CJR: No, no.
DR: What was it like clerking for him?
CJR: It was a very different experience. I was not close in age to Justice Rehnquist, but he was at most a generation removed from his law clerks, and Judge Friendly was a couple of generations removed.
It was very easy to clerk for Justice Rehnquist. We did not have to do bench memos. He did a lot of the work without the need for a law clerk. He was very crisp in logic and writing style. He had really a whole different style than Judge Friendly, but I was very fortunate to have both clerkships.
DR: When Rehnquist was chief justice later, he was famous, I am told by some of his clerks, for having betting pools on everything. Did he do that when he was a younger justice?
CJR: Yes.
DR: Always betting on various sporting events?
CJR: It was worse than that. He would bet you when the first snowfall would be. Or how deep the snow was, and then you’d get outside with a ruler and measure it. The bets were usually shaped in such a way that he had a real advantage in terms of knowledge.
DR: After you finished your clerkship, you went to work at the Justice Department, and later you went to work in the Reagan White House. I’m told that the first day you showed up at the White House, the president of the United States was supposed to call you. What happened?
CJR: The phone rang, I picked it up, and the operator said, “Could you hold for the president?” I said, “Yes.” I thought it was very nice that President Reagan would call someone on his first day just to say hello.
I was holding a little while, then holding longer, and then I started to think, “How long should I hold?” I thought, “Maybe he’s talking to the Soviets,” or that he was held up by something else important going on. And so I waited on hold some more. I waited on hold a long time.
Then, all of a sudden, I heard laughter outside the door to my office. My new officemates had a pool about how long I would just sit there and wait on hold. I don’t know who in the pool had fifteen minutes, but he won.
DR: You did that for a while, and then you went to practice law in Washington. Then you became a litigator and a Supreme Court appellate lawyer?
CJR: There are some very good trial lawyers here, and I wasn’t one of those. I liked to do appellate work, but it really was not a specialty then. You didn’t say, “I do appeals.”
Usually the lawyer who tried the case would handle the appeal, so I looked to develop a practice like that. I worked with a more senior lawyer, a fellow named Barrett Prettyman Jr., who did have that kind of practice. I hoped to emulate him.
DR: Then George Herbert Walker Bush becomes president, and you get a job in the Solicitor General’s Office as deputy solicitor general of the United States and you’re arguing before the Supreme Court regularly. Was that an intimidating experience?
CJR: Yes. It is absolutely terrifying. I remember the minute before ten o’clock, when the justices are about to come out on the bench, just thinking, “Why am I doing this?” But then as soon as you sit down, you wonder, “When can I do it again?” It is a very special opportunity.
DR: How long does it take to prepare for an argument in the Supreme Court? A week?
CJR: Oh, no, no. If you can arrange it, a couple of months, because there are nine justices. They can ask anything they want. They do. It was a very, very hot bench, as it is today. You just cannot anticipate every hypothetical, every factual question.
I started a fresh legal pad whenever I had a new case, and I would just write down every question that occurred to me. By the time of the argument, I would have five hundred questions I had prepared to answer. But I still realized they were going to ask some questions that were not on my list.
DR: So you did that for a while. Then the president of the United States said, “I’d like you to be a judge on the D.C. circuit.” You were sent up to the Senate for confirmation. What happened?
CJR: The election of 1992 happened. I did not get a hearing before the election, and the president lost, so that was it.
DR: So you went back to practicing law. At that point, did you think your legal career as a jurist was never going to happen?
CJR: I did not think the bus would stop on my block again, no.
DR: So you practiced mostly Supreme Court law?
CJR: Yes. Having been in the Solicitor General’s Office, I had experience, and so it was a little easier to do.
DR: Then you get an opportunity to get on the bench again. George W. Bush becomes president, and in 2001 he nominates you to be on the D.C. circuit. Did you get confirmed pretty readily?
CJR: Well, I wouldn’t go that far.
DR: So you’re on the bench for about two years. There’s a Supreme Court vacancy in 2005 when Justice Sandra Day O’Connor decides to retire. President Bush has some interviews with potential nominees. You had an interview. What was that like?
“Well, it’s about time”: July 8, 1981, newspaper cartoon by Herblock marking the confirmation of Sandra Day O’Connor to the Court.
CJR: I was very impressed by the president. It was a much more substantive discussion than I had expected. He had a very considered, educated view of the courts and their relationship with the other branches. I was just very, very impressed. After our conversation, we went out to the Truman Balcony of the White House. It was an uplifting moment. I felt proud to be an American.
But I was teaching a summer session in London at the time, and when the interview was over, I got on the plane and flew back to London to finish the class, because I did not expect to be chosen.
As soon as I got there, the White House staff said, “You need to come back again.” But they were very careful. They said, “This doesn’t mean you’re going to get the job.” I thought maybe they were still looking at a couple of people.
Justice Sandra Day O’Connor, the first woman appointed to the U.S. Supreme Court.
It was a traumatic day because it was the day, in 2005, of the London subway bombing, and I was near the cordoned-off site of the attack.
I figured if I returned to Washington I was not going to come back to London again, so I got all my stuff. It was hard to get a cab. I got to Heathrow, and there was this very long line of people waiting for a plane.
I remember walking to my flight thinking, “Oh, these poor people. They’re stuck here.” That was the line for my plane. The computers had all broken down.
I did not think I was going to get out in time. I knew that White House and that president. If the president’s first-choice nominee was late, I thought he might well just nominate the next person on his list.
Eventually I got on the plane, but it was very late. I landed at Dulles Airport and made it home just in time to answer the phone call. It was Harriet Miers, the White House counsel. I was a little disappointed, because I assumed she was calling people who did not get the job. But then the president came on the line and offered me the nomination.
DR: You had a ceremony at the White House, and your son stole the show, as I remember it. He was about four or five?
CJR: Five.
DR: Five years old. You and the president were talking, and your son was running around in front of you. Was that distracting to you and the president?
CJR: To both of us, as I found out. Jane, my wife, was there with the kids, and I looked over and our daughter, Josie, was holding her hand—and Jack was not there. He was in front and he was dancing around. In retrospect, it is cute. At the time, it was not.
DR: Shortly thereafter, Chief Justice Rehnquist dies. The president called you and said, “How would you like to be more than just a justice—to be chief justice?” You didn’t have to do another interview?
CJR: Yes. It was a very emotional time.
Chief Justice Rehnquist died on a Saturday. My hearings were set to begin on the Tuesday. I got the call that Chief Justice Rehnquist had passed away, and President Bush invited me to the White House to talk about it Sunday night. Monday morning my nomination to be ch
ief justice was announced. And Tuesday I was walking up the steps to the court carrying Chief Justice Rehnquist’s casket. So there was a lot going on in those few days.
DR: When you had your confirmation hearing, you famously said that you were going to be like an umpire. Is that because you like baseball? How did that metaphor or analogy come to you?
CJR: A lot of law professors have written articles about how ridiculous the analogy was. They said I did not sufficiently appreciate how difficult it was to be a judge. And I think they did not sufficiently appreciate how difficult it is to be an umpire.
I don’t think it is a naïve analogy. Basically, you want to make sure you understand that an umpire doesn’t make the rules. He applies them. The courts are not Congress. You are not on either team when a case is in front of you.
DR: So you are confirmed. You were the newest and youngest member of the court and also the chief justice. Was that a little awkward?
CJR: The scenario was worse than that. The court had been together for eleven years without any change, the longest time in modern Supreme Court history. The other justices were all older than I was. They all had vastly more judicial experience than my two years. And I had been arguing cases in front of them, so I literally had been beneath them looking up. To come in as the chief was a little daunting.
I will always be grateful for how they made me feel welcome and comfortable. In conference, the chief justice presents the case and says what he thinks ought to be done, but I did not know quite how it worked. So at my first conference, I called on “Justice Stevens” and then “Justice O’Connor.” Then Justice Scalia said, “What is all this? That’s John. That’s Sandra. I’m Nino.” And, he said, “You’re the Chief.”
It was a real gripping moment to realize I had the support of the court—not because they thought I was in any way superbly qualified for the position, but they realized that somebody had to occupy that role, and they were going to be supportive of me in doing that. And it meant a lot to me.
DR: Explain how the court decides what cases it’s going to hear. What is a writ of certiorari?
CJR: It’s an old law term. And that’s all I know.
We get about 8,500 to 9,000 of these petitions every year from people who want us to hear their case, and we will hear fewer than 1 percent of those cases. There are some that we will almost surely take. If a lower court has held an act of Congress unconstitutional, we will decide that question as a matter of comity with the legislative branch across the street.
Typically, though, it is a conflict question. To take the simplest example, if the Court of Appeals for the Ninth Circuit in California says you can deduct these taxes on your federal return and the Court of Appeals for the Second Circuit in New York says you cannot do so—it has to be the same answer throughout the country, so we will take that case.
Which is why a lot of the cases on our docket are not terribly interesting. They are conflicts in interpretation of federal laws that need to be resolved. That is the easiest way to get a case brought to the court.
DR: You need four justices to agree to hear a case.
CJR: Right.
DR: Do you actually talk about the cases you’re going to hear?
CJR: We review 150 cases a week. All the justices look at them, through whatever system each justice has, and we put on the “discuss list” all cases anyone wants to talk about. Of those 150 for each weekly conference, there might be a dozen that we will want to talk about, and we talk about each of those.
DR: Let’s suppose you’ve agreed to hear a case and the case is argued. Before the argument, does every justice actually read all the briefs? Or do they skim them? They can’t read all the amicus briefs, I assume.
CJR: Sometimes we can. In some cases, there will be six or seven amicus briefs, and we can read those. In one of the big marquee cases, there might be eighty amicus briefs. I do not read that many. I do read the summary of argument of each one.
And I will pick ones that I think are important. If it is a labor case, for example, I will likely read an amicus brief from a national labor union because of its perspective. Then my law clerks will read all eighty of the briefs, and they’ll say, “You should read these seven or eight.”
DR: Before the oral arguments, the justices do not talk about the cases other than when they granted the writ of certiorari?
CJR: Certainly not in any formal way—not at conference and not walking down the halls. People come to the arguments on their own.
DR: When an argument is being made in front of the Supreme Court, the justices ask questions. Are they asking questions because they want the answers or because they want to influence other justices, or do they just want to make a public point?
CJR: We do not ask questions to make public points, but we ask questions for a number of different reasons. Sometimes you just have a question and you want to know the answer. Sometimes you have formulated in your mind a tentative view, and you think, “Well, it does depend on this,” and you will ask that question.
If a justice asks a question and it reveals to me that the justice is focused on something in a particular way, and I see it differently, I might ask a follow-up question so that the lawyer can have an opportunity to make us all comfortable with an answer.
Sometimes it is like Wimbledon. I remember one exchange—I think it was between Justice Scalia and Justice O’Connor. Justice O’Connor says, “I don’t think there’s any jurisdiction here.” And before the lawyer can answer, Justice Scalia jumps in and says, “Well, there’s diversity between the corporations, isn’t there?” And before the lawyer can answer, Justice O’Connor jumps in and says, “Well, but the corporation’s principal place of business is here, isn’t it?” The lawyer is standing there looking back and forth.
Finally it gets to the point where Justice O’Connor asks another question, and the lawyer turns to look at Justice Scalia. He leans over and says, “You’re on your own.”
DR: When a justice asks a question and the lawyer says, “I’ll get to that later,” that’s a bad answer, right?
CJR: Yes. That does not usually work.
DR: Are justices’ opinions really changed by oral argument, or does it really not affect the outcome?
CJR: Oral argument is a very important part of the process. I had been on the arguing side for twenty years, so I would have been very disappointed if that turned out not to be the case.
It is part of a process of winnowing down. You read the first brief, you think, “Well, that sounds right.” You read the other side’s brief: “Well, maybe that’s right.” The oral argument is part of the winnowing down until you get to a decision point.
You may have particular issues you want to talk about. You might have hypotheticals to illuminate them. You learn for the first time what your colleagues think. It is the first time you learn, for example, that Justice Neil Gorsuch might think there is a jurisdictional issue. You hadn’t thought about it, so you react to that. And you might have thought you knew how one justice was going to proceed, but his questioning reveals a totally different perspective, so you look at that.
It is very, very hard for the advocates because they have to juggle all these different data points. But it is exhilarating. I enjoyed being on both sides.
DR: We have a Supreme Court Bar in the United States now. We had one at the beginning of the country’s history. Do you ever feel sorry for the lawyer who has never argued in front of the Supreme Court and just doesn’t know how to do it?
CJR: If they do not know how to do it, yes. But there is a sophisticated Supreme Court Bar. It is very, very good. We are very fortunate that we have lawyers who specialize in that practice, because it is not like arguing in a state court or even a court of appeals. In a half hour there will be a hundred questions and you have to know how to field them.
We all have a romantic image, a sort of Mr. Smith Goes to Washington image of the lawyer with the battered briefcase, and he’s there alone. That happens so
metimes.
I remember one occasion in which a lawyer said, “Well, that’s pretty much all I have. I just want to say this has been the experience of my life.” I do not remember if he won or not. But it takes an enormous amount of work, and for a sole practitioner to devote months to preparing—you just cannot do it.
DR: Can you tell when an experienced Supreme Court practitioner is making an argument only to win the vote of a justice who it’s well known has a certain view? Is that apparent to the other justices?
CJR: Yes. An experienced Supreme Court advocate will not do that. You really do have to have an overarching concept of your case. If you say, “Oh, Justice So-and-So, you did this…,” that will annoy the other justices.
DR: How long after the oral argument do you have a conference about the case?
CJR: Two days. Cases we hear on Monday, we conference Wednesday afternoon. Tuesday and Wednesday cases, we conference on Friday morning.
DR: How long is a conference, typically?
CJR: On Friday morning, we also look at what cert petitions to take. So that takes up the whole morning. Wednesday afternoon, it is just two cases. When there is a big case, it can take several hours. On the other hand, for a straightforward case, it might take a half hour.
Left to right: Attorneys George E. C. Hayes, Thurgood Marshall (the future Justice), and James M. Nabrit on the steps of the Supreme Court following the 1954 decision declaring school segregation unconstitutional.
DR: When you’re in conference, nobody other than the justices is allowed in the room. Is that right?
CJR: Right.
DR: If somebody knocks on the door, who’s supposed to answer that?
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