CJR: Justice Gorsuch now. It is the most junior justice. For some time after Justice Gorsuch joined the court, Justice Kagan would instinctively get up, and we had to remind her to sit down.
DR: I understand that the most junior justice is also in charge of the Cafeteria Committee.
CJR: Right.
DR: And that’s a very prestigious position?
CJR: No, no, it is part of the hazing ritual. There is the loftiness of being nominated to be a member of the Supreme Court and being confirmed, and then you go meet with the Cafeteria Committee. Somebody has to do it.
DR: As the chief, you start the conference discussion. Does everybody get asked their opinion in order of seniority?
CJR: Right. We just go around the table. The rule I apply is that no one speaks twice until everyone has spoken once. That is the tradition. Usually there needs to be a second round, or people will have other points they want to make in reaction to points they did not have a chance to respond to.
DR: After you hear everybody’s arguments, if you’re in the majority, you then assign the opinion to somebody?
CJR: At the end of the two-week session, because I need to know who is available for each case.
DR: And if you’re in the minority, then the most senior justice in the majority assigns the opinion?
CJR: Right.
DR: When the opinions are being written, do people ever change their minds about how they’re going to vote?
CJR: A number of things can change. One, the rationale might change. You might have thought that this was the basis for the decision, but maybe when you see the writing, you think, “That’s not so good. I think it should be this.” And sometimes people change their votes as well.
Sometimes the votes will be in, and one justice will say, “I’m very tentative about this.” You try to take that into account in making assignments.
DR: Can one justice walk down the corridor to another justice’s chambers and say, “I’d like to talk to you about this case,” and try to lobby them?
CJR: I wouldn’t use the word lobby.
DR: Convince?
CJR: It does not happen as often as you might think. There is kind of a general ethos that we are nine people acting collegially. We would like to have the discussions when everybody is there. We do that orally a couple of times, but the rest of it is in writing.
“Nine people acting collegially”: The Justices of the Supreme Court, group portrait, May 20, 1957. Sitting, left to right: Justices Douglas, Black, Warren, Frankfurter, and Burton. Standing, left to right: Justices Brennan, Clark, Harlan, and Whittaker.
So if you have a particular idea that has not been fleshed out, you would write a memo and send it around to everybody. That isn’t to say that every now and then somebody won’t walk down the hall. But it would be to talk over the merits of a particular issue.
DR: So if one member of the court wants to talk about the merits of a case and he wants to persuade someone, and he says, “I could maybe agree with you on this, but maybe you could agree with me on another case”? Do they ever do that?
CJR: They don’t do it with me. I don’t know what they do among themselves.
DR: All right. How does the Supreme Court avoid leaks? Never have I seen an opinion leaked in advance. What’s the secret to that?
CJR: It is a source of considerable pride that we do run a tight ship. I meet with all the law clerks at the beginning of the term and that is one thing I emphasize to them.
The people in the building are an extraordinary workforce. They are dedicated to the institution, and I don’t think they are going be the source of any leaks.
DR: How do you pick law clerks? Each justice has four clerks?
CJR: Four, right.
DR: What do the clerks do?
CJR: Whatever the justice wants them to do. They write memos. In many chambers they do bench memos: “Here’s an outline of what the case is about.” I inherited the practice from both Judge Friendly and Justice Rehnquist not to have those.
But I might request a memo on a particular jurisdictional issue that came up. I like to use my clerks as sounding boards. All of them will work on each case. One takes the lead on any particular case, but the others will help prepare it. I’ll bounce ideas off of them to get some sense of areas where my thoughts might be weak or need some shoring up.
DR: You pick law school students who, I assume, are at the top of their class?
CJR: I talk to some professors that I know and they’ll say, “This is a good person to look at.” And I talk to judges, because clerks usually work on a lower court before coming up to the Supreme Court. They send me good recommendations.
DR: Have you ever picked one and said, “Oops, I made a mistake” afterward?
CJR: Well, some are better than others.
DR: All right. What is the biggest challenge of the federal judiciary? Is it the compensation level of judges? For example, your clerks, when they leave, their first day at a law firm they get paid more than you get paid.
CJR: Right.
DR: As I understand it, the starting salary in law firms is maybe $200,000 or $250,000, and the bonus for having been a Supreme Court clerk is $250,000.
CJR: They tell me it is up to $300,000.
DR: So they’re making maybe $550,000 their first year, and the chief justice is making a lot less. What is the biggest challenge to getting judges compensation?
CJR: I worked hard for several years to try to get a judicial pay increase, and for a lot of reasons it is a tough sell.
One point that I think is worth noting with regard to judicial pay is that lower salaries make things especially difficult for lawyers who are supporting more than their immediate family. Minority lawyers are more likely to be the first member of their family to have a job as a lawyer. It can be very hard for them to take a dramatic pay cut, and they may be exactly the people you want to be taking the bench. That is worth considering.
DR: How hard was it making decisions when you had only eight justices on the court between the death of Justice Scalia in 2016 and the confirmation of Justice Gorsuch in 2017? Was that particularly difficult?
CJR: It was particularly difficult. We did work hard. I am very proud of the fact that we only had four cases that we were unable to break out of a four-four position—that is, we had only four that were affirmed by an equally divided court. There were two cases that we had reargued, but that is a small number given the situation.
We worked hard to see if we could find grounds on which enough of us could agree so that we could move the case along. Maybe not on the question we intended to decide, maybe not on the most momentous issue, but something where enough people could get on board so that the process could continue.
DR: What’s the greatest pleasure of being chief justice of the United States, other than being able to do interviews like this?
CJR: I get to do the kind of work I enjoy, in service of the country that I love, with eight wonderful people. And I can do it for as long as I want. That’s a pretty good combination.
DR: What do you do for relaxation?
CJR: The way it works is you work full-out for ten months and then July and August are lighter. We are still on call. We still get emergencies. But we are away from each other.
Justice Louis Brandeis said he could do the twelve months’ worth of work in ten months, but he could not do it in twelve months. I think there is a lot of wisdom to that. So I travel. I spend time with my wife and kids a little more than during the year.
DR: Do the justices socialize a lot with each other?
CJR: You know, we work very closely together all day for a long time.
DR: That’s enough.
CJR: If you have interrelated interests, you will. Justice Ginsburg and Justice Scalia used to go to the opera. Maybe the other justices are socializing and I am just not invited. I don’t know.
DR: When you are the chief justice of the United States, can you go shopping in Washi
ngton or go to a restaurant without having people bother you or ask for selfies?
CJR: It is actually not that much of a problem. And sometimes as people recognize me, they just say hello. I would say in twelve years there have only been a half dozen cases where it wasn’t pleasant.
I recall that once, a woman came up to me and was just so effusive about how grateful she was for a particular opinion. I just did not have the heart to tell her I was in dissent.
DR: Did your parents live to see you become chief justice?
Ruth Bader Ginsburg during her nomination hearing, 1993.
CJR: Yes.
DR: Wow. Did they say, “We never thought we’d live to see this”? Or did they say, “Well, maybe you could have done a little better”? You’re chief justice of the United States. What do your parents say?
CJR: Well, it was better than when I got a clerkship on the Second Circuit. My grandmother was still alive. She called to congratulate me, and she said, “Don’t feel bad that you didn’t get the First Circuit.”
ACKNOWLEDGMENTS
This book was the product of many people working together, and I want to acknowledge their help.
Two Librarians of Congress, Dr. Jim Billington and Dr. Carla Hayden, deserve enormous thanks from me for serving as the official hosts of the Dialogues. Both Jim and Carla assigned individuals to help recruit the authors whom I thought would work best for the series. Jim assigned the responsibility to his chief of staff, Liz Morrison. Carla asked Marie Arana, the former book editor of the Washington Post and a consultant to the Library, to undertake this task.
Both Liz and Marie did an outstanding job of contacting the authors and working out the schedule of their appearances. (Scheduling can be difficult, for we must always take into account the often changing congressional schedule.)
Many other people at the Library of Congress contributed to the success of the Dialogues and the making of this book. Helena Zinkham, director for Collections and Services and chief of the Prints and Photographs Division, and her staff were extremely helpful in tracking down images and related information, as were Becky Brasington Clark, head of the Library’s publishing office, and her colleague Aimee Hess. Barbara Bair, a historian in the Manuscript Division, and many other curators at the Library did a wonderful job of preparing exhibits of manuscripts, photographs, and other objects from the Library’s collections for each event. The Library’s special events coordinators, most recently Kimberly McCullough, helped arrange the Congressional Dialogues dinners and tracked down interview transcripts. John Haskell, director of the John W. Kluge Center, program manager Travis Hensley, and other Kluge Center staff provided much-appreciated logistical support for the editing process. And Ryan Ramsey, Dr. Hayden’s chief of staff, contributed invaluable coordination and feedback.
This book would not have been possible without the enthusiastic participation of so many distinguished authors. I would like to thank each of them for adjusting their schedules to appear at one of the Dialogues, to meet with the members of Congress at the pre-dinner reception, and to let me interview them in the Great Hall of the Library.
Bob Barnett, my law school friend of nearly forty years, was outstanding in his role representing me and working with Simon & Schuster.
Jonathan Karp, the president and publisher of Simon & Schuster and devoted supporter of history-related books, agreed to publish the book, and was very helpful with his ideas about organizing it and describing the whole Dialogues process.
One of Jonathan’s best decisions was to assign the editorial role to Stuart Roberts, who also has a real interest in and knowledge of history. His editorial suggestions throughout the process were invaluable.
Among his best suggestions was the title. I proposed about two dozen possible titles. He proposed one that I instantly recognized was far better than anything I suggested.
To prepare the interviews for publication, I enlisted the help of Jennifer Howard, an accomplished editor and writer who shares my affection for the Library, for books, and for precise writing. Jennifer was highly recommended to me by Marie Arana, and I want to thank Marie again for that help with this undertaking.
I asked Jennifer to get the interview transcripts, to review them and edit them for accuracy, to get the authors to approve the edited versions of the transcripts, and to review and help edit the summary that I wrote about each author’s background and interview. In all of these tasks, Jennifer did a spectacular job, for which I am very appreciative.
My personal staff was also extremely helpful with the Dialogues series and with this book.
My chief of staff, Mary Pat Decker, helped the Library of Congress to organize the events and helped to make certain that the congressional schedule, the authors’ schedules, and my schedule could come together.
Laura Boring and Amanda Mangum were also indispensable in their work on the Dialogues series and on the preparation of the text of the book.
Robert Haben was quite helpful in preparing materials for me to review about each of the authors and their books. I made it a personal requirement to read every author’s book (or books, when relevant). But Robert provided valuable research about what the authors had said in earlier interviews and what reviewers had already written about the books.
Finally, I would also like to acknowledge the support of so many members of Congress for the Dialogues series. Their attendance at the events, and inviting their spouses, staff, or constituents to attend, has certainly helped the Dialogues become an ongoing, bipartisan, and well-attended event in the unofficial congressional schedule.
Without each of the individuals described here, this book would not have come together. But to the extent that there are errors or omissions, they are undoubtedly my own responsibility.
ABOUT THE CONTRIBUTORS
A. SCOTT BERG is the author of five best-selling biographies. Max Perkins: Editor of Genius (1978) received the National Book Award; in writing Goldwyn: A Biography (1989), Berg was awarded a Guggenheim Fellowship; and his 1998 biography Lindbergh won the Pulitzer Prize. For twenty years, Berg was a friend and confidant of Katharine Hepburn, and his biographical memoir Kate Remembered, published upon her death in 2003, became the number-one New York Times best seller for most of that summer. Wilson (2013), his biography of Woodrow Wilson, received several history prizes. In 2018, he edited the Library of America’s World War I and America: Told by the Americans Who Lived It. He is currently writing a biography of Thurgood Marshall.
TAYLOR BRANCH is an author and speaker known for his historical trilogy America in the King Years. The first book, Parting the Waters: America in the King Years, 1954–63, won the Pulitzer Prize and other awards in 1989. Two successive volumes followed: Pillar of Fire (1998) and At Canaan’s Edge (2006). Branch’s 2009 memoir, The Clinton Tapes: Wrestling History with the President, chronicles a secret project to gather a sitting president’s oral history. His 2011 cover story for the Atlantic, “The Shame of College Sports,” touched off continuing national debate. Branch’s latest book is The King Years: Historic Moments in the Civil Rights Movement (2013). He served as executive producer for the HBO documentary King in the Wilderness (2018). His career website is www.taylorbranch.com.
H. W. BRANDS was born in Oregon, went to college in California, sold cutlery across the American West, and earned graduate degrees in mathematics and history in Oregon and Texas. He taught at Vanderbilt University and Texas A&M University before joining the faculty at the University of Texas at Austin, where he holds the Jack S. Blanton Sr. Chair in History. He writes on American history and politics, with books including Heirs of the Founders, The General vs. the President, The Man Who Saved the Union, Traitor to His Class, Andrew Jackson, The Age of Gold, The First American, and TR. Several of his books have been best sellers; two, Traitor to His Class and The First American, were finalists for the Pulitzer Prize.
ROBERT A. CARO has twice won the Pulitzer Prize, twice won the National Book Award, three times won the National Book
Critics Circle Award, and also won virtually every other major literary honor for his biographies of Robert Moses and Lyndon Johnson, including the Gold Medal in Biography from the American Academy of Arts and Letters and the Francis Parkman Prize, awarded by the Society of American Historians to the book that best “exemplifies the union of the historian and the artist.” In 2010, President Barack Obama awarded Caro the National Humanities Medal. Caro graduated from Princeton, was later a Nieman Fellow at Harvard, and worked for six years as an investigative reporter for Newsday. He lives with his wife, the writer Ina Caro, in New York City, where he is at work on the fifth and final volume of The Years of Lyndon Johnson.
RON CHERNOW’s best-selling books include The House of Morgan, winner of the National Book Award; The Warburgs, which won the George S. Eccles Prize; The Death of the Banker; Titan: The Life of John D. Rockefeller, Sr., nominated for the National Book Critics Circle Award; Washington: A Life, which received the Pulitzer Prize for Biography; Alexander Hamilton, nominated for the National Book Critics Circle Award and adapted into the award-winning Broadway musical Hamilton; and Grant, which was named one of the ten best books of the year by the New York Times. Chernow has served as president of PEN America, has received eight honorary doctoral degrees, and was awarded the 2015 National Humanities Medal. He lives in Brooklyn, New York.
DORIS KEARNS GOODWIN’s interest in leadership began more than half a century ago when she was a professor at Harvard. Her experiences working for Lyndon B. Johnson in the White House and later assisting him on his memoirs led to her best-selling Lyndon Johnson and the American Dream. She followed up with the Pulitzer Prize–winning No Ordinary Time: Franklin and Eleanor Roosevelt: The Home Front in World War II. She earned the Lincoln Prize for the runaway best seller Team of Rivals, the basis for Steven Spielberg’s Academy Award–winning film Lincoln, and the Andrew Carnegie Medal for The Bully Pulpit, the New York Times best-selling chronicle of the friendship between Theodore Roosevelt and William Howard Taft. She lives in Concord, Massachusetts.
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