Let’s talk about your opinions for a second. Do you draft them yourself? What’s your process?
I almost never do the first draft.
How do your clerks know your voice so well?
Oh, I edit it considerably between the first and the last.
How do you choose your clerks?
Very carefully. What I’m looking for is really smart people who don’t necessarily have to share my judicial philosophy, but they cannot be hostile to it. And can let me be me when they draft opinions, can write opinions that will follow my judicial philosophy rather than their own. And I’ve said often in the past that other things being equal, which they usually are not, I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives. That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for—to make sure I don’t make mistakes. The trouble is, I have found it hard to get liberals like that, who pay attention to text and are not playing in a policy sandbox all the time.
How picky are you about which law schools they come from?
Well, some law schools are better than others. You think they’re all the same?
Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.
While your opinions are delectable to read, I’m wondering: Do you ever regret their tone? Specifically, that your tone might have cost you a majority?
No. It never cost me a majority. And you ought to be reluctant to think that any justice of the Supreme Court would make a case come out the other way just to spite Scalia. Nobody would do that. You’re dealing with significant national issues. You’re dealing with real litigants—no. My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?
Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.
Is your favorite one-liner still the sausage one? “This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’ ”
It’s the best opening line of an opinion.
It was a really good opinion.
Isn’t that good? I was on the Court of Appeals, that wasn’t even up here. But my favorite one-liner is from Morrison v. Olson: “But this wolf comes as a wolf.” You know the one I’m talking about?
That’s a great one. You gotta read the whole paragraph. Boom. [Punches the air.] But I often worry when I go back and read one of my early opinions like Morrison v. Olson. I say, “God, that’s a good opinion. I’m not sure I could write as good an opinion today.” You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.
Wasn’t it Stevens who said to Souter, “Tell me when I’m losing it and need to retire?”
No, it wasn’t Stevens. I think it was Holmes who asked Brandeis.
Oh, so I got it completely wrong.
[Smiles.] Completely wrong.
But how will you know when it’s time to go? It doesn’t seem like you have anything to worry about at the moment, but it’s interesting to hear you even flick at that.
Oh, I’ll know when I’m not hitting on all eight cylinders.
Are you sure? All these people in public life—athletes in particular—never have a clue.
No, I’ll know.
What will the telltale sign be?
One will be that I won’t enjoy it as much as I do. I think that’s the beginning of the end. I was worried lately about the fact that the job seems easier. That I really don’t have to put in the excessively long hours that I used to. I still work hard. But it does seem easier than it used to. And that worried me. You know: Maybe I’m getting lazy. You know, I’m not doing it as thoroughly, or whatever. But after due reflection, I’ve decided the reason it’s getting easier is because so many of the cases that come before us present the issue of whether we should extend one of the opinions from the previous 27 years that I’ve been here, which I dissented from in the first place!