcrh (mail):
"I don't get the sense from Roberts' flip comment that the Justices are considering the arguments at all. "

I don't think you can conclude from that answer that the Justices haven't considered this issue. They don't want TV in their court because its negative effects outweigh its benefits. The benefits are that we get to observe the court in action and learn from it, and the court is not secret--it is subject to public scrutiny.

But the court is already subject to public scrutiny. TVs won't change or improve that. TVs will, however, have the effect of politicizing the court more than it already is. I personally like a court that is resistant to the influence of politics and the ephemeral tastes of the public.

It wouldn't change things much either way--TVs or no TVs. It wouldn't be a tragedy if TVs were allowed--the court would still function (though it would have added politicization of issues to deal with). But there is little benefit to letting TVs in, other than to satisfy the curiosity of people unwilling to read transcripts and who are probably more interested in entertainment than justice or constitutional law.

Besides, the Court Sketch Artists' Union is a POWERFUL lobby. They have the home address of all the Justices, remember.
2.1.2007 4:51pm
tail-dog-wag (mail):

"I don't get the sense from Roberts' flip comment that the Justices are considering the arguments at all."


Particularly when one considers that TV cameras in the courtromm don't necessitate live broadcasting. What about withholding relase the video until after a decision is published, or, say, one year after argument, or five years, etc.
2.1.2007 5:11pm
GKH (mail):
Who can blame CJ Roberts for wanting to keep TV cameras out of the courtroom? Look what C-SPAN has done to the public's perception of their Senators and Congressmen.
2.1.2007 5:20pm
advisory opinion:
Steve, my comment has nothing to do with 'exonerating' the Chief Justice's comments, but rather was meant to point out how utterly frivolous the scrutiny argument was since nothing is _substantively_ added by such scrutiny that can't be had in audio recordings or transcripts.

It need hardly be pointed out that rubbishing a bad argument in no way precludes that there be good ones made in its stead.

It is for this reason that claiming "the argument applies equally" to audio recordings completely misses the point: no one claimed that audio recordings were a good idea because it adds substantively to scrutiny we don't already have with court transcripts . . . so what exactly are you applying it to? That's right, it doesn't apply at all.
2.1.2007 6:08pm
advisory opinion:
And of course, there are (good) reasons for audio recordings. It helps to have an authoritative record if a transcript needs correction, even if the court reporter would have you think that her stenography is 100% accurate. It also arguably gives a sense of the cadence and nuances of the exchange, and goes directly to the essence of _oral argument_. A superfluous visual element adds to this mainly audial/oral proceeding how? It isn't theatre.
2.1.2007 6:16pm
Cornellian (mail):
The idea that Joe Biden would think to himself "I better not ask this guy about Con Law, he'll clean my clock!" is rather laughable. Not for reasons of expertise, obviously, but of ego.

Hahaha, I had actually thought of including a "Biden exception" to my earlier post, precisely for that reason.
2.1.2007 7:24pm
Christopher Cooke (mail):
I worked on a Ninth Circuit appeal several years ago where the oral argument was televised. It was part of a pilot program. I don't think any of the attorneys or judges were affected by the presence of cameras. I think the Supreme Court should introduce a similar pilot program, allow C-Span or some similar network to televise a few arguments and see how the cameras affect the argument.
2.1.2007 8:59pm
NickM (mail) (www):
The ideal response by a judicial nominee to a Biden question is "I'm sorry, Senator, I lost you about 5 minutes ago. Can you please repeat that?"

Nick
2.1.2007 11:12pm
Garrick:
1. J. Robert's "flip" comment was a simple quote from a 3-4 minute response to a question from one of the joint journalism-law students in the class. The larger context of his answer is that he's very cautious of the change. He echoed the concern voiced by many that the television presence would change the way that the court deliberates. He stressed the importance of maintaining the integrity of the system. However, he cited some experiments in two of the Fed Circuit courts (2nd and 6th, I thought he said) which have tv cameras. He commented that he hasn't heard any negative fallout from it thus far. So, all in all, I have to say it was a pretty even-handed response.

2. The Chief Justice commented on highly politicized conformation hearings to the extent that he thought they were a negative thing. To elaborate on Prof Lindgren's comment about Brown, J. Roberts said the practice originated in Southern senators attempting to find judges who would not enforce Brown. Thus, he said that the practice has a pretty dubious history. Furthermore, he felt that when senators (or presidents for that matter) solicit policy positions they are in fact impeding the judicial process by forcing them to pick a side and stick to it without due respect for reason. (I think he may have been suggesting a violation of the separation of powers, but am not quite sure). He approved of the "Ginsberg Doctrine," or basically the refusal to take policy stands.
2.1.2007 11:19pm
Lev:
I would have thought that there was a difference between oral argument and deliberations. The former being what takes place in the courtroom, the latter being what takes place in the conference rooms, hallways, and memos and drafts.


That was probably a well grounded fear for all of them, except maybe Specter.


Spectre only knows Scottis law, so what does US law matter to him.
2.1.2007 11:44pm
Jim Lindgren (mail):
Tocqueville:

I can't tell whether you were quoting Schumer positively or negatively. Were you intending to remind us of just how disingenuous and self-serving Senator Schumer was in the hearings? If so, you succeeded.

I think that the last line you quoted about Miguel Estrada's nomination is the tip-off that you included the quotation to show that we should treat whatever Schumer says with a large grain of salt. If you think that Estrada's and the Bush administration's refusal to turn over internal memos that had never been turned over before was the real reason for Schumer opposing Estrada, I own a bridge in Brooklyn that I'd like to sell to you. Unlike most nominees labeled as "very conservative," Estrada is indeed very conservative (much more conservative than anyone on this mostly libertarian blog). And Schumer, who is no dummy, well knew that this bright, very conservative person of color was being groomed for the Supreme Court. That is by far the likeliest reason that Schumer opposed him. Remember, Schumer has long complimented himself for openly admitting that he looks to ideology, rather than just competence.

Or did you really intend Schumer's condescending grandstanding rebuke of Roberts to be an effective critique of a decent man like Roberts?
2.2.2007 12:26am
dearieme:
Mm. But is he "clean"?
2.2.2007 5:15am
Jitterbob:
I always thought that Senators were probably a bit fearful of asking him substantive questions about Constitutional law for fear of looking like clueless idiots. That was probably a well grounded fear for all of them, except maybe Specter.

I thought the same as you until Spectre invoked the longstanding doctrine of "super duper precedent."
2.2.2007 9:13am
rvman (mail):
Why no cameras? So we don't see the Justices nodding off during a particularly 'fascinating' oral argument. It doesn't uphold the dignity of the court very well if Kennedy is snoring in the corner and Ginsberg is drooling on her notes while some lawyer is song-and-dancing his way through Scalia's questioning. I suspect it happens - the orals are often enough recapitulations of the written briefs, I can't imagine they aren't often boring. Especially when one of his colleagues is chasing some (in our sleepy Justice's opinion) red herring in his questioning.
2.2.2007 9:36am
advisory opinion:
Well, that too. Alito digging his nose - not a pretty sight.
2.2.2007 12:05pm
Debauched Sloth (mail):
Roberts called the Senate's role in passing blatantly unconstitutional legislation pursusant to its sham commerce power questioning nominees during the appointment process "pretty disreputable."

Intersting perspective from our leading judicial minimalist: When the Senate oversteps its bounds by beating up on Supreme Court nominees for ideological purposes, that's "disreputable." But when it oversteps its bounds by criminalizing, say, the local, noncommercial cultivation of plants -- well, that's just democracy. Glad we got that straight.
2.2.2007 12:22pm
Tocqueville:
Jim,

Your first hunch was quite right. I wanted to demonstrate starkly the incredible disconnect between the John Roberts that exists in the classroom there in Chicago and the John Roberts that exists only in Chuck Schumer's mind. Chuck Schumer should be ashamed to show his face after such a baldly preposterous rant. And, yes, the Estrada bit was icing on the cake and intended to telegraph my point.
2.2.2007 10:09pm