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tv   Linda Greenhouse Justice on the Brink  CSPAN  December 31, 2021 7:00pm-8:01pm EST

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it about books is available as a podcast at cspan now which is our new app and get it wherever you get your podcast and happy holiday season to you and we will be back in january with a another episode of about books ♪ ♪ ♪♪ >> you are watching book tv top nonfiction books and authors every weekend and book tv television for serious readers. >> hello and well, and limit greenhouse and i'm so excited for her new book that is out and conversation now for about 45 minutes or 60 minutes and i want to start by saying that i've known linda since the late '80s when we served in the supreme court in for a long time we were friendly competitors but we were competitors and work in
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the washington post and she was full-time at that new york times and we started our book journeys and we sometimes we would be the library of congress and a lot of people from the other side still lifted the competitors and i'll never forget one day that when we were there we decided to go to lunch together, to break in research and we were walking out and eight group of older visitors who look like that classic washington crowd might see us and said, there's linda greenhouse, and there is joan and they are together and i said yes here we are together and it is a real privilege and pleasure to start to ask you about your book which lots of people will see when i got all in the galleys to talk to you about and before we start, i 20 ask you if you wanted to say a few words
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about what we're trying to do here before you get down some of the nitty-gritty. >> thank you joan biskupic and looking forward to this. [inaudible]. actually, these sources and the popular way and everybody gets them and. [inaudible]. and you do the best you can, is not like real competitors but anyway, just situate the project as we see in this book and basically, for the duration of the courts, 2020 and also 2021. in the book is a chronicle of that time and the true in the
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shadow of justice ginsburg's death and the confirmation it and her seat on the court. encapsulated by the current the pandemic the 2020 election and on the headline stuff. and the character so we are happy and it'sap an honor and i went back to the end and icon of refresh the things that maybe i would've gotten wrong and maybe argued and it was decided that
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this was my perception of the argument and readers could see that. in some ways, to ambush it would've maybe really would've entaken this as a decade-long court watcher. and so it tells - >> thank you for that and mainly i'll be asking about substance of this book in the court but will also be asking you about writingls you because this was e way youui did it was to write ad then edit it simultaneously as this event was unfolding in a start at the beginning, i found
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that your book early on, with justice amy connie barrett, turned out to be the focus on abortion in many ways that you could've looked at her in your initial plans as she was appearing before the crowd at the white house first for her and feeling when president trumn had nominated her and then for the celebratory moment on the balcony overlooking the rose garden and just when asked, this is very timely moment how you decided to focus so much on her identity related to abortion even in the introductory parts. >> of course the abortion was the question that the confirmation because it was kind
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of a religion. and through the society so and the particular, catholic in our previous critiques. and, in which the president joe biden and given to a member of the public life and joe biden got in she saw objection to that because her abortion rights and the objections and she was catholic and she should honor it and so during and i do this part
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where it went through the confirmation process in the democratic leader showed up and is over objective on the nation had been announced this action had been buried and we could see them struggling with where you could put abortion onto the record it the confirmation hearing it and then to ask the question and so for some weeks now, obviously the story ends chapter as to the report with
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the mississippi case. >> that is exactly right. >> and in that case, on the docket, it was the original case about the abortion and proving to be. >> that is right and just so our participles, we happen to be taking this and before november 1st, the court will hear the arguments in the texas case and thereafter and maybe even after the texas case, but we briefly touched on that a bit but i want to go backward to something you said about religion and how it was so taboo and give folks a little bit more context about why it is and you mentioned in the book it, what happens when senator diane feinstein asked about the religious police while she was after the u.s. court of appeals for the seventh circuit and kind
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of backlash that were there and discussed that out a little bit and show us what consequences had when she then was nominated to the supreme court. >> will the 2017 presidential for amy coney barrett into the seventh circuit and she asked a series of questions and will you be able to separate your religious police to judge and she said seems to me that this is exactly, and the actions are louder than the words of this had a huge backlash and of course with the constitution. and from public office and the struck people within the rice
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within you and there were parish officials and so on and there were things that . [inaudible]. and there was pushback that frankly the later a few years later when the supreme court confirmation hearing closed and she can ask what's interesting about that is the democrats obviously wanted to know the nobody was going to ask. they had gotten the memo, the democrats then judge amy coney barrett and these kind of questions. and opposed to her and they were
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terrible and of course, the senators like senator graham, they asked the questions anyway and just kind of was amazing to watch that unfold because they with the democratic colleagues, the rich such but they were not nimble enough to ask more questions and kind of brave move. >> will let me ask about this issue, from justice amy coney barrett view, and these questions in september 2017, and all sorts of proliferation since linda just pointed out and then judge amy coney barrett speaks
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about questioning when she is giving a speech and she's very put off while it happened it and she said that everybody has to check the biases that the door but whether they be religious, racial or sexual or whatever and she pretty much uses that moment to setet herself apart from the others and i noticed in the book, you actually have paragraph that you describe yourself on the many depending upon and following up when the justice amy coney barrett is put on the shortlist for s donald trump in theli supreme court in that moment with dianne feinstein actually for esther forward in a way that other potential supreme court candidates did not have what you think about how she viewed that moment, amy coney barrett in terms of her own ability to set herself apart and maybe when
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white house. >> so there were many factors, but the fact that president trump's counseling at the time, was also notre dame graduate and in the seventh circuit, he showed up. i think he announced that and she compared herself and was in a situation. [inaudible]. and she is kind of a contradicting of religious prejudice.
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in his to the case that in politics, and i do think that it helped her. >> you know linda you mentioned it that he was there and he was also sitting right behind her when she was seen asking this question nate chose to attend her confirmation hearing for the appealsti court which i think showed a certain amount of allegiance there. about a decade, or maybe not that much but they went to the notre dame at the same time she certainly was a regular run that society circuit where she would have crossed over and over and you know anything else about the relationship other than the notre dame connection is there anything that you discovered it about how he might have decided to mentor her hand anyway.
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>> no but what i do know is that of 2020, coming back from a campaign on air force one and the call was patched through to the present andnd he said, mr. president, right away you should and the person should be amy coney barrett. and joseph kennedy retired and in 2018 and her name had been mentioned. eventually kavanaugh and. [inaudible]. so the support of the time, that
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was just kind of the icing on the cake and something that of course they talk about shortlist when she submitted and the president, actually thought of her from the very beginning. >> so they did exactly the same thing as gorbachev and it was breadcrumbs and i know you've done research and some news organizations that he had a thing for anything grown down in florida and they saw her and ron desantis was very excited about the possibility but just like he led the reporters on a bit of a case, during the jury selection, he tried to do that alludes a bit in the amy coney barrett
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situation in fact we know from the filings that then judge amy coney barrett had to produce but the president offered job letting her interview ont monda. >> that's were trump is very different. [inaudible]. i think that's even less i think. >> and it did, and on march 19th, and ruth bader ginsburg wouldn't until the middle of june. >> but wasn't, what will rethinking like a very question of her credibility the focus on
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the trump administration is under the judiciary, i can't be specific it, the aspects the people around him and major cheerleader and getting in the way from getting hold of the judiciary had 200 attendance were reported. and they all showed up on time. >> i wanted to go to religion more broadly because that's a very deep theme of your book but before we go i just have to ask how we decided that to use this comparison as i know and you know, and want people watching the snow, as linda was writing
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this, missus america was on the airr and linda draws a comparisn wanted to tell us how you sent them on that. >> yeah, so i think the main sources to watch is very popular influential thing and i was writing years ago on the history of the sand. [inaudible]. actually they made a big role in this effortless defeat. and to say that this is added to the constitutional rights to the abortion. in doing that, she was able to afford an alliance between
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evangelicals and politics and very weary of one another in the catholic church and abortions and not for abortion per se in the traditional family structures. in another person. to oversimplify obviously there were many but she was kind of a person that at this age was very powerful and close family that was the rise room racism just some background. and during part of this career the career lasted and for the endorsement of donald trump and
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in the elections and the staff awarded her job and in congress, and then she really expected that it was some kind of position in a series and this with her taking a call from reagan and. [inaudible]. and you see her and he could watch. [inaudible]. they had much in common. >> i think you said that the primary. >> either in the very
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traditional obviously on the confines of the traditional state and chose to live there. [inaudible]. and they will so it just occurred to me that in a way that amy coney barrett, in 2020, was the tilling to do back in 1980s. >> and we were talking about religion and also i'd like you
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to even a little bit of your responsive how much of ald back story do you want to tell a focus on the 12 months, such a crucial 12 months and you didn't necessarily have to develop the scaffolding for that in the you're talk about trinity lutheran is one of the cases that you go back to and religion it from 2017, in one case where some seeds were planted and unusualnd divisions emerged amog the justices and so the importance of that emerging case in what we see now in terms of the justices and the religious liberties and why did you choose that that you needed to fill in and just how hard it was to decide how much of a back story to give an uncertain areas as you are writing. >> two is will as part ofwe your
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questionio first, as writing ths book, my thought process was covering the bases as a reporter which is i assume to be interesting people and had the expertise and what do we need to know to really understand what is happening and will kind of context. i tried to do that here because the capacity of various space for putting on all kinds of ngplaces. and we will get to that because it's really important game and obviously there is something going onin we know that the risg in the public square, a
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difference to religious claims is a central part of the project of justice john robert said overtime which is now like commonly for them to come out of the court andur advocacy or whatever and stop it from happening or whatever it may be i'm quite sure that this one of the chief justices project. so this term is important to go back three or four years to this interesting place to a church in missouri and preschool and one it is in constitution it
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itprovided that musty money shod go to the churches. number two, they had a place where the rubber and the tires available to the schools for their playgrounds instead of dirt and pebbles or whatever. it would have nice rubber tires on the playground into the schools had been supplied them pretty in this tire program was rejected at the church so that was an exercise. in the chief justice roberts, that was on the space quite narrow, he said this is really
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outrageous between religion, the churches do discriminate against. [inaudible]. but because of a church and trinity don't worry were only talking about playgrounds. if nothing else, eligible despite the nature is a church with this tire program. so the justice, his first term and that would concluded an opinion and judgment that the churches weret entitled it and said we decide constitutional questions and you cannot draw this distinction, will be due is authorized had to go to the church and it's important the
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distinction is ridiculous. so is kind of this in my current role in the relations. >> what is d interesting is his first two or three months, he retired in april this was june 2017, decision to what is her linda uses that case to show how there was only on the playground because it ends ups being a much broader range as the years unfolded but something else happened that gives me a chance to say another justice that i want you to address because it's a little bit more of you who human part of your story, with ruth bader ginsburg,
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they only two on the far left for the case. breyer in keegan, democratic liberals trying to find common ground and i just want to bring you to justice ruth bader ginsburg because she is part of your title, and she is part of how you brought this and why you rent this in her departure and the ascension of justice amy coney barrett and you are so close to justice ruth bader ginsburg and i know you respected her a lot and so much better life and what you do and coming out of her decision to retire. >> i think the worst that we can say is that she would go on
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record. and during this time in the establishment, she would say the same thing. and the story we are talking about would have a very different outcome. .. to retire in the beginning of president obama's second term or even towards the end of his first term, i think it was, we would have missed the entirety, just about the entirety of the notorious rpg. most of her career, she was a consensus seeker. not always a consensus builder. her belief was, speak in a
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modulated tone. they don't know bigger, just try to take away or even try to work with them. >> in 2007, 2006 actually. for most of her career, she was the consensus seeker, not always the consensus builder. the belief was speaking a modulated tone, narrowly don't go bigger than you have to, just bring others along, even work with antonin scalia with whom
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you have nothing in common but you can learn from him, maybe he can learn from you, this kind of thing. what happened was 2007, 2006 actually went o'connor retired beginning of the calendar year 2006 in the course of the 2005 term replaced by justice alito, george w. bush, the court wrenched immediately noticeably to the right on a variety of questions including racial equality, and ruth ginsburg started becoming quite alarmed and upset and she started writing increasingly so a few years later when the court
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overturned or cut the guts out of the voting rights act and there shall be case she gave this descent back, saying you don't need the voting rights act anymore, it's like throwing it away because it stopped raining so when two young women wrote the life of the notorious bj, the name that she got a kick out of it. i was the last eight or so years of her tenure when we needed her voice. we the culture because something was happening at the court, something was happening in american politics, somebody would have to call out and she started being the one. speaking as an citizen, i would have felt cheated had i known i
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witnessed had she left the heart. the changes of not too many boats and hillary clinton would not be in the court we are in today. >> those dates are correct and i'll give you another date 2010 the year that sheti became senir justice among the liberals after john paul stevens retired and she took that role seriouslyly d emboldened her for the 2013 shelby county versus holder opinion you mentioned and that was when liberals began trying to pressure her to step down and 2013 is a far cry from where she was 2020 but obviously with great consequence.
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there's another aspect i wanted to ask about before we returned to abortion and that's what happened during the covid time. we are aware of how much trappings of the institution helped give justices their identity, they left the building have rituals in the building, meaning together, confiding in each other and they disappeared in march of 2020. i do think it was important development through the 12 months you focused on. how do you think covid affected them maybe inmo a substantive w? >> it had to because meeting in person, the justices as you know, they were together on the bench three days of two weeks
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between october through april when they wrapped up arguments, they meet in private consequence twice a week, there is something about eyeballing your colleagues, not that they sit around and loose with each other, they have arm's-length relationships where they are not scheduled to sit together or be together around the conference table but there's something about personal contact and that was fun and the court canceled april arguments of 2020, they started having arguments again by telephone, not even zoom or this platform you or i are on because they don't wantt video o they were on ordinary telephone lines i think, it had to change
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the way of life that's gone on with onene interruption which ws during the anthrax scares and immediate aftermath of 9/11, anthrax infected the courtroom, it was immediately evacuated for the first time since the court building was built in the 30s the court must met elsewhere down the street and i think that was disruptive because he had to leave their chambers for. if i think a couple of weeks but nobody knew how long it would last not meeting publicly but meeting privately, this past spring i think in april everybody was vaccinated and most of them met in conference,
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not all of them and you make no better than i who didn't come to the conferences and ien guess ty found in or something but they did start being able to eyeball each other this past spring. i've lost your sound. >> can you hear me now? >> yes. >> i think because of earlier feedback i am muted between sessions here but i want to make sure we spendle time on abortion and i'll say for the oral arguments, they had to cancel two sessions because they were beginning of march so march session in april so they had the special teleconference but held over ten cases so they are creatures of habit and those exceptions can rattle them and i think you are right, it played out in cases in ways that are
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probably mostly settled but will never know whether they might have been a bit more collegiality in some cases as we headed into this crucial term with justice barrett or not. i think it's important what's developed on abortion and our audience will see this after we might have gotten a preliminary decision in the texas case on whether the state can insulate itself or any judicial review with this unusual[r mechanism that's built in two a six week ban on abortion and essentially privatize public citizens to be bounty hunters of sorts to go after anyone who's assisted a woman in obtaining an abortion so that is unfolding as we are speaking now but as linda said,
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december 1 the justices are going to hear a direct challenge to roe v. wade in a mississippi case that bans abortion after 15 weeks and the reason i describe it as a direct challenge to roe is because in 1973 and casey versus planned parenthood in 92 all used the moment of viability as the cut off for when government could restrict women's access to abortion and viability is typically at 22 -- 24 months or 22 -- 24 weeks so i guess my question to you on abortion is, would you ever have predicted they would have allowed the texas sick week abortion ban to take affect the way it did? right now we are still in it says essentially two months at the women in texas have been deprived of this right so
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address that and then address where you think it will go with the bigger more substantial case that they will hear arguments in mississippi dispute. >> i was shocked they did not grant a stay of the grant texas law. why? it would have been the most normal thing for them to do, as normal as falling out of bed because they already granted the mississippi case and set the argument date december 1 fromrt mississippi, the question in mississippi is, are all restrictions on the availability of abortion before viability unconstitutional? so texas band abortion after roughly six weeks. that is the question. we know six weeks e is before viability, 15 weeks before
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viability. aside from the weird vigilante stuff t about your neighbor can sue your doctor and all that, at the heart of the question, can texas restrict access to t eabortion? that's a question agreed to decide. typically when the court has agreed to decide something and new case raising then' same question comes up, they put that on hold for an eventual decision in light of the first case to be decided so in the normal course of things what would have happened is the request for a stay in the texas case would have come off and the court would have stayed it, held in place to say the texas law on the verge of taking effect would not take affect but eventually the court would take that case if they felt necessary. the fact that they didn't do
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that says okay, there's an agenda driving a bunch of them, it takes only four votes to agree to hear ae case by five votes to grant a stay. also, it underscores the difference that amy barrett ascension to the court in sitting in ruth bader ginsburg seat what it's meant because had ginsburg been there, there would have been five votes to state and as justice said in her opinion when the court for the second time refused to issue a stay, every day pregnant women in texasas get pregnant and the constitution is being violated every day in the state of texas because the court refused to stay the implementation, this law. what i think is going to happen in mississippi? i think it is clear that
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mississippi law would be upheld. why else would the court have taken the case? there's no conflict in the circuit, the main marker for th court willingness to hear the case, they only accept about 70 cases where the 6000 are filed every year, it's a precious grant of review, very scarce. they granted the case without there being a conflict after considering it for many months because they don't lie the status quo, the circuit that was struck down, mississippi law how to do it because the law on the books as you a explained, the viability means it's flat on it based unconstitutional so why else would they take it?
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so the question is, how are they going to go about overturning it? it seems to me they simply say well, 15 weeks at pregnancy is okay but we don't have to overturn roe v. wade. i don't see how that adds up because as you said, viability firewall, before fetal viability, the state can make a woman walk on her states, jump through 20 hoops and stand on her head and do all kinds of stuff but at the end of the day she has an absolute right to terminate a pregnancy. once the firewall is breached, i'm not sure what happens next. one of the most common questions phrase one way or another that a justice oral argument will ask the lawyer is once your limited interval, that means if we buy what you're selling, what we do
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in the next case? the court always cares about the next case. what is the limiting principle? once you say it's not viability, it's got to come down to whatever we think about when life begins? that gets us back into religion. many believe life begins up at conception, some at implantation. somebody might believe life begins instant, or maybe at birth. it all comes down to somebody's religious and philosophical orientation. viability presented a bright line because we can all agree on what viability is, ability ofso the developing fetus to live independently outside a woman's uterus. we could debate about the significance of that is a constitutional or a moral matter but we can't debate the fact that it is what it is but once
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you get rid of that, everything is open to debate so i see a big mess, a tragic mess. >> and as you know from your research in 1973 with ro and 92 with casey, the justice thought about that line in the majority said viability, that's the wisest way to go because of how slippery any other time might be. we are getting close to time but i want to ask you about two sets of people on the court and first, he mentioned mayor and her passionate descent both times the first time around september 1he in the texas law o take effect and the liberal wing dissented but none as strongly as she did and she was the only
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one more recently a couple of weeks ago when the court for the second time let the texas law stay in effect and the only one who dissented, how do you understande and build bridges attitude justices kagan and pryor have versus go ahead and burn it down be around longer and. >> it's the difference in approach to role so both of them the role they can serve best is to maybe modify, somehow reach
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some of their rights and as far as we know, some of that has happened. other cases have turned out to be narrowly focused than one might have expected either of them exerted a magic spell on the others but they see that as a goal. i think they've given up on that goal and she has a different role. and that is to tell the truth to the american public as she sees it about the failings of the majority but called them out and make a record because none of them and none of us will be here forever but history will be written about the supreme court
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and she is on the string of 13 executions the trump administration carried out in its last seven months which was astonishing, there have not been a federal execution at all for 17 years and suddenly there were 13 of them. the court didn't intervene to stop any of them. she, at the end of the day for the last execution, she listed all of the names, it was kind of a savior names, black lives matter and she wanted to make that record so it is fascinating. she was with her on a number of those calling out moments and now basically alone on it and we got to listen to her because she has something to say. >> i'm going to close on another justice, justice breyer but before we get to that, i was
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struck by your scrutiny, when he first came in, he had sharp elbows, alienated chief justice roberts in some ways and i know you've documented yourself, we seen arrogance among the other colleagues but then he toned down ae little bit and there was one time you wrote he c was sort of returned to his old self by the end of the recent session and he was donald trump's first appointee but might have been another republicans appointee, too. he didn't stand out as much as justice barrett did in terms of hard right, at the time i should say, at the time. how do you understand what he is trying to do? >> i think he's somebody who thinks he is right and thinks
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the chief justice is too much of a compromise or, over the shoulder caring about people care about the court, many of us might think it's a strength or goes with the territory for chief justice and your name is on the door but justice gorsuch is quite inpatient to get things done he'd like to get done so in a way, he and justice alito control the chief justice i think and tease him and don't show him much respect and i think it's because they are inpatient, they don't want to miss an opportunity to go as far as possible to go is what i think. >> do you think justice thomas
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is now in some ways in the right place at the right time or do you see him as having market-driven the agenda among these nine? >> well, i think hisic influence -- i've never viewed him as particularly inside the court, i think he's very influential outside the court. he's had more than 100 law clerks and it's astonishing how many of them during the trump years ended up on the federal courts or other significant opinions including now the recently appointed general state of mississippi was taken over the litigation and abortion case of former thomas clerk, justice thomas has a way of identifying issues signaling to the base and he does speak to a base and incredibly loyal attentive space
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outside the court of what kinds of issues should be litigated in the pipeline and brought up to the court so i think he has inserted a lot of influence in that way more, it's not the thomas court as i've read some people think to be thinking, i don't agree with that but in a way the trump years became the thomas era of constitution litigation might say. >> smart line to have drawn because having watched him since the day he sat before the senate judiciary committee until now, i have observed his influence outside the building but inside the building, he really is and wants to be in some ways a nation of one, he's not tried to be super persuasive with his colleagues, he's happy to go his own way, he's not actively working on votes and he's been
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joined by justice for such as the new justice but largely because he he was already there because when he came on the bench. and justice breyer who i know you've known for a very long time, longer than i've known him and i have known him since he became a justice back when he is a judge and you may have even known him when he was a harvard law professor. what have you made about his decision to wait at least a year? people ask about that so much, they don't understand. >> i don't have any information, i've avoided talking to him this past year because i haven't wanted him to think that i was snooping around. i think the rather disrespectful breyer retired billboards in washington and sounds truck
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driving around the supreme court building which he was s not in t aside from that have had a negative effect because i think it persuaded him that were he to retire, it would be seen as what he desperately gnostic wanted to be seen as, as a political act. he had a very successful term last term. within the dimensions of what the term was but he ran major opinions and got good assignments and a lot to say. he hasn't lost a step. you could say he's at the top of his game so i think it is hard to give it up and it's always hard for justice to give it up and they've all noticed and those of us who have watched know as soon as the justice stepped off the court, a decline tends to set and not were justice david souter but he was only 70 when he retired and he's
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had a fruitful retirement since 2009 but for a lot of them, retirement has not beenwh kind, look at chief justice rehnquist, who is desperately sick in the last year of his life and he surprised everybody sang i'm going to hang out, my doctor tells me i have one more goodyear. if doctor told you you have one more goodyear, would you want to do it in the office as opposed to something else? maybe, maybe not. so these people are not cartoon characters, they are humans and human responses to the situation in which they find themselves and that's how i view stephen breyer. >> that is a good take and you are right about david souter, certainly the exception. i remember the 90s as part of
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my research finding a letter chief justice had written to somebody how stuart had become, his health declined seriously after he stepped down in 1981 succeeded by connor and he almost took -- i remember reading way before he became ill himself in 2005 that he thought stepping down, leaving the bench especially if you were alone as chief mark without his wife at the time, it contributed to the life, they couldn't let it go and stephen breyer is one of the youngest 83 -year-olds i know, he still has a spring in his step and doesn't seem to have lost what it takes to be a justice so i'm sure it's a dilemma for him but it is a question even though we are now
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fully into a new term, it would be completely crazy to leave midterm promote the next opportunity would be at the end of the summer in june but it's constantly a source of chatter, people outsiders, obviously liberals and democrats haven't been able to let go of it and i hate to let go of this so we've gone more than the 45 minutes they recommended or we are at an hour and i want to ask you if there's anything else you'd like to mention two people while you have their attention. >> i just thank you, you've obviously read the book and brought to the surface some of the most important parts of it. so just say the cases i talk about in the book that are yet to come are not coming to fruition.
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obviously the abortion cases so the court is always a work, progress i will say, a working transition, no term is complete in and of itself and we are going to see the plane out what happened in the 2020 term this coming year, for sure. >> thank you and thank you for this wonderful book thank you to the miami book fair. >> "afterwards" is a weekly interview program with relevant guest posts interviewing top nonfiction authors about their latest work. >> thank you so much for joining us for this great discussion about your book. i'm thankfuor


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