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tv   Discussion with Chief Justice John Roberts  CSPAN  February 16, 2016 12:09am-1:01am EST

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a follow-up question. is why obama decided to hold the summit not at the white house? mr. schultz: the president has used summer land as a relaxed venue where his counterparts from around the world can have a more informal discussion. in washington, there is a little more stiffness. the president wanted to afford world leaders more of an opportunity to have a candid, relaxed discussion. >> when you said that the is standing with advisers on this supreme court issue, is he going over specific list? where is he in the process? again, we are only a few days old here.
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i am not going to be able to release details of the conversation. my only point is, is the president engaged? yes. that means working with his team and white house officials at the white house and back here to make sure the process is moving forward. when you said you have been reaching out to democrats and republicans on the hill, you mean on the judiciary committee? you can imagine we are hearing from a lot of folks. we are also proactively reaching out to key offices. i do not have a list to detail. ,ut i think in the coming days that outreach will become more extensive. have you guys said when the president will sign legislation on north korea? mr. schultz: i do not have an update for you. >> you expect that to happen while he is here?
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mr. schultz: i am not even sure we have a go yet. as soon as i have an update, i will get it for you. think you all. you all. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> coming up, a conversation with john roberts about the inner workings of the high court. then, republican candidate donald trump holds a news conference in south carolina. after that, george w. bush campaigns with his brother, jeb bush in charleston south carolina. washington journal, live every day with news and policy issues that impact you. join the conversation of members of congress, reporters, and other c-span viewers. tomorrow morning, journalists
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discuss their approach to washington, including john harris, kristin editor, tohe national discuss events of the campaign d will6 and alan ivanstea answer questions about how gop candidates plan to win in south carolina. be sure to watch beginning at 7:00 a.m. eastern tomorrow morning. joined the discussion. tuesday, luke messer of newsmakersaks at the news conference about governing in the 2016 election year. watches remarks at 10:00 eastern on c-span.
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tuesday, lamar alexander, chairman of the education committee, talks about the new education law and how it differs from no child left behind at noon eastern on c-span. supreme court justice antonin shkreli a passed away this weekend, leaving a vacancy on the supreme court. justice roberts sat down for a conversation at new england law about in boston, talking the inner workings of the supreme court and politics. this is 45 minutes. .minutes good, good.
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welcome, ladies and gentlemen . chief justice honoredoberts is tonight. i know that our students and faculty have been th john: all of us have been looking forward to hear this --
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his opinion on a variety of issues. there we begin conversation, on behalf of our community, i thank you, mr. chief justice, for being so generous with your time in visiting new england law austin. -- boston. [applause] i have read some surveys that, i attention. my attention. one from pennsylvania after you were confirmed pointed out that 15% of those polled could not identify you as chief justice. 56% who would identify at least one judge from american idol. [laughter] more recently, a survey by
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the american council of trustees of college educated americans found a significant number, 10%, identified judge judy as a member of the u.s. supreme court. [laughter] john: so how is she doing? [laughter] justice roberts: she is doing great, doing great. john: seriously, what do you make of this lack of knowledge? does it concern you? justice roberts: get frankly does not bother me much that people cannot identify who the particular members of the court are. black robese wear is because we should be anonymous and not occupy any role in which our personality is pertinent.
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what concerns me and a lot of other members of the court is that people do not have a good understanding of what the court does. in particular, they do not have a good understanding of how we are different from the political branches of government. decision, it is usually discussed as in favor of this or that. tofact, whoever does get , we oftens or that have no policy views on the matter at all. that is a very important distinction between how we function. i think it is one that people lose sight of. john: during your confirmation hearing, it seems you are more than candid in discussing your views as to the proper roles of a judge.
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yet, others have described the confirmation process as less than edifying. why is that, do you think? i am not sures: that the senate particularly cares to think about it, but i think the process is not functioning very well. you look at two of my colleagues, justice scalia and ginsburg, for example. there were two or three dissenting votes between the two of them. look at my more recent colleagues, all extremely well-qualified for the court. the votes were strictly on party lines for the last three of them, or close to it. that does not make any sense. that suggests to me the process is being used for something other than ensuring the
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qualifications of the nominees. nowknow, it is a process where the members of the committee frequently asked questions they know would be inappropriate for us to answer. thankfully, we do not answer the questions. agenda whenerent they participate in the hearings. something that is easy for us to change. it is certainly up to them to conduct the hearings as they see fit. but it does not seem to me to be very productive. there is a problem with the way it comes out that relates to my first answer. when you have a sharply political, divisive hearing process, it increases the danger that whatever comes out of it will be viewed in those terms. if the democrats and republicans
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have been fighting so fiercely about whether you will be confirmed, it is natural for members of the public to think you must be identified in a particular way as a result. we do not work as democrats or republicans. i think it is a very unfortunate perception the public might get from the confirmation process. john: whether it is the confirmation process or occasionally campaigning, sometimes the process seems more like speech-making. sometimes, criticism of the nominees or the court itself. as the leader of the court, does that trouble you, and are you ever tempted to reply to some of these criticisms? justice roberts: criticism of the court does not bother me at all. and i think that is important. it is a big part of our job, not
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to think about what people think about what we do, at least in the merits of our decisions. if people object to have the court is being run, that is something else. i have no trouble with people doing that. again, it is often based on misunderstanding or calculated perception about what we are up to. a particular political decision, that remains the decision of the political branches. the fact that it may lead to criticism of us is often a mistake. above or aparte from the criticism. we, of course, make unpopular decisions, very unpopular decisions.
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baptistike the westboro case, which involved a group that engaged in some very vile speech at military funerals, the sort of thing most people would agree is awful. court by a comfortable margin, said that type of sidewalkon a public was protected by the first amendment. now, that is certainly something the court can expect to get criticized about a lot. the reason we have life tenure, so we are not susceptible to that sort of criticism. the criticism does not bother me because the framers established the court so we would not care
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about the criticism. and also, sometimes, it is based on a mis perception of what our job is. john: following up on that kind perception, when justice scalia was here, he told an amusing story about the time when the court found that flag burning was protected speech. and, as much as it horrified him agreed with the vast majority of the court that it was in fact protected speech. but for the life of him, he could not stand the thought of flagburning. he hoped no one else would be
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thinking along those lines. the reason it was an amusing story is after he said he tortured himself with us, his wife came down to breakfast humming "it is a grand old flag." [laughter] you thats it concern must hate applying the constitution to a set of facts and not understanding it is not necessarily wrong doing? justice roberts: i issue a lot of opinions where, if i were in the legislature, i would not have voted for the program under review. agree withcessarily the substance of every piece of legislation i put together. you say people do not
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recognize who the members of the court are. that is not a problem. many peoplelem when do not appreciate how our job differs from the executive or legislative branches. can we talk a little bit about leadership? following your confirmation, how difficult was it for you to pick leadership in relation to these eight other strong-willed, independent people? justice roberts: i learned early on that when you are holding the reins of leadership, you should be careful not to tug on them too much. you will find out they are not connected. [laughter] justice roberts: as you might imagine, it was a matter of some concern.
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for 25 years, been arguing in front of the court and literally looked up to them. they had been together as a group for 11 years without any change. i was coming in as the youngest member of the court with the least amount of judicial experience and coming in as chief justice. naturally, i was not sure how it was going to work out. them at thet of time were extremely supportive. i do not think it had much to do with me personally. thatr, an understanding somebody has to fill this role, whether it is moderating a discussion at conference or anything else. they were very supportive from the beginning. it is a tough position in terms of leadership. i am pretty sure none of them regard me as their boss. it is kind of hard.
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you cannot fire them. or dock their pay. any notion of leadership has to be a little more subtle and done through persuasion. you know, the other members of the court are leaders as well. justice scalia has been there for such a long time that he is a leader by virtue of his experience. others carry out a lot of that role as well. collegial much a group. it comes tos when discharging our constitutional responsibilities. any leadership i am able to exercise is only with the support of members of the court. , you chief justice roberts have talked about the value of consensus in the court's
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decisions. again, with these strong-willed, independent people, many people thought aiming for consensus was like trimming the impossible dream. can you talk about the value of consensus to you and whether that remains one of your goals? justice roberts: i think the lawyers appreciate that, if you ore a decision that is 9-0 weight thanies more a decision that is 5-4. it is natural for a member of the public to say, if you cannot agree on what the answer is, why are we supposed to have such great confidence you have gotten it right? for lawyers and practicing attorneys and judges, it is hard
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for them sometimes too to figure out what the court is up to when it is split like that. now, i think it is worth trying it by talking about issues a little bit more than otherwise to try to get people to see each other's point of view. may be that causes people to come around. but you cannot compromise the way you can in legislature. thinks something violates the fourth amendment and justice b thinks it does not, you cannot meet halfway. some areas, you are not suggesting that judges should compromise their conclusion after careful consideration. i think careful consideration might lead to a broader agreement. how you shape a decision can have the same effect.
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disagreement might emerge when you get to a particular decision. if you can decide a simple case familiar to lawyers on a statutory ground or a constitutional it always makes sense to decide on the basis of the statute. when you decide the issue more probably, some people might say, "oh, i am not going to go that far." it is a good idea to see if it makes sense on the narrower ground. >> certainly it seems to me that there is a lot more consensus that some in the media might have you believe. consensus that some in the media might have you believe. certainlycisions are here and there.
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in focusing on just those 5-4 isisions, do you think there a misperception as to just how much consensus there really is on the court? i do,justice roberts: more decisions are 9-0 than anything else. we need to agree entirely more often. so in the 8-1 and 7-2, and there is a big chunk where we agree across the board. you need to recognize that we are not always going to agree on all the issues that are before us. .nd yes is the hot button issues that some people can to focus on. >> i am just wondering, whether
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au see yourself as having leadership style. do you see yourself having a so,ain style of -- and if does this differ in your view from some of your predecessors? chief justice roberts: i did some reading about charles evans hughes, and some of the reading i've seen says, "he looks like i spoke like god." i'm pretty sure no one's ever said that about me. [laughter] chief justice roberts: i'm quite sure none of my colleagues of ever said that. chief justice rehnquist, first of all, he was beloved by members of the court. they all admired him.
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for his leadership ability. says he is theg best spots she ever had. -- boss she ever had. she has said that a little frequently. [laughter] chief justice roberts: several times lately. he generally led with a pretty .oft touch ,n many ways, it is unwritten what is appropriate for a chief on his own and what needs to be submitted to the conference as a whole. for a vote. you know, you try to be careful in that respect. you have to appreciate, as i mentioned earlier, you are not the boss in the usual sense. chief justice rehnquist had a good sense of when he should
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assert his authority, as chief. and when he shouldn't. that is something you try to be careful about. one thing that i think the faculty is talking about is something that we all learned at lunch when you have lunch with the faculty today. your role at the smithsonian. chief justice roberts: it might come as a surprise to many people, but the chief justice, by virtue of his office, is also , "chancellor of the smithsonian." that's an even better title than chief justice. [laughter] there areice roberts: some historical reasons why that is so. we have ae reason is and the federal
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appropriations, and they serve, for a limited time, and they wanted somebody there who had continuity and could tell the .ew regents we're certainly not having any the smithsonian is the largest complex in the and that they are turning it over to me as kind of a surprise. [laughter] chief justice roberts: i do preside at the meetings, but i try to stay out of the purely policy areas and that the people who know what they are talking about discuss it. it takes more work than i had expected, but it is a nice distraction from the legal work. .> about collegiality.
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-- i wanted to ask you about collegiality. you would think that the members of the court are constantly at one another's throat. yet, we have been fortunate enough to have six justices from , in recent years here, and every single one of them talked about the great respect and affection they have had for .ne another is that one that you try and foster yourself? chief justice roberts: it is something that i was very happy -- to discuss.
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we have to sit down and discuss these important issues, and reach some type of resolution. obviously, on a lot of these cases, they are not all in agreement. as we all like to say, in the conference room where we meet, along table, we have had very serious discussion. we have had pointed disagreements. there has never been a voice raised in anger in that room. partly because of the nature of being a group thrown together to decide these important questions , i mean think about it, pick nine random people and throw them in a room and say, ok, you will be working together for the next 25 years on some of the most portland and divisive issues the country faces. almost, he would come that youalization
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can't shout over each other. this is more of a long-term , and you do come to appreciate the good faith of the people with whom you work. btw if you're going -- to have thisng process coming to decide them this year instead of next year. realrocess of this has a binding effect, especially when you are not opposites sides. it is unusual. unlike most jobs or other situations, very rarely do people do the exact same thing. act -- inu're in this , youxact same situation are faculty members working
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together, your teaching different things, the night of of us have the same job, take the same oath, reducing argument. -- read the same arguments. there is a strong bond develops -- and thatgues develops among colleagues. it doesn't always shine through in some of our opinion. but that is more of a matter of style for some justices. the one thing i will say, it is awfully good thing that we get away from each other in july and august. said he could do 12 worth -- 12 months worth of work in 10, but not 12. i think there is a lot of wisdom behind that. all that aside, it is a
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wonderful collection of individuals. it is a real honor and pleasure to be at work with them. most of the time. [laughter] >> you mentioned opinions on moment ago. opinion, i am very curious as to what is your intention. who are you writing for. who are you writing for when you are crafting your opinions? chief justice roberts: i like to think of it as i am writing for my sisters
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i have three sisters, none of them are lawyers, and yet they whointelligent laypeople keep up with what is going on. i like to think they could pick up one of my opinions and be able to read it and understand what the issue is, understand how it's been resolved, and understand a general view of how. the reason we write our opinions is because we have to justify the antidemocratic position we are in. if you don't like what the president is doing, vote him out of office. if you don't like what your congressman is doing, you control him or her out of office. if you don't like what we are doing, it's too bad. [laughter] processuse of that, the has developed that we have to justify ourselves. have to explain to you why we issued this decision.
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the congress doesn't have to if slain to anybody why they are pursuing a certain course. the president doesn't have to explain the actions he has taken. they are are entitled to do what they do because the people elected them. andre interpreting the law not imposing our own views. and to make sure that is the case, we explain it to you. would like to thank that intelligent laypeople can understand that explanation. if you will like the explanation and don't think it holds together, than they are justified in viewing us is having transgressed the limits on her view. i like for people who are not necessarily lawyers but who do follow public affairs and can read the opinions intelligently -- there's no reason to think that's necessarily the right answer, my colleagues have different views about it. you could be riding for the
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particular it's a area of law that you're comfortable using the legal terms in the background principles, or you could be riding for the academy, we want them to understand at a particular level why we have done what we've done. i like to think, and i'm sure it's not true whenever case, but i like to think somebody who's not a lawyer can pick up an opinion and read it and not necessarily follow all the nuances, but have a good idea about the issue and how it was decided. >> reading your opinions, you seem committed to clarity, but also to keep it interesting for the reader. for instance, in a case described by the new york times as an achingly boring dispute between telecom companies, you lightened up your dissent by suggesting a lack of standing, quoting bob dylan, one of my
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favorites, by pointing out when you've got nothing, you've got nothing to lose. [laughter] what was your objective in quoting bob dylan? roberts: it's consistent with what i said earlier. i think an intelligent layperson create -- appreciates bob dylan, his poetry, if not his music. [applause] all, it was after all a dissent. so you have a little bit more leeway there. it may have been achingly dull to the reporter, but it's very important to me. i would not have dissented if i didn't think it was important, and bob dylan captured the whole by saying if you don't
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have anything, you've got nothing to lose. the party didn't have any stake in the case and had nothing to lose and the case should have been thrown out on that basis. i know bob dylan would have agreed. [laughter] >> but you did clean up his language because the original language, the double negative, when you ain't got nothing, you got nothing to lose. get intooberts: i did a discussion about that with somebody. that is as performed. the liner notes show it does not 't" in it.ain so i went with the liner notes. >> are there justices you particularly admire for their
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writing, anyone in the past that comes to mind for you? roberts: i think many here would have the same answer, robert jackson is probably at least in the modern era the most eloquent craftsman. he reads passages, the sort of things you say i wish i could do that. and most of us cannot. -- seeing how things relate to other things in the world. there's a great passage in a first amendment religion clause case. he's making the point and he says what would architecture be like without a good -- without a without -- heusic makes a point about the case
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that was before him. again it would speak to somebody who doesn't necessarily know about the law would appreciate the point he's making in that case. .e is a very eloquent writer someone like john marshall, his opinions are very accessible. versusnk marbury madison, the old-style print and the pages are faded and it so long, but when you sit down and read it, it's something anybody can understand. period inuntil this the late 19th century when judges in particular think the .pinion was not legitimate there are a lot of good writers out there and i think it
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improves the understanding of their legal judgment when they have that skill. aboutk just a little bit you, chief justice roberts. in high school, you were captain of the football team. [laughter] [applause] there were 24s: boys in my graduating class, so half of them were on the soccer team. my original ambition was to be the half pack for the should -- half back for the chicago bears but somebody already had the job. say, we were in fact the
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smallest high school it played football in the state of indiana. so it wasn't that hard to be the captain. [laughter] >> you are regarded as one of the finest advocates of our time , are you in 39 times in front of the supreme court in the decade before being confirmed for a seat on the d.c. circuit. or advice for new england boston students and alumni about preparing and conducting an oral argument? the one thing i would say is i would be a much better oral advocate and brief writer today than i was before i became a judge. do get a very different perspective on the process when you're on the other side of the bench. , and writing is very easy i was talking about this with the students. in the supreme
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court is about 50 pages. it comes out to about 50 pages. you pick up the first brief and its 50 pages. you pick up the respondent's brief and its 50 pages. the next one is 50 pages. 50 pages. you pick up line is 35 pages, can you imagine the impact of that? you are the lawyer, you're trying to reach the judges. the first thing you do is turn it over and look at the cover and find out who your new best friend in the bar is. [laughter] realize that she probably has a good case. it only takes a 35 pages and she is done, she must have a lot of confidence in the strength of her argument. ,he second thing you realize you read those 35 pages very
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carefully because you know that she went to the trouble of distilling it in a way that they're obviously cannot be a lot of fluff to it, so you're going to read it more carefully. the time andit all people think because they don't want to work so hard, but it's a very good idea tactically, and think of it. if you really can't explain why , doshould win and 35 pages you really think you need the additional 15 pages, and if you it does hurt you to have them. it's hard for loggers. i spent many years having way, don'td by the check my briefs and see how many pages they were. this is something i learned, not necessarily something i did. [laughter] ,t's hard to explain to client
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this is what going to file in court. they're going to say no, i paid for 50 pages. you are shortchanging me. but you have to have the professionalism and confidence to say you heard me to handle this for you. i think we have a better chance if it is 35 pages instead of the. and on the oral advocacy part, it's the same sort of ink. everybody tells you don't avoid the questions judges wanted to ask, but you really have to take that seriously. if the judge is asking one of the loggers a question, it's probably not a comfortable question, it's something they want to point out a flaw in your argument and get you to explain it, but welcome the question. john w davis said that in a famous case. do it directly. case,ebody says in this
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didn't the person at the end raise the same argument, and that was rejected, right? if it was, say yes. it's an issue say yes, the judge is going to listen to what you have to say about it. as soon as you say no, then it's was very different for of skier reason that has nothing to do with the argument trying to make. now i got to pry out of this longer their position is on this particular case. he or she is not going to give me a straight answer. you develop an immediate hostile relationship, as opposed to being in a position where the judge says the judge understands were both engaged in this process, he's going to respond in a particular way that helps his client, but at least he's not fighting the question. when you leave as
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a lawyer and say this is great, i had a big problem in my case and i did not get a question about it. that means you have not been given an opportunity to tell the court what your answer to the problem is. >> what are some of the thatbutes are qualities president bush saw that led to his nominating you to be our chief justice? i don't know,s: to be honest with you. [laughter] don't know, but i do know that he gave a lot of thought. the interview process with him was very uplifting for me. not because of how worked out at , and frankly at the end of the interview, i didn't expect it to work out as it did, but i was impressed with this understanding of the role of the
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courts and the government and his general view of the responsibility on him. there seems to be a strange and unusual story behind every appointment of the chief justice . for john marshall, for example. he was not john adams's first choice. was.jay jefferson was about to be inaugurated. ellsworth had health issues and john adams needed a new chief justice. is theught was john jay perfect person. york,een governor of new which he thought was a better job. wrote back a fascinating letter, the gist of which was, the supreme court is never going to amount to anything.
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i was well out of it before, and i'm not coming back. john adams's secretary of state brought him that letter and john adams read it. he looked up at john marshall and said, who should i nominate now? i guess i have to nominate you. [laughter] and the rest is history. grandpa's fifth or sixth choice, fifth or-- grant's sixth choice. everyone turned out to be involved in some financial impropriety. he literally said to his attorney general at one point, who is that guy in ohio who introduced him at that reunion of the army of the potomac? i liked him. they found out it was a guy
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named morrison waite and grant said, let's give him a try. in turned outed to be a perfectly fine chief justice. it's interesting, his portrait in the east conference room, it's a picture of him, obviously, and a little picture enclosed is a portrait of grant. so think about that when you are asked to introduce somebody. edward white became chief justice because of a path of assured -- he was appointed as an associate justice and assured that he would elevate him when the vacancy came available. hughesenly realize that was 47 years old and if you appointed him to justice, president cap would never be able to become chief justice, which is what he always wanted. his wife wanted him to be president and he wanted to be
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chief justice. so at the last minute he decided instead,t edward white who was probably as surprised as everyone else. it all worked out. taft became chief justice after white died on schedule. cap left, charles edward hughes became chief justice again. theou never know quite how appointments come about. you seeiggest challenge for your court going forward, chief justice roberts? justice roberts: at least for me, i honestly can't speak for the others. i do think the incredibly rapid development of technology that is going on right now is going to be a challenge. any not going to be particular area, but it cuts across many different areas. we had a big case a couple of years ago about smartphones and
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whether police needed a separate war and if they arrest you and you've got a smart phone, do they need a separate warned to access your phone? not all of us are as familiar with the technological devices are what different things are on them or all the cape abilities -- capabilities. how does that fit the fourth amendment? there were not smartphones back in. it's one of those things where you get a lot of guidance from history. the fourth amendment is there because the founders around this british troopse executing general warrants and kicking the door down and rummaging through their desks. if you think about it, right now today, which would you rather protect, if you had a choice? do you want to keep police out of your desk without a warrant,
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or do you want to keep them out of your smart phone? how many would say the desk? how many would say your smart phone? because it is your desk, right? it has all your documents. it has everything, where you've been, what you've been reading, everything. so it's a new technology but you have to apply old standards. and it's not just that area. how does the first amendment work with respect to speech on the internet? , howeryone is a reporter is the freedom of the press with respect to that? it's a challenge now as the technology is developing. what is the role of the tiny little chip that someone has that in fact controls how the entire system functions? for monopoly analysis and things of that sort. that's going toe

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