January 22, 2007

An Interview With Chief Justice Roberts

A Conversation with Chief Justice John Roberts About the U.S. Constitution
Host: Brian Lamb
August 5, 2006

BRIAN LAMB, HOST: Chief Justice Roberts, can you remember the first time you got interested in the Constitution?

JOHN ROBERTS, CHIEF JUSTICE, U.S. SUPREME COURT: Well, I’m not really sure when the first time was. I know we talked about it in grade school. You learn a little bit about the government - I don’t know exactly what the class was. And I remember having a little talk and discussion about it at that time.

LAMB: Do you remember when you got interested in it?

ROBERTS: Well, I was interested in it in college. I studied history in college and, of course, a big part of American history is the role of the Constitution and the framing of the Constitution and its preservation during the Civil War. So I came into it I think mostly from the angle of history and from there into law school where, of course, it was the main subject of study.

LAMB: If you had to define it in 200 words or less - a simple explanation of what our Constitution says, what would you say?

ROBERTS: Well, these are the rules by which we govern ourselves. You know like if you’re going to play any game you’ve got to know what the rules are. And governing, of course, is not a game, it’s more important but it’s the same principle, you have to know what the rules are.

And governments in world history have so often abused the power they have and people have suffered because of it. And the framers decided they were going to lay down some rules to try to keep that from happening, that’s what the Constitution is.

LAMB: Is there a particularly interesting part of it that you have always liked?

ROBERTS: Well, you know, I think people tend to focus because the cases tend to be more high profile on the Bill of Rights, you know, is this under the First Amendment, the Fourth Amendment, the Eighth Amendment that prohibits cruel and unusual punishment, those sorts of things; the due process clause in the Fourteenth Amendment.

But the really interesting part of it and I think what the framers were most interested in is the structure of the whole thing, the decision to take the powers of the government and divide them up into three separate branches and to try to make sure that each branch stayed within its own sphere; the structure saying these are the - this is the presidency, this is the president’s power, this is the legislature, this is what they can do, here’s the judiciary. And that was where - that’s really where the main protection of our liberty resides. That is their way of preventing the government from becoming too powerful and I think that’s the part that is, at least for me anyway, very interesting.

LAMB: Do you have a favorite amendment?

ROBERTS: No, I don’t think I have a - any particular amendment that sort of is more favorite than any other. I mean, obviously, you get a lot of interesting issues under the First Amendment and the Fourth Amendment.

And the reason we get a lot of interesting issues under those they are the ones that tend to be written for the ages, as it were, in broader terms. Because I think the framers really recognized and hoped they were forming a charter to govern for the centuries. And so they were using phrases like reasonable search and seizure and phases like that that they realized would have to be given meaning by their successors.

LAMB: If you were just starting out to study the Constitution how would you go about it based on what you know now?

ROBERTS: You know the one thing people don’t do, and by that I mean law professors, judges, law students, not just normal everyday citizens who are engaged in other occupations, nobody reads it. We talk about it a lot. We have cases about it. But to actually sit down and read it doesn’t happen that often and that is a very rewarding exercise.

You know of all the major written Constitutions in history it’s the shortest. It’s not an elaborate code. They were laying down basic principles that they wanted to endure and it’s timeless. There are parts of it that don’t seem to make much sense to day and we wonder why they are worried about quartering soldiers and things like that but they were important then. But most of it still resonates and you can see what they were trying to do just by sitting down and reading it.

LAMB: If you had to be one of the founding fathers that were at the Constitutional Convention in 1787 which one would you have been?

ROBERTS: Oh, that’s a - that’s a difficult thing to be - I’d like to think I would have been one of them - and there were a few that helped broker the great compromises that allowed the Constitution to become a reality. You know when they start - we look at a lot of problems today and we think well this is hopeless, how are you going to solve this. That was kind of what they started with.

I mean you had small states that thought they were going to be left out, you had big states that weren’t willing to give up any power, people had very different views on a lot of things. And yet they were able by sitting down in this room and kind of thrashing it out, closing it off no press in the room while they tried to work this out, to come up with, you know, a great compromise that allowed the small states, the big states, the merchant states, the agricultural states, everybody to kind of come together with, of course, one exception. They never worked out what to do about slavery and just kind of shuttled that aside and decided we’re not going to talk about that. And that taint in the Constitution, took a Civil War to remove. But with that exception I think they did a remarkable job of bringing all these diverse interests together and agreeing on a way of going forward that I’d have to say even the most optimistic of them really probably didn’t envision what the United States would become.

LAMB: When was the last time you read the Constitution?

ROBERTS: It was a few weeks ago. Just in kind of commemoration of the end of the term, you know, we spent the last term issuing a lot of decisions on what the Constitution means and I thought I ought to at least pause for an hour or so and read the original document again to see how closely I think we got to what the - what the framers wrote.

LAMB: Is there a weakness, from your perspective, in the Constitution?

ROBERTS: You know I wouldn’t identify anything as a particular weakness and to the extent weaknesses did emerge the framers anticipated that, too. I mean the amendment process, it’s extraordinarily difficult and we tend not to focus on it, but it did allow some fundamental flaws to be addressed like slavery - abolished in the Thirteenth Amendment. The Bill of Rights themselves, of course, although I tend to think of them as part of the original package because the understanding on the part of many of the framers was that as soon as we got the Constitution in place we would enact the Bill of Rights.

But no, I wouldn’t identify any particular flaw.

LAMB: At what point in our history did the court solidify as a, you know, powerful part of the three branches of government? Was it right away?

ROBERTS: It wasn’t right away and you can tell that if you tour around Washington, D.C. You know when they moved the government here the first thing they did was set up the White House for the president, next the Capitol for the legislative branch. People forgot about the Supreme Court. We didn’t get our own building until 1935 and I think that was a good indication of how significant people regarded the judiciary.

Alexander Hamilton in the Federalist Paper said it’s the weakest branch. And certainly for the early part of its history it lived up to that. Then John Marshall came along and John Marshall established the court as the interpreter of the Constitution. In his famous decision he wrote, in Marbury vs. Madison, he basically said look, we’re a court. We have to decide cases. If in deciding a case we have to determine what the Constitution means well that’s our job under the Constitution.

He regarded the Constitution as law. That’s one way that our Constitution is different from a lot of others. Many countries that have Constitutions they’re really just political documents. And if you have a dispute under the Constitution it’s going to be resolved however disputes are going to be resolved, maybe in an election if you’re lucky, maybe by force of arms if you’re not, maybe by the mob. However political disputes are resolves that’s how they would resolve Constitutional questions.

John Marshall in Marbury vs. Madison said this is different. The Constitution is a political document. It sets up the political structures. But it’s also a law and if it’s the law we have the courts to tell what it means and that’s binding on the other branches.

And that important insight into how the Constitution works has been, I think, the secret to its success because you do have a final interpretation of its meaning that is binding on the political branches by a branch that’s separate from the political branches.

LAMB: You said first and foremost read the Constitution. What would you use secondly?

ROBERTS: Well, I’d read the Federalist Papers. These are the bits of advocacy, the briefs, the arguments in favor of ratifying the Constitution that several of the founding fathers wrote explaining what it means. They were involved in writing it, they wanted to see it ratified, and they did their best to explain it so that the various state conventions would ratify it.

And again, people can get scared away by something like that. It’s very easy reading. It’s very straight forward. It tells you exactly what they meant when they put the executive power in the presidency and why they separated the powers in order to protect individual liberty. It’s easy to read and it helps explain what the text means.

LAMB: Do you have a favorite one of the what, 84-85 ...

ROBERTS: Well, there are the - a couple of them that deal in particular with the judiciary and explain why, for example, federal judges are given life tenure, why their salary can’t be diminished. And what they say is the reason we do this is because they’re not supposed to be responsive to the people. Unlike the legislators, unlike the president, we don’t want judges to do what the people want in a particular instance. They’re supposed to be following the law and so you give them life tenure.

And there was a big debate at that time. People were concerned. The judges they had experience with were the English judges and they didn’t like that experience. And they’re saying why in this new Constitution are you setting up judges for life? That sounds like an aristocracy. We’re getting away from that.

And so they explained don’t worry about it because these judges are not going to be deciding important political questions, they’re deciding the law and they need to do that without regard to what popular pressures might have them do.

LAMB: Does the Constitution look any different to you since you’ve become chief justice?

ROBERTS: No. I wouldn’t say it looks any different. I do think since I became a judge anyway I have a particular sensitivity to the role of the court in interpreting the Constitution and the laws, and a particular concern to preserve the independence of the judiciary apart from the political branches because that’s what the framers recognized as key to the judiciary performing its function.

And I, perhaps as part of the judicial team now, have a bit more team pride in the importance and role of the court in making the Constitution a meaningful document.

LAMB: Do you ever as you watch the debate in this country about the Constitution hear different people take sides do you ever say we really don’t understand what this thing is?

ROBERTS: I do think that we need - judges need to do a better job educating people about their role. Too many people think whenever there’s any kind of dispute in our society well let’s take it to the Supreme Court and they’ll decide.

In a democratic republic that shouldn’t be someone’s first reaction. Their first reaction should be to resolve political disputes in the political process.

Now obviously one of the great insights and geniuses of the framers was to ensure that liberty was protected and that a court would be there to protect liberty. And when liberties guaranteed in the Constitution are infringed that’s what the courts are there for to ensure that that doesn’t happen. But they are not there to resolve everyday political disputes. And people’s first reaction in a lot of these cases ought to be I’m going to talk to my congressman, I’m going to talk to my senator, I’m going to call the White House, I’m going to call my governor and I’m going to talk to the people in my local government because that’s what the framers understood - that’s how they understood the system would work.

LAMB: Looking back, read the Constitution, read the Federalist Papers, in your own life did you have a teacher that was particularly important to you when it comes to the Constitution - or a book?

ROBERTS: No, I don’t think there’s anyone. I certainly had teachers in - as far back as grade school, but there again, they were tended to be history teachers and that was what I was interested in. They inspired that kind of interest in me. And I got to the law and the Constitution through a study of American history.

Books, yes, I mean there are - have been great books written about the Constitution. These are things that I looked at mostly in law school, books by people like Alexander Bikel, a famous law professor who tried to explain this - what he viewed as the fundamental conundrum in our system, how can you have in a democracy people like me who weren’t elected by anybody, who aren’t accountable to people, making such important decisions. How do you reconcile that fundamental inconsistency and he kind of struggled with that in a very, very thoughtful way that really made an impression on me.

LAMB: Thank you, Mr. Chief Justice.

ROBERTS: Thank you very much. I’ve enjoyed it.


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