practice tolerance. not just saying we are tolerant. we have to open our minds. >> the more educated they are about the community, the better they will be able to accept -- not necessarily understand, but at least accept the fact that we are here and there is no way it will ever be erased. >> you can watch every wedding studentcam documentary online at studentcam.org. host: joan biskupic, author of roberts,f," chief john

he spent 20 hours with him seven different times in interviews, but off the record? guest: they were a mixture. he let me put some things on the record to use in the book, but most of it he kept off the record. but it was instructive, brian, to sit facing him as we were facing each other over a long period of time. host: what would you say would be the first thing you learned sitting across from him? guest: it reinforced the control i could feel. we both had things we wanted to know from each other. was aware of how much he was treating this process as what lawyers referred to as the discovery process. he wanted to know who i had talked to, where i was going with this. i wanted to run everything by him. i wanted to let him know the kinds of topics i was taking on. i definitely did not want to let him know exactly who i spoken to, especially if those people

were on background, as we say, not for attribution. but i would write a note to myself at the top of my notebook that said, "remember, you want information from him. you don't want to give him information." brian, sinceare, you read my earlier bios and especially the one on justice antonin scalia, who had given me -record interviews, i used to think as i sat across from the chief that if we had thought bubbles over our head come his was a "i wish she would stop asking me these questions," and mine would say, "i wish he was justice scalia." justice scalia saw me for 12 on the record interviews. with the chief there was a negotiation over what i could use and what i couldn't use. host: when did you take from the biography or autobiography of sandra day o'connor? guest: oh, she was fascinating.

you might remember that the one in 2005 cast her not so much as the first woman of the supreme court, but as a politician on the supreme court. tenure, she5-year was the only one who had been an elected legislator before she came to the bench. i felt like she learned to maneuver among the justices, to coordinate to get those critical votes. that is how i saw her, and that was how i viewed sandra day o'connor. host: she is not well? guest: right. host: do you know anything new about her situation? guest: no, as you're probably aware, the family put out a letter in 2018 which was technology alzheimer's -- where she was acknowledging alzheimer's, but that was going on for a while. host: you did a book on antonin scalia. what is your number one takeaway? guest: he completely owned he

was. he was proud of some of his outrageous statements. he felt he was always right, never in doubt, as they say. i would sit with him for two to three hours as i did with the chief, and i would be exhausted. i would usually be the one to say, "ok, we are done," because he was so interactive and he loved talking about his childhood. that was a real contrast. antonin scalia loved to talk about where he came from, his people. the current chief justice was much more reluctant. brian: what did you take away from your sotomayor biography? joan: that was more of a political history of how she got there. it was a tale of how someone who came from the bronx, the projects, makes it onto the short list for a supreme court position, and beats out the others. how do you go from point a to point b and all the things that could interfere along the way.

in her case, it did not. it was enhanced as she went along. brian: i want to show you videotape of chief justice roberts at cardigan mountain school on june 6, 2017, and get your reaction. [video clip] >> from time to time, in the years to come, i hope you will be treated unfairly so that you will come to know the value of justice. i hope you will suffer betrayal, for that will teach you the importance of loyalty. sorry to say, but i hope that you will be lonely from time to time so that you do not take friends for granted. i wish you bad luck from time to time so you will be conscious of the role of chance in life, and understand that your success is not completely deserved, and that the failure of others is not completely deserved either. [end of video clip] joan: when his son was graduating from ninth grade.

that was a very moving speech by the chief. it went viral. he worked on it with his wife. it struck a lot of themes that i think resonate with parents and viewers. people were impressed by it. brian: how often did you interview jane? joan: jane spoke on the record. for all of those who spoke on the record, i brought two tape recorders. she was very valuable to me twice. twice, extensive interviews in washington, d.c. brian: what did you learn from her that you did not learn from him? joan: a lot more. she is almost the opposite in terms of personality. she has an out there sense of herself. she littered her conversation with things like, that is who i am, that is who we are. justice john roberts does not want to tell you who he is.

i learned a lot about what she thought had gone on in his family when he was young. i would talk to cousins to try to verify things. she told me something really interesting about his time at harvard undergrad. he went to harvard undergrad and law school. he was very insular in his life there. i had known that from talking to people in his life. i had known that he stuck to his studies and did not do many extracurricular things. jane said the whole time he was in cambridge that only maybe once or twice he went to boston. i thought that was revealing of his liking a small world. as you probably noticed, the indiana native that you are, he had gone to a boarding school in northern indiana that was quite prestigious and a very tightknit community. i felt like he continued to re-create the tightknit, loyal world. it was not unlike the school

that he is speaking at for his son in the clip you just showed. brian: page 23 got my attention. i want to read it to you and get your reaction. "an early promotional brochure described long beach, indiana, northern indiana, as america's finest country and home community and playground. offering 20 reasons why better people live in long beach. the brochure referred to the glistening blue waters. the safe sandy beaches and a fashionable golf course. it also touted "that good moral character of the residents" noting that "long beach is a highly restricted home community. all residents are caucasian gentiles." why is that in your book? joan: to give the history of the place he was from and that goes on to say even under modern census records it is still

basically an overwhelmingly white area. i wanted to describe the beauty of this place. it was a vacation area. in fact, to play on your own knowledge of northern indiana, i remember the first time i went out to see his home, i flew into midway, which is you know, in chicago, but the southernmost airport, and i started driving toward his home. i was going through gary, indiana. i was going through all the steel mill areas. i thought wow, this is the first time i felt a little bit for john roberts. this is a tough area to grow up in with all the smells and the industrial sense. but when you get to long beach, it is like an oasis. you want to pull out a picnic. in terms of the visual description from the passage you just read, it is lovely. the brochure they still have the museum that explains long beach to visitors, it talks about the

restrictions. obviously by the time the roberts moved into that area, the supreme court already said that you could not even enforce any restrictions. that was created as a special place. not just for its beauty but for a certain kind of person. brian: how wealthy were his parents? joan: his father was an executive in the steel industry. they were well off enough to send him to a nice private school. and to do well by the children, they were not millionaires of their era, like we have billionaires of our era, but they were very comfortable. you know. he did not want. they lived on the water. their house was back a little bit from the water, but they had a boat and they could vacation nicely. it is not like they traveled to europe, the things you see children doing today in more comfortable lifestyles. brian: one word i saw several times in your book was anger. are we not seeing the anger that

exists behind-the-scenes of the court? is that what you brought out in this book? joan: anger and distrust among the justices. it is a subtle theme. some people picked up on it, some have not. i had to figure out how much i wanted to stress that. because they want to put on a very collegial front. and i understand that. but there is a lot of tension there, not only between the right and the left, but within the right where john roberts is. and as you know, there is a whole chapter on his flipped vote in the affordable care act case of 2012. and that left a lot of distrust. and through the years, there have been other incidents. i think the chief wants to present a certain image. that is what made him reluctant to be a subject to this book.

the image he projects is part of who he is. there are other parts and it is layered. there is anger behind-the-scenes in certain cases. not all the time. and there are tensions. and i believe that watching the court today that those continue. brian: he worked as a clerk for chief justice rehnquist. joan: william rehnquist was an associate justice. he wasn't yet chief. brian: i wanted to read, roberts later said that clerks gave rehnquist a lone ranger doll because he staked out so many conservative positions by himself. what impact did working for rehnquist have on chief justice roberts? joan: i think he learned from the soon-to-be chief, william rehnquist became chief in 1986 and john roberts left his office in 1981 when he worked for ronald reagan.

he worked with a very smart man. william rehnquist was highly intelligent. he also knew how to plant the seeds for future rulings. and john roberts is constantly looking at how one ruling can lead to another, can lead to another, can lead to another. and william rehnquist was excellent in putting in legal theories that he could pick up on later, or maybe would entice a different court asked the court got more conservative which it indeed did. when john roberts took over the helm of the supreme court he had a five-justice majority. as we know now, that five-justice majority has been further cemented on the right wing. brian: when was the last time a democrat was chief justice of the supreme court? joan: gosh, we would have to go back pretty far. as a liberal, we think of earl warren.

he was appointed by president eisenhower who was a republican. brian: and earl warren was a republican in california. joan: yes, he was a governor. and he became so effective as a liberal icon. in that era, in that era, you could say there are no eisenhower judges. there are no truman judges. there are no roosevelt judges. you could say that in terms of trying to deny the politics. i don't think you could say that today. because now, a president basically knows what he is getting. president eisenhower appointed william brennan who was also a liberal. and chief justice earl warren. and those two defied the politics of the president who appointed them. just as in many ways justice john paul stevens did for president gerald ford who appointed him. or more recently, david souter, who george h.w. bush put on.

and that was the older way. a president of one party could end up with an appointee who did not adopt all his ideology or policies. now, you really don't have that. brian: these are the ages of all the justices. there are nine of them. justice ginsburg, 86. justice brier, 80. justice roberts, 64. justice sotomayor, 64. clarence thomas, 70. elena kagan 58. mr. gorsuch is 51. and brett kavanaugh is 54. joan: you got them exactly right. brian: what does that say? joan: it says the younger ones are the conservatives. it says the two in their 80's are the liberals. depending on what happens to any of these nine, and if president trump gets another appointee, the court could move further to the right. so much hangs on who is going to

be -- so much hangs on for the nation and for the supreme court who becomes president in 2020 because of these ages. brian: how many years have you covered the court? joan: full-time, since 1989. when i started at the washington post as a supreme court reporter , it was 1992. brian: your first appearance on this network. 1990. and we are going to show a little bit of it right now. joan: this is my punishment for 1990. coming on. brian: no punishment. joan: all right. [video clip] >> the headline with justice scalia. what is he like in arguments? joan: very animated. very argumentative. very engaging. master of the hypothetical. he will go after a lawyer with real vigor. and very entertaining. and he seems to be one of the

more vocal ones. he will always speak up and ask a question. sometimes certain hypotheticals just to see how the lawyer will respond. [end of video clip] brian: that was 29 years ago. my question to you is -- joan: the hair. brian: you are a lawyer. joan: i am. brian: what has changed in your mind about the court in 29 years? joan: it has become so much more obviously political. our times have become so much more obviously political. it is not just our current president, donald trump, who likes to talk about the judiciary as if he can own his republican appointees and that someone should be criticized for being a democratic appointee. it is not just the fallout from the 2016 election that everyone feels one way or another. there has been a progression. for example, that is 1990, the hair is ok, i thought it would be worse.

i thought it was going to be a lot worse. ok. that is 1990. you know what else happened in 1990? right after that interview was when david souter was nominated. and i referred to him earlier in our conversation as someone who did not fulfill the hopes of conservatives affiliated with george h.w. bush. and that gave rise to that rallying cry, no more souters on the part of conservatives. looking for who would be on the supreme court. now presidents go through this extensive vetting process to make sure their appointees are going to fulfill their vision of what they want in the court. definitely since clarence thomas in 1991, that has happened. you have that. and while the rest of the country has become more transparent -- i am not convinced, despite the protests from the justices themselves,

that they are transparent about the work that they do. they can act in very political ways also. brian: you have this quote. i want to ask you to explain it. justice rehnquist is one of the few members of the court who approaches a docket from a clearly conceived ideological perspective. this is from linda greenhouse at "the new york times," who we know now after she is no longer a reporter, has very strong views. why was she calling justice rehnquist ideological and not referring to this court on both sides as being ideological? right, thatemember quote, she was characterizing william rehnquist in the 1980's and what he had done. and that reinforces what i said about how he came with an agenda. he definitely came with an agenda. and i would say, for better or for worse, samuel alito came with an agenda. i think samuel alito approaches

the law with clear-cut ideas about how to read a statute, how to read the constitution, and he bases it on precedents to be sure. but he, as opposed to retired justice anthony kennedy, has a very consistent outlook that is ideological. and for better or for worse. i am not using the word ideological is necessarily negative. brian: if you were republican and had been either eisenhower, or name your president, and you had william brennan, then you got john paul stevens, then you souter, would you tighten things up if you were a republican and you saw what they did on the court? joan: there are many strains to republicanism. i would say that is what happened. george h.w. bush did that. georges w. bush did that.

and certainly donald trump has done that. here is something else that has changed since the year of eisenhower. it is the role of the federalist society. it is not just the president and his men and women making those choices. they have very strong outside advisors who handle a lot of vetting. brett kavanaugh and neil gorsuch were heavily vetted. more so than john roberts. john roberts was vetted by the federalist society. and samuel alito. and you and i both remember the nomination of harriet miers. remember how that one went? brian: withdrawn. joan: she was one person who had not been vetted by the federalist society. and robert bork, who also was a nominee at one point in his life, he went on the air after she was nominated and said something to the effect of she is a nightmare in every way. he meant it from the point of view, not that she was a woman,

not that she had not had an extensive background in constitutional law, but they could not trust her ideology. there is so much at stake. we know from the polls from 2016 that many people who voted for donald trump did it because scalia's seat was vacant and they put a lot of stock for a republican to name the individual. brian: how much anger was there behind the scenes over the obamacare decision? joan: a lot. brian: can you explain that. joan: at the time, i knew half of the story at the time. i did not know the whole story. i knew how angry justice scalia was. i knew how angry some of the other conservatives were. because chief justice john roberts switched his vote twice and gave mixed signals. and they felt betrayed. and then he felt betrayed because some things were leaking out. the liberals were baffled.

two of the liberal justices switched their votes on the medicaid part. so much of the reporting focused on the individual mandate in the affordable care act that said everybody had to buy insurance to keep the system afloat. but there was another major provision in the law. a really important provision that expanded medicaid. coverage for poor people, so that more people would be covered. and that had been upheld by all the lower courts that had looked at the affordable care act. but when it got to the supreme court, chief justice john roberts voted to uphold it and then voted to strike it down. associate justices stephen breyer and elena kagan switched their votes to go with him on that. brian: explain what happened behind the scenes. joan: you have an unusual three days of oral arguments in late march of 2012. and they meet for the first time in their conference that friday.

and they vote. it is 5-4 to strike down the individual mandate. chief justice roberts was leading the way. and then they also vote on medicaid. they vote to uphold that, which is what lower courts had done. they don't vote at all on congress's taxing power. i mention that because, in the end, the whole decision becomes hinged on congress' taxing power. in 2012 in the first conference together, they don't vote on that at all. it does not seem to matter. and then slowly behind the scenes, chief justice roberts has a change of heart. he does not want to strike down the individual mandate and have the whole thing fall. brian: for those who have not paid close attention to it, when you say individual mandate? joan: that is a requirement where everybody has health insurance either through their employer or buy it on the marketplace exchanges. the idea was, the way you cover

everyone in america is to make sure people who were healthy were part of the system so that you did not have what was known then as this death spiral. people would get coverage or medical help only when they desperately needed it. and the system was not being funded on an ongoing basis. to get the system funded, everybody had to have insurance. i think the timetable at the time was -- the law was passed in 2010. by 2014, everybody had to have some sort of insurance. and there were marketplaces set up to accommodate that. 2012 is when it came to the supreme court. brian: i was reading your book and kept thinking what in an incredible and political institution the court is. why is the court, after the congress voted to extend medicare -- medicaid, why are they going to change the decision of the congress? joan: they changed the decision

of congress on both. brian: why? joan: the challengers said that, on the individual mandate requiring people to purchase insurance, they said that that violated the constitution's commerce clause which regulates interstate commerce and business. and they said congress could regulate activities that were already in place, but they could not regulate a non-activity. that is the failure to buy insurance. that was the argument on that. and on the medicaid one, it was more of a coercion argument there. the federal government funds most of medicaid throughout the states. they already had restrictions on how states spend their medicaid dollars. but congress in the affordable care act added a new one. and the states were saying that spendingcongress'

power because it is coercive. it says if you do not provide medicaid coverage the way you should you lose all medicaid , funding. that is trying to commandeer the states and that violates the constitution. i'm just laying out what the challengers were saying. is that clear? brian: yes. let me show you some video of the conference room. you allude to the fact in your book that only the chief justice, you had seven meetings with him. joan: it was eight meetings. you are reading the earlier version. brian: he only took you through the conference room once. let's show that and then tell us why you think he took you through on that occasion. joan: ok. brian: and how important is that room? joan: it is a great room. this is the room where it happens. this is really the room where it happens. no clerks -- can people hear me still? no clerks or secretaries or assistants of any kind are

allowed in that room while the conference is going on. if any justice has forgotten his or her eyeglasses, you have to call for them and a little knock on the door comes and a junior justice opens the door. i love the look of that room. brian: is that his office at the end? at the other end? it does not matter. looking at this room, do they ever sit around -- have you gotten a clear picture that they argue in that room? joan: yes. yes. some of the justices say, i have never heard a voice raised in anger. but let me tell you, when i talked to scalia, he certainly portrayed to me plenty of angry conversations. anger from his end and anger that he felt he received on a couple of incidents. but anyway, they are judges. they are basically mild-mannered people. the real anger plays out in the writing.

the unwillingness, maybe, to compromise on things. i definitely do not hear of repeated shouting matches of any kind. brian: as a reporter, do you feel any reason that you cannot talk about off the record stuff if somebody has died, like justice scalia? joan: yes. there are so many negotiations that go on with the nine members of the supreme court, it is really not an ideal situation. because to tell you the truth, i am really wary when people want to go off the record or on background because i worry that they are lying without owning something. i have to worry about that a lot. i'm worried about people casting things only from their point of view. if i cannot test it out in the real world, because i cannot attach somebody's name to it, it becomes tricky. i have to take pieces. it is like a puzzle.

and i went back and read through all my on the record interviews with scalia. and interviews i had done when i was doing the justice sotomayor book. it was all during the period in question here. things that did not make a difference for me in those respective books suddenly made a difference from me here. there is wonderful line from justice scalia where he is comparing william rehnquist to john roberts. and john roberts is new at the time. and there was no reason for me to include it in my bio of scalia. it did not matter. but it mattered for this book. and justice scalia is talking about john roberts' personality, the way he works, and some of his concern about what others think. and he says to me, bill

rehnquist had enough years in to toughen his hide before he became chief. and that reminded me of the fact that, william rehnquist had been an associate justice for 14 years. of course, i knew that. but i had not thought about the consequences for how easy it was, using the term easy relatively speaking compared to the current chief, for him to step into the leadership role. when john roberts became chief justice, he had only been a judge himself on the lower court for two years. he was younger than all of them. in fact, he was only 50. and the youngest chief justice in more than 200 years. so many people discounted that and did not pay attention to it because he exuded such competence and such authority. but that did not make things easy across the board in the beginning. so i threw it out. they have all been around.

brian: i'm going to read this quickly on your background so we can get to the questions. georgetown law. university of oklahoma. master's degree. marquette for your bachelor's. you worked at the tulsa tribune. milwaukee journal. the washington post, 1992 to 2000. usa today. visiting professor of university of irvine. reuters 2012-2016. and currently at cnn. why are you in television instead of print? joan: that look you showed in 1990, maybe that launched me. brian: your debut. joan: i work for tv, but i do not consider myself in television. i'm still doing the same thing. through all those jobs, i have always covered the supreme court. it has been exciting to cover the supreme court for all these different news entities and media. and at cnn my role is to offer analysis, and to try to go beyond the daily story, and to

bring in a lot of the context of what we are talking about here. i love it. it is fun. i wanted to be like you. is that it? brian: the oldest of nine children? joan: yeah. brian: are they all still alive? joan: they are. thank you for asking. brian: are any of them lawyers? joan: two others are lawyers. two younger brothers. brian: this on page 95, back to chief justice roberts. involvement in the whitewater and monica lewinsky investigation in the clinton presidency in the 1990's would change his reputation? joan: wasn't that amazing? he was known so differently for those of us who had covered him. ken starr, just so your viewers know, he plays a major role in john roberts' life. person who hires him when he first goes to work for ronald reagan in 1981. ken starr is the one who hired john roberts on a recommendation from william rehnquist.

and then, ken starr is solicitor general when roberts is a deputy solicitor general. they had lots of interaction throughout. ken starr, he was on the u.s. court of appeals for the d.c. circuit the same way john roberts was. he had a reputation for being a conservative, a moderate conservative. and then as solicitor general, he did not have a far right reputation. he had urged the overturning of roe v. wade. he followed through with a conservative republican agenda. but he did not have a firebrand reputation. and he easily could have been positioned for the supreme court. his arguments on roe v. wade did not help him.

inner- department rivalries also hurt him. when you see the monica linsky , andnica lewinsky thing how that unfolded in the late 1990's, it is different than the ken starr we had in the late 1990's. wouldn't you think? brian: let's go back to john roberts. this is from an interview, and you quoted, february 3, 2016, react to this when you see it. joan: ok. [video clip] >> do you remember your first oral argument? >> absolutely. a case called united states against halpert. i was very nervous. but i was very nervous when i did my last oral argument as well. i think if you are a lawyer appearing before the supreme court and you are not nervous, you don't understand what is going on. [end of video clip] brian: you used the word nervous a lot in the book. joan: it is fascinating how well he was able to control his nerves. he used to get physically sick

when he had to appear in public and give speeches. i was shocked when i started learning what colleagues said about how his hands would shake before he would get up to do a lecture. anyone who has seen him, when you just showed the speech from his son's prep school and when susan interviewed him there, he is the picture of calm. he has such a measured tone. he exudes such authority and reasonableness. and it is there, but he had to work very hard at that. that oral argument, just to tie into when you were talking about how long i have been covering it, i have been covering it full-time when he made that first oral argument in 1989. i went back to listen to the transcript. and even though there were times he had to answer i don't know, is wasted not betray him. his voice never betrays him.

that is something he has worked on. brian: 24 times he was before the court representing somebody else. how long was he in the solicitor's office? joan: he was in the solicitor general's office from late 1989, let me make sure i have my time right. yes. he argues his first case in january of 1989. that is the one he was asked about in the c-span interview. becomes, ken starr solicitor general under george h w bush in 1989. he comes on late 1989 as his deputy. brian: mr. chief justice and it pleases the court. you say he wrote that down. joan: the opening phrase that lawyers have to give is, mr. chief justice and may it please the court. just like i would write at the top of my legal pad, remember

you are there for information. not to give information. he would write at the top of his legal pad this statement in case he froze. he never froze, but his preparation was so extensive and so paid on. he said that when he had trouble pronouncing someone's name, which many of us do, you don't, but the rest of us do, he would figure out a way to refer to the individual maybe by his or her occupation rather than say the name and stumble over it. he was always refining things. one method that he had that is slightly different from the way other oral advocates prepare is, he would have these sets of note cards he would mix up and figure out his transitions. say a justice asked him about a due process question in the argument about excessive fines. get back to want to

his message so he would figure out how to pivot off of the due process question into another constitutional rationale. no matter what was asked, he wanted to be able to always give back to his main point, no matter what order. he was always working on sequences, but prepared for everything. brian: did you let him read the galleys? joan: no. i did not. brian: explain what it is. joan: it is an uncorrected version. especially if you are working on a book in the middle of a supreme court nomination. the brett kavanaugh one. i was under a tough deadline in the middle of anthony kennedy's retirement and brett kavanaugh's nomination. both of which went so smoothly. brian: when did you finish the book? joan: i had to submit the original manuscript in april of 2018.

that was before anthony kennedy retired. this is the lead time for books. i was constantly updating. thing i got in was when chief justice roberts said there are no obama judges, there are no trump judges. i was able to get that in. but at one point, my editor said to me this is not a newspaper. , you cannot keep putting things in, this is a book, you have to cut it off. it was hard to cut it off. brian: do you believe that? that chief justice roberts comment about no obama judges, no whatever judges? joan: there is a version of that that is true and a version that is not true. the version that is true is the one that counters the notion that president trump has often put forth, that there is an automatic vote with the president. i believe that most judges are not there to promise a vote in an automatic way to president obama, president trump, whoever

nominated the individual. i have to say there is no way a president does not want his nominees to reflect what he stands for, as opposed to what his predecessor stood for. brian: personal thing with chief justice roberts. you say he has has had two attacks. one of them in maine, like an epileptic fit. i am not sure he would call it a fit. joan: i think seizure is the word. brian: what is an update on his condition? what was the first one? joan: the first one was in 1993 when he was on a golf course playing golf. that is the first one that they know had happened. brian: any impact on him? joan: not that i have been able to discern.

people close to him say there have been no subsequent incidents since 2007. that was the one where he was in maine and fell on the pier. that is the one your viewers will remember. brian: here is 1993 video of chief justice roberts testifying before the congress. let's watch. [video clip] >> habeas corpus is perhaps the leading area of what began as the protection of civil rights that has been stretched so far that it simply. law enforcement -- it simply impedes law enforcement without serving a valid purpose. this problem is not new. justice jackson recognize that the list habeas corpus petitions that were flooding the courts acted to overwhelm the occasional meritorious one, which became like the proverbial needle in the haystack. judge friendly years ago decried the fact that conviction and sentencing in our system was not the end of a case, not even the beginning of the end, but simply the end of the beginning. paraphrasing winston churchill. [end of video clip] brian: he was deputy solicitor

at that time. what are you seeing? joan: he was a former in 1993. he just left the position. he is someone who is very interested in tougher restrictions on crime. brian: august 23, 1993. joan: he would be out because clinton would be in by then. brian: what did you see in him? joan: a very strong commitment to stricter enforcement of criminal laws. in that appearance, he talks about stricter enforcement of miranda as well as habeas corpus. ad it is a little bit of "take no prisoners" approach so to speak. brian: given his background and how he got to be chief justice,

and worked for republicans all his life, and was a conservative and all of that, if you were on the court and on that side, would you be irritated with him and what he did on the obamacare decision? what did you think of that? joan: what did i think of it? brian: yeah. what did you think of him coming up with this tax idea? joan: i will tell you how i approach it. i approach it as a journalist. i think about his motivations and what was he trying to do and what were the consequences? what does it tell me about what he will be like now, going forward, when there is so much tension between both sides and so many eyes are on the supreme court as they were in 2012? i think that is part of it. part of what happened in 2012, on what theriding supreme court was going to do. he clearly would not pull the trigger to strike down something congress passed and a democratic

president had signed into law. i think he had many motivations there. and i think they crystallized only as he had to face it. because, clearly, when he first voted on this at the end of the oral argument week, he was ready to strike it down. he was not ready to strike down the whole thing, maybe part, but it emerged that he would not get the backing from other justices to do things he wanted to approach it, so that is when he went to the taxing power. i should say, not to defend or reject anybody in the scenario, but the obama administration had argued vigorously for congress ' taxing power in this. justice scalia said that was not part of it. he characterized it as a flyby. -- he characterized it as a

fly-by-night argument. but that was part of the obama administration's argument why the affordable care act should be upheld. the justices themselves never even voted on it in conference. but that is what chief justice roberts clung to in the end. brian: page 276. i want to read it. the justices were accustomed to k differences among them, but sotomayor's writing was so personal that it put some of them on the defensive. joan: i was able to find out a lot about what was going on between chief justice john roberts and justice sotomayor behind-the-scenes for the sotomayor book. i replay much of it here. there is a justice who really is the opposite in so many ways. her background is foreground. his background he wants to keep back there. she is so proud of her latina heritage. and she wants to speak out. and the section you are reading

from is a 2014 dissent that she writes in an affirmative action case where she talks about the need for affirmative action programs still in higher education. she refers to the and -- slights and putdowns that people of color still feel. she writes this very passionate dissent. he is so put off by it that not only does he sign the majority opinion by anthony kennedy ruling against this affirmative action policy in michigan, but he writes separately, a separate concurrence to admonish justice sotomayor for, in essence, airing the dirty laundry that went on behind the scenes. and he strikes back at her for suggesting that maybe he does not get it, so to speak.

brian: it seems to be central to your book, this whole subject. justices have always written books. have justices always spoken out, have they always given interviews, and have they always done what ruth bader ginsburg did, take a very strong anti-trump position during the campaign? joan: no. brian: why are they doing it now? joan: i would say there is a variety of reasons. i can tell you right now that those who write books want attention for their books and their views. justice sotomayor is still promoting her book. during 2013 when her book came out, she gave lots of interviews. she spoke a lot. i am sure she was on your air a lot. that was part of her message of her identity and where she came from. and she wanted to communicate that. that is one thing.

justice stephen breyer also spoke out a lot when he was promoting his book. his books are more not about him as an individual as somebody who made it, as with the story with justice sotomayor, it is about his approach to the constitution. his book is a counter to the idea of originalism that justice scalia so embodied. it is part of them trying to get their message out. and then, you take justice ginsburg who i think was calling it as she saw it. but then you remember on the donald trump thing, she did walk it back. brian: did it matter at that time? joan: i don't know. i was the one who was interviewing her when she said she thinks he is a faker. brian: what was your reaction when she said that? joan: it is funny. i went in there after two other reporters talked to her and she

said she would move to new zealand if donald trump was elected. this was in the summer of 2016. and she made a little bit light of it. was already getting criticism in the media. i went in to talk to her about john roberts. after we were done talking about john roberts for the book, i did it with my two tape recorders, because she spoke on the record, i said, do you regret saying what you said about donald trump? because she was starting to get criticized. she said, no. that's when she doubled down. i will tell you what i thought since i am a journalist. i thought, well, this is good. but then she did two days later. so we have the record straight. two days later, she realized she should not have gone that far and she made her regret public. brian: you said that they want

to get their message out. it sounds self-serving, but i want to know what you think. why don't they do the simple thing of allowing us to see their oral arguments on television? joan: i know exactly what you are talking about. i am definitely sympathetic about that. do you know how many members of the regular public were able to get in that room to hear the affordable care act case? so few. we are talking a couple dozen because the seats were taken up. you can hardly get in there to see cases because the room only seats a couple hundred and there are reserved seats that people have to rotate in and out of. the lines are so long. so we don't get to see the nation at work. but as you know from the testimony we heard recently from justices elena kagan and samuel alito, they are not being as explicit as david souter was when he said over my dead body, but the message is the same. the gay marriage case.

brian: in his written opinion, roberts went further comparing the ruling to the dred scott decision of 1857. later on you say, he was trying to be less strideant than scalia whose dissent in gay-rights cases had provoked outrage. roberts did not want to be seen as critical when it came to gay people. but the use of dred scott in his rebuke not to celebrate the constitution, it had nothing to do with it, rang harsh. critics said that in resisting, roberts was setting himself up to be regarded as the roger tawney of his time. joan: that was the criticism. here is what i think. this was an important moment for chief justice john roberts. he used his only dissent from the bench ever to speak out against this. he wanted to make clear to everyone that he did not believe the constitution covered it.

and that he felt that the five justices in the majority had very seriously crossed the line. so much so that he compares it to dred scott. brian: why is dred scott significant? joan: that is when then chief justice roger tawney said they -- slaves cannot be citizens or e four their freedom. it is a decision that justice is invoke when they want to say this is the worst. that is what the chief justice did. i thought it was surprising that he invoked dred scott. maybe he went too far. critics compare him to roger tawney who went too far. there it was, as harsh as it comes. the reason i make a big deal out of it in that section is he called so much attention to it using his first and only dissent from the bench.

posneryou quote richard from the seventh circuit. i guess he is retired now, he was a republican and a conservative. joan: yeah. brian: you said he called roberts' view about the gay marriage issue heartless. joan: yes. some people felt that. i have a cousin of his who happens to be gay. brian: john roberts has a cousin? joan: yes. she was great on this because she said, look, i can easily look past it because he was in the dissent. sner was not going to look past it. he called him heartless. he really struck at him not just having heart, or no heart, but on the intellectual underpinnings of it. as did other conservatives, frankly. he got a lot of criticism for that dissent. brian: what do you think the relationship is on the court between justice sotomayor and

the chief justice now? it seems they have problems. joan: i think it is cordial enough. they come at the law from completely different places. you can hear tension during oral arguments because she tends to be one of the ones who will sit -- will not sit back and wait her turn all the time. what she says is, i have questions to ask. sometimes she says she cannot quite hear if someone else is speaking. the chief wants things to run really orderly. he was once an advocate. he does not like it when the lawyer is cut off as much as happens these days. i don't think it is a terrible relationship. i think everyone up there recognizes that they are appointed for life. i actually think that there are more tensions among the conservatives these days than between the liberals and the

conservatives because hey, the conservatives control. john roberts controls -- however john roberts votes now that anthony kennedy is gone, he will determine the law of the land. the liberals want him to come over, inch over a little bit, but the conservatives are trying to hold him back where he always was. meanwhile, you have this chief justice declaring there is no such thing as an obama judge, a trump judge, a bush judge, he wants to project a bench that is not political when they all have their agendas of sorts. brian: let's go back to the 20 hours sitting in his office talking with him. looking back on those 20 hours, how did you change your opinion of him after 20 hours of personal -- and were you the only one in the room with him? joan: yes, yes, yes. it was reinforcing many things.

actually, it was interesting how much he -- i could still feel his very strong need to control. strong need to counter maybe what i was hearing from others, challenge an understanding i had after i talked to other judges. very much aware of the difficulty of trying to get beneath the surface. and time helped. time helped. brian: has he seen the hardback version, the finished copy, yet? joan: i sent the copy to one of his closest friends. i sent an early copy. it does not roll off the presses for another week. brian: no reaction from him? joan: no. brian: do you have another justice in mind to write another book on? joan: i am thinking of stepping back and looking more broadly at the court. i am kind of running out of one

s who -- do you have one you want to know more about? brian: they are all interesting. are you running out of people who will let you in the door? joan: you know what they always start out saying? they start off saying, "you cannot come in the door." they all inevitably let me in. one way or another. can i tell you my scalia story quickly? he would not let me in. i ran into him at a wedding and he was like, you can talk to my friends but not me. i started telling him what i learned about his family. i said, you know the first time your father was mentioned in the "new york times" was when he got this great fellowship to study romance languages in florence and rome, because his father was a professor. i thought i was telling him something really interesting. he said, sure. but did you know that is where i was conceived, on that fellowship. i told him more about his family in that moment at this social

event. he called me the next day and said, come see me. eventually, you go in with information and they want to tell you information. brian: the name of the book is "the chief: the life and turbulent times of chief justice john roberts." thank you for joining us. brian: thank you, brian. >> all q&a programs are available on our website, or as a podcast at c-span.org. >> next sunday on q&a, historian and author douglas brinkley talks about his book, "american

moonshot." next sunday at 8:00 p.m. eastern and pacific time on c-span. >> we will take you live to the floor of the house in just a few minutes at noon eastern time, starting the day with speeches. the househe week, will consider reauthorization of the violence against women act which expired in february. it aims to prevent abuse and provide additional resources for victims and includes a provision regarding firearms. in the senate, work continues on a bill to provide nearly $13 billion in aid to areas affected by hurricanes, wild fires, and other natural disasters. shortenresolution to the time the senate has to consider certain nominations from 30 hours to two. you can follow the