October 23, 2007
"I don't keep up with constitutional scholarship"
Posted by Gordon Smith

Chief Justice Roberts visited BYU today. His Forum talk will be posted here fairly soon, though I suspect most law students, law professors, and laywers would find that talk rather boring. The President of BYU has labeled this "The Year of the Constitution," so Chief Justice Roberts offered a survey of the Constitution. Which is fine, though I had hoped for more personal insights.

Things improved markedly this afternoon as the Chief Justice spent an hour at the Law School in a Q&A with law students. My sense is that most people went away very impressed. He is comfortable in front of a crowd, and he didn't punt on any questions. The snippet that forms the title to this post was an aside, and I suspect that most people didn't notice the remark. At the time, he was talking about how he decides cases -- including this comforting insight: "If the case involves a statute, I start by reading the statute" -- and I happened to be wondering about the influence of legal scholarship on his views. Just then he said, "I don't keep up with constitutional scholarship."

In response to a student's complaint about the length of the Supreme Court's opinions, the Chief Justice expressed some sympathy, but said that there wasn't much to be done about it. Except, as an afterthought, the possibility of taking more cases. The Court has been second-guessed about reducing its caseload (quite dramatically) over the past decades, and I suspect that he is right about opinions expanding to fill the space alloted.

I was also intrigued by his explanation for how he assigns cases. He said that if one justice could write an opinion that would yield only one dissent while another would write the opinion in a manner that would yield multiple dissents, he would assign the opinion to the "unifying" justice. And if two justices have been at odds in one case, he might assign an opinion to a justice would would bring them together on another case. Nothing shocking in any of this, I suppose, but I hadn't put much thought into these aspects of the matter.

His biggest surprise in being Chief Justice? The diplomatic role of the Court. He noted that judicial officers from other countries often stop at the Court, and the Chief Justice serves as the head diplomatic officer.

Finally, he mentioned the link between judicial pay and judicial independence. Again, nothing new, but this seems to be a problem that will not go away. He worries about the temptation faced by judges -- even judges with life tenure -- to craft their opinions for future gain. His predecessor (William Rehnquist) was active on this issue, too, calling "the need to increase judicial salaries to be the most pressing issue facing the federal judiciary today." Our new Chief Justice seems to agree.

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