 This video is a project of the Annenberg Foundation Trust at Sunnylands. On September 17, 1787, delegates to the Constitutional Convention signed our nation's founding document in Philadelphia. To better understand the role of the courts in a democracy, 48 students from 12 Pennsylvania and California high schools travel to the Supreme Court of the United States in December 2006 for a conversation with the 17th Chief Justice of the United States, John G. Roberts Jr. I'm delighted to have you here. I'm looking forward to your questions. Why is it important for the country to have courts in general and the Supreme Court in particular? Well, you know, we're very proud of the fact in our country that we have a system that's governed by the rule of law. We like to say that, that we are governed by the rule of law and not the rule of men. The legal principles govern not just all of us, but also the government itself. Now, if you're going to have a system that's governed by the rule of law, you have to have somebody to tell you what the law is. If it was simply the leaders in government who got to decide what the law was, that wouldn't be much of a constraint on them. And so the founding fathers established the judiciary as the branch that was going to carry out the responsibility as John Marshall, who's in the next room, I guess, said in his famous decision in Marbury versus Madison the job of saying what the law is. So that's why we have courts. The framers also, I think, very wisely decided we would have one Supreme Court to make sure that you didn't have conflicting decisions in different courts around the country, but that the Constitution and the federal laws would mean the same thing in every part of the country. So it was important not only to set up courts, but also to establish one Supreme Court to make sure that the rule of law meant the same thing in every part of the country. Why do you think the founders spent less time in the Constitution talking about the courts and more time talking about Congress and the presidency? Oh, I think it was because they had a pretty good idea and understanding of what a court was and how it functioned. You know, when you look around the world today, we're trying to do what we can to help new democracies get established. One of the hardest things to do is to establish independent courts that will apply the rule of law because they don't have a tradition of courts doing that. We were fortunate coming from the English, the British model. They had courts that implemented the rule of law. We had some disagreements with how they were set up and everything, but they understood what a court applying the law fairly would look like. So they didn't have to spend a lot of time talking about it. What they were doing in the other branches, you know, a chief executive, a president that was not like a king, that was pretty different. So they spent a fair amount of time talking about the president's powers. The same thing with Congress, the two different branches of Congress, the Senate and the House and the great compromise that allowed the small states to feel comfortable joining a union with the big states. That was also pretty new. So they spent a lot of time on that. And they were very concerned about protecting individual liberty. So a lot of the limits in the Constitution go to that. So I think it's pretty understandable that they spent more time on the other parts of the Constitution than on the judiciary. How do cases get to you to Supreme Court? Well, a lot of people want to bring their case to the Supreme Court. You know, whenever you hear somebody has a dispute on the law, they always say, well, I'm going to take it all the way to the Supreme Court. We get almost 10,000 cases every year of people who want their case to be decided by the Supreme Court. And we hear fewer than 100 of those, less than 1%. But you have to file a document that we look at and we decide, is this one of the cases? Is this going to be one of the, say, 90 most important cases for us to decide this year? And usually what we're looking for, I mean I mentioned earlier the purpose of having one Supreme Court is to make sure that the law is the same throughout the country. So if you get a dispute where courts are applying one principle of law differently in one part of the country than in another part, that's the kind of case we're likely to take. We say it's a conflict among the lower courts and we like to resolve that and say, well, we know the courts say in Philadelphia are coming out one way and the court in San Francisco is coming out a different way. We should resolve that. So if you say that in your petition, they're called petitions, those 10,000 or so we get every year, we'll take a look at that and decide that might be one of the cases that we would hear to try to resolve that dispute. My question is, Gideon wrote a letter to the Supreme Court requesting to be heard and he was heard. How often does that happen and what gave him the right to do that? Well, the letter he wrote was considered by the court, just like one of those 10,000 petitions I was talking about. It was unusual and it was handwritten and just kind of sent in. Most of the ones we get are nicely printed up and bound and more formal, but it's the same basic principle. He had a particular issue and a dispute and he wrote about it and complained about it and we looked at it, not we, it was of course long before my time, but the court decided it was one of the cases it ought to look at that year and hear argument on the merits. So the process was unusual in that you're dealing with the prisoner who's writing on his own, not somebody represented by a lawyer familiar with all the rules, but the basic principle that you have a right to petition the Supreme Court to have it review your case is the same principle that applies in all the other situations as well. And my question is does it make a difference to the Supreme Court if the case comes to the federal court system or the state system? It does. We get both, you know, it's an interesting thing when the Constitution was established, the states were there already. There were already state courts. Many of the state courts are older than the federal courts and older than the Supreme Court. And the people establishing the Constitution didn't want to interfere with those state courts, but they thought you needed federal courts too. You were going to have a new federal Constitution, new federal laws, there ought to be federal courts to interpret those. So we have in our country both federal courts and state courts. We hear decisions from both types of courts. I don't know exactly what the proportion is, but probably a little bit more than half come from the federal courts and a smaller number, but a big number from the different state courts. The reason is that you can get a question of the constitutionality of a law coming up from the state courts or the federal courts. The state court in Pennsylvania, the highest court in Pennsylvania, might decide that a particular issue, for example, a particular practice, violates the Fourth Amendment to the federal Constitution. Well, we want to make sure the Fourth Amendment is interpreted the same way around the country, so we might decide to look at that case. The federal court that covers Pennsylvania, it's called the Third Circuit, might also decide an issue, and so we could take a case from there. State courts, though, have the final word on the interpretation of state law. If your legislature in Pennsylvania passes a law and there's a question about what that state law means, the state Supreme Court has the final say about that. We won't look at that. But if it's a question of whether it's consistent with the federal Constitution, that's one of the cases we might take a look at. My question was, how does the court actually decide which cases it wants to hear? Well, it's an interesting thing. You know, there are nine of us, nine justices, but it only takes four votes to hear a case. The reason is we're not deciding how the case should come out. We're really just deciding, is this important enough for us to look at, have the lawyers file briefs, have them come and give argument in the courtroom right across the hall, so you don't have to win at that point. You're just trying to get in the door, and it only takes four votes. What we do is we sit through, we read these petitions, we have law clerks who help us write memos about what the petitions say, and we look at those memos, and we get together every week and vote on which cases we should hear. Now you're thinking, there's 10,000 of them, that's 200 a week. Do we really sit and talk about 200 cases every week? And the answer is no. We send memos around earlier saying, of these 200 cases, these are the 10 that I think we should talk about. Another justice might send another memo around saying, well, let's talk about these two others in addition. So we have a smaller number that we think really are worth talking about. And we'll do that. We sit in the conference room, all nine of us around the table. We talk about the cases and we vote. And if they get four votes to hear the case, then we'll set it up for argument and have briefs and hear from the lawyers and then decide it on the merits later on. When you argued cases before the Supreme Court, how did you prepare? Can you tell us about the process from that side of the bench? Sure, sure. The one thing I could tell you is I was very nervous. It's very nerve-racking to argue a case in the Supreme Court. I mean, you have the nine justices who've spent a lot of time reading the briefs and studying the cases. And if you've ever been here to hear an argument and if you haven't, you should. It's, I think, a fascinating part of the process that you can really look at. The justices have dozens and dozens of questions, very hard questions. Often, in our argument, it's typical for us to have more than 100 questions for the lawyers. And you have to be prepared to answer them and they're going to be difficult questions. It's not an easy, there are no softballs there. And so the way I prepared when I used to do this and the way most lawyers do is they practice that. You get nine other of your colleagues or friends or other lawyers who know something about the case to pretend that they're justices and ask you as many questions as they can think of. And it gets you, you know, more comfortable answering the questions. It gives you a little forecast. You say, ah, they think that's, you know, that's an important question, so I should be prepared to answer it. And you get practice, you know, fielding the different questions. It's never a good substitute for the actual day of the argument. I mean, it's a little bit different when you're actually there in front of the justices with the outcome of the case and the balance. But I found doing that type of practice is helpful to get ready for it. Could you explain to us the process that takes place from arguing a case before the justices to the final decision? Yeah. How does a justice decide what his or her decision will be? Do justices talk with each other after they heard they have just heard a case? Do they try to persuade each other? Lastly, how does the court decide who will write for the minority and for the majority? Sure. What happens once we vote and decide we're going to hear this case, okay? Four votes, we're going to hear it. Then a briefing schedule is set up and the lawyers have to file briefs which are really just, you know, papers explaining why they should win or why the other side should lose. All of the justices read those on their own. We don't really talk much about the cases before the actual argument. We're sitting there reading these briefs. The one side files its brief and then a month or so later. The other side files a different brief saying everything the other guy told you is all wrong and here's the right answer. Then the first guy gets a chance to file a reply brief and we read all those briefs. We get a lot of briefs from other people who are interested in the case. They're not necessarily involved but their organization is interested. These are called amicus briefs. They all come in. The interesting thing about it, we get so many briefs that in order to keep it easy to figure out which brief you're reading, they all have to be different colors. The opening brief has to have a blue cover. The other side's brief has to have a red cover. The reply brief has to have a yellow cover. Amicus briefs, if you agree with the petitioner, the person who filed the first brief, you have a light green cover. If you agree with the respondent, the person who filed the second brief, you have a dark green cover. You always know what kind of brief you're reading. We read those. Maybe we talk to our clerks about it. What do you think about this argument? What do you think about that argument? We go back to the books. If you go into any of our offices, you'll see the walls are lined with these books of the Supreme Court decisions, the other federal court decisions, other state court decisions. We look up to try to find cases that are like this one. And how did that case come out? What did the justices say then? And we get ready for the argument. And then an argument set for a particular day. And we usually haven't talked about it among ourselves. We go out to the argument. And then for the first time, through the questions, we learn what each other of the justices thinks about the case. Justice Ginsburg might ask some questions. And you suddenly think, oh, she thinks this is a problem. Maybe I hadn't thought of that as a problem before. So you start thinking about it a little more. And maybe Justice Souter will ask a question in a different direction. And the lawyers will try to give the right answers or answers that help them. And you can see how good those answers sound. You might have particular questions. When you were looking into the case, you thought, well, I wasn't really sure whether that lawyer made the right objection when the case was tried. So I'll ask that question. And you ask. You say, well, counsel, did you object to this below? And if so, where? Where in the record? And you have to be able to say, page 258 of the appendix, you'll see that in the transcript I made that objection. Or I didn't. Well, why not? And then the argument ends. And we go twice a week. When we're hearing arguments, we have what's called a conference. We hear arguments Monday, Tuesday, and Wednesday. And on Wednesday afternoon, we have a conference about the cases we heard on Monday. And Friday, we have conference about the cases we heard on Tuesday and Wednesday. And again, it's just the nine of us around the table. And we go in order. I get to start. So I will say we heard argument in this case about the Fourth Amendment from Pennsylvania. And this is what happened. This is what the arguments are. And I think we should reverse the court, because I think they got it wrong. Next, Justice Stevens, who's the next in seniority, he'll say what he thinks. And he'll say, well, you know, maybe he agrees with me. Maybe he disagrees. If he disagrees, he'll say why. He says, I think this case shows we ought to affirm. And he'll explain why. And then on down the line, Justice Scalia next, Justice Kennedy next, Justice Souter, all in order of seniority. And we talk about it. We have a very strict rule that nobody gets to talk twice until everyone's talked once. Because you can imagine, with nine people sitting around otherwise, everybody just start talking at once. So we go pretty much in order. And then we vote. And that's our tentative decision. Now, you asked who decides who gets to write the opinion. That's really the only special power I as the Chief Justice have. I get to decide who writes the opinion for the court. So let's say it's six to three. And at the end of that week, I'll go back and say, well, you know, Justice so-and-so should write the opinion in this case. Justice so-and-so should write in this. Now, if I'm in the minority, if I'm with the three and not with the six, then the most senior of the other justices gets to assign the opinion. Then we will occasionally talk about it. You know, you see it, justices either in writing, talk about it in writing, write memos saying, you know, you made a point at conference that you thought it should be affirmed for this reason. But what about this case? That seems to go the other way. I think we should reverse it and send that around and people reconsider it. It's not at all unusual for us to change our minds as a result of that process. And somebody is trying to write the opinion. The opinion is an important part of the decision process. It's not like we decided finally it's six to three and now we'll write one opinion that says why and another opinion that says why you think it should come out the other way. In the course of writing the opinion, justices might decide that that's not quite right. I thought this was the case, but I had to write it down. And as I wrote it, it became clear that maybe this should come out the other way and people will change their minds. And once all the opinions have circulated around and the other justices have joined one opinion or the other, when it's finally ready to come out, we'll go into court during an argument day and announce it. And I'll say today justice so-and-so has the opinion of the court in this case, this Fourth Amendment case from Pennsylvania, and that justice will read a summary. The opinion might be 20 pages long, but they'll just give a short summary announcing the decision and that becomes part of the law of the land. I think justices change their minds a lot of times throughout the whole process. Certainly you read the first brief, the blue one, and you think that sounds right. The court really got that wrong. Then the red brief comes in and you read that and you say, well, those are good arguments that I hadn't thought of that. Now it doesn't look so clear. Then you go to the argument and maybe at the argument you learn something new from the lawyer or you learn something from the questions that your fellow justices are asking and you say, well, now it does look like they got that wrong. Then you have to sit down at the conference table and you have to explain what you think ought to happen. And you listen to the other justices and sometimes quite often, they have particular points. You say, oh, I see that a little bit differently and you can ask them questions, they can ask you questions. And again, you might change your mind at that stage. Then the opinion comes around. I'm tentatively voting that we should affirm and assign the opinion to somebody and the opinion comes and you read it and say, well, that doesn't sound quite right. I'm not quite persuaded and then the dissent comes and that's arguing the other way. You say, well, that sounds a little more persuasive. Maybe I should change at that point. So at any part of the process, the justices do change their minds as new information or as they learn more about it or they hear more what their colleagues think. It affects the ultimate decision quite often, quite often. I understand that you spoke about opinions and who's assigned to write and deliver it. My question is why is it important and why is it necessary to deliver an opinion? It's critical for a couple of reasons. One is that it helps us decide the case correctly. I mean, it's no different than if you get a bunch of friends together and you're trying to figure out some issue, whether for a debate or something, what should the answer be? You can talk about it and kind of decide it and you say, fine. If you have to sit down and explain it, it causes you to focus your thinking quite a bit, I think. And if you have to explain it in a way that it's going to be understandable to other people, that helps make sure that you're reaching the right decision. It's not just the result of some casual conversation, but you actually have to explain it. And sometimes when you do that, you're going to find, you know, now that I have to write it up, it doesn't seem as clear to me as it did when we were just talking about it. So it helps us reach the right decision and explains our answer. One of the real issues in a democracy is who are those nine people that nobody voted for telling me that I can't do this or that the government can't do this. And this is our explanation. This is why we do it. People in Congress, they don't have to tell you why they do anything. The answer is because, you know, 200,000 people voted for me in the House or because millions of people voted for me to send me to the Senate. And that's why I get to do what I want to do to represent those people. Well, that's not true in our case. We're doing something because the law requires it. And here we're going to explain it to you. We have to explain it. They don't. The other thing is it makes it easy for the other judges and lawyers to understand what the law is. That's going to become one of those things in all those books that are on our walls. And so when a judge in Los Angeles or in Pennsylvania or wherever has a question come up, they can look back and say, well, what did the Supreme Court say about that? Here's what they said. Here is the reason. Is this the same sort of case as I've got here? Hold it all out and you can check it and see. So it's important for that respect as well. Thank you. Sure. In your opinion, who is the greatest Supreme Court Chief Justice and why? Well, that's an easy question. Every lawyer that you ask should give you the same answer, and that's John Marshall. He was not the first Chief Justice. He was actually the fourth. But he was the first one to serve for a long period of time. And he really established the Supreme Court. I mean, somebody asked the question earlier, why didn't the framers spend more time talking about the courts? They didn't. And so the role that the courts were going to play was pretty uncertain to some extent. They knew what a court was like. They knew what judges looked like and what they did. But how prominent, how important the Supreme Court was going to be, that was pretty unsettled. So much so, you can see it in the architecture here. The first building they built when they moved the Capitol to Washington was the White House for the Executive Branch, the President. The second building they started, the Capitol for the Legislative Branch, the Congress. The third building they started was the Patent Office. What happened to the courts? Where is the Supreme Court? The Supreme Court building, the one you're in now, was the first one, and it was completed in 1935. The Supreme Court met in the basement of the Capitol for much of its early, early existence. So the role of the court wasn't settled. John Marshall settled it. He made it clear that its job was to decide, as he put it famously in Marbury v. Madison, what the law is. He made it clear that the decisions of the Supreme Court were binding on the state courts. And remember, the state courts, as I said, they were here before the Constitution. It wasn't clear whether they were going to have the final say or these new federal courts, including the Supreme Court. And through a long series of decisions over his long tenure, he established the Supreme Court as the final arbiter of what the Constitution means. The one that was, the branch that was going to make a decision that was going to be binding not only on the citizens, but also on the states and also importantly on the federal government itself. So everyone would give the same answer. John Marshall is the great, he's called the great chief justice. He's in a league of his own. And he was a remarkable man. I mean, even lawyers who know, oh, he's a great chief justice. He was responsible for establishing the role of the Supreme Court. Don't fully know all that he did. He was, among other things, a war hero. He fought at Washington's side under great personal danger to his life. He was instrumental in getting the Constitution ratified, convincing the Virginia legislature to vote in favor of it, which was a close thing. People don't realize that the vote in favor of the Constitution came down due to some critical votes in a number of states and he was largely responsible for getting it passed in Virginia, which was a very important state at the time of the founding. And of course, Virginians would say still is. So that's an easy answer. I think everybody would agree, John Marshall. You get a lot of debate over who's number two, but not over who's number one. I know you already spoke about what you felt was one of your most important roles or responsibilities as far as delegating who writes the opinions, but I was wondering if you feel that what are any other special roles or duties this chief justice has? Well, you're right. Assigning the opinions is one of the more important ones. You know, I have the responsibility of presiding at court, calling the court to session and making sure the lawyers don't go beyond their time and trying to referee when the other eight justices all want to ask questions at the same time. I have the responsibility of presiding at conference too, starting the discussion and kind of laying out what the issue is before stating what my views are. Beyond that, there are certain administrative responsibilities. I have to try to get the necessary money out of Congress every year for the court's budget. And I have a certain responsibility to defend judicial independence in the rule of law. It's very hard sometimes for judges when they're under attack for delivering say unpopular decisions, which is very much part of our job. You wouldn't want judges or courts that just did what was popular. The Constitution is designed to protect people who are unpopular as well as the popular, and they have to go to court and get that type of protection from the judges. So it's hard for a judge who's making unpopular decisions sometimes to defend herself or himself, and I view that as part of my responsibility too, to make sure that judges are not criticized unfairly when they're doing their job and also to make sure that they are getting from Congress the sort of resources they need to do their job. Why do we have nine Supreme Court justices and is that a good number? Congress gets to set the number. It's not in the Constitution, and we've had fewer than nine. We've even had more than nine at different points in our history. But it's been nine for a long time, and I think it's a good number. I think anything more is too many. You want it to be an odd number because otherwise you don't want to be dividing up four to four. It happens sometimes. If one of the justices, for one reason or another, can't hear the case, it sometimes comes out four to four, and that's not a good thing. So you want it to be an odd number, and I would say that two most likely candidates are either seven or nine, and I think nine makes a lot of sense. I wanted to know how the court interprets the Constitution, and it's hard to know what the founding fathers meant. What the founding fathers meant sometimes, and in light of modern issues that may not be covered by the founding fathers in the document? Sure. No, and it's not only an issue we confront all the time, but I think we get more and more of those cases as technology changes. For example, Fourth Amendment says, searches and seizures have to be reasonable. The issue came up when we first had telephones, and people were able to tap into telephones in here. Well, is that a search or seizure under the Fourth Amendment? The founding fathers, not even Jefferson, thought about telephones. So how do you say what they meant to how the Fourth Amendment should apply to something they never thought of? And the answer is partly in what we were just talking about. You go back to the precedents and see how they applied the Constitution to new developments. I'm not sure I got my history straight here yet, but I don't think there were railroads when they wrote the Constitution, or they were just coming in. There certainly weren't automobiles, but automobiles, does that constitute interstate commerce or not? And you see cases saying, well, sure, it's just simply another way of traveling, and they were familiar with that, and they applied the principles of the Commerce Clause to travel, so why should it make a difference? How quickly you get to travel or by what means, the same thing with the airplane. You say, well, the founding fathers never thought of the airplane. Well, it's not terribly different other than in terms of efficiency from means of travel with which they were familiar. And what were they trying to do in the Fourth Amendment in terms of protecting people's privacy and requiring judges to issue search warrants before you intrude upon their privacy? Well, isn't tapping into the phones, isn't that an intrusion on their privacy to the same extent as sort of like listening in on a private conversation in the house and wouldn't they have wanted the same principles to apply? So, you know, it's not easy when you take something that wasn't familiar to them. It's easier when it is something and you can apply it directly. But things like the Internet, I mean, should, how does the First Amendment apply to the Internet? And you try to think, well, is that just like the newspapers with which they were familiar or is it somehow different? And the lawyers will argue that. The lawyer on one side will say this is just like a pamphlet. You know, when you put a blog out, it's just like people circulating pamphlets and they knew a lot more, they had a lot of pamphlets back at the time of the founding. But the lawyer on the other side is going to say, no, this is a lot different. You know, it's more like, say, a radio or television and we have a greater tradition of regulating, you know, radio and television than we do regulating pamphlets. So you ought to apply different laws and they'll go back just as I was saying earlier to those precedents and try to find the ones that they think fit most closely. My question is, do judges find it harder to look at a convicted murderer in the same light as someone presumed innocent? The answer is surprisingly enough, no, it depends on what the claim is. If the claim of the convicted murderer is that I'm innocent, you know, he's, as I said, the presumption, or you said, the presumption of innocence applies and we're going to consider his claim. You know, the Constitution protects not just the innocent but the guilty as well and gives them certain protections along the way that we enforce even when, if we think that they're guilty and are going to be found guilty at the end of the day because that's the only way you protect the innocent. If you require that someone can't be convicted, you know, unless a fair jury votes in favor of his conviction, that's because when somebody who's actually innocent goes before, is charged with a crime, you want that person to have the same protections, the same with anything else. The system is set up to be applied to people you might think are guilty and people you might think are innocent because you're not always right and the system is designed to make sure that before somebody is convicted that they have all the protections that the framers set forth. Now, I don't like, and I don't think my colleagues like, ruling in favor of somebody who probably is guilty, maybe has done some very horrifying things, but if they've had their rights violated under the Constitution, it's our job to make sure that those rights are vindicated. Are there any misconceptions about the Supreme Court or courts in general that you would like to correct? You know, I do think there are a lot of misconceptions about courts. There are a lot of misconceptions about my job. A lot of people think if you're the chief justice, you know, you get more votes than the other justices. I don't. I get one vote just like everybody else. And there are a lot of misconceptions about what the court does. They think when we issue a decision, for example, we're taking a position on whether we think something's a good idea or not. We almost never are in a position to do that. The point was made earlier about, you know, how do you feel issuing a ruling in favor of somebody who's been convicted and is guilty? Well, it doesn't mean we, you know, think that's a good thing, what he did, but it's a way of enforcing the law in that particular case. When we say that the First Amendment allows something, it doesn't mean that we think it's a good idea or that we support it. When we say that a law that Congress passes is constitutional, again, that doesn't mean that if we were in Congress, we would vote for that law, we might think it's a terrible idea, but that's not the question. And I think there's a misconception when we issue our decisions that we're saying this is a good thing or this is a bad thing or we're in favor of this or we're opposed to that, when in fact we're just issuing a decision on the law and that all of those decisions about what's a good idea, what's a bad idea, what types of laws we should have, what we should be doing as a matter of public policy, that doesn't get decided here. We decide it in the bigger building across the street in Congress or in the White House. And so I think that's one area where I think people sometimes have the misconception, you know, the Supreme Court's in favor of this or in favor of that. We always try to separate ourselves from whatever the issue is and decide it just on the basis of the law. Thank you very much. Thank you very much. I really enjoyed that. Thank you.