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tv   QA Supreme Court Chief Justices  CSPAN  November 4, 2019 5:59am-7:00am EST

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all right. >> thank you. sure. mr. yang: anything people want. >> thank you. mr. yang: who's up next? >> i'm in the way. announcer: president trump holds a campaign rally monday in lexington, kentucky. live coverage starts at 7:00 p.m. eastern on c-span. ♪
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host: we get to talk about the supreme court history for an hour. i want to start by understanding the court today. the way our court is structured and evolved, how does the chief justice in this area will ield authority? what tools do they have? elizabeth: the question is, in this era, as always, the chief justice, first and foremost, is the head and steward of one of our three branches of government. i think there are some unique aspects about that job in the sense that the court is not a political branch. it was deliberately designed not to be. the chief has a difficult job,
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because, i'm sure you heard this expression. the chief is chief among equals. they cannot control the other justices. they have the power to cajole, but not control. and there are some great stories throughout history that illustrate that very well. host: specifically, does the chief have a role in what cases are heard, and who writes the opinions? elizabeth: those are probably too of the principal distinctions of the chief justice. provides overice the conference, which decides which cases to take, and it is a small number of cases the court actually takes and hears out of the numbers that are petitioned. it's under 10%. they have a list that is called the discuss list.
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other justices can add to it. that.e chief circulates if it doesn't make that list, it is practically denied. he also presides over conferences. certainly a role in managing the docket and what gets taken. and that is the same process in the vote. then you mention the opinion assignments, which is an extremely important job. it's when the chief has when he is in the majority. if the majority of the court -- if he is not in the majority, it is the most senior justice. we can talk about stories when a chief might join a majority and have a hand in trying to keep consensus. host: what number of justice is chief justice john roberts? elizabeth: i'm not sure. there have been 102 justices.
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chief, i'm tented to say between 10-15. very few. host: we have a few clips to show during this hour. the first one is him describing his job, using a metaphor he uses often. >> the job does not give you a prominent role or historical significance just because you hold the job. you look at novel fuller and you understand his job and how the court functions. in the next room, charles evans hughes, as you recall his role to turn back the court packing plan. you think about the independence of the judiciary. things like that. host: he talks a lot about how one makes history. he often refers to himself as calling balls and strikes. how has this chief justice approached his tenure on the court? elizabeth: i think he is the
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consummate steward he was describing. it goes back to chief justice john marshall, who had this incredibly important role in establishing where the courts place is in our democracy. it's hard to have a proper conversation about chief justices without spending a moment on john marshall. you probably know the story but it is a great story. this was in 1800. thead a situation where federalists were in the white house and congress but lost the election. john adams is president and has two months before he cedes control of the white house and congress to the antifederalists. he decides one thing he could do is put a number of judges on the bench before he leaves.
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he chooses, as chief justice, john marshall, secretary of state at the time. john marshall was at the constitutional convention in virginia and he spoke about what chief justice roberts just said, the independence of the judiciary. he said, to what quarter of society do we look for protection of rights and overreach in the political branches if not the judiciary? adams appoints john marshall as chief justice and tries to put judges on the bench before he leaves and he runs out of time. that leads to one of the most consequential cases in supreme court history. host: which one? elizabeth: marbury versus madison. it's so much what chief justice roberts is talking about today. he talks about how he approaches his job and the role of the court.
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it was in that case the court established its role in our constitutional democracy and we have seen it across the administrations, all the way through history into the present moment. the court has this role where it has to be independent of the political branches, so it can serve as a check. but it can't be seen as unaccountable or unresponsive to the people. chief justice roberts understand that. the way it was handled in marbury versus madison was wonderful. he was on the supreme court, where one of the judges that president adams had appointed and confirmed did not get his commission from the new administration. the judge said, as the supreme court, you should order the administration to give them my commission. there is a statute that allows them to do that. what john marshall knew was that
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if he issued the order, he had no way to compel jefferson and the administration to follow it. if he issued the order but it wasn't followed, it would weaken the court as an institution. that theid instead is commission should have issued and marbury was right to bring a lawsuit and come to a supreme court -- the supreme court. the provision in the law that he wanted the supreme court to enforce, and the executive branch to do something, is beyond our power as a constitution, so we can't do it. what he did was that we, as the supreme court, are here to interpret the constitution, even if it is against legislation as an act of congress and we're the ones who say what the law is. they did it in a moment where he was taking away the courts own power. so there was no backlash. that is the case any chief
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justice looks to to say that was the principle that was not established at the time, but the foundation of the court's role in society. host: let's return to clips and hear what he has to say about marbury versus madison. >> many countries that have constitutions, they are just political documents. if you have a dispute, it will be resolved however disputes will be resolved. in an election if you are lucky. force of arms if you are not. however political disputes are resolved is how they resolve constitutional questions. john marshall said this is different. the constitution is a political document. it sets up political structures. it's also a law. if it is law, we have the right to tell others what it means. that important insight into how the constitution works has been the secret to success.
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host: it's funny that john marshall was our fourth chief justice. people would think of him as the first because of this ruling. wasn't immediately known how significant it was or did it play out over time? elizabeth: the significance played out over time. chief justice john marshall certainly knew the import of what he was doing. but the deafness of it was -- the debt this -- but the deftneess of it was doing it in a way where he wouldn't cause rancor or be seen. that's one of their jobs, to preserve the courts role, but do it deftly in a way that supports the structure and doesn't provoke. he mentioned chief justice hughes and fdr's court packing scheme. this was the point when we saw the import of marbury versus madison coming into play.
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it's another great story in history. host: let me work my way through history a bit more. one thing before we leave this case. i understand the court under marshall established the tradition of speaking with one voice on opinions. before then, they had many many opinions. what is the importance of speaking with one voice? elizabeth: it adds to the credibility of the institution and the notion that we've been talking about with chief justice roberts, that the court is nonpolitical. you see this in the parlance of the court. they say they serve the constitution, not constituents. we conference, we do not caucus. there is no aisle. we are here to do the work of the court. it was my impression that chief justice roberts said publicly,
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the court is misperceived when people talk in partisan terms. host: before we go into history, you are a trustee of the u.s. supreme court historical society. what is that organization? elizabeth: it's a fantastic organization that has done a lot of great work preserving a lot of the history we talked about today. also, increasing public understanding as institution. it's not an institution you are with as a president or even congress. it's a terrific organization. some of the historical materials, if you visit the website, you can see videos, audio clips, papers, understanding the role of the court and some of the most consequential decisions of our time that people talk about every year. just a terrific organization. host: you are a lawyer.
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what kind of law do you practice? elizabeth: i do constitutional work. i have the privilege of serving in the executive branch of the justice department. i have never worked on capitol hill that i was able to work with members and staff when i was at the justice department. i have testified there several times. it's a testament to our great country that i am sitting here with you. i am a first generation american. i have been lucky enough to live about things i was reading about in school. host: where did you go to law school? elizabeth: harvard. host: how did you first get interested in law? elizabeth: i've always loved history. there's such an intersection between law and history. i can't say i am one of those who woke up and new at 10 years old that i wanted to be a lawyer. in college, part of it was, i was looking for a good job. i was thinking about going to
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medical school. law school was shorter. and i could get out into the work world sooner. a lot of it was just relationships. you meet extraordinary people on the way. justice thomas, he was one of those. many people in my career have encouraged me as a lawyer, but because what we contribute to society has moved me. host: what does it mean to be a clerk at the supreme court? what do you do? elizabeth: a lot of it is work on opinions and petitions that come to the court. both as a justice and the court as a whole. it's a tremendous privilege. one of the privileges that we don't talk too much about what happens in the court process. there are rules around that. it's really about the support of the court. the amount of work is tremendous. the volume of petitions that come in are than the thousands. -- are in the thousands.
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for each case, managing the research, opinion drafting, making sure that the conference and vote is reflected in the opinions and getting them out of the public in a timely way is a tournament of work. -- is a tremendous amount of work. the justices do their work obviously in the vote in their writing. law clerks are there to do the work of getting the opinions out. host: what year did you clerk for justice thomas? elizabeth: i clerked for justice thomas in 2009. host: how many clerks does a justice have? elizabeth: there are typically for -- four. host: we have a clip from 2016. apparently he has a tradition of taking his clerks to gettysburg area. this is his explanation. >> in these jobs, a lot of negativity comes in. that's the lesson i learned, that somehow, you keep it together and you say, look, i know i am experienced. i've seen how the sausage has
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-- is made. all we have left is the ideal of what the perfectibility of this great profile look -- great republic. that's basically the reason. plus, it is kind of fun. >> you can contemplate how our country could have gone in a different way. >> is lee had one, that would have been a problem. [laughter] probably more of a problem for me than you. host: we see his sense of humor. he is talking about how people watching the sausage being made can be jaded about it and how it's important to the about the ideals. what did you learn about being inside the court that you did not realize before by studying? elizabeth: it's an extraordinary institution. the cases are difficult and they can be controversial. there is no way to report on them without taking a topline in
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some respects. i do think what you experience and certainly what i experienced, was what he was talking about. regardless of votes or views on a case, all the justices, every law clerk is there to further the work of the court. and going to places like gettysburg or walking the halls of the building, you see and feel the history. you realize you are a small part in a moment of a great institution that has survived tremendous things. some great stories and great drama we can talk about. it has always survived and protected our country. what i remember seeing is everybody working hard to further the court's role. there was a civility and collegiality where you could have the most ardent disagreements intellectually, but everyone knew we were there
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to do the work of the court. to this day, i was at a dinner recently, and there was a hundred years worth of supreme court law clerks. there were people going back to the 1950's at the dinner. there is a sense of, you're part of something bigger and you had these friends for your life. host: we will return to history. you talked about the court and years of particular strife, and one of those was during the roosevelt administration. a frustrated roosevelt decided he was going to expand the size of the court. what are the interesting stories from the area of attempted court packing? elizabeth: i will focus on the role of the chief justice. the country in the great depression, a lot of people were suffering. fdr, in his first term, but a -- brought a lot of relief with the new deal program.
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elected in a landslide for his second term. the court, some of those programs came up for judicial review and most of them passed muster. a few did not. the few that did not were ones where the administration was trying to regulate the domestic economy in a way that infringed on the rules of the state, because in our democracy, there is a vertical component there is a horizontal court for the executive branch of the president. there are the states that are sovereign. there were two big cases that frustrated fdr. the court had declared that the things the administration wanted to do were unconstitutional, and that frustrated the president because he had such a popular majority behind it. one of the functions of the chief justice is to inaugurate the new president. it was funny, the marbury versus madison case, it was chief justice marshall inaugurating thomas jefferson before this
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court case came that pitted them against one another. the same thing with fdr. he wins the second term, and he is being sworn in by chief justice hughes, who presided over the court decisions that obstructed some of the new deal programs. the swearing in, historical account is funny. a windy day, chief justice hughes had whiskers flapping in the wind. chief justice hughes had the idea that maybe they were going a little bit far with the programs. chief justice hughes read the oath very seriously and solemnly. fdr responded after, i understand that you say my oath is to uphold the constitution, but the constitution as i see it is a flexible one to adopt to the challenges of democracy. this will set up a contrast between the court and executive branch. what fdr did after that was open
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-- unbeknownst to most members of the court, he invited them to his house. everything goes swimmingly. three days later, this is february of 1937, he announced a court packing plan and his plan is, for every justice on the court who is 70 or older, the president can appoint, if that justice does not retire, the president can appoint any -- a new justice up to six. that would have allowed fdr to put up to 15 justices on the court. that will ensure his new deal legislation would not get struck. chief justice hughes handled this in a way that is extraordinary and may explain chief justice roberts reference. he was lobbied by people to speak out against this plan. he refused to do so.
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he ended up writing a letter that was widely understood to say, i do not agree that there is any need to change the number of justices on the court and the president's reason, which was purportedly that the older justices could not keep up with the caseload was pretext and unjustified. i have to laugh a little bit. if fdr had met justice ginsburg, he may not have been able to put the narrative out there. he issued this letter saying, this is pretext, it is not right. there are different historical explanations of why the court packing plan did not exceed the chief justice's approach, but it theplifies the point that
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supreme court embroiled in politics and you have to have a deft hand in managing them. host: he wanted to be a candidate for president, but he had his very own these of presidential power and how it should be wielded that he brought to this conversation. elizabeth: you have probably heard the expression a switch in time saves nine. chief justice hughes was deft at not being drawn into the fray on the court packing plan, but also after congress voted on the -- voted down the legislation, he managed the conference and started putting more hospitable toward fdr's legislation. another justice retired, and that opened a spot for fdr to appoint a new justice, who he could hope would be consistent with his program. that was hugo black. that was another era of the court. host: there is no constitutional mandate for the size of the court.
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elizabeth: correct. i was referencing, it's hard to convey, but there is a structural component to the courts's place in our democracy. it is on coequal footing with the other branches, but it does a different job. there is no constitutional restriction or prescription on the number of justices. looking back, and certainly the chief justice saw the court packing plan as a way of the executive overstepping its bounds. and unseating the constitutional bounds by allowing the president to pack the court. if you are an fdr fan, you might have had no problem. if that is allowed, what happens when the president does that to someone who is not so excited about. we want this to be for the democracy. host: the next chief justice was appointed by harry truman. chief justice fred vinson. we have video, some newsreel of the era that shows when he was sworn in. let's watch. ♪
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>> before the south florida call of the white house, a large crowd witnesses justice grover swearing in fred vinson as chief justice of the supreme court. the former secretary of the treasury is congratulated by members of his proud family. on his shoulders rests the task of bringing harmony to the nation's highest tribunal. host: interesting to see the crowds that were attracted to watch the swearing in of a chief justice. what was america like in the postwar era that this court was going to be part of? elizabeth: you heard the quote in the clip that part of the idea behind this appointment was to bring unity to the court. to understand that, you have to understand what immediately preceded vinson, which was chief
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justice stone. this is a funny segue, because we talked a little bit about the court packing of fdr in the new deal and chief justice hughes. he retired and fdr gets a new court pick. it is hugo black. he had a notorious feuds with several members of the court that chief justice vinson and the clip we just saw was appointed to try to unify. very tough job. chief justice stone immediately preceded vinson. hugo black, robert jackson, significant jurisprudence. a big part in brown before -- brown v. board of education. they had a notorious feud. hugo black had been in the senate. there were cases leading up to his appointment. one was about fair labor standards act issues. basically, hugo black had taken a position on the u.s. senate and jackson felt like he was
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conflicted in some of the rulings. they had this feud. chief justice stone was unable to make peace and control what was a public airing of divisions on the court. justice jackson was very frustrated with justice stone's inability to manage the court and manage black. he had gone out to do the nuremberg trial. he was still an active member of the supreme court, but not sitting. you had an eight-member court. no tiebreaker. the chief was frustrated by that. truman's idea was, appoint vinson and see if he can bring some order to this. he was unable to do so. he inherited a fractured court. rather than getting better, all of the historical accounts is that it got demonstrably worse. host: did he have a judicial philosophy he brought?
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--on't know that he has a elizabeth: i don't know that he had a judicial philosophy the way some people think of chief justices today. he was close to the president. etiquette was difficult for them, because some regard him as a crony, felix frankfurter was a harvard professor. chief justice vinson felt like he had some disdain for him. vinson was the presiding chief justice when brown versus the board of education before the first argument for the supreme court. the historical accounts are that the court at that time had open contempt for the chief. his inability to manage the court as a first among equals is that he cannot control what they do. it is cajole, not control. that has consequences for the first round of brown. the case was argued, vinson, and this is an record, he was in
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-- in the record, he was in conference. he had one justice as you would have upheld segregation issued in brown. he could not get it clear majority and was basically paralyzed. his inability to handle that -- people talk about vinson pushing out the timeline and having the case, paris argument -- having the case come up for re-argument and buying the court sometime to figure out what it was going to do, it was felix frankfurter who came up with the idea that they should have five questions to be re-argued. they could buy some time for the court to sort out its position. what happened after that was chief justice vinson died before the reargument. this article accounts are, this is a rather unflattering thing. it's reported that he said his first find ever was that there is a god that chief justice vinson past. earl warren was appointed and it was a very different approach. host: there is a major private nose project going on that you know about where the notes that
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these justices take are beginning to be digitized and made available. i saw in a story that in december of 1952, when this case, called briggs versus elliott was being heard, the conference notes show that split, that four justices were ready to find segregation unconstitutional, and one, stanley reed, voted to uphold it. chief justice fred vinson's notes say that i'm not sure what we should do today. he could not find a way out of that. ultimately, it was important for brown, heard by the next court, to be unanimous. what is theit seems obvious, bud they not let it go as a split decision? why was it important for brown to be a unanimous decision? elizabeth: i will comment on the digitization project in a moment because i think that is a significant one. but to the point -- the unanimity was the idea. chief justice earl warren, who was appointed to replace vinson,
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the idea was really try to bring unanimity to the court on decisions like brown. he was governor of california. he was very deft at looking at the conference and the country and saying, "if we do this, it has got to be unanimous." there were two reasons for that. one, it was a fairly divisive issue even at the time. secondly, they were overruling a major precedent. as you have probably know and have heard, the supreme court is not a political body, so it cannot just change its mind or overrule its own decisions on a whim or because of political sentiment in the country. there has to be a reason. chief justice earl warren was extremely sensitized to the fact that if they overruled the segregation before the court in brown, they would be overruling the court's 60-year-old decision in plessy v. ferguson that said under the reconstruction civil rights amendments, equality is fulfilled by having separate but equal facilities.
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so chief justice earl warren understood you had to get to a unanimous opinion and more than that, and we can talk about how he did that, which i think is an important role in the chief justice in getting consensus on a court that was still split, getting it short enough so the papers could publish it. so people could see the work of the court as one. everyone could read it. and then there came how to administer that, which we know from the civil rights era was very difficult but that was a follow on chapter. host: which chief justice vinson couldn't get done. elizabeth: could not get done. host: one of the other big cases we dealt with in our landmark cases series during the vinson years was youngstown sheet & tube company versus sawyer. why is this a landmark case? what was significant about it? how did chief justice vinson approach this case? elizabeth: this was the steel seizure case. the chief justice -- i think again it was a function of maybe not fully understanding the views of the other justices in his conference. in fact, in that case it was one where obviously the executive
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branch wanted to seize steel production factories in the country, wartime justification. the question was, does the executive branch have the power to do that? it infringes on commerce and states' rights and the like. and vinson thought and assured the president the court would approve it and he did not know his own conference well enough to know they would not. they reversed there and it was significant because one of the court's major roles, and it is a delicate one as you can imagine, starting with marbury, is acting as the final word on when the constitution draws a line on another branch of government. so the steel seizure case, like some others we have seen and can talk about, are about the court saying when another branch has gone too far. in that case it was the executive branch. host: one part of the story caught my ear. the chief justice assured the
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president this would not be overturned. how much do we know from history about the conversations between chiefs, especially when they are the same party, signaling to a president which direction a major case might go? is it rare? elizabeth: my sense is that it is rare, but it is hard to know. this is where, frankly, some of the projects like the digitization project you mentioned can be illuminating. because you can get contemporaneous notes from the other justices. by the way, i should say the notes of the justices -- typically the conferences are not public. they're closed. but the notes are the personal property of the justice, so they can decide to leave their public papers with the library of congress or an institute. it is illuminating. my sense is that it is not common. that was one of the reasons that i think undermined chief justice vinson's credibility with the court. i mentioned the cronyism point. there was criticism he was too close to the president, and that is not the job of the court. that is not the job of the chief
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justice. you are not partisan. you're not a crony. you are there to do a particular job. there was criticism i think that damaged his credibility with the conference. host: we segued into earl warren, who was successful in the unanimous decision on brown v. board of education, another landmark case. let's talk more broadly about the warren court. it was a long one, 1953 through 1969. eisenhower appointed him. did president eisenhower get what he expected philosophically from earl warren? he was a law and order governor. when he appointed him, what was he hoping his view might be on some of the big issues in society at the time? elizabeth: it is hard to say what the president had in mind or if he had a view in mind. one thing president said publicly in appointing chief justice warren that he certainly got was someone who could bring unanimity and some consensus to the court. host: but the court is thought of now as a much more liberal court.
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we had a republican president appointing him. philosophically, were republicans surprised at how the warren court turned out? elizabeth: perhaps in some respects. the party alignments on a partisan level are different than they are today. in some respects, the republican party, the party of lincoln, it was not a great surprise that the chief justice earl warren and the warren court would be as active and supportive of civil rights as a was which was , in-line with the party of lincoln and the idea that there should be equality. i think in that respect, maybe not so much of a surprise. again, the issue is -- the question highlights an important point about the relationship between the appointing president and the court. which is that once the justices get on the court, this is the balls and strikes. you get these cases and you have to call them as you see them. justice thomas has said that, you heard the chief say that. whatever a president's expectations on some level, if you see some diversions, that is probably a good thing because it means the justices are doing
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their job. host: during the earl warren years, besides brown there are number of landmark cases and categories. voting and redistricting, baker versus carr, reynolds versus sims. we dealt with a number of the criminal procedure landmark cases, miranda, matt versus ohio, gideon versus wainwright and katz versus the united states. why don't we we talk about criminal procedure since he was attorney general, and a law and order governor? those landmark cases in the area of criminal procedure, how does that change the country? what did they do? elizabeth: they change the country in innumerable ways. going back to the foundation of what the constitution talks about, it goes back to the notion of due process. a lot of governors, not surprising to say, look, the only way that law and order maintains its credibility and even as a prosecutor, if your prosecutions hold, is if they are done fairly.
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and if the criminal defendant has rights that our constitution contemplates. fundamental constitutional concept of due process. that was not as surprising. it is a great example and i'm glad you raised it of how the court is sometimes misperceived as having jurisprudence on a partisan basis. when you look at for example, justice thomas' fourth amendment jurisprudence, a number of his decisions are pro-defendant in the way the warren court decisions are. they ensure the defendant has certain rights against the government or law enforcement. look at someone like justice thomas, who i think is perceived if you look at media counts as a conservative justice on the so-called right of the court, who has many cases that are pro-criminal defendant, because they derive from the same constitutional principles as some of the earl warren court jurisprudence. host: free speech, the famous new york times versus
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sullivan student free speech, , tinker versus the des moines school district. in the area of free speech, what is the earl warren court known for? elizabeth: very significant in terms of galvanizing free-speech rights. particularly in the school context. the no school prayer case was also during the earl warren court. i think very much a proponent of the first amendment. again, that was not necessarily as surprising. when you look past earl warren for that next chief justice, who nixon campaigned as someone who would reign in the earl warren court you still have significant opinions like the case, i think the burger court upheld say you cannot compel the media or newspaper to print the response of a political candidate whose position the paper attacked, because that is compelled speech.
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the burger court also held that the right of the free speech of the first amendment can a compass right not to speak. some of the decisions from there warren court weren't extraordinary are lined with one plug of philosophy or another, then it was with constitutional first prince pulse. host: another we hear about is griswold. elizabeth: griswold versus connecticut was one of the cases i think is a foundation or widely regarded as the foundation of privacy rights, in the 14th, constitutional due process. it has led to a lot of cases, roe v. wade, planned parenthood versus casey, that talks about a right of privacy that it hears in the constitution that the court has built out. that is one of the areas that is a controversial part of the earl warren court's jurisprudence,
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and certainly now in the burger court, and the current court. the court is looking carefully at those precedents. when you look at that light of cases and some of the examination going on now, as a matter of process, it is not fundamentally different from the kind of re-examination and thoughtfulness the court engaged when it was considering brown against years of precedent under plessy. people sometimes focus more on results than process. what strikes me about those instances is the court is doing its job of not overstepping its role but also re-examining were -- where necessary some of the jurisprudence as time proceeds. we have another clip to show. this is from a 1969 interview that earl warren gave before retiring talking about one of the most important cases he saw.
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i want people to hear what he looked and sounded like. let's watch. >> we have the legislatures must give equal representation to everyone. that was where the expression one man, one vote came into it, into being. of course it is not just state legislatures. but it has been expanded to the congress, and expanded also to local government. if it is right on one level of government, it is this right on all levels of government. in that sense, i think that that case, from which all the other reapportionment cases followed, is perhaps the most important case that we have had since i have been on the court. host: the case he is talking about is baker vs. carr.
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we just listed a lot of important cases. why would he see this at the most significant during his term? elizabeth: it is hard to say. i cannot speak for the chief justice. it is significant in terms of aboutint he was making this is a fundamental notion of equality, what does that mean and how is it enforced or safeguarded in a political democracy, if you do not have that sort of representation. it raises questions about the respective roles of government. i think the court's role is the safeguard. that individual right can be exercised in electing members in the political branches. that is a fundamental part of our jurisprudence. if the court were not to protect that, the foundation of democracy starts to erode. host: you told us that warren burger was appointed by richard nixon when chief justice earl warren retired. you have referenced other chief justices from history and their
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administrative skills. what is the view of the way that warren burger administered the court during his term? elizabeth: it is interesting. he was probably at least initially in the historical accounts aligned more with the stone vinson era. chief justice earl warren was a superb chief. came on, he had some difficulty. he was not well-liked or respected by some of the justices, notoriously justice douglas, who was concerned that to the point we discussed earlier, chief justice burger would be there to carry out the president's mandate of walking back some of the warren court era jurisprudence in a way that was more political or agenda driven than should be the role of a chief justice. how much of that perspective was driven by those dissenting
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justices' own agendas is hard to say. one could make the argument both ways. but chief justice burger had a harder time. you saw this in some of the cases. i think it was roe, on the first argument round. that case was re-argued just as brown was. there are some cases where the court re-argues to buy some time. i think it was justice douglas who leaked a dissent and tried to publicize some of the divisions on the court and make the chief's job harder. the answer to your question is he faced a more uphill environment than perhaps warranted. and if he didn't, perhaps warren was better at organizing. i will tell you on brown versus board you know the story. justice jackson was a big proponent of judicial restraint and was concerned about the court overruling precedent, and how to get to the result in brown that justice jackson
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agreed with but was worried about who should do it and what the court's role was. chief justice warren, justice jackson had a heart attack, and he went to his bedside with a draft opinion to get the unanimity we were talking about, and try to get by and, including also from the dissenting justice you mentioned he was going to vote for segregation. he got the unanimous court in the room to announce that opinion. burger had a harder time getting that consensus. host: had some big cases during this term. you mentioned new york times versus united states, roe v. , greg v georgia, which is the death penalty case, regents of the university of california , which is affirmative action which we continue to see cases referred to. and then united states versus nixon. here is another one with -- which pits the branches of government against each other. why was that case so important? elizabeth: that was the executive privilege case and the nixon administration.
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the whole question before the court was is there a constitutional foundation for the executive, or the president 's, assertion of privilege over presidential papers and communications? this was going back to marbury or the new deal era. the court's consequential role in saying what the law is, and then mediating this structural separation of powers game where it is like who gets to do what in our government? what was significant in the case, the court said we are going to uphold the privilege. the privilege, whether you like how it is being exercised in this instance or not, exists to protect the role of the executive branch. there is a deliberative process. we want our elected representatives to have debate and deliberation in government. there is a presidential prerogative as an executive to make certain decisions and not have the second guests or monday morning quarterback.
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the court saw that and said this privilege has a constitutional underpinning so we will uphold it. it was a very significant decision. host: another appointee of nixon was william rehnquist appointed to the court in 1972. when ragan was president he -- when ronald reagan was williamt, he elevated rehnquist to chief justice in 1986. can you talk about william rehnquist's judicial philosophy. -- judicial philosophy? what with his view of the role of the constitution, for example. the great tension is the original list versus the living document. elizabeth: if you are to categorize him and i'm not sure it is possible to do so, probably more on the originalist side. in contrast to some of the justices we have been talking about, that was the horizontal component, rehnquist's jurisprudence focused on the
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vertical component, which is the relationship between the federal government and the states. host: ronald reagan's issues. elizabeth: federalism. the william rehnquist court re-embraced the idea that, and this harkens back, it has echoes of chief justice hughes reacting to the new deal legislation. there are certain prerogatives the federal government and political branches have, but it is for the court to say when they go too far, whether infringing in a branch of the federal government or the states and individual rights. what we saw during chief justice rehnquist's tenure is a refocusing of a court attention on the relationship between the federal government and the states. host: that being said, will he not always you for two decisions that really were the balance of powers? that is of course the impeachment trial of president clinton in 1999, and then bush
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v. gore in 2000. elizabeth: he said about presiding over the impeachment trial, which was one of the significant duties of a chief justice he was a big gilbert and , sullivan fan. when asked what he did or how he perceived his role presiding at the senate trial, he said you know i did nothing in particular and i did it very well. so i think he did not relish the role. to the point we have been talking about all morning, which the role of the government, chief justice rehnquist did, and coming out of the impeachment proceedings on what he termed sort of tongue-in-cheek, the relative order of the supreme court as against the three free-form environment in the senate. and he was happy go back to the court. host: let me stay with that for a minute because it is all the town's thinking about now. fromnd a usa today story october of this year. just a little historical note -- the late chief justice william rehnquist busy man on january
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20, 1999. the impeachment trial of bill clinton was in the second week. request had used -- william rehnquist had to stop presiding over or arguments and moves the senate to reside of the trial. one of the lawyers are going be for the high court that it was john roberts. here we are as extremist forward, john roberts made third chief justice in american history to preside over and impeachment trial. mitch mcconnell has already led a senate caucus through process orientation about what their role might be if the current situation leads to an impeachment trial in the senate. has anything come out on the supreme court on what the role of the chief justice might be? elizabeth: not that i know of, which is not surprise me. comingustice rehnquist out of the 1999 proceedings made a point of saying he actually consulted or had with him a congressional parliamentarian. he saw his role -- it is an
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article one, a constitutionally prescribed role of the chief justice of united state anyides over the senate in impeachment trial. i do not know that anything about the role has changed. the question is more, is there something going on where in anticipation of such a trial and having maybe the chief justice otherwise occupied that they've altered the schedule? not to my knowledge. that would be internal to the court. host: there only two times before that this has happened. are there records available to know how the chief justice's role shapes up during this? the last one was andrew johnson and that was a very different congress and country at the time. elizabeth: there may be. it may be something where the -- that would be worth a visit to the historical society's website. the chief justice remains the chief justice. they vote and there are people there to do the work of the cases. so i would imagine the work of the court will carry on.
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host: let's bring it back to the current court. we have about five minutes left in our conversation. one -- we have been looking at chief justice's and the role they have been taking. with that in mind justice , roberts is going into the 15th year presiding over this court. what are the broad observations one might look at, about the roberts court and how he has approached it? elizabeth: this goes back to a point you raised in the beginning and is evident in the clips you showed at the start of the hour. one of the big points is that that chief justice has been very cognizant of and done a tremendous job of being a steward of the court as an institution, balancing the importance of maintaining public confidence and access to the court, with its role, meaning a nonpartisan, nonpolitical role.
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that goes to, for example, the digitization project you had mentioned. transparency and access are very important. the court needs to maintain its integrity. there something to be said for preserving that. you saw this last month in the wisconsin gerrymandering case. there was a bipartisan request out of congress to have live streaming of the oral arguments. the chief justice's counsel wrote a letter to the bipartisan coalition and said, we cannot accommodate that request. because the court is concerned that it may alter or adversely affect the nature and quality of the discourse on the case. but what chief justice roberts has done, in counterpoint to maintaining the line on things like that, is gone out of his way to make public access available in other ways, like the audio is now available. i think same day transcripts of by the end of the
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week publishing the opinions , quickly. chief justice burger had the same thing. he revolutionized the court in terms of public access to the building. and some things that helped people understand the court's role and preserve some transparency, while ensuring the courts work still has the nature and character necessary to do its job i think that will be , looking back big part of the , a legacy or a notable one. last clipave one of the chief justice, 2018 university of minnesota law school. he hits on the themes you described. >> the court has from time to time erred, and erred greatly. but when it has, it is because the court yielded to pressure. we need to know at each step we are in this together. there is a concrete expression of that collegiality in a tradition at the court that has prevailed for over a century. before we go onto the bench to hear argument in a case, and
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before we go into the conference room to discuss a case, a pause -- we pause for a moment and shake each other's hands. it is a small thing, perhaps. but it is a repeated reminder that, as our newest colleague put it, we do not sit on opposite sides of an aisle. we do not caucus in separate rooms. we do not serve one party or one interest. we serve one nation. host: hitting on the themes you have talked about throughout the hour. but the reality is appointments to the supreme court are partisan these days. atmosphere we saw around the last two appointments, especially the. . -- especially the kavanaugh hearings, it brings a lot of partisan attention to the court. how can a 5-4 court not be partisan?
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elizabeth: because the vote and basis of the vote, if it is 5-4 or not, is not about partisan or political ends. it is about the jurisprudence. i think there is a huge distinction there. this is why i mention justice thomas' fourth amendment jurisprudence. in the commerce clause, if you take on a partisan level and i remember this well as one of his , law clerks, i do not know if you remember the partial-birth abortion case, congress tried to pass restrictions. the authority for that was the commerce clause. justice thomas went out of his way to say i do not think the commerce clause authority extends that far. it met with a lot of anger and some surprise on what i will call the partisan right. the answer to your question is it is not about partisanship when you look under the hood of the jurisprudence. it is hard in topline reporting to do that sometimes. you see people are voting on principles.
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sometimes the outcome is one way or the other. this is calling balls and strikes. this is what differentiates the court from the political branches. i agree with the point chief justice roberts makes. it goes back to -- you showed a clip of chief justice warren on on his tenure. there's another where he reflects on the karaman to case, related to japanese internment. this struggle account is that chief justice warren had tears in his eyes looking back on that case and saying that was one part of my tenure i very much regret. that i voted to uphold that internment and treatment. i think that is what the chief justice means, which is the tort errs when it bends political will. if you go back to the time and look at the political will and sentiment in the country, that was the sentiment in the country. but chief justice warren be the first to agree it was the wrong result. if the court had done the courts work, maybe we would not have had that result.
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host: and that is the last thought as this court embarks on a term with some very big and likely controversial cases. thanks very much for spending an hour with us. elizabeth: pleasure. ♪ announcer: all q&a programs are available on our website or as a podcast at q&a, a journalist discusses her book. it is about a benchmark experiment in the 1970's designed to test the reliability of psychiatric diagnoses. healthy people check themselves into mental asylums, claiming to have hallucinations, and intern turn were diagnosed with psychiatric disorders.
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as a condition of their release, they were required to admit having a mental illness and take antipsychotic drugs. h cahalan on "the great pretender." coming up this morning on c-span, discussions on presidential impeachment on washington colonel. -- washington journal. then we had to des moines, iowa for the opening of joe biden's new field office. afterward, democratic presidential candidate andrew yang talks to voters in marshalltown, iowa. this morning on "washington author and university baltimore professor talks about her new book and how it relates to impeachment. later, a look into past presidential impeachment with


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