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tv   Discussion with Chief Justice John Roberts  CSPAN  February 15, 2016 8:00pm-8:53pm EST

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these obstacles are being in his way to hold them back. that is the real problem we have. urging carlos on and helping him in making sure he has the good education and gets a great job in tribute to our economy. if he succeeds in macro for benefit from the results. useead, we kind of mean-spiritedness and spiteful mess. racial or ethnic prejudice against people like .im to we should be working to try to help carlos. there are millions of them that are out there that need the kind of support we can provide and and securee enhance
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the future of our country if hinchcliffe people like carl is our successful. host: tomorrow morning, three journalists from political discuss their approach to washington. guests include political cofounder and chief john harris. roberts, the political national effort, old the sky's the big themes of campaign 2016, including the race between hillary clinton and bernie sanders. alex eisenstadt will answer gopstions about how the plans to win south carolina. join the discussion.
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>> coming up tonight on c-span, conversation with supreme court justice john roberts about the inner workings of the high court. then, republican presidential candidate donald trump holds a news, in south carolina. after that, former president george w. bush campaigns with his brother, republican presidential candidate jeb bush in north houston, south carolina. supreme court justice antonin scaliaa -- antonin passed away this week. supreme court chief justice john roberts sat down at new england law school in boston, talking about the inner workings of the supreme court. .his is 45 minutes
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good, good. welcome, ladies and gentlemen . chief justice honoredoberts is tonight.
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i know that our students and faculty have been thrilled to meet with chief justice ro berts for to of us are looking this chance to hear his views on a variety of issues before we begin the conversation, and on behalf of our entire community, i thank you, mr. chief justice, for being so generous with your time visiting us. [applause] >> i have read some surveys that have caught my attention. one from the annenberg center at the university of pennsylvania, shortly after you were confirmed. it pointed out that 15% of those polled could identify you as
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chief justice. [laughter] >> 66% could identify at least one judge from american idol. [laughter] more recently, a survey by the american council of trustees of for your educated college americans found a significant identified judge judy as a member of the supreme court. 10% [laughter] >> so, how is she doing? [laughter] >> seriously, what do you make of this lack of knowledge of the court? does it concern you? chief justice roberts: it frankly doesn't bother me very much that people cannot identify
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the particular members of the court are. we were black robes, because we should be anonymous and articulate what the law is and not occupy any role in which our personality is pertinent. what concerns a lot of members of the court is that people don't have a very good understanding of what the court does could in particular, -- does. in particular, they don't have an understanding of how we are different from the political branches of government. we issue an decision, it is usually discussed as, "you are in favor factis or that," when in whoever does get inside this or that, it is about whether it is if it isitutional or consistent with law. we often have no policy views on the matter at all.
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that is an important distinction about how we function. it is one that people often lose sight of. >> during your confirmation hearing, it seems you are more than candid in discussing your views as to the proper role of the judge. others have described the confirmation process as less than edifying. why is that? i'm notstice roberts: sure that the senate particularly cares what i think. i do think the process is not functioning very well. you look at two of my colleagues, justice scalia and justice ginsburg. think they were confirmed with maybe two or three dissenting votes. now, you look at more recent
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colleagues, all extremely well-qualified for the court, and the votes were strictly on three.ines for the last that does not make any sense. that's just to me that the process is being used for something other than ensuring qualifications. it is a process now where the members of the committee frequently asked questions they know would be inappropriate for us to answer. thankfully, we don't answer those questions. this is a forum where, i think they have a different agenda. when they participate in the hearings, it is not something that is easy for us to change. it doesn't seem to me to be very
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productive these days, and there is a problem with the way it comes out. the sort of relates to my first answer, when you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. it is natural for some member of the public to think, "oh you must be added five in a inticular way -- identified a particular way as a result of this process." it is a very unfortunate perception that the public might get from the confirmation process. >> whether it is confirmation or occasionally campaigning, sometimes the process seems more like speechmaking, and sometimes nominees andthe the process itself.
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as the leader of the court, does that trouble you? criticismice roberts: of the court doesn't bother me. at least in terms of the merits of the decisions, people may object to have the court is being run or something like that. that is something else. i certainly have no trouble with people doing that. it is often based on a misunderstanding or calculated perception about what we are up to. this remains the decision of the political branches, and the fact lead to criticism of
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us is often a mistake. we do have to be above or part from criticism, because, we of course, make unpopular decisions. very unpopular decisions. like the westboro baptist case, which involved a group speechgaged in very vile at military funerals. the sort of thing that i think most people would agree was just awful. by ayou know, the court comfortable margin, maybe 8-1, said that type of activity on a , was protected by the first amendment. that is something that the court can expect to be criticized about, a lot.
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that is the reason we have life tenure, so that we are not susceptible to being swayed by that sort of criticism. the criticism does not bother me, because the framers established a court in a way -- could not be care about the criticism. with aes it is faced misperception of what our job is as opposed to the job of the political branches. >> just a little bit following up on that misperception. scalia told amusing story here about the time when that flagburning was protected speech. as much as it horrified him with they, he agreed
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vast majority of the court, that this was in fact protected. for the life of him, it was important he did not -- he could not stand the thought of flagburning. he hopes that no one else would be thinking along those lines. reason it is amusing, is because he said that after he tortured himself with this, his wife came down to breakfast, or "it's a grand old flag." [laughter] >> does it concern you, the supplying the constitution to a set of facts, not understanding that this is sometimes not your own views. ofef justice roberts: course, i have issued a lot of
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opinions where if i were in the legislature, i would not have voted for the program that was under review. necessarily agree with the substance of every piece of legislation, simply because i'm determined that it is in the constitution for congress to enact it. i do think everybody, you know, people don't recognize to the members of the court are. problem that many people don't appreciate how our job differs from the job of people in the excessive -- executive or legislative branches could -- branches. >> following your confirmation, how difficult was it for you to pick up the reins of leadership in relationship to those other independent people?
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chief justice roberts: i did learn that you should not talk too hard on the reins of leadership, or you will find out connected tot anything. [laughter] i hadjustice roberts: already been arguing in front of the court for 25 years and looking up to them. they have been together as a group for 11 years without any change. i was coming as the youngest member of the court for the least amount of judicial experience. naturally, i was not sure how it was going to work out. doon't think it had much to with me personally, but rather, and understanding that somebody has to fill this role, whether it is moderating the discussion or anything else.
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they were very supportive from the beginning. i am pretty sure none of them -- chief justice roberts: i am pretty sure none of them regarding as their boss. [laughter] isef justice roberts: it kind of hard, you know, you can't fire them. or doc their pay. any notion of leadership has to and donele more subtle through persuasion. the other members of the court are leaders as well. justice scalia has been there for such a long time. he is a leader by virtue of his experience. thats carry out a lot of role as well.
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any leadership that i'm able to only the otherh members of the court. >> again with the strong-willed independent people, many people getting consensus was the impossible dream. talk about the value of consensus and whether that remains one of your goals? chief justice roberts: i think the lawyers appreciate that if you have a decision that is 9-0 or 8-1, it carries more weight and force than a decision that is 5-4. or worse. plurality -- a
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plurality. a , whyou can't get an answer are we supposed to have such great confidence that you have it right?" lawyers and practicing attorneys and judges, it is hard for them, sometimes, to figure out what the court is up to. worth talking about some issues more than others to get people to see everybody's point of view. maybe that causes people to come around. --is not something you can this is not something you can compromise. if justice a think something violates the amendment and justice be doesn't, you can't meet halfway. either it does or it doesn't.
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i'm not suggesting that judges their compromise conclusion about the law requires, after consideration. leadnk consideration might to a broader agreement, and how you shake the decision -- shape a decision might have the same effect. if you can decide a case on a statutory ground or a constitutional ground, it always makes sense to decide on the basis of the statute. when you decide the issue more probably, some people might say, "oh, i am not going to go that far."
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>> certainly it seems to me that consensus lot more that some in the media might have you believe. certainlycisions are here and there. in focusing on just those 5-4 isisions, do you think there a misperception as to just how much consensus there really is on the court? i do,justice roberts: more decisions are 9-0 than anything else. we need to agree entirely more often. so in the 8-1 and 7-2, and there is a big chunk where we agree across the board. you need to recognize that we are not always going to agree on all the issues that are before
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us. .nd yes is the hot button issues that some people can to focus on. >> i am just wondering, whether au see yourself as having leadership style. do you see yourself having a so,ain style of -- and if does this differ in your view from some of your predecessors? chief justice roberts: i did some reading about charles evans hughes, and some of the reading
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i've seen says, "he looks like i spoke like god." i'm pretty sure no one's ever said that about me. [laughter] chief justice roberts: i'm quite sure none of my colleagues of ever said that. chief justice rehnquist, first of all, he was beloved by members of the court. they all admired him. for his leadership ability. says he is theg best spots she ever had. -- boss she ever had. she has said that a little frequently. [laughter] chief justice roberts: several times lately. he generally led with a pretty .oft touch ,n many ways, it is unwritten what is appropriate for a chief on his own and
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what needs to be submitted to the conference as a whole. for a vote. you know, you try to be careful in that respect. you have to appreciate, as i mentioned earlier, you are not the boss in the usual sense. chief justice rehnquist had a good sense of when he should assert his authority, as chief. and when he shouldn't. that is something you try to be careful about. one thing that i think the faculty is talking about is something that we all learned at lunch when you have lunch with the faculty today. your role at the smithsonian. chief justice roberts: it might come as a surprise to many people, but the chief justice, by virtue of his office, is also , "chancellor of the smithsonian." that's an even better title than
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chief justice. [laughter] there areice roberts: some historical reasons why that is so. we have ae reason is and the federal appropriations, and they serve, for a limited time, and they wanted somebody there who had continuity and could tell the .ew regents we're certainly not having any the smithsonian is the largest complex in the and that they are turning it over to me as kind of a surprise. [laughter] chief justice roberts: i do preside at the meetings, but i try to stay out of the purely
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policy areas and that the people who know what they are talking about discuss it. it takes more work than i had expected, but it is a nice distraction from the legal work. .> about collegiality. -- i wanted to ask you about collegiality. you would think that the members of the court are constantly at one another's throat. yet, we have been fortunate enough to have six justices from , in recent years here, and every single one of them talked about the great respect and affection they have had for .ne another
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is that one that you try and foster yourself? chief justice roberts: it is something that i was very happy -- to discuss. we have to sit down and discuss these important issues, and reach some type of resolution. obviously, on a lot of these cases, they are not all in agreement. as we all like to say, in the conference room where we meet, along table, we have had very serious discussion. we have had pointed disagreements. there has never been a voice raised in anger in that room. partly because of the nature of being a group thrown together to decide these important questions
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, i mean think about it, pick nine random people and throw them in a room and say, ok, you will be working together for the next 25 years on some of the most portland and divisive issues the country faces. almost, he would come that youalization can't shout over each other. this is more of a long-term , and you do come to appreciate the good faith of the people with whom you work. btw if you're going -- to have thisng process coming to decide them this year instead of next year. realrocess of this has a binding effect, especially when you are not opposites sides.
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it is unusual. unlike most jobs or other situations, very rarely do people do the exact same thing. act -- inu're in this , youxact same situation are faculty members working together, your teaching different things, the night of of us have the same job, take the same oath, reducing argument. -- read the same arguments. there is a strong bond develops -- and thatgues develops among colleagues. it doesn't always shine through in some of our opinion. but that is more of a matter of style for some justices. the one thing i will say, it is awfully good thing that we get away from each other in july and august.
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said he could do 12 worth -- 12 months worth of work in 10, but not 12. i think there is a lot of wisdom behind that. all that aside, it is a wonderful collection of individuals. it is a real honor and pleasure to be at work with them. most of the time. [laughter] >> you mentioned opinions on moment ago. opinion, i am very curious as to what is your intention. who are you writing for.
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who are you writing for when you are crafting your opinions? chief justice roberts: i like to think of it as i am writing for my sisters i have three sisters, none of them are lawyers, and yet they whointelligent laypeople keep up with what is going on. i like to think they could pick up one of my opinions and be able to read it and understand what the issue is, understand how it's been resolved, and understand a general view of how. the reason we write our opinions is because we have to justify the antidemocratic position we are in. if you don't like what the president is doing, vote him out of office. if you don't like what your
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congressman is doing, you control him or her out of office. if you don't like what we are doing, it's too bad. [laughter] processuse of that, the has developed that we have to justify ourselves. have to explain to you why we issued this decision. the congress doesn't have to if slain to anybody why they are pursuing a certain course. the president doesn't have to explain the actions he has taken. they are are entitled to do what they do because the people elected them. andre interpreting the law not imposing our own views. and to make sure that is the case, we explain it to you. would like to thank that intelligent laypeople can understand that explanation. if you will like the explanation and don't think it holds together, than they are justified in viewing us is having transgressed the limits on her view. i like for people who are not necessarily lawyers but who do
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follow public affairs and can read the opinions intelligently -- there's no reason to think that's necessarily the right answer, my colleagues have different views about it. you could be riding for the particular it's a area of law that you're comfortable using the legal terms in the background principles, or you could be riding for the academy, we want them to understand at a particular level why we have done what we've done. i like to think, and i'm sure it's not true whenever case, but i like to think somebody who's not a lawyer can pick up an opinion and read it and not necessarily follow all the nuances, but have a good idea about the issue and how it was decided. >> reading your opinions, you seem committed to clarity, but also to keep it interesting for
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the reader. for instance, in a case described by the new york times as an achingly boring dispute between telecom companies, you lightened up your dissent by suggesting a lack of standing, quoting bob dylan, one of my favorites, by pointing out when you've got nothing, you've got nothing to lose. [laughter] what was your objective in quoting bob dylan? roberts: it's consistent with what i said earlier. i think an intelligent layperson create -- appreciates bob dylan, his poetry, if not his music. [applause] all, it was after all a dissent. so you have a little bit more leeway there.
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it may have been achingly dull to the reporter, but it's very important to me. i would not have dissented if i didn't think it was important, and bob dylan captured the whole by saying if you don't have anything, you've got nothing to lose. the party didn't have any stake in the case and had nothing to lose and the case should have been thrown out on that basis. i know bob dylan would have agreed. [laughter] >> but you did clean up his language because the original language, the double negative, when you ain't got nothing, you got nothing to lose. get intooberts: i did a discussion about that with somebody. that is as performed. the liner notes show it does not 't" in it.ain
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so i went with the liner notes. >> are there justices you particularly admire for their writing, anyone in the past that comes to mind for you? roberts: i think many here would have the same answer, robert jackson is probably at least in the modern era the most eloquent craftsman. he reads passages, the sort of things you say i wish i could do that. and most of us cannot. -- seeing how things relate to other things in the world. there's a great passage in a
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first amendment religion clause case. he's making the point and he says what would architecture be like without a good -- without a without -- heusic makes a point about the case that was before him. again it would speak to somebody who doesn't necessarily know about the law would appreciate the point he's making in that case. .e is a very eloquent writer someone like john marshall, his opinions are very accessible. versusnk marbury madison, the old-style print and the pages are faded and it so long, but when you sit down and read it, it's something anybody can understand. period inuntil this
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the late 19th century when judges in particular think the .pinion was not legitimate there are a lot of good writers out there and i think it improves the understanding of their legal judgment when they have that skill. aboutk just a little bit you, chief justice roberts. in high school, you were captain of the football team. [laughter] [applause] there were 24s: boys in my graduating class, so half of them were on the soccer team.
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my original ambition was to be the half pack for the should -- half back for the chicago bears but somebody already had the job. say, we were in fact the smallest high school it played football in the state of indiana. so it wasn't that hard to be the captain. [laughter] >> you are regarded as one of the finest advocates of our time , are you in 39 times in front of the supreme court in the decade before being confirmed for a seat on the d.c. circuit. or advice for new england boston students and alumni about preparing and conducting an oral argument? the one thing i would say is i would be a much better oral advocate and brief
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writer today than i was before i became a judge. do get a very different perspective on the process when you're on the other side of the bench. , and writing is very easy i was talking about this with the students. in the supreme court is about 50 pages. it comes out to about 50 pages. you pick up the first brief and its 50 pages. you pick up the respondent's brief and its 50 pages. the next one is 50 pages. 50 pages. you pick up line is 35 pages, can you imagine the impact of that? you are the lawyer, you're trying to reach the judges. the first thing you do is turn it over and look at the cover and find out who your new best friend in the bar is. [laughter] realize that she
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probably has a good case. it only takes a 35 pages and she is done, she must have a lot of confidence in the strength of her argument. ,he second thing you realize you read those 35 pages very carefully because you know that she went to the trouble of distilling it in a way that they're obviously cannot be a lot of fluff to it, so you're going to read it more carefully. the time andit all people think because they don't want to work so hard, but it's a very good idea tactically, and think of it. if you really can't explain why , doshould win and 35 pages you really think you need the additional 15 pages, and if you it does hurt you to
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have them. it's hard for loggers. i spent many years having way, don'td by the check my briefs and see how many pages they were. this is something i learned, not necessarily something i did. [laughter] ,t's hard to explain to client this is what going to file in court. they're going to say no, i paid for 50 pages. you are shortchanging me. but you have to have the professionalism and confidence to say you heard me to handle this for you. i think we have a better chance if it is 35 pages instead of the. and on the oral advocacy part, it's the same sort of ink. everybody tells you don't avoid the questions judges wanted to ask, but you really have to take that seriously. if the judge is asking one of the loggers a question, it's probably not a comfortable question, it's something they want to point out a flaw in your
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argument and get you to explain it, but welcome the question. john w davis said that in a famous case. do it directly. case,ebody says in this didn't the person at the end raise the same argument, and that was rejected, right? if it was, say yes. it's an issue say yes, the judge is going to listen to what you have to say about it. as soon as you say no, then it's was very different for of skier reason that has nothing to do with the argument trying to make. now i got to pry out of this longer their position is on this particular case. he or she is not going to give me a straight answer. you develop an immediate hostile relationship, as opposed to
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being in a position where the judge says the judge understands were both engaged in this process, he's going to respond in a particular way that helps his client, but at least he's not fighting the question. when you leave as a lawyer and say this is great, i had a big problem in my case and i did not get a question about it. that means you have not been given an opportunity to tell the court what your answer to the problem is. >> what are some of the thatbutes are qualities president bush saw that led to his nominating you to be our chief justice? i don't know,s: to be honest with you. [laughter] don't know, but i do know that he gave a lot of thought. the interview process with him
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was very uplifting for me. not because of how worked out at , and frankly at the end of the interview, i didn't expect it to work out as it did, but i was impressed with this understanding of the role of the courts and the government and his general view of the responsibility on him. there seems to be a strange and unusual story behind every appointment of the chief justice . for john marshall, for example. he was not john adams's first choice. was.jay jefferson was about to be inaugurated. ellsworth had health issues and john adams needed a new chief justice. is theught was john jay
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perfect person. york,een governor of new which he thought was a better job. wrote back a fascinating letter, the gist of which was, the supreme court is never going to amount to anything. i was well out of it before, and i'm not coming back. john adams's secretary of state brought him that letter and john adams read it. he looked up at john marshall and said, who should i nominate now? i guess i have to nominate you. [laughter] and the rest is history. grandpa's fifth or sixth choice, fifth or-- grant's sixth choice.
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everyone turned out to be involved in some financial impropriety. he literally said to his attorney general at one point, who is that guy in ohio who introduced him at that reunion of the army of the potomac? i liked him. they found out it was a guy named morrison waite and grant said, let's give him a try. in turned outed to be a perfectly fine chief justice. it's interesting, his portrait in the east conference room, it's a picture of him, obviously, and a little picture enclosed is a portrait of grant. so think about that when you are asked to introduce somebody. edward white became chief justice because of a path of assured -- he was appointed as an associate justice and assured
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that he would elevate him when the vacancy came available. hughesenly realize that was 47 years old and if you appointed him to justice, president cap would never be able to become chief justice, which is what he always wanted. his wife wanted him to be president and he wanted to be chief justice. so at the last minute he decided instead,t edward white who was probably as surprised as everyone else. it all worked out. taft became chief justice after white died on schedule. cap left, charles edward hughes became chief justice again. theou never know quite how appointments come about. you seeiggest challenge for your court going forward, chief justice roberts? justice roberts: at least for
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me, i honestly can't speak for the others. i do think the incredibly rapid development of technology that is going on right now is going to be a challenge. any not going to be particular area, but it cuts across many different areas. we had a big case a couple of years ago about smartphones and whether police needed a separate war and if they arrest you and you've got a smart phone, do they need a separate warned to access your phone? not all of us are as familiar with the technological devices are what different things are on them or all the cape abilities -- capabilities. how does that fit the fourth amendment? there were not smartphones back in. it's one of those things where you get a lot of guidance from history. the fourth amendment is there because the founders around this british troopse
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executing general warrants and kicking the door down and rummaging through their desks. if you think about it, right now today, which would you rather protect, if you had a choice? do you want to keep police out of your desk without a warrant, or do you want to keep them out of your smart phone? how many would say the desk? how many would say your smart phone? because it is your desk, right? it has all your documents. it has everything, where you've been, what you've been reading, everything. so it's a new technology but you have to apply old standards. and it's not just that area. how does the first amendment work with respect to speech on the internet? , howeryone is a reporter is the freedom of the press with respect to that?
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it's a challenge now as the technology is developing. what is the role of the tiny little chip that someone has that in fact controls how the entire system functions? for monopoly analysis and things of that sort. that's going to be the challenge across the board in all sorts of different cases. , if someoneonder who's a change -- attained chief justice of the united states would entertain doing something else. william howard taft was also president of the united dates. --ust wondered whether [laughter] justice roberts: what a horrifying thought. [laughter] [applause]
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justice roberts: it's a life term and i intend to fill out the term. >> thank you, chief justice roberts. thank you very much. [applause] >> it's presidents' day, and tonight on c-span, our road to the white house coverage continues in south carolina. presidentialican candidate donald trump holds a news conference and had a hand. after that, george w. bush campaigns with his brother, republican candidate jeb bush, in north charleston. later a discussion on the role of latino voters in the 2016 campaign.
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>> c-span's washington journal, live every day with news and policy issues that impact you. join the conversation with members of congress, reporters, experts and other c-span viewers. coming up tomorrow morning, three journalists from politico discuss their approach to covering washington. i guess include the politico editor-in-chief and cofounder, john harris. he will talk about the creation of politico and its influence. surrounding the race between hillary clinton and bernie sanders. reporter will answer questions on how gop candidates plan to win south carolina and nevada. be sure to watch washington journal beginning live at 7:00 a.m. tomorrow morning. join the discussion. tuesday, the house republicans policy chair of indiana.

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