'Chief' Explores The Motivations And Impact Of SCOTUS Justice John Roberts

Apr 1, 2019
Originally published on April 3, 2019 11:37 am
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DAVE DAVIES, HOST:

This is FRESH AIR. I'm Dave Davies, in for Terry Gross who's away on a special project today. In February, President Trump predicted that lawsuits challenging his emergency declaration to fund a border wall may succeed in lower courts but that when the matter gets to the U.S. Supreme Court, he will prevail. Our guest, veteran legal affairs correspondent Joan Biskupic, says the president may be misreading the thinking of Chief Justice John Roberts, who voted to uphold Trump's travel ban.

In a new biography of Roberts, Biskupic says his conservative beliefs have had a profound influence on American law but that he's also determined to protect the court's reputation for impartiality. Biskupic's book explores the roots of Roberts' conservatism and its impact on decisions involving voting rights, affirmative action, campaign finance and abortion. She also examines his vote upholding the Affordable Care Act, which enraged conservatives.

Joan Biskupic was a legal affairs editor for Reuters and the Supreme Court correspondent for The Washington Post. A Pulitzer Prize finalist and the author of books on Sandra Day O'Connor, Antonin Scalia and Sonia Sotomayor. She's now a legal analyst at CNN. Her new book is "The Chief: The Life And Turbulent Times Of Chief Justice John Roberts."

Well, Joan Biskupic, welcome to FRESH AIR. Tell us a little bit about John Roberts' background. It was an affluent background, right? His dad was an executive at a steel company. He graduates from this prep school, goes to Harvard and works really hard there. He seems to have always been a really serious and focused young man. What did he sacrifice in return for all those efforts?

JOAN BISKUPIC: His wife, Jane, told me that when he was at Cambridge - studying at Harvard, which he got through as an undergrad in just three years and then did law school in three years - he only went into Boston once or twice, that he was so devoted to his schoolwork. And she told me that he later regretted that he didn't get out and about more.

The other thing I want to mention is that his roommate said that he was rarely, you know, without a bottle of Pepto-Bismol. He tended to be good at fighting his nerves, but he did get a nervous stomach. And one consistent theme that I found throughout is that, as much as he presents himself so well and he seems to be such a fine speaker, he can get really nervous.

And you know, those early episodes that people told me about when he was anxious about how he would do in school translated, then, to when he was an oral advocate. And everyone regarded him as so sterling, but colleagues would say his hands would shake almost uncontrollably before he would step up to the lectern to argue a case. So he became quite skilled at putting himself at ease and delivering in a way that really made his name in Washington.

DAVIES: So he goes to Harvard Law School. He's on the Law Review, does great things and then ends up with a couple of clerkships out of law school, one of them with Supreme Court Justice William Rehnquist. What kind of influence did Rehnquist have on Roberts?

BISKUPIC: At the time that John Roberts worked for William Rehnquist, Rehnquist was an associate justice. And he was at the far-right wing of the court and often alone. In fact, his clerks got him a little doll of the Lone Ranger because he often dissented alone. But William Rehnquist, in those years - in the late '70s and early '80s - was known for sowing seeds of legal reasoning that could then be picked up and turned from dissenting opinions into majority opinions, laying the groundwork for future rulings that would move the court in a more conservative direction.

DAVIES: So in an opinion which may or may not go your way, you assert that such a certain legal principle has been established and recognized and then, four years later, call upon that assertion in another case.

BISKUPIC: That's right. That's right. And just to flash forward to John Roberts' tenure as chief justice, we've seen him do that in the context of voting rights in a 2009 case to a 2013 case.

DAVIES: The early years of his legal career were in the 1970s in which there were a lot of really contentious issues about, you know, affirmative action and school integration through busing, etc. In 1980, Ronald Reagan is elected. He was enthusiastic about Reagan. And he ends up getting a job at the Justice Department. What does he do?

BISKUPIC: Yes. John Roberts had almost perfect timing throughout life. You mentioned that he came of age in the 1970s when, you know, there - you know, era of civil rights tension; liberalism is still dominant in America. But just as John Roberts is finishing his judicial clerkships, Ronald Reagan is elected. And conservatism suddenly is in ascendance. And John Roberts hears Ronald Reagan's inaugural speech in January of 1981. And he says - I felt the call; I wanted to be part of that.

And he goes right from the clerkship with William Rehnquist to the Reagan Justice Department. And there he is, for the first time, with so many like-minded attorneys who want to roll back liberal-era policies. And he writes to one of his mentors, Judge Henry Friendly, who he clerked for on the U.S. Court of Appeals for the 2nd Circuit - and he writes to him and he says, this is an exciting time, when so much that has been taken for granted for so long is being seriously reconsidered.

And John Roberts really found a home among other Reagan lawyers and was more than just an employee in the administration. He took up the call.

DAVIES: One of the issues that he addressed in the job as deputy attorney general were - was issues of the Voting Rights Act and affirmative action. What kinds of positions did he take?

BISKUPIC: John Roberts, almost immediately in coming to the Justice Department in 1981, joined the opposition to a broad interpretation of the Voting Rights Act of 1965. He believed that many of these issues of discrimination should be handled on the local level by the states and that judges shouldn't be as involved and that the federal government shouldn't be involved. And he became a strong lieutenant to then-Attorney General William French Smith to try to narrow the protections of the Voting Rights Act. And so many of the memos he wrote in those days, in 1981 and 1982, have themes that have translated into his rulings now on the Supreme Court.

DAVIES: Can you think of an example of that?

BISKUPIC: Yes. At a time when - Congress was looking at renewal of the Voting Rights Act - some very important provisions. And the Reagan administration was far to the right of where Congress was at the time, and Attorney General William French Smith was the public face of this position. And he was laying out the administration's position on renewal of the Voting Rights Act and how it shouldn't go as far as Congress wanted it to go. And he was trying to pull it in so, as I say, there wouldn't be as much federal enforcement in what Reagan officials felt would be matters better left to the states.

DAVIES: And if I can just interject here - I mean, a lot of this involved provisions in the Voting Rights Act, which required changes in voting procedures in certain states with a history of discrimination - to have them reviewed by federal officials before they were enacted, right?

BISKUPIC: Yes. There were two provisions that were on the table in late 1981 and 1982. But the core one that required renewal was what was known as Section 5. And that's the part of the Voting Rights Act that covers states and other jurisdictions with a history of discrimination. And those cities, states, municipalities were required to obtain Justice Department approval before changing any kind of electoral practices. That was to ensure that anything that they put in place - maybe a change in voting times, a new voting location, new voting district maps - that they wouldn't be discriminatory. So there was that screening preclearance process that was very important to enforcement of the Voting Rights Act and protecting African-Americans and Latinos from discrimination - essentially getting out ahead of it rather than another section of the Voting Rights Act, Section 2, which addresses discrimination after a policy is actually in place.

So John Roberts believes that - at this time, he's, as I say, trying to buck up Attorney General William French Smith. But he also feels that the Reagan administration's position on Voting Rights Act is being mischaracterized in the press. He was watching all the coverage. And he was also furious when anyone broke ranks from the Reagan administration position and would often write to his superiors about that.

DAVIES: A lot of these writings would certainly be illuminating of Robert's views on some key legal issues and might be of issue when he later is appointed to the court or other positions. Was he concerned about whether these issues would be publicly available?

BISKUPIC: He was, and this is part of John Roberts' great skill of looking ahead, always being many steps mentally ahead of either his colleagues or his adversaries. And he seemed to express some trepidation at the - about the possibility that some of his memos might soon be open. The Presidential Records Act of 1978 had been passed after the Watergate scandal, and that allowed disclosures of executive branch material 12 years after a president had left office, which, in Reagan's case, would end up being about 12 years from 1989.

Now, again, he, is just, you know, in his late 20s at the time this is all going on, but he is seeing so far into the future that he starts talking - he starts encouraging officials in the Reagan administration to try to amend that act. And he writes a memo in 1985 that says, just think, any member of the public will only need go to the Reagan Library and see any internal White House deliberative document they want to see, unless we change things. And he refers to the, quote, "pernicious effect" of the statute; that's the Presidential Records Act of 1978.

And he writes - this is - now, again, he's just a young man at this time. He writes, 12 years is a brief lifetime in public life. Many of the personalities who are now candidly discussing sensitive White House materials and certainly many of the authors of the memoranda - perhaps he's even thinking of himself, Dave - you know, will still be active 12 years from now, and how correct he was. John Roberts likely anticipated, without knowing exactly how it would happen, that his once confidential writings could one day be revealed and potentially used against him, as they sort of were in 2005.

DAVIES: Right, a man who knows he is going places. So did all this material eventually become public when he was nominated to the Supreme Court in 2005?

BISKUPIC: Yes, in 2005, once he's nominated to, first, succeed Sandra Day O'Connor, but then, of course, to succeed Chief Justice William Rehnquist, who has passed away, all these materials come out. And we see what he is saying about the Voting Rights Act, and we see what he's saying about, you know, reining in the core provisions I referred to earlier that were supposed to, you know, fight the disenfranchisement of African-Americans and Latinos at the ballot box.

And so (laughter) he's faced with these memos, and they all come back to him. And it's especially, you know, Democrat Ted Kennedy of Massachusetts, Democrat Dick Durbin of Illinois and several others on the left are laying them all out to him and saying, why did you write this? Why did you write that?

DAVIES: And he says, hey, I had a client; I was doing what my client wanted?

BISKUPIC: That's exactly what he said.

DAVIES: Joan Biskupic's new biography of Supreme Court Justice John Roberts is called "The Chief." We'll talk more after a short break. This is FRESH AIR.

(SOUNDBITE OF CUONG VU AND PAT METHENY'S "SEEDS OF DOUBT")

DAVIES: This is FRESH AIR, and we're speaking with Joan Biskupic. She's done legal affairs reporting for Reuters and The Washington Post. She's currently a legal analyst for CNN. Her new biography of Supreme Court Chief Justice John Roberts is called "The Chief."

I want to take this discussion of the Voting Rights Act and the federal government's role in ensuring equal access to the ballot and the debate about that and fast forward to when many, you know, decades later, when he is the chief justice of the Supreme Court, and these same issues arose again. And in particular, there was - there were a couple of cases involving Seattle and Louisville, I believe, which really kind of drew this debate into sharp focus and created some really heated divisions within the court. You want to tell us what that was about and what Roberts' position was, as it emerged?

BISKUPIC: So John Roberts gets on the court in 2005, and just a couple years later, a very important case involving school integration efforts comes before the Supreme Court. This is at a time when public school districts were creating programs to try to maintain integration gains of earlier decades or try to restore them after they've slipped away. And the Supreme Court gets two cases - one from Seattle and one from Louisville.

And in both, school districts are trying to set up assignment schemes that allow for more integration of districts, and that's to fight national housing trends, where, you know, people start, you know, locking into segregated areas, and, you know, it turns out that black student population is in a particular area, and the white student population is concentrated in another, and for racial and ethnic diversity, school districts try all sorts of placement programs that would merge the two races.

And two of these programs come before the Supreme Court, from Seattle and Louisville in 2007, and John Roberts takes the lead to strike these down. He thinks that they fly in the face of the guarantee of Brown v. Board of Education, which, of course, had rolled back the separate but equal principle. He doesn't like any kind of government policies that classify people based on race, even if they're trying to remedy segregation, even if they're trying to bring out more diversity.

Obviously, diversity has been seen as a compelling governmental interest in prior Supreme Court rulings. But he finds that these measures in Seattle and Louisville should be struck down, and his position is so far to the right that Anthony Kennedy breaks off and says, you are undermining the principles of Brown v. Board of Education. But John Roberts, in his statement for the Supreme Court, says that he really sees Brown v. Board as forbidding not just the kinds of policies that kept blacks in separate schools, but policies that would bring blacks and whites together in integration efforts.

DAVIES: And sees them as equally harmful, right?

BISKUPIC: Yes. He sees those measures as equally harmful and as both violating the equal protection guarantee of the Constitution.

DAVIES: He seems to have held the position throughout his career, from a young man to the chief justice, that the way to stop discriminating on the basis of race is for the government to stop making any distinctions in policy based on race.

BISKUPIC: Well - and this is the case where he offers a statement that is one of his strongest statements against racial remedies. And it's constantly echoing through his opinions, and it's constantly opposed by liberal justices. And this is when he says, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

DAVIES: You wrote about how he worked as an assistant in the Justice Department of Ronald Reagan and was a strong advocate for conservative views. He also worked in the White House counsel's office for Reagan. He did some private practice and then was a - worked - I guess, a deputy solicitor general in the George H.W. Bush administration. And he, again, pursued a lot of conservative views, which were then reflected later in his judgments on the Supreme Court.

Let's talk about a few. The issue of abortion came up often enough. What were his - how did he act on that issue?

BISKUPIC: Yes. And just to take people back, he was working for Ken Starr at the time. Ken Starr is the solicitor general. And John Roberts comes in, and he's quite young. And he, again, just launches right in.

And he helps the administration in its opposition to abortion rights, both in the core opposition to the right itself but also in terms of protecting the rights of abortion protesters who - at this time, if you remember in the early 1990s, Operation Rescue is blocking all sorts of clinic access. And that was an important issue for him, as was just the core issue of abortion rights. And he signs onto a brief that encourages the overturning of the 1973 landmark Roe v. Wade.

DAVIES: And as Supreme Court justice, he pursued a similar course.

BISKUPIC: Yes. John Roberts has continued to oppose abortion rights, but he has never had to face yet an up or down vote on whether to overturn Roe v. Wade as a justice.

DAVIES: And do his opinions offer a clue as to whether he would welcome such a challenge?

BISKUPIC: You know, Dave, this is what I would say about that. Yes. On one hand, his opinions reflect a continued opposition to abortion rights and the Supreme Court's precedents in this area. But as chief justice now, he is very mindful of the court's stature and the court preserving precedent. So I think there is real tension there that we will see play out in upcoming years when the Court has before it, squarely, a question of whether Roe v. Wade should survive.

DAVIES: Joan Biskupic is a legal analyst for CNN. Her book is "The Chief: The Life And Turbulent Times Of Chief Justice John Roberts." After a break, she'll talk about Roberts' concern for the court's reputation and his controversial decision on the Affordable Care Act. Also, Maureen Corrigan reviews the new novel by Laila Lalami. I'm Dave Davies, and this is FRESH AIR.

(SOUNDBITE OF BILL EVANS TRIO'S "MILESTONES")

DAVIES: This is FRESH AIR. I'm Dave Davies, in for Terry Gross who's away on a special project today. Our guest is CNN legal analyst Joan Biskupic who's written a new biography of U.S. Supreme Court Chief Justice John Roberts. She's previously written books about Sandra Day O'Connor, Antonin Scalia and Sonia Sotomayor. Her new book is "The Chief: The Life And Turbulent Times Of Chief Justice John Roberts."

During his confirmation hearings, he was emphatic about saying that, you know, judges aren't politicians. We don't make partisan decisions; we're umpires calling strikes and balls. You know, it's the right thing to say when you want to get confirmed. To what extent is it a deeply held belief on his part?

BISKUPIC: I think he does believe that to an extent, but I also think it was very much of a slogan. He used it when in his interview with President George W. Bush when he was being interviewed for the job, and the president responded to it very well. And the public responded to it when John Roberts was there. But there is no strike zone in judging. You know, there - all sorts of factors are built into it, and John Roberts knows that. It's not just, you know, an easy set of measures on whether something is constitutional or not. A lot of interpretation is there. A lot - there's a lot of judging in judging.

And we know from his record that he's looking at many things. He's not just looking at the black-letter law. So I think it was a convenient slogan to use at the time, but judging is much different than being an umpire.

DAVIES: Right. And I think there's a related thing that arises in the political context of the day, which is that, you know, this is a time when partisanship was growing and has continued to grow. I wondered, was he concerned that the court not be an agent of partisanship, that it moderate debate rather than, you know, making it more extreme and contentious?

BISKUPIC: Dave, right from the start, that was one of his main messages - that the judiciary is different from the elected branches. In one of his first speeches, he talked about that. When people would ask, what do you want folks to understand most about the Supreme Court? He said, the most important thing for people to understand is that we are not part of the political branches. He wanted to separate the court from the executive branch and the Congress, in effect, put it above the other two to say, we are not going to respond to constituencies. We're going to rule the way the law dictates. And in one early appearance, he said, you know, basically, if people don't like it, there's not much they can do, short of impeachment.

DAVIES: One way to implement that as a justice is to rule narrowly on issues rather than broadly. I mean, don't look for opportunities to make sweeping changes in policy, right?

BISKUPIC: That's right. Kind of a companion view to his idea that judges are different, that they're above the politics of the day is that they're going to move incrementally. And early on, he talked about trying to build consensus among his colleagues so that they could have not just a lot of 5-4 rulings but as many justices as possible to sign on. And he said the way to do that is to rule narrowly and not move the law much.

You might remember during his confirmation hearings he talked about trying to avoid jolts in the law, and he advocated measured steps. Now, in some areas of the law, he has done that. In other areas of the law, he has actually not done that. But those are two of his main messages. You can't label us Republican or Democrat. You can't label as Bush judges or Trump judges. And we are going to try to have more consensus here than divisions.

DAVIES: And yet there is a record, clearly, of the court under Roberts kind of pushing policy in the direction - in conservative directions on voting rights and on money and politics. I mean, the Citizens United decision had a profound effect on the way campaigns are financed in the country.

And you also point out - and I'd forgotten this - but there was this case that came out of West Virginia where a coal company executive had donated $3 million to a committee supporting a state Supreme Court justice which then cast the deciding vote on a $50 million jury verdict affecting that coal company. It certainly seemed like a case of conflict of interest. Roberts said no, it's OK. Where do his views about the influence of private money in politics come from?

BISKUPIC: He has said that he is the strongest First Amendment justice there. He believes that more speech, more money is for the better. Let everyone have his or her say, and you have his or her say through money. And that West Virginia ruling that you referred to - he was in the minority. Anthony Kennedy was the one who wrote the opinion saying that that West Virginia judge should have recused because of a conflict of interest. And John Roberts took the lead for the dissenters. So that was a case that had the intersection of his view that there's no problem with money in politics but also his view that there should be public confidence in judicial integrity. And we shouldn't be second-guessing it, even when the facts are that West Virginia matter certainly undercut it.

DAVIES: Conservatives found a lot to like in John Roberts as chief justice. And then there was the case challenging the Affordable Care Act. And this is a really fascinating chapter of the book. I mean, the justices held three days of oral arguments - right? - which is quite unusual. And it appeared that Roberts was going to join the majority in striking down the act. What happened?

BISKUPIC: OK. So they go into their private conference - no secretaries, no assistants, no law clerks - just the nine. What we find out first is how they vote. We find out in late June of 2012 that he has joined the liberals in this stunning decision to uphold President Barack Obama's signature domestic act. And everyone thinks, how did that happen? But no one realizes at the time that actually what went on behind the scenes is that he had switched his vote. In fact, he switched his vote twice. But he had initially voted to strike it down. And behind the scenes, he started to have second thoughts. And he comes up with an alternative rationale based on Congress's power to tax.

DAVIES: In other words, because the individual mandate was, you know - the penalties for violating the individual health care mandate were collected by the IRS, so you could treat it as a tax. And that was a way for him to uphold it?

BISKUPIC: That's right. So much of the focus early on, Dave, had been on Congress's power to regulate interstate commerce. And in that view, John Roberts remained insistent that Congress had overstepped its power. And as I say, he changed his vote not just on the individual mandate but this other critical provision involving Medicaid.

And the end result was a lot of anger among the conservatives on the court - that they felt betrayed by him - and some puzzlement on the part of the liberal justices about why he would do this. And, you know, I talked to a majority of the justices at the time this happened. And then I talked to a majority of the justices as I was working this out to try to figure out, why did John Roberts do this? And I can't give you a single answer, but I think intertwined with all of this is his concern for the legitimacy of the Supreme Court, perhaps his own legacy.

He knew about the problems with the health care system. He had represented insurance companies. He was aware of how long it had taken Congress to pass this kind of law. And he moved in this direction, I think, with many factors in mind. And it has certainly affected the public's view of John Roberts.

DAVIES: Right. So he thought, it's a big economic issue, a big public health issue. Congress's will ought to have some weight. And he didn't want the court to look like a partisan hammer.

BISKUPIC: That's true. We were in an election year in 2012. This looked like a battle between Republican appointee John Roberts and Democratic President Barack Obama. He didn't want that. He felt that if there was any way that the court could uphold this - and he found a way through Congress's taxing power - it should go that route.

But it does add another dimension to this man who insists that he's deciding cases only based on the law and only calling balls and strikes as an umpire would. But it was not without cost in terms of distrust among his brethren on the right wing. The positive side is that it has given him a reputation in the public mind of being more moderate. And I know that people still approach him and thank him for doing that because we know how important health care is to Americans.

DAVIES: Joan Biskupic's new biography of Supreme Court Chief Justice John Roberts is called "The Chief." We'll talk more after a short break. This is FRESH AIR.

(SOUNDBITE OF STEFANO BOLLANI, ET AL.'S "ALOBAR E KUDRA")

DAVIES: This is FRESH AIR, and we're speaking with Joan Biskupic. She's done legal affairs reporting for Reuters and The Washington Post. She's currently a legal analyst for CNN. Her new biography of Supreme Court Chief Justice John Roberts is called "The Chief: The Life And Turbulent Times Of Chief Justice John Roberts."

It's a different Court now. You know, most - for most of his tenure as chief justice, Justice Anthony Kennedy was there, who was sort of a swing vote between the conservatives and the liberals. He has now been replaced by Brett Kavanaugh, so it's a more conservative court. And it was interesting to hear President Trump say about his controversial, you know, emergency funding for the border wall that he expected, you know, there would be a lawsuit and he would lose in the trial court but sooner or later it would get to the Supreme Court. And he was essentially saying, you know, like, that's my home court. It's, you know, game, set, match there; they're going to - I'm going to win there. Is he right?

BISKUPIC: No. And in fact, the more he says that, I think it's more - the more Donald Trump talks about how the court is on his side, the more he's going to drive John Roberts to the left because the last thing John Roberts wants to do is to appear that he's reinforcing Donald Trump's notion that judges will automatically rule in the favor of the president who appointed them. We saw John Roberts come out with his rebuke of Donald Trump last November when he said, you know, we do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have are dedicated judges trying to do their best irrespective of who appointed them.

John Roberts has new control without Anthony Kennedy. He had to negotiate with Anthony Kennedy, had to appease Anthony Kennedy. He spent a lot of time trying to twist his arm on cases because Anthony Kennedy held this key vote. But with (laughter) - with his new control comes a new dilemma. How he votes is going to determine how outsiders - the public, the other branches - see this Supreme Court. So that's a new burden on him. And for a man who from day one wanted to say, we are not political, now in the mix is probably an effort to counter the stereotyping that Donald Trump has done with the federal judiciary.

DAVIES: You have some fascinating stories in the book about Justice Roberts' disputes with Justice Sotomayor and particularly her willingness to talk about her roots as a Latina growing up in the Bronx and how it gave her an understanding of the effects of ethnic and racial discrimination. And you know, one of the things that occurred to me as I read your book is how diversity matters and background matters.

I mean, John Roberts grew up in a - you know, in an affluent background. And it seems that he excelled because he worked hard, and he was mostly in an atmosphere with other white students. But he did better than they did because of his own hard work and dedication and perseverance. So I think his own experience tells him, I didn't get any breaks; I earned what I have. This business about, you know, discrimination - there's a sense which I wonder if it just doesn't correspond to his experience intuitively whereas Justice Sotomayor says, yeah, I mean, I feel this. And I'm just wondering - I don't know - if you reflected on that and whether it argues for more diversity in the judiciary.

BISKUPIC: You know, I think you just nailed something there, Dave. I don't know if you recall from the book where I write about a 2013 speech that John Roberts has given back at his prep school, La Lumiere.

DAVIES: Right.

BISKUPIC: And he talks about the importance of persistence. And he says, the single most important key to success is persistence. You just have to have the drive to press on. It's more important than money, than looks, than talent, than skill. Persistence will get you where you want to go. And I thought, first of all, he had all those other things. And he certainly was persistent.

But as you draw the contrast with Sonia Sotomayor, she'd probably say, well, I don't think a lot of people I knew in the Bronx could solve all their problems merely based on persistence. So I do think you have two different attitudes about what it takes and what the benefits and disadvantages are as somebody is trying to succeed. Their differences generate lots of tension at the court.

DAVIES: You know, there's an interesting journalistic question for me here as I read the book. I mean, there's all - an awful lot of public material that you drew on. But you sat down with Justice Roberts, like, several times - what? - six or seven times.

BISKUPIC: Eight times in the end.

DAVIES: OK, OK, and a lot of it, I gather, was off the record. You wanted the benefit of his thinking on any basis. But I'm just kind of wondering how you worked that out, how you let it seep into your insights without betraying the terms of a conversation that's off the record.

BISKUPIC: Yes. He let me visit him in chambers a total of eight times over many hours. It turned out to be, you know, about 20 hours. And they were tough conversations because he was so incredibly guarded. There were a lot of negotiations over what I could use, what I couldn't use that sort of reinforced my idea of him as certainly very controlling.

But I wanted to - I went in there with two goals - two overriding goals. One is I wanted to find out more about his life. I mostly wanted to find out about his - you know, his childhood, the influences on his life, his mother and his father, just what he thought of things. But then I also wanted to run by him what I had gotten from the other justices in my conversations with them, and I wanted to let him know some of my conclusions and where I was going so that I could get him to respond. And I wanted to, you know, test his views, you know, on race, which is a big part of this book. I wanted to test his views on, you know, what had happened in the Obamacare dispute, which is part of this book.

So I was seeking information, but I was also trying to understand him better. So even though the bulk of the conversations were off the record, they still helped me understand him and tried to get into his head as much as I could with someone who was so guarded. But as a journalist, I don't prefer obviously off-the-record or on-background conversations because I can't take the information out into the public sphere and test it. I often think that it's almost a license to get a subject to, you know, sort of steer me in a wrong direction.

DAVIES: You're asking for spin (laughter).

BISKUPIC: Yes, exactly. So what I would do - you know, I was constantly trying to assess the information I was gathering in these sessions, you know, trying to test out theories with other justices and with the record and with former clerks. So it was - let me just put it this way. When I was with Antonin Scalia for that biography, I had 12 on-the-record interviews, and everything was very straightforward. He owned everything he said. You know, what you see was what you got.

With Chief Justice John Roberts, he was a much tougher subject start to finish, but I wanted to get in and see him on whatever terms he would let me in. And in the end, Dave, he said to me - he ended up cooperating far more than he had anticipated, but there was still so much that I couldn't use. You know, I certainly couldn't use things as quotations, and I couldn't use some information from childhood that I wanted and some of his responses on these cases. But spending time with him one-on-one over so many hours was instructive.

DAVIES: I can't resist asking you what you told him that other justices said about him that surprised him.

BISKUPIC: Oh, well, I had to be so careful. I had to (laughter) - because of course you (laughter) - I would write at the top of my notepad, Dave, remember; you're there to get information, not to reveal information because he is such a skilled lawyer, obviously, that I knew he was trying to draw out from me, you know, who I had spoken to, what I had gotten from individual justices - that I - you know, I wasn't going to reveal who the source was of different things. So there was a real dance going on there (laughter) between us.

DAVIES: Joan Biskupic, thanks so much for speaking with us.

BISKUPIC: Thank you.

DAVIES: Joan Biskupic is a legal analyst for CNN. Her new book is "The Chief: The Life And Turbulent Times Of Chief Justice John Roberts." Coming up, Maureen Corrigan reviews the new novel by Laila Lalami. This is FRESH AIR.

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