- Show Notes
REFERENCES AND SUPPLEMENTAL MATERIALS
Executive Privilege & the subpoena fights
- Attorney General Bill Barr’s letter to the President about executive privilege
- “Trump Asserts Executive Privilege Over Full Mueller Report,” The New York Times, 5/8/19
- “Trump Vows Stonewall of ‘All’ House Subpoenas, Setting Up Fight Over Powers,” The New York Times, 4/24/19
- “McConnell on Mueller report: ‘Case closed’,” Politico, 5/7/19
- “House Judiciary Committee Unveils Investigation into Threats Against the Rule of Law,” US House Committee on The Judiciary
Signed Prosecutors Letter
- “Statement By Former Federal Prosecutors,” Medium, 5/6/19
Chief Justice John Roberts
- ADD: JUSTICE ROBERTS BOOK
- “President Names Roberts as Choice for Chief Justice,” The New York Times, 9/6/05
- Roberts Confirmation Hearing, C-SPAN, 9/12/05
- Roberts’ Confirmation Hearings Conclude, National Public Radio, 9/15/05
- “Court Nominee’s Life Is Rooted in Faith and Respect for Law,” The New York Times, 7/21/05
- “Senate Roll Call on Roberts Nomination,” The New York Times, 9/29/05
- “Files From Roberts’ Reagan Years Are Released,” LATimes, 8/16/05
- “No More Mr. Nice Guy,” The New Yorker, 5/18/09
- “Rebuking Trump’s criticism of ‘Obama judge,’ Chief Justice Roberts defends
judiciary as ‘independent,’” The Washington Post, 11/21/18
Chief Justice Charles Hughes
- “Hughes, Charles Evan,” CQ Press Supreme Court Collection
Chief Justice William Rehnquist
- “Rehnquist the Great?,” The Atlantic, April 2005
Justice Sonia Sotomayor
- Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice, MacMillan
- “Sotomayor Confirmed by Senate, 68-31,” The New York Times, 8/6/09
Justice Elena Kagan
- “Elena Kagan moves up to big-game hunting with Antonin Scalia,” Washington Post, 7/1/13
- “Kagan’s life an undeviating course to high court,” NBCNews, 6/27/10
Justice Sandra Day O’Connor
- Sandra Day O’Connor: How the First Woman on the Court Became Its Most Influential Justice, HarperCollins
- Lazy B: Growing Up On A Cattle Branch in the American Southwest, Penguin Random House
- “O’Connor to resign from Supreme Court,” CNN, 7/1/05
- “William proposed. Sandra said no. They reunited on the Supreme Court,” The Washington Post, 10/31/18
Justice Antonin Scalia
- American Original: The Life and Constitution of Supreme Court Justice, MacMillan
- “Supreme Confidence,” The New Yorker, 3/28/05
- “BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree,” LA Times, 6/22/15
- “Justice Scalia and Mr. Cheney,” The New York Times, 2/28/04
- “Scalia Angrily Defends His Duck Hunt With Cheney,” The New York Times, 3/18/04
- Scalia’s smoking at his confirmation hearing
- Scalia’s confirmation hearing, C-SPAN, 8/5/86
- “In Memoriam: Justice Antonin Scalia,” Harvard Law Review, 5/8/19
Justice Anthony Kennedy
- “Justice Kennedy, the pivotal swing vote on the Supreme Court, announces his retirement,” The Washington Post, 6/27/18
- “A Brief History Of Anthony Kennedy’s Swing Vote — And The Landmark Cases It Swayed,” National Public Radio, 6/27/18
- “Tracing the Meaning of ‘Swing Vote’ as Justice Kennedy Retires,” Wall Street Journal, 7/6/18
Justice David Souter
- “Souter known as low-key, fierce defender of individual rights,” CNN, 5/1/09
- “The Sad Legacy of Robert Bork,’ The Atlantic, 12/19/12
The Supreme Court
- “The Court as an Institution,” Supreme Court of the United States
- “Opinions,” Supreme Court of the United States
- “Too Much Work?,” The New York Times, 8/7/13
- “Why Aren’t Cameras Allowed at the Supreme Court Again?,” The Atlantic, 3/29/13
- “Debate over term limits for Supreme Court gains new life,” The Hill, 12/6/18
- “The Conservative Pipeline to the Supreme Court,” The New Yorker, 4/10/17
- “When Franklin Roosevelt Clashed with the Supreme Court – and Lost,” Smithsonian Magazine, May 2005
2019-2020 Supreme Court Cases
The Census Case: Department of Commerce v. New York
- Department of Commerce v. New York (Argued on 4/23/19), SCOTUSblog
- “Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census,’ SCOTUSblog, 4/23/19
The Muslim Ban: Trump v. Hawaii
- Trump v. Hawaii (2018), Oyez
Voting Rights: Shelby County v. Holder
- Shelby County v. Holder (2013), Oyez
- “Supreme Court Invalidates Key Part of Voting Rights Act,” The New York Times, 6/25/13
- “Justices Reject Diversity Plans in Two Districts,” The New York Times, 6/28/07
The Affordable Care Act: King v. Burwell
- King v. Burwell (2015), Oyez
- “The inside story of how John Roberts negotiated to save Obamacare,” CNN, 3/25/19
- “Affordable Care Act survives Supreme Court challenge,” The Washington Post, 6/25/15
Preet Bharara: From Café, welcome to Stay Tuned. I’m Preet Bharara.
Joan Biskupic: My basic philosophy in writing about the Supreme Court has always been, this is your Supreme Court. I want people to learn about what happens, I want people to be intrigued by things, I want people to feel like they know these justices a little bit more and pay more attention to the rulings that will be coming soon as we head into June.
Preet Bharara: That’s Joan Biskupic. While reporting on the highest court in the land for the past 30 years, Joan wrote four biographies of Supreme Court justices, including most recently, The Chief: The Life and Turbulent Times of Chief Justice John Roberts. We discussed that third and most mysterious branch of government, why it deserves close attention, and why it’s important to understand the people behind the robes. That’s coming up. Stay tuned.
Preet Bharara: Want to hear more analysis of news at the intersection of law, politics, and justice? Join the Café Insider Community, our subscription service. You’ll get a special podcast co-hosted by Anne Milgram and me, bonus clips of Stay Tuned interviews, a weekly Insider newsletter, text alerts, and more. We all know there’s no shortage of news these days. So become an Insider member today for just $5.99 per month or $49.99 for a year. Café Insider allows you to support our work so we can keep doing what we do. Visit café.com/insider to learn more. That’s café.com/insider.
Preet Bharara: So we’re taping this on Wednesday morning, May 8th, at around 11:00 hour. And the battle lines are forming between the Congress and the executive branch on a lot of different grounds, but in particular, as I’m taping this, they’re forming with respect to the House judiciary committee led by Jerry Nadler and the White House with an assist from William Barr, the attorney general.
Preet Bharara: So the question on the table and the fight that’s been brewing for some time is over whether or not the justice department will provide the full unredacted Mueller Report and a lot of underlying documentation. And the justice department has generally not been willing to do that. So as I’m recording right now, the House judiciary committee is in session and they’re speechifying about various things, is now contemplating a vote to hold the attorney general of the United States, William Barr, in contempt.
Preet Bharara: As we’ve already discussed, doesn’t necessarily mean that much will happen. If they pursue criminal contempt for non-production of documents, that’s not going to lead to any kind of prosecution. It never has before. Now, the administration for its part has issued statements in their letters flying back and forth between the justice department and the committee asserting that the requests were over broad and they haven’t been negotiated in good faith.
Preet Bharara: Just this morning before the House committee began meeting and having their discussion about the contempt preceding, Attorney General William Barr wrote a letter to the president, which has been released, essentially saying … Well, not essentially saying. Let me quote from it. “I’m writing to request that you make a protective assertion of executive privilege with respect to the Department of Justice documents recently subpoenaed by the committee on the judiciary of the House of Representatives.”
Preet Bharara: The letter then goes on for some paragraphs to talk about the kinds of things that have been requested, the power of an administration to a certain privilege because of sensitive intelligence sources and methods, many reasons why those materials shouldn’t be given to a committee. One of the things that appears to have annoyed the justice department, and this has happened before, is that Jerry Nadler’s committee has decided not only to request these documents and demand them and make a broad request in the minds of the justice department folks, but also to seek a contempt vote, which people don’t like. If you’re held to contempt, you might not like that either.
Preet Bharara: Eric Holder was held in contempt at one point over the non-production of documents relating to the Fast and Furious issue some years ago. I remember being in the building. He didn’t like it much either. So in this letter from Bill Barr, there’s a specific reference to the committee’s “abrupt resort to a contempt vote notwithstanding ongoing negotiations about appropriate accommodations.” So as often happens in litigation, the two sides are posturing about who’s being accommodating, who’s being reasonable, who’s overreaching, et cetera. All basically setting the stage for a court battle.
Preet Bharara: Another important thing from the Barr letter, for what it’s worth, is that they are not taking the position that for all time forever going forward, they will oppose the production of anything and everything requested by Jerry Nadler. They’re a little bit more clever than that. That’s why Bill Barr is asking the president to make what he’s calling a protective assertion of executive privilege. Then he references in his letter, Barr’s letter, Bill Clinton and his fight with the independent council back in 1996.
Preet Bharara: He writes, “As with President Clinton’s assertion in 1996, you would be making only a preliminary protective assertion of executive privilege designed to insure your ability to make a final assertion if necessary over some or all of the subpoenaed material.” So that makes it seem like, look, we’re reasonable. You’re going too fast and let’s see, let’s have a period of negotiation and accommodation, as happened before and as we know historically has happened with Bill Clinton.
Preet Bharara: That all sounds reasonable and nice and good except from the perspective of Jerry Nadler, which I think is a reasonable perspective. Every single sign coming from the White House and coming from the justice department is one of stonewalling. You don’t just have the issue of the delay in providing the redacted Mueller Report, you don’t just have Bill Barr seemingly misleading summaries. You have the president of the United States himself who is the person who would assert the privilege saying flatly in tweets and otherwise, and I’m paraphrasing here, all subpoenas should be fought.
Preet Bharara: He was talking about all sorts of areas of oversight, not just with respect to the Mueller Report. That is a posture that is sort of a wartime posture that lots of commentators, and I agree with them, suggest is not just merely picking and choosing the ways in which you’re going to fight particular subpoenas or particular documents and particular witnesses, but an over broad assertion of a stonewall tactic saying, “For us politically, we’re saying that Congress is overreaching, we’re saying Congress is pursuing hoaxes, we’re saying that this is over.”
Preet Bharara: Mitch McConnell on the floor of the Senate this week in discussions about the Mueller investigation saying literally the words, “Case closed.” So all the indicia from everywhere are that the administration, notwithstanding some of the things said in this letter, is not going to be prepared to play ball. Then the second thing going on here is the clock. As we’ve discussed, who knows what the level of accommodation is going to be, if any? My prediction is it’s not going to be very much at all.
Preet Bharara: But even if there’s going to be that accommodation, there’s an interest that the president may have and others may have in running out the clock as much as possible, maybe even up to and including past the election, depending on how the politics works out for various sides. One thing that I think is not illegitimate that Jerry Nadler’s doing is trying to check the boxes procedurally so that they can get this in front of a court.
Preet Bharara: You’ll remember that some weeks ago we talked about the issue of Jerry Nadler, basically upon assumption of the chairmanship, issued all these document requests to various parties, I think 81 of them. And people wondered, was that premature? There’s an argument that it was in a normal climate, but there’s a good argument and maybe a better argument that it wasn’t in the kind of climate that we have no with only a year and a half left before the election.
Preet Bharara: So again, it seems to me that both sides are taking positions and are writing letters to make a record for the purpose of trying to show a court later who has been reasonable, who is not. I think on the president’s side, there’s an interest in delay. I think obviously on the Nadler side, there’s an interest in speed, and we’ll see what happens.
Preet Bharara: This next question comes from Twitter user @bluepoppy1. Blue Poppy asks, “Hi Preet. Love your show, but how come you did not sign that letter from prosecutors? When I looked, well over 400 had signed today but did not see your name. #prosecutorsletter.” Thanks, Blue Poppy, for your question. I think actually it’s even more than that now. A bunch of people have been asking me this question, why did I not sign the prosecutor’s letter? It’s not because I don’t agree with a lot of the things in it.
Preet Bharara: Number one, I have said on the show and have said a lot of other places that I think what is laid out in Volume II of the Mueller Report ruling to obstruction makes out a pretty good case for obstruction of justice and but for the OLC opinion, many reasonable prosecutors would charge various counts of obstruction of justice against the president. I believe that, I’ve said that, and I continue to believe that. It’s not my habit to sign onto letters like this even though I endorse largely what they’re saying.
Preet Bharara: And I think it’s an important statement to be made, and it’s important that it’s a bipartisan letter or a statement made from people who are on both sides of the aisle, who served ably in the justice department. And it’s a powerful letter and the power comes from lots and lots of people coming to the same conclusion about it. I’m fortunate enough to have other places where I can talk and speak in my own words as opposed to signing onto some letter written by other people like I do on the podcast, and I do on the Insider podcast, and I do on CNN and in other places.
Preet Bharara: So I don’t want anybody to think that I don’t believe the president obstruction of justice, but even more importantly than that I think is that I believe Bob Mueller thinks the president obstructed justice. So I would like to see what Mueller himself says on this question of why he didn’t make a decision one way or the other, given my agreement with lots of commentators I’ve seen, that when you read the way that the evidence is presented on obstruction, in an ordinary case, you would’ve expected at the end of that volume would’ve been a recommendation to prosecute.
Preet Bharara: I know that there’s some other folks too who also have their own platforms who have not signed onto the letter but have said things similar to this and seem to agree with the sentiments of the letter. Those include Chuck Rosenberg, Sally Yates, Jim Comey, and I’m sure I’m forgetting some others. But I applaud the letter. I think there’s a lot of value in having lots of people from different sides of the aisle, and I hope it gets some attention.
Sam: Hey, Preet. It’s Sam from Vancouver. Just wondering, what’s the difference between telling a lie in public to the media versus telling a lie under oath? Thanks. Congratulations on the book and love the podcast.
Preet Bharara: Sam, thanks for your question. That’s one that’s been circulating around the show and lots of other places over the last couple of years because there’s been a lot of lying going on and a lot of demonstrable lying going on. The difference is one is a crime and one isn’t. Lying to the media, for what it’s worth, may not be patriotic and American, but it is something, I’m not aware of any criminal law, not aware of any state or local law that makes it a crime, which is why you don’t see people hauled off to prison when they make misstatements to the press.
Preet Bharara: Depending on the circumstance and depending on what lie is told to the press, there could be potentially defamation or libel action brought against someone who’s victimized by those lies, but other than that, it’s not a crime. Whereas, as we’ve been discussing for a long time and we’ve seen lots of cases along these lines brought by Bob Mueller and other folks, if you tell a lie knowingly that’s material to a federal agent like an FBI agent, that’s a violation of 18 United States Code 1,001. We’ve seen a lot of people charged with that crime, including Michael Flynn, the former national security advisor.
Preet Bharara: If you lie to Congress, that is also a crime, as we saw in the case of Michael Cohen who pled guilty to lying to Congress. Then there are various kinds of perjury for lying under oath in a court proceeding or some other kind of judicial proceeding. Over time, there have been some who have said that a sitting United States president owes a duty of honesty and candor to the public.
Preet Bharara: It has also been suggested, although I don’t see much appetite for this these days given what people have tolerated with respect to Donald Trump, that a president who lies to the public, lies to the media in a way that’s demonstrable and clear on a repeated basis, that could form a basis for an article of impeachment. I believe among other people, the notorious Ken Star has suggested that. I don’t expect that will become the basis for any article of impeachment, but it’s worth thinking about and talking about and also complaining about.
Preet Bharara: This next question comes in a tweet from Sally Snowflake, good name. “Question for @preetbharara. Would it be typical practice for special council and/or US attorney such as SDNY to provide info/evidence to state AGs to assist them in prosecution of state crimes? #askpreet.” That’s a good question.
Preet Bharara: Without pining on any specific cases where that might have happened, it doesn’t happen all the time, but it’s ordinary practice. When I was a United States attorney, there were occasions where we would investigate something, see if crimes had been committed, realize that there was not a high likelihood of being able to prove that a federal crime had been committed, but there was misconduct such that we should make a referral, and share evidence with, and maybe even hand over evidence to a sitting district attorney, or sometimes the New York state attorney general.
Preet Bharara: That’s to make sure that we’re all on the same page in protecting the public and holding people accountable. Just because we’re not able to pursue something because a federal statute doesn’t permit it, so long as it’s in the interest of justice and it advances some public purpose, we would often share material. And the reverse is also true. I’ve recited entire matter in my book, in fact, where the Bronx DA’s office uncovered a crime on the part of a sitting state assembly member, shared information about that with us, and then we worked together in a coordinated way to try to bring other public corruption prosecution.
Preet Bharara: So yeah, sometimes the case of folks, if they can’t bring something, are stingy about it and they let it die, but on other occasions, sure. People who are state, federal, or local prosecutors are supposed to be working on the same side for the same team, meaning the public. So if it’s appropriate to share information, they will. I presume that would be the case here.
Preet Bharara: Now, there are circumstances in which the feds, namely a US attorney’s office, think that they can exclusively handle a case. And even though some other investigative agency or some other prosecutor’s office also has an interest in it and want information, there could be a negotiation over sharing it but often, or sometimes at least, the feds will not want to share because they don’t want other people messing up their case.
Preet Bharara: So it depends on the circumstances. I would imagine in the case that we’re talking about here involving the special council and SDNY, if it’s appropriate, they will certainly share.
Preet Bharara: This question comes through an email from Cathy, who writes, “I did not hear anyone ask Barr what he would’ve done if Mueller had recommended that the president be indicted. Seems an obvious question. Any guesses as to what he would’ve done? Thanks, love the podcast and the Insider.” Thanks, Cathy, for your question.
Preet Bharara: Well, I suppose one of the reasons that people didn’t ask the question is I think the answer is fairly obvious given everything else. In this circumstance, Bob Mueller looks like he left the question about obstruction to Congress and Bill Barr swooped in and said, “Even if I assume the facts as true set forth in the report, no crime here, no obstruction based on the law and the facts.”
Preet Bharara: Even though Bill Barr took great pains to say that his decision of essentially exoneration did not have to do with this office of legal council interpretation that we talked about that says a sitting president cannot be indicted, I think Bill Barr would accept and accede to that mandate as well.
Preet Bharara: So if for some reason Bob Mueller had decided not to, although he says very clearly he does, accept the conclusion by the Office of Legal Council from some years ago that a sitting president cannot be indicted and prosecuted, if he somehow decided otherwise and recommended prosecution, I think there might have been even a shorter response from Bill Barr saying, on the one hand, no, you can’t do that because of the Office of Legal Council opinion.
Preet Bharara: And then he might’ve said, “In any event, even if Bob Mueller had not recommended that, we think that separate form the OLC opinion, for all these other reasons that we already know about, he shouldn’t be prosecuted.” I can say though, it would’ve been an interesting conflagration, I think, in the public, in the media, and in the Congress had Bob Mueller recommended something like that.
Preet Bharara: My guest this week is Joan Biskupic, a journalist and Supreme Court biographer with a law degree and three decades of experience covering the judiciary. She was the Supreme Court correspondent for USA Today and the Washington Post and is now a Supreme Court analyst at CNN. We talked about her new book on Chief Justice John Roberts, partisanship on the court, who is the smartest justice on the bench today, and which two justices used to date in college. That’s coming up. Stay tuned.
Preet Bharara: Joan Biskupic, so glad to have you on the show, very exciting for me.
Joan Biskupic: Thanks, Preet. I’m so glad to be here.
Preet Bharara: So you have this book that’s very interesting with an imposing picture of the chief justice of the United States Supreme Court. It’s called The Chief: The Life and Turbulent Times of Chief Justice John Roberts. I cannot be the first person to note that it must be true, given that you are one of nine, that that is why you are deeply interested in the court. Am I correct?
Joan Biskupic: You nailed it, Preet. That’s it exactly. Just being the oldest of nine, it’s sort of a chief justice kind of thing, don’t you think?
Preet Bharara: Yeah. Did you have that role?
Joan Biskupic: If you talk to any of the younger ones, they would probably say, but thank God they’re not here with us today.
Preet Bharara: Were all sorts of decisions in life in your house decided on a five four vote?
Joan Biskupic: Yes, but the other thing that I have, I’ve got this personality trait where I almost treat everyone as if they’re a younger sibling. So I will say to you, “Preet, do you have enough water with you right now?”
Preet Bharara: You should just know, I’m dressed very warmly and I will not run with scissors.
Joan Biskupic: Then you’re okay. Then the chief is happy.
Preet Bharara: If you had to emulate a chief justice from history, who would it be?
Joan Biskupic: Oh my gosh. Okay. Well then, I’ll take for our time, I’ll say Chief Justice Hughes, who had to navigate not just his own third branch, but work with Congress, specifically the Senate, during the court packing threat and managed to help derail FDR’s plan and made everyone happy.
Preet Bharara: Wow. I wasn’t expecting that one. That was a very good substantive response to my very silly off the cuff question. You are indeed a quality guest. Let’s talk about this book. This is not the first book you’ve written about a Supreme Court justice. You’ve written about Sandra Day O’Conner, and Antonin Scalia, and Sonia Sotomayor. So how do you pick? Because you got a lot.
Joan Biskupic: I do, and I started with Justice O’Conner back in the early 2000s. I was intrigued by her not just as the first woman on the court, but she was the only former elected official on the bench during her whole tenure. I had always covered politics, Preet, before I started covering law and the court. I was a political reporter so I was interested in how this former Arizona legislator came to Washington and knew how to count votes. She knew how to work the back room.
Joan Biskupic: So I always thought of her as a politician on the court. So that intrigued me, but when I was doing research on her for that book that came out in 2005, I spent a lot of time in the Reagan files. That got me interested in Justice Scalia who I thought was a real manifestation of the Reagan movement.
Joan Biskupic: So I moved from her to him and I was also intrigued by his first Italian American heritage. Talk about family dynamics. He was not only an only child, he was the only offspring of his generation. So he had this intriguing family history that he brought to the bench and was always the center of attention. I had 12 on the record interviews with him that really helped me understand him.
Joan Biskupic: Then with Sonia Sotomayor, that was not a straight bio, that was more of a political history of, how did she become the first Hispanic on the court? Because you remember all the competition through the years. First, George H.W. Bush’s administration, then the Clinton administration, different people jockeying, and then it becomes her. I wanted to write about that.
Joan Biskupic: But through all this, I realized that there had never been a serious biography of John Roberts. And as you know, as well as anyone, we’ve had 45 presidents but only 17 chief justices. So when all this turmoil with Donald Trump is over, and it will be over someday, John Roberts will still be the chief justice appointed for life and he could easily serve two or three times as long as he’s already served now, which is 14 years.
Preet Bharara: He was very young when he got appointed. So let me ask you about those other folks for a second. What I found interesting is how hard it is to get someone on the Supreme Court to talk, not just the justices themselves, who you are focusing on in a particular book, but the people around them? It’s probably the most reserved laconic branch of government. It’s hard.
Preet Bharara: There have been books from time to time that give us a window inside some of the decision making and the personalities on the court, but you had a particularly interesting time getting Antonin Scalia to talk.
Joan Biskupic: Oh yes, and I’ll tell you that story because that turned out to be so much fun. I had been covering the court full-time for many years. I started at the Washington Post in 1992, so I went back pretty far and all these justices were familiar with my work through the years. I went to Justice Scalia in, I think it was roughly 2006 when I decided to do that book on him. He had helped me with the O’Conner book.
Joan Biskupic: We had a relationship and I said to him, “I’m going to be writing a biography of you now, Justice Scalia.” He said, “That’s all well and good, but I’m not going to talk to you at all. I’m not going to talk to you at all, and you can talk to people in my family, friends, whomever you can get to talk, but I’m not going to talk to you.” I thought, fine. I never protest because I always know in the end, they talk.
Joan Biskupic: So I started my research and I focused in on his father, who was fascinating. You would actually love this story of this man who came from Sicily not knowing a word of English, and then went on to be a very distinguished professor of romance languages. He got a PhD at Columbia and he had been outstanding in his field. I discovered when he was first referred to in a New York Times story was 1934 when he won prestigious fellowship to go study in Florence and Rome, part of his graduate work.
Joan Biskupic: I ran into Justice Scalia at a social event and he asked me, how was my research going? I said, thinking I was about to impress him, “I found the very first time your father was referred to in the Times,” and all this immigration material. He said, “Oh, you found that fellowship. You think that’s really important? Did you know that I was conceived on that fellowship?” Because he was born in ’36. I thought, I would be happily one-upped in that way.
Joan Biskupic: We finished the conversation. He wanted to know what I had learned about various aunts and uncles. He called me the following Monday, that was on a Saturday. He calls me on a Monday and he says, “What else did you learn? What did you learn about my uncle, Vince?” Not cousin Vinny but uncle Vince. So I went to see him and he was so excited about what I was learning about his family that he ended up giving me 12 on the record interviews.
Joan Biskupic: I have to tell you, Preet, I know you have been in the offices of various important people who have sat with reporters, and you yourself have sat with reporters over time. I would be so exhausted that I would be ending the interview after two or three hours, but he was great.
Preet Bharara: So it’s very interesting. He wouldn’t talk to you at all and say he wouldn’t talk to you, and then he gives you the ultimate literal origin story of himself.
Joan Biskupic: Yes.
Preet Bharara: Then he decides to talk to you at great length. Did you just lob a question and he went on for hours, or did you have to guide the conversation?
Joan Biskupic: Well, I wanted to guide the conversation because I needed certain things. I wanted definitely lots of childhood information. I wanted material that would bring him to life in the book. But I also wanted to challenge him on things he had said, the duck hunting trip with Dick Cheney that everyone remembers that did cause litigants to challenge his sitting on that case, all sorts of things that I needed to ask him about.
Joan Biskupic: The good thing with him is that he was ready for those questions. He never said to me, “Why would you ask me that kind of question?” He wanted to fight back. He was a lot of fun and he was so colorful. So I just let the tape recorder run, but you do want to eventually write the book. So you need to cut off certain angles. So I did have to steer him, of course.
Preet Bharara: Did you ever try to liquor up a justice to get them to talk more freely?
Joan Biskupic: Well, where I ran into Scalia at the social occasion, it was a wedding and he was drinking. I was happy to say to my companion, “Would you want to get him another drink?”
Preet Bharara: I see your techniques, Joan.
Joan Biskupic: Hey, this was a man who really knew his wine, he knew his cigars.
Preet Bharara: And cigars.
Joan Biskupic: Yes, you know who I’m speaking of here.
Preet Bharara: If I remember correctly, and we’ll cut this if I don’t remember correctly, because you have false memories at my age. When I was working in the Senate and I was preparing for Supreme Court hearings, we’ll talk about John Roberts, that I participated in for Senator Schumer at the time, I went back and I watched literally 10 to 12 prior Supreme Court confirmation hearings. One of the most interesting, maybe the most interesting, it’s close with Ruth Bader Ginsberg’s confirmation hearing.
Preet Bharara: But Scalia’s confirmation hearing where he introduces his family, and is a great storyteller, and very witty, and very funny and interesting, whatever you think of his judicial rulings, did he have a pipe or a cigar at the table?
Joan Biskupic: You are remembering that so well. So you don’t have to cut that out. He had a pipe and he actually-
Preet Bharara: At the judiciary committee.
Joan Biskupic: Yes, he was actually-
Preet Bharara: During the hearing.
Joan Biskupic: He was actually a smoker. Just as a quick aside, when the Reagan administration chose then Judge Scalia from the DC circuit, Robert Bork was in contention. There were some questions about who might live longer, who was in better health. Scalia was always a smoker and he was like, “I’m not smoking now, just an occasional pipe.”
Preet Bharara: Right. Some people have suggested, and I wonder how you react to this, is it premature to write a definitive biography of John Roberts? He’s been on the court now almost 14 years. He’s still a fairly young man at, I think, 63?
Joan Biskupic: He just turned 64.
Preet Bharara: 64. Should you have waited? What kind of assessment can you make in the middle of someone’s tenure? You yourself just said he can serve many more years. What was your thinking in doing this book now?
Joan Biskupic: That’s a good question. I get that especially from law students who are students of judicial biography, people who are long gone. The chief justice himself said, “This is too early. Give me time.” I approach these books not so much as a historian, and in fact, I’m not a historian, but as a journalist and as someone who wants to explain the most powerful institutions in America and let people see how the Supreme Court is affecting their lives.
Joan Biskupic: He only got more important to the nation’s law during my research. When I began this, Justice Scalia was alive and Anthony Kennedy was the controlling deciding vote. Now John Roberts is. So why him even back then in late 2015, early 2016 when I decided to go for this? I thought, here’s a person who very few people understand his role in American government. Very few people understand who John Roberts even is.
Joan Biskupic: He cast the deciding vote in the Affordable Care Act case in 2012, he wrote such an important ruling in the 2013 Shelby County vs. Holder case. He’s already doing so much and I am at the scene to tell people about that. You just talked about the access I’ve had to justices. I felt like I was uniquely positioned to do this. And then the most practical reason, Preet, is if I waited until John Roberts was long gone, I would be long gone too, sorry to say.
Preet Bharara: You should quit the smoking. One thing I wanted to ask you before we continue with John Roberts, did you ever hear from the justices after your book’s published with a reaction or a review?
Joan Biskupic: Yes, I do, usually subtly because they don’t want to outright say anything. Whenever I would run into Justice O’Conner, she would say in that great western twangy voice, “Well, if it isn’t my author.” She of course had her own book and then she once said to me, “How are sales?” I knew that what she really cared about was whether I was eating into the sales of The Lazy B, which was her memoir. I said, “Trust me, Justice O’Conner, I am not eating into your sales at all.”
Joan Biskupic: Justice Scalia, to his credit, even though there were plenty of things that he did not like in that book, he kept seeing me and he was helpful in interviews after that book came out in 2009. So you hear from them, but not as directly. On this one, I have already heard from other justices, but I haven’t gotten a full assessment yet from my main subject.
Preet Bharara: Okay. Well, the other justices. They happy, unhappy? Quizzical?
Joan Biskupic: Here’s this, if I’ve heard from them it means that they’re okay. But I haven’t heard … One person sent me a note that began with, “This is off the record, but,” that kind of thing. So I can’t really tell you what I’ve heard, but everything I’ve heard I’m okay with. It’s not like I’m going back and thinking, oh shoot, that went wrong.
Preet Bharara: This may be an odd question. Do you care that much? Is it important what they think?
Joan Biskupic: No. Well, you don’t want to be reckless about anything, but what I even said to the chief as I was going along, I’m not writing this book for me, I’m not writing it for you. I’m writing it because my basic philosophy in writing about the Supreme Court has always been, this is your Supreme Court. I want people to learn about what happens at the top of the third branch of government. I want people to be intrigued by things, I want people to feel like they know these justices a little bit more, and pay more attention to the rulings that will be coming soon as we head into June.
Preet Bharara: Let’s talk about the role of a chief justice. What does it matter who the chief justice is? A few minutes ago, you said that one reason why John Roberts became more important, even though he was already the chief, was that he then also became the deciding vote, some people call it the swing vote, because Anthony Kennedy left the court. Is it more important to be the chief justice or the swing vote, if there is one, on a court?
Joan Biskupic: Probably in terms of the substance of the law, Anthony Kennedy proved that it’s important to be the man or woman who gets to cast that final fifth vote. But the chief justice’s work is quite important. The phrase “first among equals” has been used but it’s more than that. First of all, he runs the oral arguments, he runs the private conferences, and essentially sets the table as cases are about to be discussed.
Joan Biskupic: He describes the legal issue, he starts off the discussion, he is the holder of the so-called discuss list in which they decide which of the many petitions the court receives are even talked about in conference. All of the other ones are automatically rejected. So he has a lot of power. Then when he’s in the majority after a vote and he is more often than not in the majority, he decides who writes the opinion. He assigns that opinion.
Preet Bharara: There are a lot of lawyers who are listening, but there are a lot who aren’t. Once the vote is known and it’s understood who’s in the majority and who’s in the minority on a particular question of law that’s been presented to the court, why does it matter who writes the 30, or 40, or 80, or 100 something page opinion?
Joan Biskupic: Oh, that’s a great question and I’m glad we’ll have a chance to tell people about that. What often matters as much or if not more to the bottom line vote in a case is the legal rationale and that’s what the author of the opinion starts to develop.
Joan Biskupic: He or she has to have five votes for that, but the author is essentially setting the rules that will be then used in other cases because the vote affects the outcome between the two individual litigants before the court at that time, but then the actual holding and how it’s explained in the opinion is what lower court judges then read and apply to subsequent dispute across America.
Preet Bharara: Any particular case where you think that an assignment, either in Robert’s tenure or otherwise, changed history or altered how the law was interpreted by courts?
Joan Biskupic: Well, the very most important ones he’s kept for himself. Think of the Affordable Care Act case, think of Shelby County vs. Holder.
Preet Bharara: You mentioned Shelby County a couple times. Remind people what that case was about.
Joan Biskupic: Oh, sure. That’s the one where in 2013, a five justice conservative majority seriously restricted the reach of the 1965 Voting Rights Act, particular affected a provision of the law that had required certain states and municipalities that had a history of discrimination to get prior approval for any kind of election law changes just to ensure that they would not discriminate against African Americans, Latinos, or other racial minorities.
Joan Biskupic: So it was sort of a safeguard that let the justice department have a hand in what was happening out in the states, potentially discriminatory rules that would affect the franchise for minorities.
Preet Bharara: So let’s talk a little bit about the life and turbulent times of John Roberts. As you and I were discussing informally before we started taping, I worked on the Senate judiciary committee during the period when Sandra Day O’Conner announced her retirement and John Roberts was nominated first to be an associate justice of the Supreme Court.
Preet Bharara: And then later that year because Justice Rehnquist passed away, over Labor Day weekend in 2005, my first year working in the Senate, then John Roberts was [inaudible 00:33:51] to be the chief justice. So for me, it was kind of a crazy time. So I got to research a lot about John Roberts and his writings and his career and everything else. I remember thinking that this was a person who, more than anyone else I had come across in my legal training and history, was on a glide path to a Supreme Court position.
Preet Bharara: We often wondered if he was born wearing a robe. If ever there was a person who, not just by look and bearing, but also by trajectory and background and credential, he seemed almost like a movie character for Supreme Court justice.
Joan Biskupic: I agree. It seemed that he was hardwired from the start for success. He obviously did very well at every stage of his life, from Kindergarten on. Always very high grades, first in his class.
Preet Bharara: Did you look at his Kindergarten transcripts?
Joan Biskupic: An aunt told me a wonderful story about going over to his house when he was just five or six, and she walked in the door with her husband. And at that point in his life, Preet, he was known by Jacky. The mom said, “Look, Jacky got all A’s,” and the uncle pulls out a dollar bill. This was truly like in 1961-ish. He was born in ’55 and he was at five or six years old when he was living near this family.
Joan Biskupic: There he got a dollar bill, which was a ton of money back in the early 60s for anyone, let alone a little kid. Then he’s first in his class at his boarding school, and then he does Harvard undergrad in three years, goes right into law school.
Preet Bharara: Before you get to that, you tell a story which I think is amazing that I did not know before about how John Roberts himself, when I think he was about 13-
Joan Biskupic: Oh, I love that letter. In fact, I found it in my research. I went to his prep school called La Lumiere in northern Indiana. When I arrived, this letter was under glass in the library. John Roberts had written it on December 22nd, 1968 to the headmaster of this very elite all boys boarding school that had opened just a few years earlier in La Porte, Indiana.
Joan Biskupic: He writes, “Dear Mr. Moore, the main reason I would like to attend La Lumiere School is to get a better education. I’ve always wanted to stay ahead of the crowd and I feel like the competition at La Lumiere will force me to work as hard as I can.” Then he goes on to how much he’s eager to do a lot of study and hard work. Then he closes with this line that I thought was so thematic for his life. “I won’t be content to get a good job by getting a good education. I want to get the best job by getting the best education.”
Preet Bharara: 13 years old.
Joan Biskupic: That’s right. And a couple people, Preet, have said to me, “Don’t you think the kid’s mother wrote it?” I’m like no, his mother didn’t.
Preet Bharara: No. I think even the mother might be abashed at writing such a letter. But what strikes me about his career and some of the other people also that you’ve covered and then get to the court, obviously he was a young kid at the time, but to say I’ve always wanted to stay ahead of the crowd, do you think that’s still the case?
Joan Biskupic: I do, and that’s why we opened with the difference between the chief justice and the eight associate justices. You were at the scene in September 2005 when he suddenly breaks from the crowd of just being appointed to an associate justice seat, no slouch position for sure, and is then named to be chief justice.
Joan Biskupic: You hinted at this, but he was only 50 years old. He was the youngest chief justice in more than two centuries. And there he was, always able to separate himself from the crowd, so to speak, although neither of us could be part of that crowd.
Preet Bharara: How do you rank him in terms of ambition, compared to the other justices? Or are they all pretty much hardwired for success and incredibly ambitious? And then if I can indulge in a compound question, is that good or bad?
Joan Biskupic: Everyone you knew in law school was ambitious in various ways, right? These people are naturally ambitious and you don’t get to the Supreme Court really accidentally, although David Suter would sometimes bill himself that way, another Harvard grad and someone who certainly was quite accomplished in many ways in his home state of New Hampshire before he was tapped by George H.W. Bush. But no, they’re all ambitious and I think of ambition as something that’s plenty good in many ways.
Joan Biskupic: The one thing about John Roberts is he doesn’t want to be seen as ambitious. He tended to resist questions about strategy and being tactical. I think there are some people who feel like it can be nasty business, but face it. Washington and New York are filled with people who plotted out their life and said at age 13 perhaps not that they want to stay ahead of the crowd, but they might have felt that way.
Preet Bharara: Did he face, based on your research, any setback?
Joan Biskupic: That was exactly the kind of question I was always asking people. When did things go wrong for John Roberts, essentially? The event that probably comes closest to that occurred in 1992. On January 27th, 1992, when he had just turned 37 years old, George H.W. Bush nominated him for the DC circuit, a powerful stepping stone to the Supreme Court.
Joan Biskupic: John Roberts didn’t really have a very high profile at the time. He was a deputy solicitor general. He had already been in the Reagan administration and as you learned from your work for Senator Schumer, he had written many memos showing his conservative hand, but those weren’t public at the time. He had a reputation of not being a really strong rigid conservative when George H.W. Bush nominated him, but enough of the staff of then Senate judiciary chairman, Joe Biden, wanted to resist John Roberts.
Joan Biskupic: They knew what he was doing behind the scenes, even if the greater public didn’t know much about his reputation, and they stalled. Chairman Biden then stalled his nomination for the DC circuit. Ken Star, who was then the solicitor general, went personally to talk to Chairman Biden, but he could just not shake loose the John Roberts nomination.
Joan Biskupic: He never got a hearing and what everyone inside that first Bush administration was saying, “Don’t worry, he’ll get a second term, he’ll still be nominated,” but we know what happened in November of 1992. Bill Clinton wins, John Roberts, he leaves the administration, he goes into private practice. But it was the best thing for him. It helped him broaden his portfolio.
Joan Biskupic: He didn’t have a huge record then when a Supreme Court seat came open and was able to easily get on deck for that. So that would be the one thing, Preet. Everybody said it was very hard for him. Then he went, as I said, into a very lucrative private practice.
Preet Bharara: People may be wondering at this point, you have two lawyers who are talking a lot about the background and rearing of a person, and their personality and their ambition, and we’re not talking about legal philosophy yet. There’s a reason for that. I’m of the view that these life experiences help shape you and help shape how you think about the law and your decision making.
Preet Bharara: And at the end of the day, as I write in my own book, the law is done not just based on statute, but based on the people who are responsible for enforcing the laws and interpreting the law. So this all seems highly relevant to me. The other thing I was struck by, as a staffer assessing him, was how congenial he presented himself to be throughout his professional career. I’m not saying this in a cynical way really unless you want to describe it this way.
Preet Bharara: You couldn’t meet a person, Democrat or Republican, my recollection is in Washington, who had come across John Roberts in private practice, as a litigant, or as a member of the court, or a colleague, whether they were on his side in a case or against him in a case, who didn’t say, “What a wonderful gentleman, and how congenial and lovely,” and only positive things were said about him as a person. Is that what you found also?
Joan Biskupic: Well, here’s something that happened. Before I even started on this book, I started picking up strands while I was working on the earlier books about how dismissive he could be in certain situations of colleagues. I started noticing some tensions, but I was like you thinking he was so outwardly courteous, so pleasant. I had known him since early 1989 when I started covering the court, first for Congressional Quarterly before I went to the Washington Post.
Joan Biskupic: So I was covering the hill mostly, but I was covering the court. His very first argument before the court was in January of 1989. So my work was simultaneous to his. So I had known him and I always thought he was so, as you say, so pleasant. He’s always been excellent at structured settings of speeches, but I was picking up these strands of dissatisfaction on a bit of a personal level.
Joan Biskupic: It turns out that there is some distrust among the colleagues. There’s contrasting personal styles. Face it, they’re all appointed for life, they all grew up thinking maybe they were the smartest person in the room, and then he comes in and says, “No, no, no, let’s get this all straight.” He somehow conveys that as chief justice, he’s going to take a larger role as the leader here.
Preet Bharara: Right.
Joan Biskupic: I think that it could be expected that any tensions would emerge. Then here’s one thing that probably you or I never thought about back in 2005. He was succeeding William Rehnquist, who no matter what you thought about his political and conservative approach to cases, was very much loved by justices on both sides. Ruth Bader Ginsberg wrote him the most wonderful letters that I obtained through my research and she always talked about “my chief.” In fact, John Roberts would say, “I wish she would stop referring to ‘my chief’ for Rehnquist.”
Preet Bharara: And Justice O’Conner and Rehnquist, once upon a time, were an item.
Joan Biskupic: They were. They dated when they were at Stanford Law School. So he had 14 years as an associate justice before he was elevated in 1986. So he knew how to work with all of these associate justices in a way that John Roberts had only observed from the outside.
Preet Bharara: Just to clarify one thing. On this issue of the strains you said you discovered where the Chief Justice John Roberts might have acted in a dismissive way, did you find those strains only after he became the chief justice or are you saying that you also heard those kinds of things during the time period before he was confirmed as a justice? Because that’s what I was impressed by.
Preet Bharara: Some people, cynically, would say, “He’s prepared his whole life,” and you know people like this in Washington. I’m not saying he’s one of them. They’ve prepared their whole life to make sure that they have never offended anyone, they’ve been cordial and lovely to people, and in particular, people on the other side of the aisle because there but for the grace of God go I, [inaudible 00:45:01] something.
Preet Bharara: And as you know, the way these things work in Washington, you want to have lots of people on both sides of the aisle saying good things about you. Another person comes to mind along these lines, and his name is Brett Kavanaugh. I knew sort of indirectly as well through mutual friends. Did your research reveal any of that?
Joan Biskupic: Oh, you draw a really nice distinction in terms of what I’m talking about, interpersonal style. No. John Roberts never made an enemy who mattered, seriously.
Preet Bharara: Wait, say that again. That’s very important.
Joan Biskupic: He never made an enemy who mattered. I actually don’t think there’s that much of an edge to that. I think that’s just a very smart, everyone always talked about how he could see three or four steps out. The only thing I would remind you of, and it’s a small thing, and of course it dates back to when he was in his 20s when he wrote a lot of those memos for Ronald Reagan and for William French Smith, that you and I both had to delve through when we were both involved in the 2005 nomination.
Preet Bharara: Yeah, about abortion and other things, right?
Joan Biskupic: Right. And you see a little bit more of his, for lack of a … For probably the most precise word when you’re talking about somebody who’s in his 20s, the snarkiness that comes through with some of those, where he’s dismissive of some members of Congress and he’s seeing the administration as being embattled against its adversaries at the time over many racial and cultural issues.
Joan Biskupic: Now again, that was a man in his 20s, but I think that I want to make sure your listeners understand. I do think John Roberts is very courteous and pleasant. I don’t think he’s putting that on at all. I think what we’re talking about is stuff that comes out in tense situations that’s natural to a lot of interpersonal rivalries and animosities that you’re just going to have when people are thrown together for life.
Joan Biskupic: He’s also an upper midwesterner. He ended up growing up in Indiana before he sullied himself at Harvard, but I think he comes by it naturally.
Preet Bharara: So let’s talk about the confirmation hearing, 2005. He ended up getting half the Democratic caucus to vote for him. I remember the atmosphere being very charged and the beginning of these judicial wars between the Democrats and Republicans, seems almost quaint now. They were pretty charged at the time, they’ve only gotten worse in the years since.
Preet Bharara: It was the first vacancy on the Supreme Court in 11 years. So most senators, I think, had never been part of a confirmation hearing process and there was a lot of discussion and debate about whether or not the process was a good one or not. You have written, and you’re not unique in this opinion, that Roberts performed extremely well at the hearing. What do you think accounts for that?
Joan Biskupic: Oh, he was so good. First of all, he had argued 39 times before the Supreme Court. His preparation was flawless. He knew how to handle any kind of question. Highly intelligent, he’s got a very quick wit as we observed earlier about the way that he could parry certain questions, turn them into soft jokes. He showed a nice sense of humor deeply steeped in the law. He understands cases, he could surpass whatever senators’ questions about any kind of law with his own understanding of a legal ruling.
Joan Biskupic: He works at it and he leaves nothing to chance. I note in the book that when he would argue before the Supreme Court, he would write at the top of his legal pad, “Mr. Chief Justice and may it please the court,” just in case he froze.
Preet Bharara: Just in case.
Joan Biskupic: One thing we should tell people, because I found this part of him incredibly inspiring, he’s had to conquer a lot of anxiety and nerves. I’m using those words colloquially. I’m not saying anything medical here, I’m just saying that he’d have a sick stomach a lot in college, his hands would shake uncontrollably when he was an adult preparing to argue before the justices.
Joan Biskupic: But once he stepped to the lectern, he was always able to control that. I find that so admirable because public speaking is difficult and being in that hot seat in front of all the senators firing these questions at him, he was able to be so smooth. You’re exactly right that nominees since John Roberts, Republican and Democrat, have all been told, “Watch the tapes.”
Preet Bharara: Right, and I sat there through all of them. I think he just grew stronger in terms of how he answered questions and how disarming he was. Do you think today that someone like John Roberts, very difficult and complicated, counterfactual, but do you think the days of even 22 votes from the other party are gone, no matter who you are?
Joan Biskupic: I do, unless it’s a senator as a nominee. You mentioned the symmetry of his splitting the Democrats for and against him, but you’ll probably also remember, Preet, because I know your memory is so good on this, Senate judiciary committee chairman Patrick Leahy voted for him, but Senate minority leader Reid didn’t. Actually, it was Leahy, the ranking member. So he even split the leadership, Pat Leahy on one side and Harry Reid on the other.
Preet Bharara: Yeah, it was a very interesting time and very interesting votes because there were certain people who were known as iconic liberals in the Senate who voted for, like Russ Feingold.
Joan Biskupic: I was wondering if you would say him because Russ Feingold actually gave him a hard time during the hearings on many things but then ended up voting for him. I remember, they might have been at Harvard together or whatever, but yes, there was a vote certainly that was a bit of a surprise. But I have to tell you that John Roberts has said to many audiences when he would meet with senators, they all went so well that he was actually led to believe he might get more votes, but in the end, he didn’t.
Preet Bharara: Yeah. It was an interesting time and a lot of people voted in a way that you wouldn’t expect. I think people are much more set not only in their ways about how they think about the votes but also precedents are much more set on who they’re going to nominate. I think there are fewer surprises that you’ll see going forward.
Preet Bharara: I want to talk about judicial philosophy. So we spent all this time talking about personality and style a little bit, background and growing up, and ambition, none of which really relate to the law, but I think they’re actually very important and contribute to the whole and to the resulting judicial personality. What is judicial philosophy and what is John Roberts’ judicial philosophy?
Joan Biskupic: Well, judicial philosophy is an approach that a jurist of any federal court would take to a case. Are you going to be more conservative, more liberal, and breathing more of an expansive view into the US Constitution or to a federal statute? Justice Scalia, one of the earlier subjects we talked about, took the originalist point of view that you look to what were the intentions of the framers of the Constitution.
Joan Biskupic: So right now, why don’t we contrast it with Justice Stephen Breyer, who’s written a lot both on and off the court about his philosophy trying to more expansively read the rights and liberties in the Constitution. John Roberts takes much more of a conservative approach. He has deep conservative roots in the Republic party, having worked for Ronald Reagan and George H.W. Bush, and then being appointed by George W. Bush.
Joan Biskupic: Ideology in terms of judicial approach is supposed to be separate from your politics. He would say it definitely is, but it’s still a conservative approach. You don’t want to go further than the Constitution would allow or read more into a federal statute than what Congress apparently intended in that statue.
Joan Biskupic: Now, he sent some mixed signals on congressional legislation when he interpreted the Voting Rights Act, reauthorization of the Voting Rights Act in 2013. He rejected what many members of Congress felt was their interpretation of what they wanted in that law, but then when he cast the deciding vote to uphold the Affordable Care Act in 2013, he said that the reason he was doing it is because if there’s any way that an act of Congress can be upheld, it should be upheld.
Preet Bharara: You wrote somewhere in the book about this issue of outlook, that John Roberts is something of an institutionalist. He care about the institution of the courts generally and the Supreme Court specifically, but at various turns, he did not shed partisan thinking. What does that mean?
Joan Biskupic: Well, I would look to some of the race cases and I’d look to the difference of the conservative justices and how they voted. There was a very important school integration case that was decided in 2007. The name of it was Parents Involved vs Seattle School District No. 1 I think it was. In that, the justices were called upon to interpret just what is in the Constitution, what is in Brown v. Board of Education from 1954 about school integration plans and classifying students based on race?
Joan Biskupic: There were two sets of programs before the justices, one from Louisville, Kentucky, and one from Seattle, Washington, in which school district officials were looking at the racial makeup of the district for more integration to try to fight housing patterns, people moving out of the city perhaps, and having pockets of racial minorities and pockets of whites. They were trying to figure out ways to not lose the integration gains that had made in the 70s and 80s.
Joan Biskupic: John Roberts interpreted Brown v. Board of Education to forbid that. That idea that school integration plans should be regarded in the same way as school segregation was something that Justice Anthony Kennedy, a fellow conservative, wanted to affirmatively separate himself from John Roberts on. I think that was an instance where John Roberts took a view that many rightly argued was a more radical rather than institutionalist view of what the principal of Brown v. Board stood for.
Joan Biskupic: He’s so strong about his racial view that remedies do more harm than good. That’s something that has really countered the institutionalist view. For example, he famously said, “The way to stop discrimination based on race is to stop discriminating based on race.” That sounds well and good, but when it comes right down to how prior courts have read that equal protection guarantees of the 14th Amendment, it’s that universities, that government institutions can look at race in certain discreet situations, whether it be for diversity on college campuses or elsewhere.
Preet Bharara: When you say institutionalist, what do you mean by that?
Joan Biskupic: Someone who is interested in protecting the reputation and the stature of the institution, protecting the norms of the institution. He has said that when he thinks about past chief justices and considers his own potential legacy, he said, “You probably won’t be regarded as the great Chief Justice John Marshall, but you certainly don’t want to be regarded as Roger Taney,” who of course was the author of the Dred Scott opinion.
Joan Biskupic: So he’s interested in how history will regard him and how history will regard the Supreme Court during his tenure. I should just note that before he decided to go to law school, he actually thought he was going to get a PhD in history and he has remained a real student of history.
Preet Bharara: And always wanted to stay ahead of the crowd, as we discussed. You mentioned the Affordable Care Act vote and that’s one that obviously had a lot of impact that you can see on people’s lives, unlike some other cases where it takes a while for people to understand what has changed in the country with respect to how they go about taking care of themselves or working or anything else.
Preet Bharara: It’s also the subject, obviously, of a lot of political debate and discussion. Conservatives not happy with John Roberts because he cast a deciding vote of holding parts of the Affordable Care Act. You describe what’s fascinating that not everyone appreciates, that John Roberts didn’t come out of the box knowing that he was going to vote a particular way. There was a bit of churn in his thinking in how he was going to vote.
Joan Biskupic: That’s exactly right. I discovered in researching the chief that he changed course multiple times. He was initially a part of a majority of justices who voted to strike down the individual insurance mandate. You know the one, that’s what we called the requirement that everybody had to have health insurance. That was the heart of the law.
Joan Biskupic: So he votes to strike that down, but then he also votes to uphold the expansion of Medicaid for people near the poverty line. Over two months of negotiations that took a lot of effort on my part to find out about, he shifted on both. The final tallies were five four to uphold the individual mandate, which was a reversal, and seven to two to curtail the Medicaid plan. That came after only weeks of negotiations and trade offs among the justices that John Roberts himself orchestrated.
Preet Bharara: So what the heck was going on there?
Joan Biskupic: I think it comes down to several factors. Let’s remind everyone what was going on in 2012. We were in an election year, every one of the Republican candidates for president was saying that he or she would repeal the law. It was a very tense time. It was President Barack Obama’s signature domestic achievement. There was so much in the air politically.
Joan Biskupic: But then also I think John Roberts was also mindful of the fact that this had been a long time coming for the health industry, which he had represented in his private practice in many ways. And I also think that in the end, part of his move might have been concern for, we just talked about, his institutionalist mindset, worries about the legitimacy and legacy of the Supreme Court, his own legitimacy and legacy.
Joan Biskupic: I do say perhaps he might have had a change of heart about Congress’s taxing power, although that was never voted on in conference, Preet. I use the word conference just because that’s what they call their private meetings. That was never even put to a vote. He, on his own when he was writing the opinion, then relied on Congress’s taxing power. The original vote was on Congress’s power under the commerce clause.
Preet Bharara: You use various terms to describe that thought process, including caring about the reputation of the institution and other things that sound nice. There’s a word that in this context is pejorative, is negative, and that is “political.” Was that a political decision?
Joan Biskupic: I do say that through at least one lens, you could definitely have said it was a political decision. I’d use political the way I started this conversation referring to Justice O’Conner as somebody who knew politically how to maneuver her votes, having been a politician herself.
Joan Biskupic: Yes, I think that … Well, this is what I definitely say, is that it’s certainly added a dimension to a man who always insisted that he decided cases based only on the law, that he was only calling balls and strikes. I think other things definitely came into the calculation here. Plenty of people think that he did a lot of good with this, that it was an important decision for the Supreme Court not to have struck down the individual mandate and to have saved the law, but it wasn’t what it appeared to be on the surface, is my main point, that there were many other things going on.
Preet Bharara: Is the court political? If so, is that a criticism of the court or is it necessarily political in some ways?
Joan Biskupic: I think it’s always going to be political in some ways. First of all, everyone gets there based on a political process. Now especially, individuals are chosen through a very politicized process. As we saw with Neil Gorsuch and Brett Kavanaugh, certainly the federalist society worked closely with the Trump administration to make their choices and then both sides girded for political battle.
Joan Biskupic: John Roberts himself has said out loud that he worries when people see a justice ascend the bench after such a political process that people will necessarily think that the justices are political. They’re naturally going to have some political antenna up, but I don’t know if that’s always going to be such a bad thing because the court has to operate within a broader context. Some people would say that taking a more liberal ideology to the interpretation of the Constitution was also influenced by our political atmosphere.
Joan Biskupic: So there’s politics and then there’s politics.
Preet Bharara: Well, talking about politics and the rhetorical battles in politics that have been going on, it’s very seldom that I go someplace and I don’t get asked a question about what the current president, Donald Trump, says about judges, calling out particular judges by name. One would imagine that over time, that takes a toll on members of the bench and the top judge in the federal system is obviously the Supreme Court Chief Justice John Roberts, about whom you’ve written a book.
Preet Bharara: He’s quiet. People like John Roberts tend not to speak outside of the annual report he does or the opinions that he writes, and I guess occasional talks, but those are fairly minimal. Then right before your deadline for the book, I know it was a difficult book to write for a lot of reasons, including there kept being news that affected your writing.
Preet Bharara: It affected issues that you were discussing in the book, but I think one of the last things that happened in the news right before your editor said, “You need to stop writing,” was the statement that John Roberts made in his clear rebuke to the president. Remind folks what John Roberts said. What do you think motivated it and was it a good idea?
Joan Biskupic: Your memory is exactly right. That was the last thing that I got into the book. And as a fellow author, I know you also had a book come out in March. You know how tough the timetable was for all of us. Okay. So it’s November. It’s right before Thanksgiving and President Donald Trump has derided a judge’s ruling by saying, “Oh, that was just an Obama judge.”
Joan Biskupic: John Roberts issues a statement, first through the Associated Press and then to all of us, that says, “There is no such thing as an Obama judge. No Clinton judge, no Bush judge, no Trump judge. We’re all judges trying to do the right thing.” I’m paraphrasing, of course, but his point was, you can’t automatically define a judge by the president who appointed him or her.
Joan Biskupic: When I immediately, like you, went on TV to talk about that, a couple times an anchor would say, “But don’t you always say who appointed these justices? You’re always making a point about it.” I say, “Yes, and I’ll tell you what the difference is.” President Trump was essentially asserting that a jurist is going to automatically vote for him, vote along his interests because of having been appointed by Donald Trump, or vote against his interests automatically because he or she was appointed by President Obama.
Joan Biskupic: John Roberts, of course, wanted to take all politics out of it, not just that it was finally time to say something against President Trump because I think he’s worried that’s infecting the public mind. Just as you said, people are believing that the court is too political and that it should just be regarded as another branch. John Roberts is always telling audiences, “The third branch is different. We’re not elected, we are not political the way the executive and the legislative branches are.”
Joan Biskupic: I think he’s not just worried about what conservatives are thinking and how much they might be buying into what President Trump is saying. I think he’s also worried about some of the talk we’ve had from progressives about packing the court. So I think he’s trying to put the Supreme Court on a higher plane and protect it from the political turmoil we’re experiencing right now.
Preet Bharara: He didn’t put it in as nuanced a way as you did. He was sort of a version of Obama’s, there’s no red America, there’s no blue America, there’s the United States of America, which has a soaring rhetorical value when delivered from a podium maybe in a large convention hall. It didn’t ring quite as true given the complexities that you describe because it is the case that people talk about, who nominated someone.
Preet Bharara: And it is also the case, as we’ve discussed at some length here, that there is some predictability with respect to someone’s judicial philosophy and ideology, depending on who appointed them. That’s why presidents are less likely to make mistakes, like some conservatives say was made with David Suter. But your point is a good one, and that is it doesn’t necessarily have to be so, as we saw with John Roberts and the Affordable Care Act.
Preet Bharara: But I think Roberts, in a way, over stated it. I wonder if that helped the court or not and if his audience was his brothers and sisters on courts throughout the country, or if it was to the public, or it was to both.
Joan Biskupic: I think to both because I do know that several lower court judges were urging him to say something because they’re the ones that were getting most of the flack from the president. They’re the ones that the president thinks are against him where he has asserted, just wait until things get to the Supreme Court. That’s when I’ll get my way.
Joan Biskupic: So John Roberts was being encouraged by his brethren, so to speak, to speak out but I also think he wanted to provide a broader message about the Supreme Court being different, and neutral, and not part of this political system. But everyone listening to your show has probably followed the census case and the question of whether there’ll be a citizenship question.
Preet Bharara: Yeah.
Joan Biskupic: Many of the people who are listening right now probably remember the very politicized case of Trump vs. Hawaii over the Muslim ban last year that turned out to be a five four vote, conservatives versus liberals. It looked like, from oral arguments, that we might have another five four ruling on whether suddenly a census question should be added to the 20/20 census, which many people believe will depress turnout and keep Hispanics and immigrants from responding.
Preet Bharara: While you’re making predictions about the future on Supreme Court cases that are before the highest court in the land, what about some other things that people were talking about with, I think, great concern after Brett Kavanaugh was confirmed, like Roe v. Wade? Do you think that Roe v. Wade is not for long?
Joan Biskupic: I think it’s going to be diminished over time. I am not certain that John Roberts wants to be leading a court that outright reverses this landmark ruling, whether you like it or you don’t like it, that’s been around since 1973. I think that would frankly turn the court into a very political item in an election year or down the road. I don’t see him voting to overturn it outright, but I do see John Roberts able to get a majority to increase the regulations on a woman’s right to choose abortion.
Preet Bharara: Right, but it’s very strange. It goes to a theme that we’ve been discussing. It might be perplexing to some people. On the one hand, you would think that if John Roberts thinks that there’s no particular right to privacy that is espoused in Roe v. Wade, and he has a view of the law, and a case came before him that he should vote the way his belief of the law tells him to vote, as opposed to thinking about these other considerations, thinking tactically and/or strategically …
Preet Bharara: One could say there shouldn’t be a difference between scenario A, which is John Roberts would have to be the deciding vote to gut Roe v. Wade versus different scenario in which he would be one of six or seven where he would be more comfortable but not be the decisive vote. Do you follow what I’m saying?
Joan Biskupic: I do.
Preet Bharara: Isn’t that confusing to people?
Joan Biskupic: It is, but I’m going to quote Clarence Thomas for all the people who are wondering, well gosh, you’re just presuming that they’re making political decisions along with legal judicial decisions. Clarence Thomas actually said that late in 2018 when the justices sidestepped a question that was subject to conflicting rulings in the lower courts.
Joan Biskupic: It had to do with Medicaid reimbursements and Medicaid services that Planned Parenthood was providing in certain states and some Republican controlled states didn’t want to do the reimbursements for some of the services that Planned Parenthood was providing. It had nothing to do with abortion, it just had to do with care for needy people. It was a question over, who could actually bring a certain lawsuit against the state for who qualified for Medicaid?
Joan Biskupic: But Planned Parenthood was one of the named parties. The court denied the appeal. Justice Thomas wrote an opinion saying essentially, “You’re chicken.” You don’t want to weigh in on something that’s very important here. He said that it only required four justices to accept the case, but five to actually rule on it.
Joan Biskupic: Clarence Thomas wrote a dissenting opinion from the court’s denial of this appeal, brought by states that had lost in lower courts and said, “We should weigh in when there are conflicts in lower court rulings, and just because this is a political issue with a party which reminds people of abortion, we shouldn’t run from it.”
Joan Biskupic: I’m paraphrasing that part. I’m especially phrasing the part about “you’re chicken,” but that was basically his point, is that you’re avoiding this just because it’s politically fraught. John Roberts might say to himself, “You bet.”
Preet Bharara: Yeah, so what is a better approach?
Joan Biskupic: Well, I’m not going to sit in judgment of which-
Preet Bharara: You’re the chief justice of your family, Joan. You already established that at the outset. So we need to hear from you on this point.
Joan Biskupic: Okay. I actually think it might serve the country to wait on some of these issues. Things are just so fraught and tumultuous right now. I would be happy for a week or two when the biggest news had to do with something from the midwest rather than something from Washington.
Preet Bharara: I could go on with you for 100 hours. So can I ask a few quick semi-lightning round questions before I get to some personal things?
Joan Biskupic: Okay.
Preet Bharara: All right. Should there be term limits on Supreme Court justices?
Joan Biskupic: No.
Preet Bharara: I’m not going to ask you to explain because this is the lightning round, unless you can explain in 10 seconds.
Joan Biskupic: Let me just say that that’s born of everybody’s unhappiness right now. I think it’s an idea of the moment. I think if we’re ever to go to that, it shouldn’t be just in the heat of the moment.
Preet Bharara: Okay, what about you use the word “packing,” which is a loaded term. Do we need more justices?
Joan Biskupic: No. I think that’s another thing. It’s been 150 years, Preet, since Congress set the nine justice number. It’s been at a high of 10 and a low of five over the years, but we’ve lived like this for 150 years. Let’s wait and see what happens over the next couple of years before we jump to something like that.
Preet Bharara: There was a bill that Senator Schumer and others, Ronald Spector included, every session of Congress that I was there, and I think before and after would sponsor in the Senate [inaudible 01:12:13] cameras in the courtroom and there were different versions of them, one of which was specifically directed to the Supreme Court. So there’d be cameras in the Supreme Court.
Joan Biskupic: This goes right to my philosophy. This is your Supreme Court.
Preet Bharara: So that’s yes?
Joan Biskupic: It’s a yes.
Preet Bharara: Okay.
Joan Biskupic: I’ll just stop there, yes.
Preet Bharara: Okay. No, good. Who is the smartest justice right now?
Joan Biskupic: Man … Okay.
Preet Bharara: Oh, you’re saying it’s a man?
Joan Biskupic: No, I’m going to say-
Preet Bharara: Interesting.
Joan Biskupic: You know what I’m going to say? I’m going to say it’s the eldest justice because the eldest is always the smartest. That’s Ruth Bader Ginsburg.
Preet Bharara: Well, that’s pretty good. Who’s the most popular on the court?
Joan Biskupic: I think Elena Kagan. She’s definitely trying to … Anybody who’s going to go out of her way to go hunting with Antonin Scalia, cross the aisle, go hunting with Antonin Scalia after herself probably never even picking up a firearm, that’s someone who’s working on her colleagues in the spirit of Justice O’Conner.
Preet Bharara: She had a particular background that I always thought was suited to that kind of effort. I know her a little bit, not a ton, but some. I think being a dean of a school, whether it’s a college or a law school, she was dean of the law school, I think you have to balance so many things and have to make sure that you are a good listener to so many different constituencies over whom you don’t actually have power because all the faculty has tenure. I’ve always wondered if that made her as good as she is at getting along with folks.
Joan Biskupic: I’ve always thought that. I’ve actually thought that because of course, academic wars are so brutal over nothing. Also, she was the one who really worked hard to bring one or two more conservatives up to Harvard, pleasing those on the right a bit. So she’s very attentive to the interests of a crowd. Yeah, we just were talking about someone who likes to stay a step ahead of the crowd. She definitely likes to listen to the crowd.
Preet Bharara: Who’s the best writer in the court?
Joan Biskupic: John Roberts is fabulous. John Roberts is an excellent writer. When he was at Harvard, he did undergrad in only three years. He essentially came in at sophomore status. He immediately won awards for his writing and his history papers. He’s very good. Justice Kagan is also good, but John Roberts. There were so many times, Preet, where I was writing this book where I thought, if he were writing this, it’d probably be really good.
Preet Bharara: How do you compare his writing to Scalia’s?
Joan Biskupic: Well, Scalia’s was much more visual. He was always giving you something to see as he wrote, whereas John Roberts tends to be a little more literary, a little more playful. Both fine writers. I have to say Justice Scalia would be much more overtly snide.
Preet Bharara: We could go on and on. There’s so many fascinating things to talk to you about. The book, again, is The Chief: The Life and Turbulent Times of Chief Justice John Roberts. I encourage everyone to buy it and read it. Joan Biskupic, it was wonderful to have you on the show. Thank you.
Joan Biskupic: Thanks. It was so much fun.
Preet Bharara: Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton and the Café team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Jeff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay tuned.
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