Speaker 1 (00:00):
… fraught with the hazards of tempers that sometimes seethe in the stormy billows of the courtroom. And of antagonisms that occasionally arise from the loss that must inevitably be sustained by one side, as every legal battle ends. Yet, the desirable future of this great country of ours may well depend upon the proper balancing of such relationship and upon an understanding by the lawyer and the judge, that without the mutual assistance and respect of each toward the other, neither can carry out their assigned role, despite great learning and dedication to duty.
(00:49)
I would respectfully submit that most of the time we get that balance right here in the Western District of New York, and we have done so for the past 125 years. And that, my friends, is what we are celebrating tonight, our 125-year collective history of working together to uphold the constitution, preserve the rule of law, and seek equal justice for all.
(01:17)
Now, before we get to the main event, there are a number of people who I wish to recognize. I'll start out by saying we have a number of distinguished guests here tonight, and we also have a lot of people who have contributed to our celebration this evening. But I cannot mention everyone, trust me, you do not want me to mention everyone. So I apologize if anyone feels left out, and I can assure you it is by no means meant as a lack of appreciation or respect. In addition, because we have a number of individuals who will be mentioned, I would ask that you please hold your applause until I get through the category that we're dealing with, otherwise, we may never get to the main event, and I know nobody wants that to happen.
(02:14)
So I want to start out by recognizing the members of the federal bench who are here tonight. Again, I would ask you to please hold your applause until I name everyone. We have two members of the United States Court of Appeals for the Second Circuit, Chief Judge Debra Ann Livingston, who we'll have the pleasure of hearing from a little bit later this evening, and Judge Richard C. Wesley, as well as many members of the Western District of New York bench. Our district judges are, Judge John L Sinatra Jr., Judge Meredith A. Vacca, Judge Charles J. Siragusa, Judge Richard J. Arcara, Judge William M. Skretny, and Judge David G. Larimer.
(02:55)
Our magistrate judges this evening are, Judge H. Kenneth Schroeder Jr., Judge Jeremiah J. McCarthy, Judge Michael J. Roemer, Judge Mark W. Pedersen, Judge Colleen D. Holland, Judge Leslie G. Foschio, and Chief Judge of the US Bankruptcy Court, Carl L. Bucki.
(03:16)
And then in addition, we have some other federal judges who are present this evening. Robert Dow, United States District Judge from the Northern District of Illinois, who serves as counselor to the Chief Justice. Geoffrey Crawford, United States District Judge from the District of Vermont, who has graciously handled hundreds of cases for our district. Lois Bloom, Magistrate Judge from the Eastern District of New York, who is retiring next week. And speaking of retiring, my recognition of the federal bench would not be complete without acknowledging Marian Payson, former-United States Magistrate Judge of the Western District of New York, who served on the bench from 2003 until her retirement this past January, and for who, two years before that, was co-chairing with Judge McCarthy, the anniversary committee that planned tonight's event, as well as all the events throughout the year. So I would ask all members of the federal bench if you could please stand to be recognized. Now, we also have over 30 of our brothers and sisters from the state court bench who are present this evening. And I apologize, but time will not permit me to mention each of them by name. But I do want to acknowledge, Judge Shirley Troutman from the New York State Court of Appeals, Justices William Taylor and Amy Martoche, the administrative judges of the seventh and eighth judicial districts. And I'd ask that they and all members of the state court bench, including those retired judges or justices, if you could please stand to be recognized.
(05:09)
Thank you for being here this evening to celebrate with us. We also have a number of leaders of bar associations present with us tonight. Presidents, past presidents, presidents-elect, board members, thank you to all of you for your service. Again, please hold your applause if you would until I mention everyone. But I do want to specifically acknowledge a few of the bar leaders. William Bay, president of the American Bar Association, Kathleen Sweet, President-elect of the New York State Bar Association, Lauren Breen, President of the Bar Association of Erie County, Sandy Fazili, President of the Monroe County Bar Association, James Harrington, President of the Minority Bar Association of Western New York, Peachie Jones, President of the Rochester Black Bar Association, and Anna McCarthy, President-elect of the Women's Bar Association Western New York chapter. I would ask that all presidents, presidents-elect, and past presidents of bar associations, if you could please stand to be recognized. Thank you for your service.
(06:48)
I'm also pleased that we have the Dean of the University at Buffalo School of Law, Todd Brown, present with us tonight, as well as, I know, many proud alumni of the law school. The law school is the only one in our district, and is one of the oldest law schools in New York. Founded in 1887, it predates the establishment of our district. So Dean Brown, you're the only one in this category, I would ask that you please stand to be recognized.
(07:16)
There are a number of people who are owed thanks for the efforts surrounding tonight's celebration, and all the events that we have been hosting throughout the year. Over two years ago, I asked Judge Payson and Judge McCarthy to chair a committee devoted to these efforts, and they put together a terrific committee of attorneys, judges, and court staff. The anniversary committee members are listed in your program, and I would ask that they please stand to be recognized for all their hard work over the past two years. I want to thank all the staff at the Supreme Court who were just wonderful to work with in planning tonight's dinner, especially Kim McKenzie and Craig Carroll, as well as all the personnel providing security for tonight's event. We appreciate your service. And I want to especially recognize Mary Loewenguth, our clerk of court, who has worked tirelessly, putting together tonight's event. Mary has announced that she's retiring in February of 2026. I am not just grateful, but relieved that she decided to wait until after 2025, before hanging up her clerk title. Thank you, Mary, for all your hard work.
(08:52)
Finally, I want to thank the Monroe County Bar and the Bar Association of Erie County. And I especially want to thank the Erie Bar staff. The court could not have planned tonight's event without their support. I've been a member of bar associations my entire professional career, but it was not until about seven years ago when I joined the Erie Bar … and I'll admit my motive at the time was that I wanted to vote for our federal public defender, Marianne Mariano, who was running for president. But I've remained a member ever since. And it was not until the planning of this dinner though, that I was exposed in depth to the talent and dedication of the Erie Bar staff. They have a great team, but I do want to acknowledge a few critical members of that team without whom tonight would not have been possible. Anne Noble, executive director, Stephanie Belasik, director of marketing communications and operations, Susan Kohlbacher, assistant executive director, and Leann Aboudiab, multimedia designer and marketing associate. If they could stand to please be recognized.
(10:21)
Now on to the main event, the fireside chat. I have the good fortune of counting as one of my colleagues and friends, the Honorable Lawrence J. Vilardo. Before joining our court, Judge Vilardo practiced for almost 30 years as the founding partner of Connors & Vilardo. Judge Vilardo became a member of our court in October 2015, when he was sworn in as the 17th district judge to serve in the Western District of New York. Judge Vilardo is a 1980 graduate of Harvard Law School, where he served as a member of the Law Review. And thankfully, he made some friends while at Harvard Law School, including a fellow Buffalonian who would go on to serve as Chief Justice of the United States.
(11:12)
Chief Justice John G. Roberts Jr. was born in Buffalo and spent his early childhood living in Hamburg, before his family relocated. After graduating as valedictorian of his high school, Chief Justice Roberts attended Harvard College where he graduated at the top of his class in 1976 with an AB in history, and then, attended Harvard Law School where he obtained a JD, and served on the Law Review. After law school, Chief Justice Roberts served as a law clerk to Judge Henry Friendly at the US Court of Appeals for the Second Circuit, and then was a law clerk to then Associate Justice of the Supreme Court, William Rehnquist. After his clerkships, Chief Justice Roberts had various roles in government, including Special Assistant to the Attorney General of the United States, Associate Counsel to President Ronald Reagan, and Principal Deputy Solicitor General.
(12:17)
From 1986 through 1989 and 1993 through 2003, Chief Justice Roberts practiced law in Washington DC, and was considered one of the most skilled and distinguished advocates to appear before the Supreme Court. On May 8th, 2003 … so 22 years ago tomorrow, Chief Justice Roberts embarked on his judicial career, when he was confirmed by the US Senate to a seat on the Court of Appeals for the District of Columbia Circuit. Two years later, he was nominated by President George W. Bush to serve as Chief Justice of the United States. And later this year, on September 29, he will be marking his 20th anniversary as Chief Justice. Chief Justice Roberts is the 17th Chief Justice to serve in this nation's history. Please join me in welcoming Chief Justice Roberts and Judge Vilardo.
Chief Justice Roberts (13:50):
Thank you very much.
Judge Vilardo (13:50):
Thank you.
Chief Justice Roberts (13:50):
[inaudible 00:13:50]
Judge Vilardo (13:52):
You see, I told you they like me. Well, it really is an honor to be here with you and to rekindle our old friendship that started, what, 47 years ago?
Chief Justice Roberts (14:06):
Wow. Yeah.
Judge Vilardo (14:07):
Long time.
Chief Justice Roberts (14:08):
You haven't aged a bit.
Judge Vilardo (14:10):
No, you haven't. You haven't. Haven't changed a bit. So folks from Buffalo are very proud to say that you're a native son here. You spent the first 10 years of your life in Hamburg.
Chief Justice Roberts (14:21):
Right.
Judge Vilardo (14:22):
What do you remember about growing up in Buffalo?
Chief Justice Roberts (14:24):
It was cold. No, the memories were refreshed earlier this morning. I went back and visited my boyhood home, which was a lot smaller than I remember. It was near the fairgrounds, for those of you around here, and we would -- I remember hearing the call to the post the da-dun da-dun da-dun-dun, because they did racing there on the weekends. 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, so -
Judge Vilardo (15:01):
Where'd you go to school?
Chief Justice Roberts (15:03):
St. Bernadette's.
Judge Vilardo (15:03):
Yeah. And that's where my wedding was.
Chief Justice Roberts (15:06):
Oh.
Judge Vilardo (15:08):
So we have that in common.
Chief Justice Roberts (15:09):
It closed last week.
Judge Vilardo (15:10):
Yeah, that's what I heard. 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. Did you let yourself dream about being on the Supreme Court then?
Chief Justice Roberts (15:26):
No, no. I didn't dream about being a judge. I didn't dream about being a lawyer before then. I was going to go to graduate school to study in history and, true story, I was taking a cab back from Logan Airport to the campus, and the cab driver asked me what I did, and I told him I was a history major at Harvard. He said, "I was a history major at Harvard." So I said, "Where's that law school application file?" But when I got to law school, I found out that I liked it, but I certainly didn't want to be a judge. And then ended up clerking and working in the government, and in a law firm for a while, and it just sort of happened that you end up in a position where someone decides to nominate you to be a judge. And by that time, I had been practicing long enough, that I thought it would be a good change, and that worked out. And then the Supreme Court fortuitously came along after that.
Judge Vilardo (16:35):
Yeah. So your career started, and was, by and large, as an appellate lawyer. How did that happen?
Chief Justice Roberts (16:44):
Well, I came off of the government work that I had been doing, I had spent a total of seven years between the clerkships and a stint in the Justice Department, and some time at the White House Counsel's office. So when I left that, I'd been out seven or eight years
Chief Justice Roberts (17:00):
And hadn't really practiced normal law, and I didn't want to start the seminar, whatever, for first year students to learn how to take a deposition. So I went around at law firms and they'd say, "What do you want to do?" I said, "Well, the one thing I thought I could do," I said, "I want to do appellate work." And they said, "Well, if the case you're handling goes on appeal, you can do appellate work." And I said, "No, no, I only want to do appellate work." And nobody was buying that until I ran into a fellow named Barrett Prettyman, who that's what he did. He was at the firm of Hogan and Hartson, and he was an amazing, amazing man, and I decided I would like to work with him, and that was fine with him.
(17:44)
He had been… Extraordinary life. The courthouse in DC is named after his father, who was a very prominent judge. But Barrett at age 18 left high school in DC and went to England and then joined Patton's army hurdling toward Berlin. And they were ambushed and his unit found themselves in these foxholes, terrible cold, through the night, and the Germans were sort of picking them off one by one. And he swore that if he made it to the morning, he would wake up happy every day. And he made it through. He had frostbite. They took him back to Belgium. The rest of his unit went in and they were going right into the Battle of the Bulge, and they were all killed. So he kept his vow, as far as I could tell. He was a very upbeat person. Pretty much everybody else on their walls had pictures of fox hunting or old English judges, and he had pictures of clients like Truman Capote and Catherine Ann Porter. And he had a great attitude and I really enjoyed practicing law with him.
Judge Vilardo (19:09):
And he woke up happy every day, even after he started working with you?
Chief Justice Roberts (19:14):
I never heard… Yeah.
Judge Vilardo (19:20):
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. And I told Tom Metzloff, who's a law professor at Duke, that I would ask you to tell these folks about pencil ball.
Chief Justice Roberts (19:36):
Yeah. Tom and I spent more time playing pencil ball at the law review than working on the law review stuff. It was a very complicated thing. You get a little piece of paper and put some tape around it, and then with pencils, somebody would pitch the ball and you'd try to hit it with a pencil.
Judge Vilardo (19:51):
And you had this elaborate scoring system too, right? If you got in the wastebasket, it was a triple, if it ended up sticking to the ceiling, it was a homer. I forget-
Chief Justice Roberts (20:00):
Well, yeah, it was very complicated
Judge Vilardo (20:01):
They never let me play.
Chief Justice Roberts (20:02):
The rules evolved as each game went on.
Judge Vilardo (20:05):
I was an underclassman, so they never let me play, but they played the pencil ball game. So you interviewed for clerkships yourself and you now interview candidates for clerkships. Any pointers you have for folks when they interview?
Chief Justice Roberts (20:21):
Well, one year when I was interviewing people, I was looking with law clerks, and probably you do as well, you want people with some degree of self-reliance and confidence. So I laid out a dozen half glazed and half powdered donuts out in the waiting area. And I figured one, it would be a good sign if whoever it was liked donuts. 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. End of the day, a dozen donuts still there. So everybody failed that. Now I had some bad experiences of my own. It was back when some justices were still hiring people right out of law school and Justice White was one of them. And I was scheduled for an interview with him, and I went down to Washington and they had just opened, the new metro system just opened, and you put your money in and you get a fare card and all that.
(21:28)
I don't think they do this anymore. I'm sure they fixed it back then, but all I had was a 20 and put it in and put in the fare, it was 40 cents to Union Station. So I got $19 and 60 cents in quarters or whatever. It was like in Las Vegas, the quarters just kept punching out. But I was a law student, I wasn't going to leave them there. So I put some in here and some in here, in these other pockets, and I walked into Justice White's chambers, and I was jingling, jingling, jingling. He kind of looked strange at me, and I crossed my legs and $1.50 fell out on the floor. I didn't get an offer from him.
Judge Vilardo (22:17):
Tom Metzloff got that job right?
Chief Justice Roberts (22:20):
Yeah, Tom. My pencil ball opponent got the job instead.
Judge Vilardo (22:23):
Yeah. Yeah. So you really are a terrific writer. And you were back in law school as well. I still remember you 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. Where'd you learn to write? And is there any one person who you credit for teaching you how to write?
Chief Justice Roberts (22:48):
Well, I think the way to learn to write is to read good writing, and I read a lot. I liked Conrad and Elmore Leonard. I mean Joseph Conrad, if you want to write long and flowing, elegant sentences and Elmore Leonard if you like punchy sentences, and I think that helped a lot. When it came to writing briefs though, I had a secret weapon. I have three sisters, none of them is a lawyer, and yet they're very bright. And I would send, in 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.
(23:35)
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… I mean, they wouldn't say, oh, under a risk of this or that, but they say the guy who was driving the truck should have looked left and he looked right and the safety brake didn't work so the other person could pay and if it was the right answer, then I… And I see it today and I bet you do too when you read so many briefs and read them carefully, but it's not like you can devote as much attention to however many cases you're hearing.
(24:13)
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. The other thing I'd like to do is read aloud. 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. I mean, otherwise, your sentences are too convoluted, not direct enough, and I think those are two things that serve me well.
Judge Vilardo (24:43):
Do you still try to do that now when you write decisions? Do you try to make them simple?
Chief Justice Roberts (24:49):
Yeah, people are always complaining and walking down the halls, they're reading it out loud and they… No, they don't do that.
Judge Vilardo (24:59):
But do you try to make your decisions accessible for-
Chief Justice Roberts (25:01):
Well, and I'll tell you, I mean, there are cases where we don't necessarily study every brief. And if you file a brief and I can't read through it once, okay, I've got to read through it twice and sit down with the law clerk and say, what do you think this is about? I think people place too much emphasis on showing off their intellectual sophistication or the nuances instead of just being very direct in your writing. And I always think particularly in the cert petitions when I was doing those, it's very hard. I don't know what the rate is now, 2% or less than that get granted. I always thought it was important to put something in that would catch somebody's eye. I had a case once involving… It was mining in Alaska, and it involved something called the Red Dog Mine, it was out in the middle of Alaska. So I figured maybe it would help. So I put in the first page and a half is about why it was called the Red Dog Mine. And it was because you get these stories in Alaska where somebody has to fly out to get emergency insulin and they fly… And this was flying back. And the guy who had his plane, he always had this red dog in his plane, and the plane coming back crashes, but the dog survives, the pilot doesn't, and the dog runs to the village and they get the insulin and all that. And then hopefully you read on, and it's about some mining regulations or something. Hear me out. When I got on the court, the first thing Justice O'Connor said to me when we were sitting down for lunch, he said, "I love that story about the dog." I mean, they denied cert, but that happens. I bet she finished reading it too.
Judge Vilardo (26:57):
So when I write decisions, I tell my law clerks that half the people who read the decision are going to think I'm an idiot because they lost. 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, because I think it's important to write so that it's accessible for people and judges do the same thing I think.
Chief Justice Roberts (27:21):
Yeah, I think so.
Judge Vilardo (27:22):
Yeah. Let's talk about something a little more important, a little more substantive. I think most judges would agree that judicial independence is crucial. Do you agree? What do you think?
Chief Justice Roberts (27:35):
Oh yeah. I mean it's central. The only real political science innovation in our constitution, parliaments have been around for 800 years, and obviously executives, is the establishment of an independent judiciary. Even places you think are similar to ours, like England. The judiciary in England was part of Parliament. I mean, they sat in the House of Lords, because Parliament was Supreme. But in our constitution, judges and the judiciary is a coequal 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. And that innovation doesn't work if the judiciary is not independent. Its job is to obviously decide cases, but in the course of that, check the excesses of Congress or of the executive, and that does require a degree of independence.
Judge Vilardo (28:57):
What do you think of these calls for impeachment of judges based on the decisions that they've made?
Chief Justice Roberts (29:03):
Well, I've already spoken to that, and impeachment is not how you register disagreement with decisions.
Judge Vilardo (29:09):
That's what you're for, right? That's what you're there for.
Chief Justice Roberts (29:12):
That's what we're there for. Yeah.
Judge Vilardo (29:14):
So lots of decisions that you make interpreting the Constitution have real-life practical consequences. 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, Obergefell resulted in more same-sex marriages. Do you think about those practical consequences when you're interpreting the Constitution? And should justices think about those practical consequences when they're interpreting the words of the Constitution?
Chief Justice Roberts (29:53):
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. You can say, for example, a consequence of the Second Amendment decisions are more people have guns, and so there's more accidental shootings, more shootings. Or you can say the consequence is that more people are armed and therefore they're in a better position for an invasion as there was with the British shortly after the adoption of the Second Amendment. So that's a good thing.
(30:38)
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. So no, I don't think that's not a big part of at least how I do my job, sort of a purposivist approach is what people would call that. Because I think you're making yourself the arbiter of what people are trying to accomplish in that law. What you really need to be doing is sitting down and reading it in its appropriate context and trying to figure out what they meant. Now, one extreme, if an interpretation you adopt leads to some absurd result that nobody could plausibly have intended, then yeah, the consequences make a difference. But I think it's more important to 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? Because then the interpretation flip flops.
Judge Vilardo (31:42):
Yeah. So the courthouse here in Buffalo is named for Robert Jackson, and you clerked for Justice Rehnquist. Justice Rehnquist clerked for Justice Jackson. So you're sort of his grandson.
Chief Justice Roberts (31:56):
Sort of.
Judge Vilardo (31:57):
In a way. Yeah. Does that have any special meaning for you? I know one of the portraits you have hanging, one of the four portraits you have hanging in the-
Chief Justice Roberts (32:10):
The Justices conference room.
Judge Vilardo (32:11):
In the conference is Jackson. Yeah. Would you talk about that a little bit?
Chief Justice Roberts (32:14):
Well, sure. I mean, obviously one of the more remarkable members of the court in our history, part of the reason he's in our conference room is he was the solicitor general who argued before the court, the Attorney general 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 doing. And obviously one of the great justices, I mean, his eloquence is really extraordinary. His eloquence at Nuremberg was extraordinary. So yeah, I think it's a great grandfather to have. Now, the other portraits, John Marshall Harlan is there, and I just think somebody whose parents named him John Marshall who then lives up to it and ends up on the Supreme Court deserves a painting. And seriously, all his pronouncements in a number of areas of the law I think are really remarkable.
Judge Vilardo (33:22):
He was a dissenter in Plessy, wasn't he?
Chief Justice Roberts (33:24):
Yes. Yeah, [inaudible 00:33:27]. That's when he said that we have a colorblind constitution and the other one is Cardozo. At one time, I had five colleagues on the court from New York, so I figured I had to give them some New Yorker on the wall. And then of course, the Great Chief John Marshall as well.
Judge Vilardo (33:44):
Yeah. 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.
Judge Vilardo (34:00):
Why is that important, and why was it important enough for you to give that message to your son and his classmates?
Chief Justice Roberts (34:08):
Well, it was eighth grade, and it's a time when they need to learn a lot of things. And it's important, just it's basic courtesy, 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 functioning of our world and as anybody else.
(34:37)
And 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 and whether it's the chief justice or somebody in the print shop or one of the law clerks, or anybody else. And I think if you lose sight of that, that's a real shame. And I do think, again, particularly eighth grade is a good place to learn that way.
Judge Vilardo (35:07):
Did you do that when you were in school? Did you get to know those folks when you were in-
Chief Justice Roberts (35:11):
Oh, sure. Yeah. But in eighth grade, those people were the boss.
Judge Vilardo (35:18):
Yeah. That's exactly right. That's exactly right. Sometimes, I'll have folks cleaning the office will come in and apologize to me for coming and cleaning the office. And I said, "If you folks don't do this, I can't do my job." So as you say, it's all all-
Chief Justice Roberts (35:33):
Yeah. I apologize for making such a mess.
Judge Vilardo (35:38):
So you talked about a few minutes ago reading petitions for certiorari and briefs. What's the criteria that you use for deciding whether you want to take a case. Other than writing about Red Dogs, what jumps out at you?
Chief Justice Roberts (36:00):
It's pretty clear that it doesn't really matter how right or wrong it is. The one thing you could say in a cert petition that's not a good idea is how horribly wrong this is, 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. Nobody's going to follow it. Mistake's been made. But one thing that's certain, it's not our job. We're not a court of error in the sense that we correct mistakes.
(36:27)
So what we're looking for, our conflicting decisions on the same law that have to be fixed. 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. And so that's more the type of case we would take to resolve that disagreement.
(36:49)
So people want to get their cases heard, need to have somebody who's good at explaining why we need a greater degree of uniformity. You can't say in New York some particular expense is tax-deductible, but in California, it's not.
(37:04)
So a lot of the cases we get are actually not that glamorous. They're not that interesting because there are a lot of areas of federal law like patent law and copyright law, tax law, all sorts of things. And when those disagreements come up, we're the only ones who can fix it. So a lot of our docket is pretty mundane.
Judge Vilardo (37:21):
Is there something to though putting something in the cert petition that'll catch the judge's eye, like the Red Dog story? Do you find yourself when you read something like that that has something that catches your eye drawn to it a little more?
Chief Justice Roberts (37:37):
Oh, sure. Yeah. We take whatever it is. I don't know what the number is, -1/2% of all the cert petitions. You've got to do something to stand out of the crowd. Unless you have a really good case, that may be enough to get our attention. But other than that, and it makes sense, you have to be a good writer. If you're there, 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.
Judge Vilardo (38:14):
Some of your colleagues have written autobiographies. Have you started yours yet?
Chief Justice Roberts (38:19):
No.
Judge Vilardo (38:19):
Are you going to?
Chief Justice Roberts (38:20):
No.
Judge Vilardo (38:21):
You won't. Why not?
Chief Justice Roberts (38:24):
I think my life is very interesting to me. I'm not sure it's terribly interesting to anyone else. And no. That's not true of some of my colleagues. Justice Thomas's autobiography is absolutely gripping. If you haven't read it and are at all interested in the court, you should. It's such an extraordinary story. I really couldn't put it down, but I don't think I have that in me.
Judge Vilardo (38:58):
Let's talk about your role in terms of you as a public figure. Obviously, you're very recognizable. People know who you are. You have to be on all the time like now. And how do you separate that from your private life? 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?
Chief Justice Roberts (39:27):
Well, recognizable, my wife and I were on vacation in Portugal last year. And another American came up to us, and he's looking at me and says, "I know you. I know who you are. You're John Boehner."
(39:42)
And so they were sitting next… I had to spend the whole evening pretending to be John Boehner. So when you say, "Readily recognizable," really not, to be honest with you. It's getting worse though in general just because the work of the court is getting a higher degree of publicity. 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. But we're not as recognizable as you might think among a crowd of judges and lawyers. But in the public at large, not much of a problem.
Judge Vilardo (40:29):
Yeah. So some of your colleagues have retired. You ever think about that? You're too young now, but some day, would you?
Chief Justice Roberts (40:38):
No.
Judge Vilardo (40:38):
No? Because you love what you do too much?
Chief Justice Roberts (40:42):
I'm going out feet first. It's just-
Judge Vilardo (40:46):
I am too.
Chief Justice Roberts (40:47):
Good. Well, now, I say that now. 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, it'll be time to go. 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." I want the two of you to tell me if it's time to go. It's a long pause. And at once, the two of them said, "It's time to go." So I said, " All right. Never mind. I'll find it."
Judge Vilardo (41:32):
I have that too with-
Chief Justice Roberts (41:33):
But it's surprising.
Judge Vilardo (41:33):
… Chief Judge Wolford.
Chief Justice Roberts (41:34):
Yeah. It is kind of surprising.
Judge Vilardo (41:36):
She hasn't said anything yet. Maybe after this, she will.
Chief Justice Roberts (41:41):
It is surprising how rare it has been on the court for that to become an issue really just a handful of times. 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've been times when somebody has stayed a little longer than they should. Then the other colleagues come, and it's always really worked out. So I don't think that's going to be a problem. I still feel pretty healthy.
Judge Vilardo (42:20):
Yeah. Do you love what you do? Do you really look forward to all-
Chief Justice Roberts (42:23):
I do. It's exciting to get up every morning and going to work.
Judge Vilardo (42:27):
It doesn't seem like work when it's like that, right?
Chief Justice Roberts (42:29):
Yeah. Some days. Some days, it does. But it's nice that we have a break in the summer. 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. And I think there's a lot of wisdom in that. We work at very close quarters on very important issues, on very sensitive issues at work that is hard to do, and we do need a little break from each other.
Judge Vilardo (43:06):
Yeah.
Chief Justice Roberts (43:07):
But it does. It's interesting. It really creates such a strong bond. 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." They must be at hammer and tong the whole time. We don't.
(43:29)
Dealing with the type of cases we do and their significance, it's something only those nine people can know. Whether you take something as basic and fundamental as whether somebody lives or dies, you share that in a very intimate way or whatever else that is the most important issue facing the public. 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. But it is a strong bond.
Judge Vilardo (44:06):
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, even though they were at opposite ends of lots of decisions.
Chief Justice Roberts (44:32):
Yeah. And a lot goes into that. And you have more in common with some colleagues than others.
Judge Vilardo (44:37):
Sure.
Chief Justice Roberts (44:38):
So I do things with some of my colleagues that I don't with the other and vice versa. But it is a bond, and there are issues and discussions I don't share with my wife and I know others don't, just because they find it easier not to know in terms of that. So they don't have to worry about it. So it's a small group. The bonds of real affection and friendship and shared experience are very, very strong. And I think we try very hard not to let disagreements of the moment break that.
Judge Vilardo (45:19):
So you've been on the court for 20 years.
Chief Justice Roberts (45:22):
Yeah.
Judge Vilardo (45:23):
And you were a circuit judge for a couple of years before that. Read a lot of district court decisions over the years. So I'm looking for a little advice now. What can you tell district judges about the decisions they write that might help us?
Chief Justice Roberts (45:41):
Yeah. Brevity is good. And I think it's-
Judge Vilardo (45:49):
Are my law clerks listening to this?
Chief Justice Roberts (45:54):
Particularly with the district court, we recognize the primary responsibility of the district courts to deal with the facts, and we don't want to be second guessing the facts. 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.
(46:17)
And then I remember Justice Rehnquist, whom I clerked, was very adamant about that. And he was a very good trial lawyer. He said, "You don't want to waste too much time on the law if the facts are more important than the law." And then as it moves up, people are focused more on the facts.
(46:43)
He tried. When he was in my position as Chief Justice, he was remembering his days fondly as a trial lawyer, and he assigned himself to a district court in Virginia to hear a trial just to get back on the saddle in that way and stuff. And he did, and he issued a decision, and they appealed. And the Fourth Circuit reversed him. Is that right?
Judge Vilardo (47:10):
And he never did it again?
Chief Justice Roberts (47:12):
No, but the only thing that made him mad, and he was really upset about it, is that they issued it as a per curiam opinion, said, "Nobody had the guts to put their name on it."
Judge Vilardo (47:25):
You ever think about doing that, trying to be a trial judge?
Chief Justice Roberts (47:27):
No.
Judge Vilardo (47:27):
Well, you didn't try cases. So difference there.
Chief Justice Roberts (47:31):
No. Yeah.
Judge Vilardo (47:33):
So you became Chief Justice in 2005. You worked with Justice O'Connor and then Justice Ginsburg.
Chief Justice Roberts (47:40):
Yeah.
Judge Vilardo (47:41):
And now there are more women on the court than ever. Has that changed the dynamic or the culture of the court in any way?
Chief Justice Roberts (47:52):
No, that'd be my honest answer. I don't think it has. I'm sure when Justice O'Connor came on as the first woman, it had all sorts of consequences and changes. But 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.
(48:15)
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. But I don't think I would say it's different because they're women.
Judge Vilardo (48:33):
So there's been a lot of criticism of some decisions because they have not… They've changed precedent, the abortion decision most recently and other decisions like that. But that happens all the time. There's lots of times when courts have precedent that they think needs to be changed for whatever reason. What kind of criteria do you apply to that yourself?
Chief Justice Roberts (49:03):
Well, first of all, there's a lot of misconception on that subject. Let's see if I make sure I get these numbers right, the recent study, the Warren Court overruled, I think, 3.2 decisions on average a year. The Burger Court actually had a little bit more that I think they did 3.6% a year.
(49:33)
The Rehnquist Court moved down a little bit, only 2.4 cases, not percent, cases a year. And in the past 20 years, the number's been 1.6. So people have a different, somewhat wrong view of how many cases are being overturned. Now, we take fewer cases now than they did before, but the number of important ones that would be subject to overruling are the same.
(50:01)
So a lot of people talk as if we're overruling a lot more. It's the lowest it's been since the '50s. And some cases should be. Aren't you glad that Brown versus Board of Education overruled Plessy, or that Katz overruled Olmstead?
(50:22)
So the idea that it's invariably a bad thing to overrule precedent is, I think, quite mistaken. At the same time, you can't do it willy-nilly just because you look at a case and you think, "Gosh, I would've had that principle come out the other way." That doesn't mean you overturn it. Stare decisis is an important part of our work. The law is supposed to be predictable. So you need a special justification before you want to overrule a case. Other than that, you just happened to think it's wrong.
Judge Vilardo (50:56):
We were talking about the Barnett case a little while ago, and that
Judge Vilardo (51:00):
… was a case that overruled a decision Justice Frankfurter made just a few years before.
Chief Justice Roberts (51:05):
[inaudible 00:51:07]
Judge Vilardo (51:07):
Yeah. Yeah. And so it's been around for a long time.
Chief Justice Roberts (51:11):
Yeah. So when you do that, the first thing has to be that it's clearly wrong. The second thing has to be, does that make a difference? If, for example, you can't figure out what the filing deadline is, is it 10 days under the rule or is it 12 days, you have to decide it. 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." That's something that most cases, many cases, it's more important that they be decided than that they be decided right. Whether it's 10 or 12 days is a case like that. So it has to be a case where it really makes an important ongoing difference, and be significant enough to the legal system that it's justified to overturn the approach. But it's not something you want to do very often.
Judge Vilardo (51:59):
Can you talk a little bit about your experience clerking for Judge Friendly and Justice Rehnquist?
Chief Justice Roberts (52:05):
Yeah. Two wonderful years in my life, and two totally different experiences. And I have to say at a very personal level, the chance to clerk with Judge Friendly was very important. I graduated from law school in 1979, and this may be just the way I looked at it, and maybe it was because being a lawyer was second choice for me in general, but the law was a very cynical enterprise back then, I think. And in some ways it's good [inaudible 00:52:44] it was very instrumental. People were using law as a vehicle to achieve a particular objective. There's nothing wrong with that at all, a lot of people do that, but also in a cynical way, and law was not regarded as something of moral value, for want of another word. And so I felt frankly that maybe this had not been a good choice, this wasn't something that was uplifting. If you had a particular agenda you wanted to pursue, good, it could help you do that.
(53:22)
But then I went and was at the elbow of this extraordinarily great man, one of the most remarkable judges, and he saw it differently. He really looked at it as a valuable gift that we had inherited for ordering society in a reasonable way. And he was somebody who was totally apolitical, the most brilliant judge of his generation. Richard Nixon didn't appoint him to the Supreme Court because he thought he would be soft on crime, and he would have been from Nixon's perspective. He would have applied the law as it should be, and meant some criminals were going to go free and others weren't. And he was able to construct, certainly in his opinions, which lawyers here know are remarkable… realized that this was a system that had internal coherence and that was really a gift, 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." So that was where I left my cynicism about the work that we as lawyers and judges do, and appreciated that it had a greater worth. And just in terms of writing, he was a remarkable, gifted writer. He would come off of the bench after argument and sit down with a legal pad, or two of them, one for text, one for footnotes or notes, and just start writing, and finish it in one day or two days. And the secretary would type it up and give it to one of his law clerks, and we'd look at it and say, "Well, what does he want us to do?" And he would have some ideas and look at it. So that was a really remarkable year.
(55:12)
And then with Rehnquist, now, Rehnquist was the generation between. Friendly was almost two generations older and I was just out of law school, and Rehnquist was kind of right in the middle, and a different approach. His writing is crystal clear, very direct, and had the same sort of appreciation, 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 knew exactly how it was structured and where it was going. So it was a nice experience for me to have two very different people. And they really admired each other. In fact, I got the clerkship with Rehnquist because he and Friendly were at a conference together, and I think Justice Rehnquist asked Judge Friendly if he had any good law clerks, and he mentioned one, and I guess somebody else hired that one, and then he mentioned me. And so anyway, I don't mean to be long-winded about it, but you do look back at that and see these formative influences in your life, and are grateful for them.
Judge Vilardo (56:36):
Does the way you deal with your clerks by and large mirror the way they dealt with you?
Chief Justice Roberts (56:44):
No. No, I wouldn't say that. One, when you're in the middle of it, it's kind of hard to be self-conscious and appreciate… The one thing I do know is that the four clerks really do form quite a common bond. And Rehnquist used to talk to us about how that was, and he said, "It's because the clerks are united by a common enemy." And it's hard when you're in the middle of it to see how they might view the experience.
Judge Vilardo (57:18):
How do you work with your clerks?
Chief Justice Roberts (57:20):
It really varies from case to case. Sometimes if the facts are a little complicated, I'll want them to take a look at the record more than they might otherwise. Sometimes if I feel comfortable that I know the law in an area, I'll have them do that, but I would go in much more carefully, because I'm probably wrong about it. I want to make sure that I'm not letting errors that might have crept in affect my understanding. And then we'll go back and forth. Sometimes I'll draft something and they'll look at it, and they don't have the problem I had with Judge Friendly, and it's come back pretty extensive sometimes.
Judge Vilardo (58:03):
And you encourage that, right? I mean, I'm sure you asked them.
Chief Justice Roberts (58:06):
Well, what's the point otherwise, right?
Judge Vilardo (58:09):
Exactly.
Chief Justice Roberts (58:10):
And sometimes I'll want to look at the facts a little bit more. But then when we get closer to the end, I have all four of them sit down together, and we all go over the draft of the opinion. So you have somebody who's been looking at it very carefully, hopefully I'm one of those people too, and then the others who have just read it. So in a way, it's like when I talked about doing briefs. You want to make sure that someone putting eyes on it for the first time can really figure out what it's saying.
Judge Vilardo (58:41):
How do you decide which clerk works on which case?
Chief Justice Roberts (58:43):
I leave that entirely up to them.
Judge Vilardo (58:44):
They make those decisions?
Chief Justice Roberts (58:45):
Yeah.
Judge Vilardo (58:46):
Yeah. You always happy with the decisions they make?
Chief Justice Roberts (58:48):
You know… No.
Judge Vilardo (58:53):
But you still don't put your thumb on the scale?
Chief Justice Roberts (58:54):
To be honest, they're all extremely bright. 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. So.
Judge Vilardo (59:09):
And when you hire clerks, have they generally clerked for a district judge or a circuit judge first?
Chief Justice Roberts (59:16):
Oh, sure.
Judge Vilardo (59:17):
Always?
Chief Justice Roberts (59:18):
Always. Yeah.
Judge Vilardo (59:19):
So unlike Justice White, who was-
Chief Justice Roberts (59:21):
That was kind of the fading out of that experience, I think. And you want to get the view of a judge who's been with them for a year, I think, because that helps a lot.
Judge Vilardo (59:34):
And one-year clerkships?
Chief Justice Roberts (59:36):
Absolutely.
Judge Vilardo (59:36):
Why?
Chief Justice Roberts (59:37):
You don't want them to get too good. I mean, that's the case. No, very seriously. You don't want them to get too good at what you're supposed to do. You want to make sure that you are the one doing the work. Yes, they're going to help you on what the cases say about this or how the facts look on this issue, but you don't want them to get too good, because-
Judge Vilardo (59:57):
Because you think there's a danger of you using them as a crutch too much?
Chief Justice Roberts (01:00:01):
Yeah. You want to make sure that issue doesn't really come up. So. And also, it's a real valuable thing for me, and I know other justices, to be a little more attuned to what's going on in the law schools, 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. So I have now people that clerked for me 20 years ago, they're in the midst of their professional career, leaders in the bar or leaders in academia or leaders in business, and they're real listening boards. We have a reunion every year, it's coming up in a couple of weeks. Hopefully we'll have a good turnout, we usually do. And you learn from them all that's going on, 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? And they'll let you know. "What are you teaching in law schools these days?" And it's nice to have that pipeline. Now I have almost a hundred out there at different stages, and it keeps you attuned to what's going on.
Judge Vilardo (01:01:11):
Yeah. I mentioned to you earlier today that I have you to thank, you and Dave Leebron, who is the president of [inaudible 01:01:18], to thank for my clerkship. You sent me to, or suggested that I apply to, Judge Irving Goldberg down in Dallas, Texas, and that was the best professional year of my life, because as I said to you earlier today, it was a wonderful experience kind of being a judge, but not having the buck stop with you. So the pressure's not there, but the wonderful part of the job is, and that makes clerking, I think, a really unique experience.
(01:01:48)
So our time is running out. Let's get to the heart of what I want to talk to you about. There's a lot of Buffalo Bills fans here.
Chief Justice Roberts (01:01:57):
Yeah, listen…
Judge Vilardo (01:02:03):
And when the playoffs come around, there's a lot of calls that go against us. Are you going to be around to handle some emergency appeals this season? We're getting tired of the same old thing happening to us year after year after year.
Chief Justice Roberts (01:02:23):
Yeah, I can see that. Yeah. Well, I was here long enough, I know I had a poster in my room of Jack Kemp, the quarterback, and I think Daryle Lamonica was there too. And Pete Gogolak, who was the first soccer-style kicker.
Judge Vilardo (01:02:43):
Yep.
Chief Justice Roberts (01:02:43):
Even Cookie Gilchrist, if I'm remembering that.
Judge Vilardo (01:02:45):
Yeah.
Chief Justice Roberts (01:02:45):
So that was what was… poster my wall. But I left when I was 10, and we moved to a town in Indiana that Chicago was the closest place.
Judge Vilardo (01:02:55):
So you were a Bears fan?
Chief Justice Roberts (01:02:56):
I'm a Bears fan. But 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 hustory-
Judge Vilardo (01:03:12):
Gale Sayers.
Chief Justice Roberts (01:03:12):
Gale Sayers. And we were near, they had different connections with… 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. And it was just…
Judge Vilardo (01:03:28):
Yeah. I say Gale Sayers, I think, was the most beautiful runner I've ever seen. He just was so graceful and so much fun to watch, and it was a shame that he blew out his knee.
Chief Justice Roberts (01:03:39):
Yeah, I have a signed helmet of his. Not of his, it's a Bears helmet that he signed in my chambers.
Judge Vilardo (01:03:45):
Very cool.
Chief Justice Roberts (01:03:45):
Yeah.
Judge Vilardo (01:03:46):
Well, thank you so much for doing this. This is an honor for me, and this was a very pleasurable hour, so.
Chief Justice Roberts (01:03:54):
Well, not at all. Thank you for having me, giving me the opportunity to go back and see my boyhood home and rekindle memories of Buffalo. I appreciate it. Thank you all for being here. Thank you.
Judge Vilardo (01:04:05):
We're proud that [inaudible 01:04:06] Thank you.
Chief Justice Roberts (01:04:05):
[inaudible 01:04:06] Thank you.
Moderator (01:04:06):
All right, thank you very… I don't know that it's… Is it on now? Yes it is. All right, thank you very much Chief Justice Roberts, Judge Vilardo. Please-
