Episode 301
Interview: From Buffalo to the Bench, A Conversation with Chief Justice Roberts
Episode Description:
This episode features a May 7, 2025 conversation between Supreme Court Chief Justice John Roberts and U.S. District Judge Lawrence J. Vilardo. They discuss why judicial independence matters in our democracy and how it helps balance power between different parts of government.
Both judges share stories about their personal backgrounds, law school experiences, and key moments in their careers. They also talk about what makes legal writing effective and why court decisions should be written clearly so everyone can understand them. The conversation gives listeners a unique look into the thoughts of two important judges as they reflect on their shared history and how the legal world has changed over time.
Background:
On May 7, 2025, Chief Justice John Roberts headlined the Western District of New York 125th Anniversary Dinner Event in Buffalo, NY. As part of this event, U.S. District Judge Lawrence J. Vilardo interviewed Chief Justice Roberts. From the Event's press release:
“Chief Justice Roberts was born in Buffalo and spent his early childhood here, so we claim him as one of our own,” said Chief U.S. District Judge Elizabeth Wolford. “His willingness to join us for our 125th Anniversary makes the celebration all the more special. It’s a testament to Western New York’s rich legal history and the Chief Justice’s commitment to our profession.”
Event Press Release: Here.
H/T to WGRZ-TV for the recording.
Timestamps:
00:00 Welcoming Remarks and Reflections
00:57 Reflecting on the Past: A Journey Back to Buffalo
09:26 The Art of Writing Clearly
14:07 Judicial Independence and Its Implications
25:42 The Role of the Chief Justice in Public Life
32:04 Reflections on Two Decades on the Court
38:43 The Evolution of Legal Perspectives
43:20 The Influence of Judicial Mentorship
48:35 Reflections on Clerking and the Law
Transcript
Please join me in welcoming Chief Justice Roberts and Judge Velarde.
Speaker A:You see, I told you they like me.
Speaker A:Well, it's.
Speaker A:It's really is an honor to be here with you and to rekindle our old friendship that started 47 years ago.
Speaker B:Wow.
Speaker B:Yeah.
Speaker A:Long time.
Speaker B:You haven't aged a.
Speaker B:Haven't aged a bit.
Speaker A:No, you haven't.
Speaker A:You haven't.
Speaker A:Haven't changed a bit.
Speaker A:So folks from Buffalo are very proud to say that you're a native son here.
Speaker A:You spent the first 10 years of your life in Hamburg.
Speaker B:Right.
Speaker A:What do you remember about growing up in Buffalo?
Speaker B:It was cold.
Speaker B:No, the memories were refreshed.
Speaker B:Earlier this morning, I went back and visited my boyhood home, which was a lot smaller than I remember.
Speaker B:And it was near the fairgrounds for those of you around here.
Speaker B:And we would.
Speaker B:I remember hearing the call to the Post, you know, the.
Speaker B:When they were.
Speaker B:Because they did racing there on the weekends.
Speaker B:And we would set up lawn chairs in the driveway because they had concerts, too, and got the concert without having to pay for it.
Speaker A:So where'd you go to school?
Speaker B:St.
Speaker B:Bernadette's yeah.
Speaker A:And that's where my wedding was.
Speaker A:Oh, yeah.
Speaker A:So we have that closed.
Speaker B:It closed last week.
Speaker A:Yeah, that's what I heard.
Speaker A:So when we were in law school, and particularly on the law review, people saw you as very bright, a good writer, ambitious and going places.
Speaker A:Did you let yourself dream about being on the Supreme Court then?
Speaker B:No, no, I didn't dream about being a judge.
Speaker B:I didn't dream about being a lawyer before then.
Speaker B:I was going to go to graduate school to study in history.
Speaker B:And true story, I was taking a cab back from Logan Airport to the campus, and the cab driver asked me what I did.
Speaker B:And I told him I was a history major at Harvard.
Speaker B:He said, I was a history major at Harvard.
Speaker B:So I said, where are those.
Speaker B:Where's that law school application file?
Speaker B:But when I got to law school, I found out that I liked it, but I certainly didn't want to be a judge.
Speaker B:And then ended up clerking and working in the government and law firm for a while.
Speaker B:And it just sort of happened that you end up in a position where someone decides to nominate you to be a judge.
Speaker B:And by that time, I had been practicing long enough that I thought it would be a good.
Speaker B:And that worked out.
Speaker B:And then, you know, the Supreme Court fortuitously came along after that.
Speaker A:Yeah.
Speaker A:So your career started as.
Speaker A:And was, by and large, as an appellate lawyer.
Speaker A:How did that happen?
Speaker B:Well, I came off the government Work that I had been doing.
Speaker B:I had spent total of seven years between the clerkships and stint in the Justice Department and some time at the White House Counsel's office.
Speaker B:So when I left that, I'd been out seven or eight years and hadn't really practiced normal law.
Speaker B:And I didn't want to start, you know, seminar whatever for first year students to learn how to take a deposition.
Speaker B:So I went around at law firms, and they'd said, what do you want to do?
Speaker B:I said, well, the one thing I thought I could do, I said, I want to do appellate work.
Speaker B:And they said, oh, you know, if the case you're handling goes on a po, you can do appellate work.
Speaker B:And I said, no, no, I only want to do appellate work.
Speaker B:And nobody was buying that until I ran into a fellow named Barrett Prettyman, who.
Speaker B:That's what he did.
Speaker B:It was at the firm of Hogan and Hartson.
Speaker B:And he was an amazing, amazing man.
Speaker B:And I decided I would like to work with him.
Speaker B:And that was fine with him.
Speaker B:He had been extraordinary life.
Speaker B:The courthouse in D.C.
Speaker B:is named after his father, who was a very prominent judge.
Speaker B:But Barrett, at age 18, left high school in D.C.
Speaker B:and went to England and then joined Patton's army hurtling toward Berlin.
Speaker B:And they were ambushed.
Speaker B:And his unit found themselves in these foxholes, Terrible cold through the night, and Germans were sort of picking them off sort of one by one.
Speaker B:And he swore that if he made it to the morning, he would wake up happy every day.
Speaker B:And he made it through.
Speaker B:He had frostbite.
Speaker B:They took him back to the, you know, back to Belgium.
Speaker B:The rest of his unit went in and they were going right into the Battle of the Bulge, and they were all killed.
Speaker B:So he kept his.
Speaker B:He kept his vow.
Speaker B:As far as I could tell, it was a very upbeat person.
Speaker B:Very, very, you know, pretty much everybody else on their law walls had pictures of, you know, fox hunting or old English judges.
Speaker B:And, you know, he had pictures of clients like Truman Capote and Catherine Ann Porter.
Speaker B:And really.
Speaker B:And he had a great, great attitude.
Speaker B:And I really enjoyed practicing law with him.
Speaker A:And he woke up every day even after he started working with you?
Speaker B:Yeah, I never heard that.
Speaker B:Yeah, yeah.
Speaker A:So I said you were a hard worker on the Law Review, and you really were, but you had some time for fun as well.
Speaker A:And I told Tom Metzlaff, who's a law professor at Duke, that I would ask you to tell these folks about pencil ball.
Speaker B:Yeah, Tom and I spent more time playing pencil ball at the Law Review than working on Law Review.
Speaker B:Stuff, it was a very complicated thing.
Speaker B:You get a little piece of paper and put some tape around it.
Speaker B:And then with pencils, somebody would pitch the ball and you'd try to hit it with a pencil.
Speaker A:And you have this elaborate scoring system too, right?
Speaker A:A triple.
Speaker A:If you got in the wastebasket, it was a triple.
Speaker A:If it ended up sticking to the ceiling, it was a homer.
Speaker B:I forget.
Speaker B:Well, yeah, it was very complicated.
Speaker A:They never let me play.
Speaker B:The rules evolved as each game went on.
Speaker A:I was an underclassman, so they never let me play, but they played the pencil ball game.
Speaker A:So you interviewed for clerkships yourself and you now interview candidates for clerkships.
Speaker A:Any pointers you have for folks when they interview?
Speaker B:Well, one year when I was interviewing people, I was looking with law clerks.
Speaker B:And probably you do as well.
Speaker B:You want people with some degree of self reliance and confidence.
Speaker B:So I thought laid out a dozen half glazed and half powdered doughnuts out in the waiting area.
Speaker B:And I figured one, it would be a good sign if whoever it was liked doughnuts.
Speaker B:And also if they had enough self assurance to have one, even though their hands would have glazing or powder on them when they came in.
Speaker B:End of the day, a dozen donuts still there.
Speaker B:So everybody failed that.
Speaker B:Now, I had some bad experiences of my own.
Speaker B:This goes.
Speaker B:It was back when some justices were still hiring people right out of law school.
Speaker B:And Justice White was one of them.
Speaker B:And I was scheduled for an interview with him.
Speaker B:And I went down to Washington and they had just opened the new metro system, just opened.
Speaker B:And you know, you put your money in and you get a fare card and all that.
Speaker B:I don't think they do this anymore.
Speaker B:I'm sure they fixed it back then.
Speaker B:But all I had was, you know, a 20, you know, and put it in and got put in the fare.
Speaker B:It was 40 cents to Union Station.
Speaker B:So I got $19.60 in quarters or whatever it was like in Las Vegas.
Speaker B:The quarters just kept punching out.
Speaker B:But, you know, I was a law student.
Speaker B:I wasn't going to leave them there.
Speaker B:So I put some in here and some in here in these other pockets.
Speaker B:And I walked into Justice White's chambers and I was jiggling, jingling, you know, jingling kind of looked strange at me, you know, And I crossed my legs in.
Speaker B:$1.50.
Speaker B:I didn't get, I didn't get an.
Speaker A:Offer from Tom Metziloff.
Speaker A:Got that job, right?
Speaker A:He clerked.
Speaker B:Yeah, yeah.
Speaker B:Tom, my pencil ball opponent got the job.
Speaker A:Yeah.
Speaker A:So you really are a terrific writer.
Speaker A:And you were back in law school as well.
Speaker A:I still remember your 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.
Speaker A:Where did you learn to write?
Speaker A:And is there any one person who you credit for teaching you how to write?
Speaker B:Well, I think the way to learn to write is to read good writing.
Speaker B:And I read a lot.
Speaker B:I liked Conrad.
Speaker B:I liked Elmore Leonard.
Speaker B:I mean, Joseph Conrad if you want to write long and flowing, elegant sentences, and Elmore Leonard if you like punchy sentences.
Speaker B:I think that helped a lot.
Speaker B:When it came to writing briefs, though, I had a secret weapon.
Speaker B:I have three sisters.
Speaker B:None of them is a lawyer, and yet they're very bright.
Speaker B: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'd call them and ask them what it was about and who should win.
Speaker B:And if your writing isn't clear enough for somebody who is an intelligent layperson to get through it and to understand basically what's going on.
Speaker B:I mean, you know, they wouldn't say, oh, you know, under ERISA this or that, but they say, you know, the guy who, you know, you know, was driving the truck, you know, should have looked left and he looked right, and, you know, the safety brake didn't work so the other person could pay.
Speaker B:And if it was the right answer, then, you know, I.
Speaker B:Because.
Speaker B:And I see it today, and I bet you do, too, when you read so many briefs and read them carefully.
Speaker B:But it's not like you can devote as much attention to many cases you're hearing.
Speaker B: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.
Speaker B:The other thing I'd like to do is read aloud.
Speaker B: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.
Speaker B:I mean, otherwise your sentences are too convoluted, not direct enough.
Speaker B:And I think those are two things that serve me well.
Speaker A:You still try to do that now.
Speaker A:When you write decisions, you try to make them simple.
Speaker B:Yeah, people are always complaining and walking down the halls and they're reading out loud, and they don't do that.
Speaker A:But you try to make the decisions accessible.
Speaker B:Well, yeah, and I'll tell you, I mean, it's not.
Speaker B:There are cases where, you know.
Speaker B:But we don't necessarily study every brief and if you can't.
Speaker B:If you file a brief and you can't, I can't read through it once.
Speaker B:You know, it's going to.
Speaker B:Okay, I've got to read through it twice.
Speaker B:You know, sit down with the law clerk and say, what do you think this is about?
Speaker B: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.
Speaker B:And I always think, particularly in the cert petitions, when I was doing those, it's very hard.
Speaker B:I don't know what the rate is now, 2% or less than that get granted.
Speaker B:I always thought it was important to put something in that would catch somebody's eye even.
Speaker B:I had a case once involving.
Speaker B:It was mining in Alaska, and it involved something called the Red Dog Mine, the middle of Alaska.
Speaker B:And so I figured maybe it would help.
Speaker B:So I put in the first page and a half is about why it was called the Red Dog Mine.
Speaker B:And it was because you get these stories in Alaska where somebody has to fly out to get emergency insulin.
Speaker B:And they fly, and this was flying back.
Speaker B:And the guy who had his plane, he always had this red dog in his plane.
Speaker B:And the plane coming back crashes, but the dog survives.
Speaker B:The pilot doesn't.
Speaker B:The dog runs to the village, and they get the insulin and all that.
Speaker B:And then hopefully you read on it about some mining regulations or something.
Speaker B:But hear me out.
Speaker B: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.
Speaker B:I mean, they denied cert, but that's, you know, that happens.
Speaker A:But they read it.
Speaker B:But they read it.
Speaker B:I bet she finished reading it.
Speaker A: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.
Speaker A: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.
Speaker A:Because I think it's important to write so that it's accessible for people.
Speaker A:And judges do the same thing, I think.
Speaker B:Yeah, I think so.
Speaker A:Yeah.
Speaker A:Let's talk about something a little more important, a little more substantive.
Speaker A:I think most judges would agree that judicial independence is crucial.
Speaker A:Do you agree?
Speaker A:What do you think?
Speaker B:Oh, yeah.
Speaker B:I mean, it's central the only real political science innovation in our Constitution.
Speaker B:I mean, you know, parliaments have been around for 800 years, and obviously executives is the establishment of an independent judiciary.
Speaker B:Even places you think are similar to ours like England.
Speaker B:The judiciary in England was part of Parliament.
Speaker B:I mean they sat in the House of Lords because Parliament was supreme.
Speaker B: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.
Speaker B:And that innovation doesn't work if it's not.
Speaker B:The judiciary is not independent.
Speaker B:Its job is to obviously decide cases, but in the course of that check the excesses of Congress or of the executive.
Speaker B:And that does require degree of independence.
Speaker A:What do you think of these calls for impeachment of judges based on the decisions that they've made?
Speaker B:Well, I've already spoken to that and impeachment is not how you register disagreements with decision.
Speaker A:That's what you're for, right?
Speaker A:That's what you're there for.
Speaker B:That's what we're there for.
Speaker A:Yeah.
Speaker A:So lots of decisions that you make interpreting the Constitution have real life practical consequences.
Speaker A: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.
Speaker A:Obergefell resulted in more same sex marriages.
Speaker A:Do you think about those practical consequences when you're interpreting the Constitution?
Speaker A:And should justices think about those practical consequences when they're interpreting the words of the Constitution?
Speaker B:Mainly no to both of those questions because if you do that, 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.
Speaker B:You can say, for example, a consequence of the second Amendment decisions are more people have guns and so there's more, you know, accidental shootings, more shootings.
Speaker B:Or you can say the consequence is that more people are armed and therefore they're in a better position if there's foreign invasion as there was with the British shortly after the adoption of the second Amendment.
Speaker B:So that that's a good thing.
Speaker B: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.
Speaker B:So no, I don't think that's not a big part of at least how I do my job.
Speaker B: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 in its appropriate context and trying to figure out what they meant.
Speaker B:Now at One extreme.
Speaker B:If an interpretation you adopt leads to some absurd result that nobody could plausibly have intended, then yeah, then the consequences make a difference.
Speaker B:But I think it's more important to think, 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?
Speaker B:Because then the interpretation flops.
Speaker A:Yeah.
Speaker A:So the courthouse here in Buffalo is named for Robert Jackson.
Speaker A:And you clerked for Justice Rehnquist.
Speaker A:Justice Rehnquist.
Speaker A:Clerk for Justice Jackson.
Speaker A:So you're sort of his grandson.
Speaker A:Sort of, in a way, yeah.
Speaker A:Does that have any special meaning for you?
Speaker A:I know one of the photos, one of the portraits you have hanging, one of the four portraits you have hanging in the justices conference room.
Speaker A:In the conference room is Jackson.
Speaker A:Yeah.
Speaker A:Would you talk about that a little bit?
Speaker B:Well, sure.
Speaker B:I mean, obviously one of the more remarkable members of the Court in our history.
Speaker B:Part of the reason he'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.
Speaker B:Should be doing.
Speaker B:And obviously one of the great justices, I mean, his eloquence is really extraordinary.
Speaker B:His eloquence at Nuremberg was extraordinary.
Speaker B:So, yeah, I think it's a great grandfather to have.
Speaker B:Now the other portraits, John Marshall.
Speaker B:Harlan is there.
Speaker B:And I just think somebody whose parents name John Marshall, who then lives up to it and ends up on the Supreme Court deserves incredible, a painting.
Speaker B:And seriously, all his pronouncements in number of areas of the law I think are really remarkable.
Speaker A:He was a dissenter in Plessy, wasn't he?
Speaker B:Yes, Alone.
Speaker B:That's when he said that we have a colorblind constitution.
Speaker B:And the other one is Cardozo.
Speaker B:At one time I had five colleagues on the court from New York.
Speaker B:So I figured I had to give them some New Yorker on the wall.
Speaker B:And then of course, the great Chief John Marshall as well.
Speaker A:Yeah.
Speaker A:So I read a speech that you gave to your son's graduating class that 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.
Speaker A:Why is that important and why was it important enough for you to give that message to your son and his classmates?
Speaker B:Well, it was eighth grade and it's a time when they need to learn a lot of things.
Speaker B:And I mean, it's important, just basic courtesy.
Speaker B: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.
Speaker B:The functioning of our world as anybody else.
Speaker B: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, whether it's the Chief justice or somebody in the print shop or one of the law clerks or anybody else.
Speaker B:And I think if you lose sight of that, that's a real shame.
Speaker B:And I do think, again, particularly 8th grade is a good place to learn that lesson.
Speaker A:Did you do that when you were in school?
Speaker A:Did you get to know those folks when you were in.
Speaker B:Oh, sure, yeah.
Speaker B:But in eighth grade, I mean, those people were the boss.
Speaker A:Yeah, that's exactly right.
Speaker A:That's exactly right.
Speaker A:You know, sometimes I'll have folks who cleaning the office will come in and apologized to me for coming and cleaning the office.
Speaker A:And I said, if you folks don't do this, I can't do my job.
Speaker A:So, you know, it's, as you say.
Speaker B:It'S all, yeah, I apologize for making such a mess, which I usually do.
Speaker A:So you talked about a few minutes ago, reading petitions for certiorary and briefs.
Speaker A:What's the sort of criteria that you use for deciding whether you want to take a case other than writing about red dogs?
Speaker A:What jumps out at you?
Speaker B:Well, and it's pretty clear that it doesn't really matter how right or wrong it is.
Speaker B:I mean, the one thing you could say in a cert petition that's not a good idea is how horribly wrong this is.
Speaker B: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.
Speaker B:Nobody's going to follow it.
Speaker B:Mistakes been made.
Speaker B:But one thing that's certain, it's not our job.
Speaker B:We're not a court of error in the sense that we correct mistakes.
Speaker B:So what we're looking for are conflicting decisions on the same law that have to be fixed.
Speaker B:I mean, if one person reads 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.
Speaker B:And so that's more the type of case we would take to resolve that disagreement.
Speaker B:So people who want to get their cases heard need to have somebody who's good at explaining why we need a greater degree of uniformity.
Speaker B:You can't say, in New York, some particular expense is tax deductible, but in California it's not.
Speaker B:So a lot of the cases we get are actually not that glamorous.
Speaker B: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.
Speaker B:And when those disagreements come up, we're the only ones who can fix it.
Speaker B:So a lot of our docket is pretty mundane.
Speaker A:Is there something, too, though, putting something in the cert petition that'll catch the judge's eye, like the Red Dog story?
Speaker A:I mean, do you find yourself, when you read something like that that has something that catches your eye drawn to it a little more?
Speaker B:Oh, sure, yeah.
Speaker B:I mean, you know, we take whatever it is.
Speaker B:I don't know what the number is.1 and a half percent of all the cert petitions.
Speaker B: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 get our attention.
Speaker B:But other than that, and it makes sense, you have to be a good writer if you're there.
Speaker B: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 might be likely candidates, and it's very hard to pick out the right ones.
Speaker A:Some of your colleagues have written autobiographies.
Speaker A:Have you started yours yet?
Speaker B:No.
Speaker A:Are you gonna?
Speaker B:No.
Speaker B:You won't?
Speaker A:Why not?
Speaker B:I think my life is very interesting to me.
Speaker B:I'm not sure it's terribly interesting to anyone else.
Speaker B:And now that's not true of some of my colleagues.
Speaker B:Justice Thomas, autobiography is absolutely gripping.
Speaker B:If you haven't read it and are at all interested in the court, you should.
Speaker B:It's such an extraordinary story.
Speaker B:I really couldn't put it down.
Speaker B:But I don't think.
Speaker B:I don't think I have that in me.
Speaker A:Let's talk about your role in terms of you as a public figure.
Speaker A:Obviously, you're very recognizable.
Speaker A:People know who you are.
Speaker A:You have to be on all the time, like now.
Speaker A:And how do you separate that from your private life?
Speaker A:How do you keep some privacy in your life and have this kind of bigger than life role as Chief justice of the United States?
Speaker B:Well, recognizable.
Speaker B:My wife and I were on vacation in Portugal last year and another American sort of came up to us, and he's looking at me and says, I know you.
Speaker B:I know who you are.
Speaker B:You're John Boehner.
Speaker B:And so, you know, they were sitting next.
Speaker B:I Had to spend the whole evening pretending to be John Boehner.
Speaker B:When you say readily recognizable.
Speaker B:Really not to be honest with you.
Speaker B:It's getting worse, though, in general, just because the work of the court is getting a higher degree of publicity.
Speaker B:So it is a problem, I will say 99% of the interactions I've had with people, they come up and say hello, which is fine, and so that's good.
Speaker B:But we're not as recognizable as you might think among a crowd of judges and lawyers.
Speaker B:Yeah.
Speaker B:But the public at large, not much of a problem.
Speaker A:So some of your colleagues have retired.
Speaker A:You ever think about that?
Speaker A:I mean, you're too young now, but someday would you.
Speaker B:No, no.
Speaker A:Because you love what you do too much.
Speaker B:You know, I'm going out feet first.
Speaker B:It's just I am too good.
Speaker B:Well.
Speaker A:No, now.
Speaker B:I say that now.
Speaker B:I mean, I'm sure if your health declines and all, 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.
Speaker B:I have very good friends that were for a long time, many years, and I've sat down with them and said, I want appropriate time because you don't always notice that you're slipping.
Speaker B:I want the two of you to tell me if it's time to go.
Speaker B:It's a long pause, and at once the two of them said, it's time to go.
Speaker B:So I said, all right, never mind.
Speaker A:I have that, too.
Speaker B:But it's surprising.
Speaker A:Chief Judge Wolford.
Speaker B:It is kind of.
Speaker A:She's going to tell me.
Speaker A:She hasn't said anything yet.
Speaker A:Maybe after this she will.
Speaker B:It is surprising how rare it has been on the court for that to become an issue, really, just a handful of times.
Speaker B: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.
Speaker B:So I don't think that's going to be a problem.
Speaker B:But it is.
Speaker B:I mean, I still feel pretty healthy.
Speaker A:Yeah.
Speaker A:Do you love what you do?
Speaker A:I mean, you really look forward to work?
Speaker B:I do it.
Speaker B:Exciting to get up every morning and go into work.
Speaker A:Doesn't seem like work when it's like that.
Speaker A:Right?
Speaker A:It's.
Speaker B:Some days it does.
Speaker B:But it's nice that we have a break in the summer.
Speaker B:Louis Brandeis, one of our great justices, said that he could do the 12 months worth of work in 10 months, but he couldn't do it in 12 months.
Speaker B:And I think there's a lot of wisdom in that.
Speaker B:We work at very close quarters on.
Speaker B:On very important issues, on very sensitive issues, work that is hard to do.
Speaker B:And we do need a little break from each other.
Speaker B:What it does, it's interesting.
Speaker B:It really creates such a strong bond.
Speaker B:I'm sure people listening to the news or reading our decisions, particularly decisions that come out in May and June, maybe think, boy, those people really must hate each other.
Speaker B:They must be at hammer and tong the whole time.
Speaker B:And we don't.
Speaker B:I mean, dealing with the type of cases we do and their significance, it's something only those nine people can know.
Speaker B: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.
Speaker B:And even if you are on opposite sides, more often than not, and we're not, more of our decisions are unanimous than anything else people lose sight of.
Speaker B:But it is a strong bond.
Speaker A:I think when Justice Ginsburg 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 talked publicly about it a lot and just how fond she was of Justice Scalia and vice versa.
Speaker A:Even though they were at opposite ends of lots of decisions.
Speaker B:Yeah, And a lot goes into that.
Speaker B:And, you know, you have more in common with some colleagues than others.
Speaker B:Sure.
Speaker B:So I do things with some of my colleagues that I don't with the other, and vice versa.
Speaker B:But it is a bond.
Speaker B:And, you know, there are issues and discussions, you know, I don't share with my wife, and I know others don't just because they find it easier not to know, you know, in terms of that.
Speaker B:So they don't have to worry about it.
Speaker B:But.
Speaker B:So it is a.
Speaker B:It's a small group.
Speaker B:The bonds of real affection and friendship and shared experience are very, very strong.
Speaker B:And I think we try very hard not to let disagreements of the moment break that.
Speaker A:So you've been on the court for 20 years.
Speaker B:Yeah.
Speaker A:And you were a circuit judge for a couple years before that.
Speaker A:Read a lot of district court decisions over the years.
Speaker A:So I'm looking for a little advice now.
Speaker A:What can you tell district judges about the decisions they write that might help us?
Speaker B:Yeah, brevity is good.
Speaker B:And I think it's.
Speaker A:You know, are my law clerks listening to this?
Speaker B:Particularly with the district court, we recognize the Primary responsibility of the district court to deal with the facts.
Speaker B:And we don't want to be second guessing the facts.
Speaker B: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 what hasn't.
Speaker B:And then I remember Justice Rehnquist, for whom I clerked, was very adamant about that.
Speaker B:He was a very good trial lawyer.
Speaker B:He said, you don't want to waste too much time on the law if you're.
Speaker B:The facts are more important than the law.
Speaker B:And then as it moves up, people are focused more on the facts.
Speaker B:He tried when he was in my position as chief justice, he was remembering his days fondly as a trial lawyer.
Speaker B:And he assigned himself to a district court in Virginia to hear a trial, just to kind of get back in the.
Speaker B:On the saddle in that way and stuff.
Speaker B:And he did.
Speaker B:And it was.
Speaker B:He issued a decision and they appealed and the 4th Circuit reversed him.
Speaker B:Is that right?
Speaker A:And he never did it again?
Speaker B:No.
Speaker B:But the, the only thing that made him mad and he was really upset about.
Speaker B:About it is that they issued it as a per curiam opinion, said nobody had the guts to put their name on it.
Speaker A:You ever think about doing that, trying to be a trial judge?
Speaker B:No.
Speaker A:Well, you didn't try cases, so no difference there.
Speaker A: o you became Chief justice in: Speaker A:You worked with Justice O' Connor and then Justice Ginsburg, and now there are more women on the court than ever.
Speaker A:Has that changed the dynamic or the culture of the court in any way?
Speaker B:No, to be my honest answer, I don't think it has.
Speaker B:I'm sure when Justice o' Connor came on as the first woman, that had all sorts of consequences and changes.
Speaker B: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.
Speaker B: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.
Speaker B:But I don't think I would say it's different because they're women.
Speaker A:So there's been a lot of criticism of some decisions because they have not.
Speaker A:They've changed precedent.
Speaker A:Right.
Speaker A:The abortion decision most recently and other decisions like that.
Speaker A:But that happens all the time.
Speaker A:Right?
Speaker A:I mean, there's lots of times when courts have precedent that they.
Speaker A:That they think needs to be changed for whatever reason.
Speaker A:What kind of criteria do you apply to that yourself.
Speaker B:Well, first of all, there's a lot of misconception on that subject.
Speaker B:The see if I make sure I get these numbers right.
Speaker B:A recent study, the Warren court overruled, I think 3, 3.2 decisions on average, you know, a year.
Speaker B:The Burger Court actually had a little bit more.
Speaker B:I think they did 3.6%.
Speaker B:The Rehnquist court moved down a little bit.
Speaker B:Only 2.4 cases a year.
Speaker B:And in the past 20 years the number has been 1.6.
Speaker B:So people have a different, somewhat wrong view of how many cases are being overturned now.
Speaker B:We take fewer cases now than they did before, but the number of important ones that would be subject to overruling are the same.
Speaker B:So a lot of people talk as if we're overruling a lot more.
Speaker B:It's the lowest it's been since the 50s and sort of some cases should be.
Speaker B:I mean, aren't you glad that Brown vs Board of Education overruled Plessy or that Katz overruled Olmsted?
Speaker B:So the idea that it's invariably a bad thing, thing to overrule precedent is, I think, quite mistaken.
Speaker B:At the same time, you can't do it willy nilly.
Speaker B:Just because you look at a case and you think, gosh, I would have had that principle come out the other way.
Speaker B:That doesn't mean you overturn it.
Speaker B:Stare decisis is an important part of our work.
Speaker B:The law is supposed to be predictable.
Speaker B:So you need a special justification before you want to overrule a case.
Speaker B:Other than that, you just happen to think it's, think it's wrong.
Speaker A:We were talking about the Barnett case a little while ago, and that was a case that overruled a decision Justice Frankfurter made just a few years before.
Speaker B:Gobitis or gobitis.
Speaker A:And so it's been around for a long time.
Speaker B:Yeah.
Speaker B:So when you do that, you have to.
Speaker B:The first thing has to be that it's clearly wrong.
Speaker B:The second thing has to be, does that make a difference?
Speaker B:I mean, if, for example, you say you can't figure out what the filing deadline is, you know, is it 10 days under the rule or is it 12 days?
Speaker B:You have to decide it.
Speaker B:But you shouldn't come back and say, oh, it should have been 12 days, not 10 days, so we're going to overrule that.
Speaker B:I mean, that's something that most cases, many cases, it's more important that they be decided than be decided.
Speaker B:Right.
Speaker B:Whether it's 10 or 12 days is a case like that.
Speaker B:So it has to Be a case where it really makes an important, important, ongoing difference and be significant enough to the legal system that it's justified to overturn the approach.
Speaker B:But it's not something you want to do very often.
Speaker A:Can you talk a little bit about your experience clerking for Judge Friendly and Justice Rehnquist?
Speaker B:Yeah, two wonderful years in my life and two totally different experiences.
Speaker B:And I have to say, at a very personal level, the chance to clerk with Judge Friendly was very important.
Speaker B: graduated from law School in: Speaker B:And maybe it was because I, you know, being a kind of lawyer was second choice for me in general.
Speaker B:But the law was a very cynical enterprise back then, I think.
Speaker B:And, you know, in some ways it's good, in others bad.
Speaker B:It was very instrumental.
Speaker B:People were using law as kind of a vehicle to achieve a particular objective.
Speaker B:There's nothing wrong with that at all.
Speaker B:That's a lot of people, you know, do that, but also in a cynical way.
Speaker B:And law was not regarded as something of sort of moral value, for want of another word.
Speaker B:And so I felt, frankly, that maybe this had not been a good choice.
Speaker B:This wasn't something that was uplifting.
Speaker B:If you had a particular agenda you wanted to pursue, good.
Speaker B:It could help you do that.
Speaker B:But then I went and, you know, was at the elbow of this extraordinarily great man, one of the most remarkable judges.
Speaker B:And he saw it differently.
Speaker B:He really looked at it as a valuable gift that we had inherited for ordering society in a reasonable way.
Speaker B:And he was somebody who was totally apolitical.
Speaker B:The most brilliant judge of his generation.
Speaker B:Richard Nixon, didn't appoint him to the Supreme Court because he thought he would be soft on crime.
Speaker B:And he would have been, from Nixon's perspective.
Speaker B:He would have applied the law as it should be and meant some criminals were going to go free and others weren't.
Speaker B: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.
Speaker B:And that was real, really a gift.
Speaker B: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.
Speaker B:So that was where kind of I left my cynicism about the work that we as lawyers and judges do and appreciated that it had a greater worth.
Speaker B:And just in terms of writing, it's a remarkable, gifted writer.
Speaker B:Kind.
Speaker B:He would come off of the bench after argument and sit down with legal pad.
Speaker B:Two of them One for text, one for footnotes or notes.
Speaker B:And just start writing and finish it one day or two days.
Speaker B:And the secretary would type it up and give it to one of his law clerks.
Speaker B:And we'd look at it and say, well, what does he want us to do?
Speaker B:And he would have some ideas and look at it.
Speaker B:So that was a really remarkable year.
Speaker B:And then with Rehnquist it was.
Speaker B:Now Rehnquist was a generation between.
Speaker B:Friendly was kind of almost like two generations.
Speaker B:He was older and I was just out of law school.
Speaker B:And Rehnquist was kind of right in the middle and a different approach.
Speaker B:His writing is crystal clear, very direct, and had the same sort of appreciation.
Speaker B:And I don't mean to overuse these sorts of words, but reverence for what the law does, but was very direct and analytic and you sort of knew exactly how it was structured and where it was going.
Speaker B:So it was a nice experience for me to have two very different people.
Speaker B:And they really admired each other.
Speaker B:In fact, I got the clerkship with Rehnquist because he and Friendly were at a conference together.
Speaker B:And I think, you know, Justice Rehnquist asked Judge Friendly if he had any good law clerks.
Speaker B:And he mentioned one, and I guess somebody else hired that one.
Speaker B:And then he mentioned.
Speaker B: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.
Speaker B:In your life and are grateful for them.
Speaker A:Does the way you deal with your clerks, by and large mirror the way they dealt with you?
Speaker B:No, no, I wouldn't say that one.
Speaker B:When you're in the middle of it, it's kind of hard to be self conscious and appreciate.
Speaker B:I mean, I don't.
Speaker B:The one thing I do know is that the four clerks really do form quite a common bond.
Speaker B:And Rehnquist used to talk to us about how that was.
Speaker B:And he said it's because the clerks are united by a common enemy.
Speaker B:And so.
Speaker B:And I really.
Speaker B:It's kind of hard when you're in the middle of it to see how, you know, they might view the experience.
Speaker A:How do you work with your clerks?
Speaker B:It really varies from case to case.
Speaker B:You know, sometimes if the facts are a little complicated, I want them to take a look at the record more than they might otherwise.
Speaker B:Sometimes if I feel comfortable that I know the law in an area, I'll have them do that.
Speaker B:But I would go in much more carefully because I'm probably wrong about it.
Speaker B:I want to make sure that I'm not letting you know, errors that might have crept in affect my understanding.
Speaker B:And then we'll go back and forth.
Speaker B:Sometimes I'll draft something and they'll look at it and they don't have the problem I had with Judge Friendly.
Speaker B:Their edits come back pretty extensive sometimes.
Speaker A:And you encourage that, Right.
Speaker A:I'm sure you asked them for, well.
Speaker B:What'S the point otherwise?
Speaker B:Right, exactly.
Speaker B:And sometimes I'll want to look at the facts a little bit more.
Speaker B:But then when we get closer to the end, I have all four of them, so sit down together and we all go over the draft of the opinion.
Speaker B:So you have somebody who's sort of been looking at it very carefully.
Speaker B:Hopefully I'm one of those people too.
Speaker B:And then the others who have just kind of like read it.
Speaker B: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 says.
Speaker A:How do you decide which clerk works on which case?
Speaker B:I leave that entirely up to them.
Speaker A:They make those decisions.
Speaker B:Yeah, yeah.
Speaker A:You always happy with the decisions they make?
Speaker B:You know.
Speaker B:Yeah.
Speaker B:No.
Speaker A:But you still don't put your.
Speaker B:Thumb on the screen, to be honest.
Speaker B:They're all extremely bright.
Speaker B:It's a real, as I'm sure you know, it's a real gift that the system has developed where we get these very, very bright people to work very, very hard and they come up with such great work products.
Speaker B:So.
Speaker A:And when you hire clerks, have they generally clerked for a district judge or a circuit judge first?
Speaker B:Oh, sure.
Speaker A:Always.
Speaker B:Always.
Speaker B:Yeah.
Speaker A:So unlike Justice White, who that was.
Speaker B:Kind of the fading out of that experience, I think it.
Speaker B: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.
Speaker A:And one year clerkships.
Speaker B:Absolutely.
Speaker B:Some.
Speaker B:You don't want them to get too good.
Speaker B:I mean, that's the case.
Speaker B:No, very seriously.
Speaker B:I mean, you don't want them to get too good at what you're supposed to do.
Speaker B:You want to make sure that you are the one doing the work.
Speaker B:Yes.
Speaker B:They're going to help you on what the cases say about this or how the facts look on this issue.
Speaker B:But you don't want them to get too good because.
Speaker A:Because you think there's a danger of you using them as a crutch too much.
Speaker B:Yeah.
Speaker B:You want to make sure that issue doesn't really come up now.
Speaker B:And also it's a real valuable thing for me and I know other justices to have these sorts of.
Speaker B:To be a little more attuned to what's going on in the law schools.
Speaker B:And having a fresh batch every year, you learn more about what the teachers are teaching and what the students are interested in and then they go out.
Speaker B:So I have people that clerked for me 20 years ago.
Speaker B:They're in the midst of their professional career, leaders in the bar or leaders in academia or leaders in business.
Speaker B:And they're real listening boards.
Speaker B:We have a reunion every year.
Speaker B:It's coming up in a couple of weeks.
Speaker B:Hopefully we'll have a good turnout.
Speaker B:We usually do.
Speaker B:And you learn from them.
Speaker B: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?
Speaker B:And they'll let you know what are you teaching in law school these days.
Speaker B:And it's nice to have that pipeline.
Speaker B:I mean, now I have almost 100 out there at different stages and it keeps you attuned to what's going on.
Speaker A:Yeah.
Speaker A:I mentioned to you earlier today that I have you to thank you and Dave Lee Brown, who was the president of the review to thank for my clerkship.
Speaker A:You sent me to or suggested that I apply to Judge Irving Goldberg down in Dallas, Texas.
Speaker A: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.
Speaker A:So the pressure's not there.
Speaker A:But the wonderful part of the job is.
Speaker A:And that makes clerking, I think, a really unique experience.
Speaker A:So let's get to the.
Speaker A:Our time is running out.
Speaker A:Let's get to the heart of what I want to talk to you about.
Speaker A:There's a lot of Buffalo Bill fans here.
Speaker B:Yeah.
Speaker B:Listen.
Speaker A:And when the playoffs come around, there's a lot of calls that go against us.
Speaker A:Are you going to be around to handle some emergency appeals this season?
Speaker A:You know, we're getting tired of the same old thing happening to us year after year.
Speaker B:Yeah, I can see that.
Speaker B:Yeah.
Speaker B:Well, I was here long enough.
Speaker B:I know I had a poster in my, my room of Jack Kemp, quarterback, and I, and I, I think Darrell lamonica was there.
Speaker A:Yep.
Speaker B:Too.
Speaker B:And Pete Gogalak, who was the first soccer style kicker.
Speaker B:Even Cookie Gilchrist, if I'm remembering that.
Speaker B:So that was what was put.
Speaker B:Poster.
Speaker B:My.
Speaker B:But I, you know, I left when I was 10 and we moved to, you know, a town in Indiana that Chicago was the closest place.
Speaker A:So I, you're a Bears fan.
Speaker B:I'm a Bears fan.
Speaker B:But.
Speaker B: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, Sayers.
Speaker B:Gail Sayers.
Speaker B:And we were near.
Speaker B:They had different connections.
Speaker B:They would come and talk at the grade school, even because we were in Indiana, but on the lake, and people liked to go there.
Speaker B:And it was just.
Speaker A:Yeah.
Speaker A:I say Gail Sayers, I think, was the most beautiful runner I've ever seen.
Speaker A:He just was so graceful and so much fun to watch, and it was a shame that he blew out his name.
Speaker B:Yeah.
Speaker B:I have a signed helmet of his.
Speaker B:Not of his.
Speaker B:It's a bear's helmet that he signed in my chambers.
Speaker A:Very cool.
Speaker A:Yeah.
Speaker A:Well, thank you so much for doing this.
Speaker A:This is an honor for me, and this was a very pleasurable hour.
Speaker B:Well, not at all.
Speaker B:Thank you for having me, giving me opportunity to go back and see my boyhood home and rekindle memories of Buffalo.
Speaker A:I appreciate it proudly.
Speaker B:Thank you all for being here.
