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An evening with Chief Justice John Roberts

By J. DeVoy

On Tuesday, October 19, John Roberts visited his home in Buffalo, New York, and gave an uncommonly intimate talk at Canisius College.  Rather than a lecture with a specific topic, Roberts sat down with Canisius alumnus and trustee (and Harvard Law grad) Joseph Hassett to discuss pre-selected questions by students and alumni.  In an unusual act of bravery, Roberts later took questions from the floor.

The Chief Justice led off with a discussion of the Court’s technological advancements.  Transcripts from oral arguments are now posted at the end of the day of argument, with audio recordings available on a 3-5 day delay.  While not going so far as to allow live broadcast – something Roberts acknowledges has positive and negative aspects – this is a step forward for the historically stoic institution, which by its very nature is resistant to sudden or unproven changes.

Roberts then took an on stage seat opposite Hassett and began his dialogue.  The rough highlights are as follows:

Most decisions are not difficult, controversial or particularly contentious.

Many of the Court’s decisions are unanimous or with little question as to their outcome.  A great example from last term is U.S. v. Stevens, where only Alito dissented about the First Amendment protection of crush films.  Of course, the narrow decisions tend to be over sexy issues, like gun control and – surprisingly – campaign finance (though cast as a big business issue in FEC v. Citizens United), that already have captured the public’s attention.

Elena Kagan is a valuable addition to the Court and already participating constructively.

Despite a lack of experience at the appellate level, and a thin résumé as a practicing attorney, Roberts had kind remarks about Kagan.  Obviously, though, Roberts wouldn’t comment on the likelihood that Kagan will have to recuse herself from a number of cases likely to come before the court, or how her true prowess as a Justice has yet to be revealed to the public — Kagan has yet to publish a single opinion as the mouthpiece of any court.

Nonetheless, the nomination process for Supreme Court Justices is pointless.

Ironically, this is an indictment many made of Roberts for painting himself as an independent centrist when his record of decisions puts him squarely in the court’s conservative bloc.  Roberts was probably telling the truth during his confirmation hearings, and likely does view himself as an independent centrist… as did Sotomayor and Kagan when they described themselves similarly, despite their radically different jurisprudential perspectives.  Roberts’ point is that the system is broken – Harriet Miers excluded, the people nominated to the Court are qualified, and ensuing hearings are little more than regurgitating the same trope about being “independent,” “centrist” and “in the mainstream,” however starkly those claims clash with reality.

Pre-law classes are worthless.

Roberts went out of his way to condemn a pre-law curriculum, but carved out exceptions for classes that give undergraduate students grounding in basic legal concepts, such as a survey-level constitutional law or civics classes.  Describing a broad liberal arts-based education as the ideal foundation for later legal education, the Chief Justice wasn’t saying anything new.  For those unsure about a career in law, though, a broad liberal arts education probably doesn’t look great to potential employers.

It’s possible that the reality of the poor legal market for recent graduates hasn’t seeped up to his level of awareness, as Supreme Court clerks aren’t hurting for jobs, but Roberts made no mention of the bad conditions for starting attorneys.  But why would he?  If anyone is the profession’s standard bearer, it is him, and it would look bad for Roberts personally, the Supreme Court, and lawyers as a class if he began railing against (or merely acknowledging) for-profit diploma mills with anemic bar passage rates and employment statistics that are on life support.  We can do the dark bidding of the lord below and speak unvarnished truth about law as a profession on this blog, so it’s good for someone like Roberts to be the stately public face of an esteemed vocation.

Clerkship hiring will likely continue to be restricted to the top schools.

When asked about the hiring of his judicial clerks, Roberts said he relies on recommendations from other judges and faculty, as well as demonstrated excellence.  In fairness to Roberts, his roster of clerks has been more diverse than other Justices’.  Relative to peer schools Yale, Harvard and Stanford seem underrepresented, while NYU and Columbia are shut out to make way for graduates from George Washington, Vanderbilt, Berkeley and a surprising number of Virginia graduates.  Though not as willing to deviate from the t14 as Justice Thomas, Roberts has already had marked diversity in his clerkship hires.

Roberts shared an anecdote about the need for assertiveness in his clerks.  During one interviewing season, Roberts told his secretary to note any candidate who took one of the Krispy Kreme donuts he had available for guests in his chambers – either glazed or powder sugar – so he could immediately offer them the job.  Complicating Roberts’ job, nobody took a single donut.  Whether or not the story is true, it illustrates the need for potential clerks to have assertiveness in defending their positions in the face of smarter, more experienced and vastly powerful bosses.  And, if you are ever lucky enough to interview with Roberts, take the donut.

Most opinions – Supreme Court or otherwise – are crap.

When talking about his writing style, Roberts said that he tried to write for an educated lay audience, something he believed his predecessor William Rehnquist did as well.  Because the Supreme Court does not speak in one unified voice, though, it is difficult to ensure consistency across its decisions.  This problem is exacerbated across lower Federal Courts, and state courts are presumably like the Wild West in this regard.  With every judge or justice in the nation writing for a different audience and purpose, priorities, tone and depth may vary vastly and unpredictably.

Speaking of crap, the “living constitution” is ridiculous.

Roberts said that the idea of a living constitution doesn’t make sense.  In the same breath, he rejected the notion of textualism and mockingly called it a “dead constitution” perspective.  Ah, classic Roberts.  Though few would dispute that Roberts is closer to a textualist than a proponent of the living constitution, looking to social science and international law for guidance, he’s far enough away from being a strict constructionist in the mold of Scalia and Thomas for his statements to be true.

Social science is useful to the Court, but not too useful.

Responding to a question about the value of social science research in determining culpability, Roberts equivocated a bit, saying that it was valuable, but to a point.  Roberts acknowledged that it was helpful, but of limited utility.  Simply put, the Court lacks the ability to bore down into the science and its meaning with the ability of an expert in the science’s field.  While this kind of evidence may be useful to a case, relying on it for more than collateral support likely will not sway the Roberts court.

Undergraduate students ask terrible questions.

It was shocking that Roberts allowed for open questions and answers in a forum of 1,300 people.  As best as I could tell, few members of the bar approached the microphone to ask any.  Instead, the crowd was treated to a barrage of pointed questions addressing hot button issues, including:

-Don’t Ask Don’t Tell, and whether the Supreme Court would repeal it

-The propriety of Supreme Court Justices not attending the State of the Union address

-What he thought of a proposed Constitutional amendment enhancing parental rights

-What he thought of the imbalance between corporations’ and labor unions’ resources in obtaining political voice in the wake of FEC v. Citizens United.

At first, Roberts was polite about not answering questions that could come before the Court.  Though he was not apologetic about it – nor should he have been – he explained his refusal to answer.  By the second offending question though, he adeptly moved on to the next hopefully legitimate question, and smoothly put the offending participant in his or her place.  It was transcendent; it was more than adept, it was alpha.  Roberts’ years of wordsmithing and carefully avoiding other’s characterizations of him – and his words – were most obvious in those moments.  He put forth a strong frame of control, and refused to let anyone wrest it away from him.  Without denigrating any other aspect of the evening, those were the most impressive moments, and the most instructive as well.

The (legal, hyper-local) stars were out that night.

Without naming most names, as doing so on this blog probably would do more harm than good to their legal careers, many of the people who have shaped my legal education and career were present.  It was a pleasure, as always, to see them.  From catching up with a friend working on the contentious litigation for the control of Facebook in the Western District of New York, to hearing other law students tell me of their non-law business plans, the range of conversation did not disappoint.  Other attendees included Magistrate Judge William Schroeder, before whom I argued my first hearing in Federal Court, District Court Judge Richard Arcara, and Chief District Court Judge William Skretny, who administered Nevada’s Oath of Attorney to me the next day.  The driving force behind the event, though, was my unintentional mentor and vizier, Robert Klump, who has already received some coverage in this blog.  Without his efforts, the event never would have happened.

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