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tv   Book TV  CSPAN  December 13, 2010 12:00am-1:00am EST

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as. >> host: welcome to booktv "after words" im dahlia lithwick from and
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i am here with noah feldman to talk by his book "scorpions" >> the premise of the book is that there were four great justices appointed by fdr and i want to start with the definition question which is a great justice? there were nine but there were force what makes them the super justices? >> these are great people and great men and also great justices we'll make some great is they have a lasting major impact on the constitution as we know it. day roach hugely important decisions but defined for new ways of thinking of the constitution that today dominates the field of constitutional thought if you ask the justices today of your philosophy they may think it is my philosophy but expressive loss of the first stated by one of those four men. also good men that they were
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deeply ambitious and participated in world events and affairs not just on the supreme court and in some cases taking a leave of absence. in that sense, they mattered, household names and the impact on history is meaningful. >> in the interest of setting the table tell us who are the four and quickly quickly tell us why they were critically important? >> i start with felix frankfurter who when he went on the supreme court the best-known liberal lawyer in the country from a law professor and defended two italian anarchists who were accused and convicted and executed for murder and robbery that took place in massachusetts. whether they did that are not but definitely connected to a huge national jarron network -- network that has parallels to al qaeda and he defended them and that was a
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liberal thing for him to do but on the supreme court he was transformed into a judicial conservative because he believed in the idea of judicial restraint ago the supreme court was conservative who locking at the day's blocking liberal legislators so he said we should back away. had and he continued to believe that. that is what makes him a great justice he remained neutral. the next is robert jackson and who was mostly famous for having taken a leave of absence to go to an gerber where he was the chief prosecutor in the war crimes trial of the nazis but then he was inspector general are doing the supreme court cases, attorney general of the united states during the run up of of world war ii when roosevelt needed legal advice while at the same time helping britain.
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and on the supreme court he was amazing and came to believe it did not matter what the law or the constitution said it was to make things work and he said so very explicitly. third, it is hugo black a remarkable person from alabama i got himself elected by joining the ku clough klan which gave him a statewide organization when he didn't at the same time a very radical left-wing senator who is that we should solve the great depression with the 30 hour work week he was woefully unprepared but he did research on his son and came to believe he had a true way of understanding the constitution according to its original meaning. he created the adr the only fair and just way is reading in accordance with the way
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the founding fathers themselves said then he did the research to teach him how to do it that made him a liberal justice at the beginning but at the end he became a conservative and led him to take the view that the supreme court against the brown vs. board of education should strike down the education as the original meaning of the 14th amendment and that was a way to save his honor from being a klan member. last was william douglas a self-made man from real poverty who became a law professor than noted by a joe kennedy sr. the first chairman of the second abroad douglas to be a minor staffer and a year and a half later he was the chairman. he became a regular at the roosevelt poker game and a huge part of his inner circle and roosevelt said that young man plays an
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interesting game of poker employed him on the supreme court act 40 years old. the first 10 years he wanted to be president after that he developed his philosophy of individual liberty at the highest value and develops that at the time when his own life was a mess. but it had a constitutional value and cut articulate a vision according to which was given by our own lives. >> host: one thing that is so stunning is they all follow a self-made path and down to look to be classic. some of them went to great law school some of them went to none at all some where middle-class our poverty and it is interesting it is an interesting contrast to fdr
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himself. what does it say these and been who were very ambitious and very driven? what does that say about fdr although he was very involved what does that say? he was called a contemporary the traitor to his class they think it was meant the ada he wanted to restrict wall street and wanted to raise taxes when his contemporaries were rich, that is to but there is more to it than that where roosevelt was most comfortable not from those from boarding schools and fancy colleges but with people who are more colorful, interesting, and frankly very often completely self made. probably the most delete
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young person in america, his cousin had been president, mary eleanor and had done to all the right schools never working today in his life. why did he choose these people? during the depression all four stood up and actively took on wall street. that is something that impressed roosevelt. explained reversed weekend road to the sec that had the first modern regulatory system as we know it and hugo black subpoenaed said telegram which was the email of the day of everybody who had sent any telegram to washington d.c. in the hopes of finding embarrassing material on corporate executives which he did then use that on the floor of the senate.
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he was famous by saying wall street and big business were corrupt. jackson went head-to-head with andrew mellon secretary of treasury and one of the richest in the country and attacks fraud trial that put the national gallery in washington but that was the establishment and embody the financial system and douglas just gleefully took on never betty and threatened to take over the new york stock exchange and sufficiently scare the reform themselves and would gather big groups of rich people giving them speeches calling the cockroaches of wall street they got it the attention in this way and convinced him they were on the right side of the event. >> host: that is a nice segue to the next question. you i think make a good point* time and again of the extent to which ones
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biography dead-end -- says in form of the judicial philosophy that this hard because you want to believe the biographies make no difference because they done the black robe. can you give best a few examples that your four great justices really were influenced by the way they grew up or the conflict with wall street? not just their conduct before but after? >> yes. let me start with a more shock gain example. william douglas, his personal life was unstable from childhood. his father died when he was
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very, very young and he was very, very poor he was working multiple jobs he would sweep the floor in the hash house when he got to the supreme court, he was still poor and personally a little unstable. one of the things you like to do was run around with the kennedys, joe kennedy and do the things that joe kennedy liked to do. you can imagine what those things where and it led him to the point* where his personal equilibrium was disturbed. note supreme court justice was never divorced. he was the first and the psychic and a third and remarried a fourth time. and during the ask mehmet first of all, realized he would ever we president. one divorce was enough to do
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that but he came to ask himself what is my philosophy of life? you may think he developed at the same time he was melting down. but he came up with the adl it is a western state philosophy of taking ap gamble, go while on your own to be a solitary force but then he thought what does this have to do with the constitution? the answer was it protects our individual rights to marry who we wish come asleep with whom we wish, speak an associate with whom we wish him to find ourselves in terms of our liberty and a six figures in wrote the key opinions with the right to contraception, abortion, when the supreme court decides it gay-rights, the views have been quoted and when it deals with the gay marriage question that it will
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eventually will come with these values will be discussed. out it is not so much the inspirational background about how personality matters enormously. >> as we are talking about how these justices i deals were forged, how much come at you will probably say a lot but in the various government capacities but at a time when the court was dominated-- of me by these nine old men. how much of those jurisprudence was influenced by this area at -- air of the court that fdr was at war with? >> they were with roosevelt
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and the overarching goal was to stop the supreme court from blocking the legislature from regulating business. but when they realized they were a majority on the court they discovered they did not have to restrict themselves to restraint and holding back but could do things affirmatively and there was a crucial moment when they realized this and happened with the case involving the pledge of allegiance. a jehovah's witnesses did not want to salute the flag and the reason is they truly believed this was an eye doc -- inactive idolatry and that was a worshiping the flight that was very unpopular during war time. the justices mostly said
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that the witnesses were not entitled to an exception that if they did not so that the flag they could be suspended then after the supreme court held that there was violence all over the country somewhere killed and injured and others and burning to the ground and they realize they made a terrible mistake. friday in the opinion the first time refused to change his view and said judicial restraint was right when we were 518 of the old men and it will continue in the future. we're the supreme court and robert jackson who had just come on the court where he said the jobless of record is to take things away from the government and either force people with a very
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inspiring opinion but and then the other justices moved away from the the focus and allowing the legislature. they still look to that way but it was no longer their primary motive front-end the punchline is interesting that and the 1951, when the korean war was going badly, president truman thought he should do something about this and ultimately, he decided, 1952 to seize the u.s. steel mills from the corporations that own them to revolve-- to resolve a labor dispute it was pro union. and of floor voted to strike this down saying he lacked the authority.
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and the separation of power not so much corporate power but he was still doing it on behalf but now none of them were there and saw this as the constitutional issues showing how things had changed from the depression when the main question was every regulating corporation where the issues look different. >> activism, everybody has used that it is the and is driven label. >> and getting five votes on the supreme court and the legislature is doing something different. and starkly e there liberals nor conservatives have as
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being an activist but you want to see who is in charge of congress and to has five votes? when they don't match you find many, many supreme court justices are prepared that do not make the mistake in their hearts they believe to be political. they actually imagine themselves but a few look outside for what they're doing it is amazing how five votes will get you activism. >> when of the very striking parts of the book we're talking to noah feldman author of "scorpions." fdr involvement with each of these justices, sometimes years, some of the merck
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vetted by third parties but it seems to me each of these men were quite intimately involved with roosevelt and felix frankfurter manipulating maybe now that word but pulling a lot of strings and is that a good thing amore bad thing. >> and a political relationship? maybe more of a lawyer relationship but this political and vice can you say if that is something that has changed? change for the better? >> and on both ends and do have president's you are interviewing of potential supreme court justice that
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is some the impression embarrass fell nominated people whom he knew intimately. and that meant he knew what he was getting but also what kind of people they were not just to would vote his way but two interesting things and he got back. -- of that but they did not stop talking to him, he went on the supreme court or stopped playing poker or writing regular letters felix frankfurter will love to send people for jobs he would wait for him to last but not always back when roosevelt needed somebody to be called the assistant president the most important person frankfurter said there is a justice years jimmy burns is great for the job. take him. our sure enough he did.
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that has completely changed today even the annual dinner that used to take place at the white house has been cancelled and perceived as a violation of separation of powers. we expect them to be like monks and to cut off from the world of washington and certainly win dick cheney and anthony scalia were on a duck hunting trip and it was heavily criticized for sitting on the opinion that involves the vice president's saying it just would have been unimaginable. we have lost something significant because it is a political body as well as a judicial body. if you do some politics, you will do better if you have a better understanding of how the supreme court fits to
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the bigger political role world of washington when the supreme court and the beginning of the paula jones bill clinton and litigation hell and it would not be very inconvenient if a civil lawsuit continued during his presidency. i don't care if you are a the president come of that would be one thing but that is not what they said. civil-rights our imports and but we're not worried about distracting the president and you can imagine justices that somebody would understand it will not occupy but that was not the time. so the extent it is making practical decisions, but there is a gain in the appearance of objective today. we do think of these justices buds i think we
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should send a. [laughter] but we do to some extent. that does increase of their legitimacy. >> host: that is a beautiful the band. they were not bad the behavior blast with the kkk, refused to recuse himself that looks a lot like a duck gate white with dick cheney but that is the type of behavior that was called out by the other justices and the media and this seemed that the world at that time and faults were giving interviews and can you reflect the metal was it just a matter of those who make sending messages from nuremberg, were they making
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bad choices for getting caught making bad traces that are justices, there is never a scandal in a more or bad behavior. it seen as a shocking but it was all out there right now -- whatever is unhappiness it should be injured girl. >> whether resents i had was this huge contrasts between the supreme court justices today and the justices of 70 years ago who were badly behaved and found that al and in the newspapers and it raised eyebrows but to what was going on because they
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were ambitious, political, they did things that ambitious people do. it is not a surprise today's supreme court are careful and boring lawyers. [laughter] i do mean that insulting but they would probably be believes -- please to be boring in that sense he did not catch them taking money from a foundation which has a single donor and you don't hear rumors of them caught in the supreme court chamber there is a world that is gone in that respect with that is part of lead to the great people do eddie have to turn on the cable news channel to observe that fact
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so what i am saying is you get a certain kind of greatness when you have researching kind of person if you live it those choices of public officials to only the good boys and girls, you get more boring people and sometimes we need great men and women but they have lost and we did better when they were badly behaved and i will take the bitter with the sweet the arguments the anger the veto hatred and the great ideas that came with it in meaningful ways in place of the friendly pleasant tea drinking nice
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people whom we have now. they really are nice people. >> the wonder how much that is influenced by the difference between the president who appliance? it seems to me that roosevelt was absolutely clear and make this point* to the reference and hugo black this is why i'm taking someone out of the senate and rights in the wake of the plan where at that time he knew was a defeat for him and said this is part of my quota i will show you how political this is by putting a politician. i put that on today where we're so careful not only is the nominee not political but never had a political fought in their life and if they had do not worry. there is not just a
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difference in the great man but the people nominating the great man or the conversation that forces us to say the cut -- the corley is a political that if you would have laughed at. >> guest: he thought it would be ridiculous so president bush wanted people who have some politics but could not appoint politician so his people were earlier in the executive branch. than if you look at justice kagan was also a lawyer in the executive branch you can see her opinions written down at the confirmation hearing i was working for my boss these are my boss is the opinions which is partly true but not completely the way 010 yen or memorandum 18 works. the political nature of the
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court for roosevelt is something he could not avoid the whole public had lived through it with the enormous series of events the political nature was unavoidable we lived through bush against gore which looked like a highly politicized position may yet he emerges saying that kurt is -- core is political let's live with that but buy saying let's pretend harder and i don't think it is going too far to say but even as we have computer programs into a reasonably good job, is important to distinguish the supreme court from other judges because their job is not so political but only hears
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cases if they genuinely uncertain and roosevelt took that bull by the horns. >> host: i don't know if we are toggling back and forth but many is by the confirmation in process you had two-- confirmation and if that? >> many had melamine at all so now made on a wednesday confirmed on the money did not show up and in fact, no supreme court justice ever showed up for a confirmation hearing until felix then he would send a proxy it was below your dignity to be badgered by senators. perhaps it is but franklin went because there are some great stories that a series of red raiders appear before the senate and announced he
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was jewish, liberal, one of the founding advisers of the aclu to the naacp and had served on these organizations there were actual communists at the time and frankfurter realized he would not sit in his office and help it went away but he did was amazing one senator said are you now have ever been a communist? he just answer the question happily and frankfurter yelled at him to say i would put my americanism at yours at any moment i am deeply committed to my american values and how do you ask me that question and the entire chamber burst into applause
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and you can see disturbance by the report then got rip roaring drunk and then later secretary of state with his proxy they got drunk then frankfurter said i think we should tell roosevelt the story of what happened and add to send who was of the roosevelt school said i don't think we should just show up and he said no. we will go so they drove to the white house and wonder and to the secretary's office and said we need 50 minutes of the president's time and they said five minutes and an hour and a half later there's still time the president of the tails but today that would be a headline supreme court justice shows up well after supreme court vote put people were more forgiving of the human aspect of their public officials.
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>> but to go back to the initial confirmation hearings is the utter lack of knowledge and then we flip it is quite hypocritical and stage but then i have been covering the court for 10 years but how deeply at the core so there is a strange way which confirmation hearings have become more of a proxy i am thinking of hugo black after his concern he is a kkk member and gets on the radio and americans listen and change their mind. >> but at least the extent to which there was a dialogue with the public and the president and the court but it seems to have
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vaporized and we have these weird staged moments it has not improved but am i right? >> host: i agree. it was messier before you would see where justices harassed to do jobs for the president there was a commission like the 9/11 commission and he was a sitting supreme court justice and those who voted in favor of roosevelt and the president said would you like to do this? he was recommended by frankfurter who said you should get roberts but he did the job and then sharing the warren commission after kennedy's assassination it
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is hard to imagine these today to say it would be chairman of the commission but because of the idea the justices have retreated into the temple of the supreme court and built like a temple and appear magically from behind the red curtain and should be treated as if a priest of a secret religion or a demagogue. how this happens is the interesting question. at a time of the presidency concede the other students of government as in some way think of away my grandmother thought of fdr as a person who tries every way we i remember when evidence came
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out what little they had then my grandmother ads will refuse to believe it because she trusted him the supreme court was not as important to having trust in government but after watergate not many people had trust in their president and congress have been held bus. and the supreme court worked its way into the role people understand rode the waves of people supported abortion rights also the death dental -- penalty is controversial and also we tell supreme court justices as above all it is not just the justices they play into the role. we offer them the role of
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priest and they say when the immediate reaction is we will never go to the "state of the union" again. why? it is political we don't want to be seen in a political environment civic now that look bad it is very telling and the house of lords you have military and the ships but then at our "state of the union" rehash of the military and the bishops even wearing robes where they come from? there is a ritual of it that in my view has not served us that well but part of the fabric of our lives. >> host: in riding about it i have said for a deeply secular country we are
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deeply dilution because we need that temple and the quasi justices after all of the yes stations for racial reasons that you lay out. you can imagine that they stylus on the seats and frankfurter written this thing i think there was a sense they were deeply involved and the president and his politics that where a more honest construction of the relationship of the one to get back to talk about judicial philosophy of the liberals there is a mystery at the core of your book that is, he anesthesia opportunity by putting a bunch of them on the board who are extraordinary figures.
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it is not that may dial liberal judicial theory but we have two of them. >> that end up being a conservative. >> part of the mystery is the food did it then headed to of those get appropriated but i think where pointedly i keep wondering if this counterfactual but had felix frankfurter proved to be the bright light would be in the situation today that you describe as a crisis the judicial liberalism? had we of one and dominated? doesn't have to be frankfurter or douglas but i wonder if these scorpion's destroyed each other? >> that is a great question
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i call it that because of the statement said by the former supreme court clerks that the supreme court is the nine scorpions in a bottle and the fact but also why these philosophies became conservative. to do so point* constraint became a conservative when you have a liberal legislature and pessimism so the idea to be deployed by conservative and was for many years as the supreme court itself became more liberal frankfurter can say we don't want the right to abortions we believe in judicial restraint because the liberals were running burger regionalism as a little more complicated but also more interesting.
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for black it was the theory because he believed a conservative supreme court had invented rights and if you went back to their original meaning you would see they did not have those rights but overtime but as far as black was concerned concerned, he was for it a matter how controversial but if not he was against it. at the end of his career he started to look more like a conservative because he were concerned about the rights but the supreme car invented lots of rates the said it was not in the original constitution so these philosophies can move and change especially some component of basic principle at their core witches part of what was going on.
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>> host: to the second part i guess what i see what you see clearly what you wrote to in june, is an the end it adherence agassi and you talk about with peter ginsberg holding the line also and i commend to be made that stevens tried to argue something and i am trying to map on of the liberal wing with said two new justices that we barely know but whenever they have is it a legacy or a product or the failure of one of these positions?
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>> one of them did dominate from the '60s into the 70's among liberals india was the constitution is there to maximize personal liberty and that became a crucial part of the picture in the other part was the quality equality for women and recently they gave people so that part did the marriage as it philosophies and very impression too both to justice ginsberg and also too just aspire who just and that always. but on the other hand, when it comes to the economic issues that were crucial in 1930's and again today, neither of those has very much to say but some of those are wrong just not to
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the point* and justices that have gotten accustomed to being accurate to being right to and have it of being right to in with the supreme court holds that corporations have the same free-speech rights as individuals is harder for them to stand up to say you have missed the point* and calling for appreciate -- appropriation it is only there to make money. i do love corporations. that is what they are four for ago by mistake is to think the it would they have been interested in speaking led to heavy interest to speak politically to make more money and i would say
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the liberals are out of practice. these are the issues that brought them to public life and they had to go troubles telling hugo black that specifically that they have no constitutional rights at all because they're their own person to than show may with they are a person. corporation is the artificial person rich my response was the artificial person is not a person in. >> at the heart of your four great jess's is kumbaya vader at -- there is a tragic loneliness, hungry ambition, it ends said they. don't come away thinking robert jackson had a happy end of his life. felix frankfurter, he really
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wanted to be the next brandeis and also you can see he is a great justice it is fair to say he never became the justice he wanted to be and the listen particular kind of end of 90 playing getting credit. probably to the extent to any of this judicious -- jurisprudence for shaped after so i want to probe they love it is this an accident of history too much ego and ambition that having all four men on the court ended up diminishing all of them? it seems like a deeply sad maybe i am just projecting what it seems that they all ended up not a feeling they have achieved a the greatness? am i over breeding?
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>> ilec it purely as a tragedy because brown vs. board of education they had one chance the justices who hated each other and disagreed all the time to actually agree on something and they did agree and that was the abolition of segregation and that was and is probably always will be the greatest moment in the history of the supreme court to not come easily they had to argue and compromise but all precipitated justice jackson was sick in the hospital with a heart attack that he would slowly dilator but they went into the supreme court when brown was announced last time they affect that is the job to be but collectively they try.
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individually i agree that when you put together such ambitious people but none of them can give others the credit they would like because that would be detracting from their own glory so if you have four justices, it takes time probably have a century for the rest of the world to catch up they felt pressured because it didn't have they want to be winners in their ninth -- nice time but that is the court adopting their own views so structurally you can never win. >> host: but for the record even holmes, jr. did not win in his lifetime but many of his opinions or dissent.
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he was thought of the great dissenter and but at the end of his career the rest was not that impressive so holmes looked like major figures on the court. these scorpions really continued to be together and served together and compete and though legacies remained it as and -- it is amazing they will say this is my favorite scorpion and the others were no good but those that think all four we're go and was. >> to me all smelly it was then everyboby could come together for a brief brief moment to 72 you think when you hold that up against what we have seen on the
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conservative wing what had very little exception i can see four justices who look to be an accord on most things and the caveat there are fundamental differences between skelly and their jurisprudence and also all the dough. >> on the religion questions but it was like watching the harlem globetrotters were the conservatives. [laughter] they were all the same page did you had a sense the liberal justices wear trying to find some unifying principles.
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i think one interesting way is that will fragment an interesting to see for the same reasons but i wonder if the reason of the robinson court has been so successful is there is a willingness to subordinate the ego and the need to win to a very, very coherent vision of the air game. >> it is to with one caveat that you're talking about a conservative? it is easy to forget but of course, it concluded with anthony kennedy and send their rinker score was really the o'connor court but o'connor got to make the decisions. kennedy had shifted now when one speaks they cannot assume he is on the conservative side so in
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guantanamo he wrote the opinion conferring said detainee is and in a gay rights cases, rating the opinions recognizing gay rights sell on hot but 10 big ticket issues he voted on the liberal side but his philosophy is coherent not shared by other justices that is an individual rights for everybody. justice kennedy never had of right he never liked. those include a detainee's and believes in the free speech and civil liberties rights of corporations like google. that is a consistent view that dates back to the 19th century and very deeply held. but it is not either by the conservatives nor though
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liberals. >> it will be interesting to see how the others to this but going his own way they have not been able to be convinced but he is me came decisions by himself and nobody is voting with him. >> we have time to catch on one more piece but i want to go back to its. knelt looking branch new liberal court to we have justice sotomayor on the court and justice elena kagan that has seemed of the court for only a few hours what do you see coming down the pike? a reenergize liberal graying of our son lurking new judicial philosophy to bring the liberal wings together? in the year roach uninteresting peacefully
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leave so i wonder if you could take us through a low hypothesize saying would get work. >> we have a generation else shift to says they were too young and chest as there were power levels in the careers on the conservative side but also perilous both very strong-willed women and put there where very few men and excelled tremendously also on the supreme court from when they were a 20 years but these have people but then the the will speak for the next 30 or 40 years of their career and because they are strong-willed people to define their views and to some degree use it
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against each other. they respect each other tremendously that is different than those that i wrote about. [laughter] but recently we saw a justice sotomayor writes the unusual opinion in which she said the case involving the hai the prisoner from louisiana granted by the courts and no other justices agreed but she was harkening back to thurgood marshall conscious of the court kind of role but it was at eight but i think that will be very interesting to see. the big questions are market would say we love the free market but has to be regulated to work effectively and those that
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to that could be the open question that we shall see. i know those coming before the supreme court and the question is will liberals develop a coherent philosophy? i am optimistic. >> host: do you think and this dovetails beautifully have restarted but bedtime came what you do even spectacular or dramatic but if this is two i am. what sell i wonder if she her opinion or some of what i have seen with the two of them both been very vocal. it is of the piece of the idea that it you can only keep your powder dry for so
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long and the day confirmation hearings end, it is a very big flashy action at of think we have seen at the time. >> look both ways. once you get on a chance now you have life tenure and it is time to let it come out however to spend your whole career trying to preserve yourself with the court, we may not know whether the major issues you want to devote yourself but the scorpions knew what the conditions were. it is an interesting learning process for them to figure out what motivates them to splash and we will see that why it will be interesting to study the supreme court in a time where things are changing and young people and that is what things are like right now.
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>> host: thank you for "scorpions" ferry few people can produce a page turner but it is phenomenally interesting. >> i look forward to you watching that clipboard. >> likewise. . .
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up next, a memorial for carla cohen, founder and co-owner of washington, d.c.'s politics and prose bookstore who passed away october 11th, 2010 at the age of 74. she started the bookstore in 1984. speakers at her memorial include politics and


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