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tv   Chief Justices and Presidents  CSPAN  August 15, 2016 9:01am-10:03am EDT

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professors, american artifacts takes a look at the treasures at u.s. historic sites, museums and archives. real america revealing the 20th century through archival films and news reels, the civil war where you hear about the people who shaped the civil war and construction and the presidency focuses on u.s. presidents and first ladies to hear about their politics and legacy. all this month in prime time and every weekend on american history tv on c-span 3. next on american history tv yale university professor akhil reed amar discusses the complex relationship between u.s. supreme court chief justices and american presidents. he looks back at the first appointed chief justice john jay, he argues that historically the justices were geographically balanced and that there has been a more recent shift in representation based on demographics and political affiliation. the new york historical society
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hosted this hour-long event. we are thrilled to welcome akhil reed amar, sterling professor of law and political science at yale university back to new york historical society. before joining yale law school professor amar clerked on the first circuit for judge steven -- then judge stephen breyer, he is also a recipient of the devane medical, yale's highest award for teaching excellence and is the author of several books including the law of the land, a grand tour of our constitutional republic. and i think akhil was voted the most popular professor at yale at least he is my most popular professor and you are all here, i think, if you all are here because you know him, he is your most popular professor. so before we begin and invite our popular professor up on the
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stage, please turn off any cell phones, electronic devices and join me in welcoming akhil reed amar. thank you. [ applause ] >> well, good evening. welcome. thank you so much for -- for coming. this is the new york historical society, we're going to be talking about the supreme court and we will be talking about the history of the supreme court because this is the new york historical society, but we're also going to be talking about the new york angle on all of this because this is the new york historical society. and, yes, why is this night different from all others? well, here is one thought, it's only really this week that has become, i think, pretty apparent that the upcoming presidential
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election will be a subway series between two -- not just two new yorkers, but basically two people head quartered in manhattan. shades of burr and hamilton. and -- and why am i mentioning a new -- a presidential election given professor that this is a conversation about the supreme court? well, there inn lies my first of five points and it's going to be about the interesting relationship between presidents and justices. and not only -- and i will work my way up to the present moment, but not only is this going to be an election between two new yorkers for the presidency, but the supreme court really is the on the ballot and new york plays
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a big role in that because the person who is right now the nominee for the vacant spot is a man who learned his law, learned how to be a judge basically right here in new york city, he is a clerk of henry friendly, i'm going to say more about that, the chief justice because we are going to be talking about the roberts court that's going to be going in one direction if mr. trump wins and in a different direction if secretary clinton wins. the chief justice, john roberts, not only was born in new york, but he, too, learned how to be a judge in this city. he, too, was a clerk of the great henry friendly, chief judge of the second circuit here in this city. the person whose untimely demise created this vacancy is a new yorker, antonin scalia, as are several of the other justices. justice sotomayor, justice kagan, justice ginsberg, justice
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alito isn't from that far away, newark, i know it's on the other side of the bridge. so it's very much a new york story that we're going to be exploring together this evening, but i want to begin with the relationship between presidents and justices and offer you an account of the structure of that relationship and in particular here are two big points. that there's a tidal pattern to the american presidency, ebbing and flowing of a tide, and this tidal pattern creates certain very interesting and special faceoffs at certain particular moments in american history between presidents and justices. so here is the structure of the
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situation of the constitution, our justices are chosen politically. justices don't pick their successors quite. it's not a self-per pet waiting meritocracy the way the yale law school faculty picks its successors who pick its successors, the way the cardinals pick the pope and then the pope names cardinals and then the cardinals pick the pope and in this self-per pet waiting way. no, our constitution provides for a political choice to be made whenever there is to be a replenishment of the judiciary, both the supreme court and the lower federal court. so the process of selection is by design political. the constitution is on the ballot this year, in effect, when you vote for the presidency and the senate, that is not a bug, that is a feature of our
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system. so it's political selection and then judicial independence kicks in and there's life tenure. tenure for good behavior. and that creates an interesting dynamic. the justices in the modern era stay on much longer than do presidents and indeed presidents now are term limited in a way that they weren't at the founding, actually some of the justices rotated off very quickly. i will tell you a little bit about john jay and how he couldn't wait to just get off the court, and the tenure of the justices early on was very short and you had presidents who in theory could have been perpetually reelected, as governors of new york, for example, who were allowed to be reelected and stayed on forever. george clinton, the governor of this state at the time the constitution was adopted i think it was a three-year term and he
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won seven of them and he left only to become vice president, which he thought was, quote, a respectable retirement, and he died in office. so the presidency could last for a long time and the judges rotated off in reasons -- for reasons that we will get into. but over the course of history chief justices have tended to stay a good long time, presidents have come and gone. we have basically 44 presidents in american history. you could say 43 because we're counting grover cleveland twice, but okay, and 17 chief justices. so way fewer chief justices than presidents. now, here is the tidal pattern and the faceoff. the way america's presidency has tended to operate, if a coalition emerges that manages
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to capture the presidency once, very often it's come up with a formula that enables that party, that vision, to capture the presidency again and again and again until some almost exogenous shock, some big change occurs and the tide shifts. so there are only a few tide turning presidents in american history, and by tide turning here is what i mean, someone who when they are rising to power really the other -- a different point of view prevails, but they manage against the tide to win, to win again, win reelection, hand off the power to their hand-picked wing man, their an stole lick successor and in the next period, even though when we were rising to power really it was the other faction, another
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vision of america that was ascend ant for the next period it's really their vision that generally wins far more than it loses until something else happens and the tide turns again. now, if that's by definition of tide turning presidency, here they are, they are in effect what a political scientist would say are the rush more presidents and this is -- i'm giving you -- i wish it were my own theory, it's not quite, migrate political colleague colleague at yale this is his model. so there's george washington who of course when he is growing up a very different regime in place, george iii, but washington mansion obviously to prevail and wins reelection and hands off power in effect to his political ally, john adams. now, that dynasty, the washington federalist dynasty doesn't last very long because john adams signs his name to
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extremely repress sieve laws, the alien sedition acts that generate a massive backlash and thomas jefferson is now the next tide turning president. very early on he is running against the federalist regime, he has got a very different sort of platform and political formula for success. he's getting his votes from other folks and he manages to win against adams, win reelection and hand off power to his wing man, his secretary of state, secretary of states can be wing man or wing women, just remember that. and madison is going to win and win reelection and then his secretary of state monroe is going to win and win reelection and that party will become jefferson's party basically jacksonian party that is the
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dominant political party in america. they don't win every time, but they win way, way, way more than they lose because people remember that sedition act and the alien sedition act and you basically never hear from the federalists again at least on the presidential stage. so we have washington, now we have jefferson, and what happens to that party, they basically commit a kind of political suicide when the next president -- when this unknown fellow named abraham lincoln rises to power and manages to win. instead of says basically the political wind still at our backs, the tide still with us, we can outlast that guy, we are just going to wait him out, we're just going to say no to everything he proposes and he will be a failed, you know, reformist president, this tall skinny constitutional lawyer from illinois. this strategy of just say no, they are not smart enough to do that. they don't pull a mitch mcconnell, instead they walk
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away from a game that they're basically winning. this was not a smart strategy on their part and lincoln and this unilateral succession which is unconstitutional will mean that lincoln achieves a certain greatness in resisting this and he wins and he wins reelection and this was no -- you know, it was a very close thing. and in effect hands off power ultimately to his wing man who was ulysses s. grant, we kind of skip over andrew jackson. and that party is a dominant party because the democrats have committed suicide politically with slavery, succession, segregation and not really trying to basically accept the verdict of the civil war and its amendments. and they prevail all the way until another cataclysmic event, the great depression and their party gets the blame for it, herbert hoover, so the next tide turning president is franklin
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roosevelt. in this whole period no democrat wins a majority. woodrow wilson, grover cleveland they don't win a majority and republicans are winning landslides many of them in this era, but the great depression and now we have franklin roosevelt as the next tide turning president who wins and wins again and wins again and wins again, hands off power to his wing man, harry truman. and that's really the dominant coalition until vietnam and just the chaos of the 1960s, sort of tears apart that coalition, which has become the great society, in the late 1960s, and really ronald reagan eventually is the next really genuinely tide turning president who won, won reelection, won a third term called h.w., his handing off power because now he can't return for a third term, he is
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term limited and until now we have been living basically in the era of reagan. those are the tide turning presidents, washington and jefferson and lipgen and fdr and reagan, and if -- this is the choice that's before us, my fellow citizens -- in 2016 if barack obama's former secretary of state, his wing woman, hillary clinton, were to win we would say about obama or historians might say the tide has now once again turned, president won, won reelection handed off power. and if the democrats -- we only know this in the next two or three elections. if they become basically the dominant presidential party at least, then you would -- now, okay. so that's the structure, the rhythm of the presidency. and if you're a democrat i'm going to bum you out on how powerful actually we still -- lincoln's gravitational pull is
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because, remember, the democrats are overwhelmingly the dominant political party until lincoln. and the civil war loomed so large in our memory that since lincoln there are only two democrats who have won two popular votes for the presidency. franklin roosevelt, barack obama, that's it. wow. yeah. not jack kennedy, not harry truman, not bill clinton. none of them. okay? and so -- so -- now you're thinking this obama he is not as bad as we thought, that's actually pretty impressive. but the democrats have won popular votes, plur amounts in five of the six last presidential elections and if they prevail again going forward, the republicans don't sort of rethink their formulas then they are going to be in the minority for a while. okay. that's the presidency. now, how does that interact with the court whose justices are
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picked politically but have life tenure, don't have to leave if they don't want to? well, there are these special moments when the new rising president confronts the ghosts of administrations past in the form of these holdover justices that have been appointed by the other party, the party that you ran against, you know, change -- because presidents are change agents, they always are promising sort of a new thing. most of them fail. most presidents actually fail. it's an impossible job. but the few who succeed, the jeffersons, the lincolns, the fdrs, the obamas, are going to confront a judicial yaer that is largely in the hands of the regime they ran against. that's the drama of these great moments. when i say the tidel pattern and
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faceoffs, that's thomas jefferson facing john marshall who was a federalist who is basically in the washington john adams camp and now actually there is this confrontation and we actually call that marbury versus madison. marbury versus madison the real drama isn't marshall inn validating -- i'm sorry. i should have started with washington of course. my apologies. there is not so much of a confrontation here because washington picks john jay, okay, he is washington's guy. he doesn't inherit all these british judges, they've been tossed out in the american revolution, but just so you know, in 11 of the 13 colonies the chief judge of the colony sided with george iii against george washington and the american revolution. article iii which is the judicial article is third out of three for a reason. for several reasons. it's the least and last, there's the least text associated with t it's third out of three,
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politicians are supposed to pick judges, judges are not supposed to pick presidents. that's why bush versus gore is a disgrace. but the reason that judges were third out of three is they are not the leaders of the american revolution, they are not the champions. so there's not this faceoff initially with washington because he's picking john jay. but with jefferson against john marshall there is this confrontation and it's heightened because they're second cousins and they don't even like each other. note that john marshall has to swear in jefferson just as roger tawney is going to be swearing in abraham lincoln and you remember the slightly flubd swearing in when obama was sworn in by john roberts. these are slightly tense moments. i'm getting ahead of the story a bit. marbury versus madison is
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conventionally thought as john marshall inn validating act of congress, but the real drama is john marshall against thomas jefferson because marshall's opinion goes on and on about how lawless the jefferson administration has been, in the same way that today's court is being invited to say, well, the obama administration is lawless on immigration policy, and the obama administration was lawless on obamacare and not just in the law, but the implementation of the law, and the obama administration is lawless on some of their carbon rules and the epa. so this is nothing new. it's a feature of the distinct structural pattern of a presidency that's a four-year term with this tidal feature and justices who have life tenure. so marbury is a drama. now flash forward. roger tawney and abraham
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lincoln. abraham lincoln becomes president by running against roger tawney, by telling everyone who will listen just how preposterous dread scott is, this young lawyer from illinois calls it, quote, i love this phrase, an a ston she are in legal history. now the tension when lincoln confronts tawney who wants to invalidate everything lincoln is doing and declare everything the obama administration -- i mean the lincoln administration is doing unconstitutional. he wants to declare lincoln, they have a draft, an individual mandate, if you will, which that's what it is, it's a con description law and the lincoln theory is actually it's a tax because you can buy your way out of it just like the individual mandate. he is afraid that tawney is going to invalidate the whole thing and when tawney dice they find in his desk -- the case never materializes -- they find in his desk a complete draft
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opinion, a draft draft, if you will holding con description unconstitutional. the case hasn't reached the supreme court but tawney is ready, he's got it in his top drawer. lincoln's emancipation proclamation if you read it has all the poetry of a bill of lading. it doesn't soar like the gettysburg address. why? and it doesn't free everyone but only some people in some jurisdictions. because he is a lawyer, he's trying to bulletproof it because he knows if you give tawney this much he will hold that unconstitutional. so this confrontation because the court that he confronts is a court filled with jacksonians and people appointed by franklin pierce may he rot in hell. this is a c-span event so i paused a little bit but i think i can get away with that one. and james buchanan. that's the court that lincoln confronts because justices are ghosts of presidents past and
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lincoln is running against all these presidents, against the tide. okay? and that's -- and some of you may remember this from your history books, i won't say you remember it from your child hoods, i won't insult you this way, but the new deal, remember, it's, you know, the new deal against the old court and franklin roosevelt confronts all of these republican justices and in his first term he has not a single appointment. so nine who were appointed by earlier regimes who are threatening to invalidate every part of his program, the national industrial recovery act and the agricultural administration act and obamacare -- i mean -- and -- so his -- so, you know, his social security structure. so that's this -- these faceoffs are built into the structure of a presidency that's four years and tidal and these justices who have life tenure.
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now, the -- reagan didn't really have this confrontation and here is why, because earl warren who was basically a supporter of lyndon johnson mistimed his exit and he ended up doing things in a way so that richard nixon even before getting elected had two open seats to fill and then there were two other seats. so by the time reagan became president previous republican justices had already begun to stock the judiciary in ways that were sympathetic to reagan. republicans have controlled -- i will say this again later -- the supreme court. republican appointees have controlled the supreme court since 1970. and that's now no longer the case because it's 4 to 4. the reason -- the reason this
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date -- this night is so different from all others is we are facing an election in which the house, the senate, the presidency and the judiciary are all in play. in january they could all be controlled by the republicans, they could all be controlled by the democrats or something in between and that hasn't happened in the longest time because the senate has gone back and forth between the two parties and the house of representatives and the presidency, the court has not swung since 1970. so that's part of, you know, why this is particularly fraught. but yes, of course, when obama confronts these republican appointee -- court -- the roberts court whose majority is appointed by the folks of the party against which he ran, that's the drama of the obamacare case, you see, and it's not so different than the old court and the new deal, or roger tawney trying to invalidate everything that lincoln is up to, his habeas
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corpus policies, his draft policies, his slavery emancipation policies. it's very similar to the confrontation between john marshall and thomas jefferson. so there is a pattern to all this. now, i promise the you since this is the new york historical society that we are not just going to do history, we're going to do new york. so in each of these let me just remind you of the new york angle. the first one, george washington, he's picking a new yorker, john jay, educated just right down the road here at columbia to be his chief justice, so an obvious new york angle in that one. what makes in two words thomas jefferson president in 1800, you could say the sedition act or you could say new york. aaron burr. that's the swing state. adams and jefferson are running against each other and jefferson
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comes in second and then they do the rematch in 1800 and jefferson prevails and that's because he gets burr to help him win new york. new york is the swing state in that election so it's looming very, very large. it was burr against hamilton here on this island. whoever won the island would win the state, whoever won the state would win the presidency setting up this confrontation. now, i admit that the third faceoff doesn't have as much of a compelling new york angle, lincoln and tawney and neither of them is quite a new yorker, but lincoln does rise to prominence and mansion to win at the convention, not on the first ballot of course, because he impresses people in this city, the great cooper union address is actually the key to lincoln's success. now, the fourth one is one of the most new york stories of all, it's charles evans hughes against -- it's the hughes court against -- chief justice against franklin roosevelt, both new yorkers, both former governors of new york, both studied at
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columbia, they are friendly actually although one is a democrat and one is a republican. when they refer to each other, governor, governor, you know, and they have some -- and roberts is not the most extreme republican on that court, but there are some folks to his right nicknamed the four horse men of the apocalypse who make life very difficult for franklin roosevelt and it's a very new york story. now, of course, the current court, it's headed by a new yorker, born in new york state, buffalo, learned his law here in this city, new york city, from henry friendly. the other members of the court, we've got ruth bader ginsberg who finished her law degree at columbia and was a brooklyn person and sonja sotomayor is a bronx person, elena kagan is manhattan all the way, and antonin scalia was queens. so no staten island, i guess.
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i mentioned sam alito. but her also merrick garland who learned his law in this city and he is the guy on the hot seat right now. so it's very much a new york story. and what's going to decide? what's going to decide the election is which -- who fills that slot on the supreme court, what's going to decide it is which man hot night becomes president of the united states, whether it's donald j. trump or basically hillary clinton. so it's very much a new york story and the supreme court is very much on the ballot. and when you have judges, for example, who decide -- who oust a president of the united states in effect, richard nixon, or pick a president of the united states, george w. bush, or basically tell us who can vote and who can't with id laws and all the rest, the court is influencing in important ways in close elections who is going to win and who is not. and so these things interact.
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very interesting interaction between the presidency and the court. so that was my first big thing. my others are shorter. and so now here is another -- so this is a long-term trend that we are witnessing, the rise of judicial power. so i'm going to say a little bit more about this. john jay quits the court because it's just a hassle, and he's the first chief justice. and he's actually offered the position a few years later -- let me actually tell you what he says. he turns it down and the reason john marshall becomes chief justice is the clock is winding down, adams has to pick someone because his term is about to end and john marshall is the only guy in town and the mail is slow and he says it's got to be you because i know you will accept.
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jay sat for a while and by the time he basically said no there weren't many days left in the adams administration. what precipitated marbury versus madison? the so-called midnight judges when john adams after losing troo tries to pack the judiciary with even more federalist judges to make live difficult for thomas jefferson or to protect his side. again, political appointment and then they have life tenure thereafter. that was the backdrop of marbury versus madison, this race against the clock created by life tenure for the justices versus a different tenure for presidents. when jay is offered the presidency -- the chief justiceship he declines it because the judiciary lacks, quote, the energy, weight and dignity which are essential to it affording due support not national government. basically i don't know how to make this thing work. it's broken. well, john marshall begins to
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see the possibilities of it, but you've heard of marbury versus madison. name me -- which among other things stands for the proposition that courts can invalidate acts of congress that they deem unconstitutional. okay. first, what was the great issue of liberty involved in marbury versus madison? correct. there was no great issue of liberties, it's original versus appellate jurisdiction and who cares? you can see it a different way, just how unimportant the court is initially. do you know how many justices there were on the original supreme court? six. an even number. how odd. how can a court ever operate with an even number? because right now you see we have eight. well, they are not imagining that the supreme court is going to be the be all and end all for things. by the way, if you've been to the supreme court building when was that built? it's a beautiful building.
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1930s. where did they meet before that? in the basement of the senate. the great plan for washington, d.c., they didn't -- like the judiciary was an after thought. they created from the beginning an executive mansion and a house -- and a congress building, but nothing for the judiciary. it is third out of three, it's least and last. after marbury 1803 when is the next time the supreme court inn validates an act of congress? and the many is not until 1857, dread scott and they made it all up in that case holding unconstitutional the free -- in effect the missouri compromise which prohibited slavery north of a certain line which was an a ston she are in legal history because the very first congress prohibits slavery in the northwest territory. there is no problem, congress has power to prohibit slavery in the territories, the framers said congress would do it. the northwest ordinance was passed even before the constitution was ratified and
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everyone knew that when the constitution went into effect they would bless all of that. in 1820 when they -- excuse me, when the missouri compromise is passed saying no slavery north of a certain line every single cabin officer signs off on it, no one says it's unconstitutional. by every single can a anyone fer that includes john calhoun from south carolina. and yale by the way -- this is just a news flash -- going to keep calhoun as the name of one of our residential colleges. i was reading for harriet tubman college. no. . so -- so judicial review is not that important a phenomenal early on. constitutional issues are really important. presidents are vetoing bills all the time on constitutional grounds. half of the president sri toes are constitutionally based. about 50 vetoes, half of them are constitutional vetoes and they are vetoing bills that have
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up hold or would uphold like the constitutionality of the bank which the course says is okay but andy jackson says not good enough for me i'm vetoing it. judicial review is not actually -- almost none of the important issues, constitutional issues, in the early republic ever get to court or are resolved by court. can presidents negotiate secret treaties, can they send secret invoice, how should they -- rounding errors in the apportionment of the house of representatives, the -- dealt with, can presidents fire cabinet officers at will, is the assumption of state debts by the federal government constitutional? lots and lots of early issues, constitutionally arise, and the supreme court doesn't play a role really in the resolution, they are resolved in the other branches. and today, wow, the supreme court is the 800-pound gorilla. it not only ousts presidents and picks them, nicken and george w.
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bush, but twice in an average year it's inn validating an act of congress and not original versus appellate jurisdiction because who cares really about that. they're inn validating or threatening to invalidate big laws like obamacare, laws about affirmative action and religion in public life and immigration and so huge constitutional questions that are being decided by -- campaign finance, really big ones. twice a year. so what's up with that? how is it that we have this rise of judicial power over time? the least dangerous branch of the founders becoming today's 800-pound gorilla. well, here are two factors that i would identify. there's many. we could talk about how the
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courts just, for example, there are many more judges today. they say friends come and go but enemies accumulate. judges accumulate. you need more of them. you can't keep adding legislators. as dysfunctional as congress might be with 500 it would be probably worse with 5,000. okay? so congress can't -- so at the time of the founding there are seven members of the house of representatives, there are about 105 members of the house of representatives and six justices. so seven justices -- seven representatives for every judge. today there are about 1,000 federal judges, 400 congress people, there are two federal judges for every congress person. that's a 15-fold change in the ratio. all my students, some of them are here today, they -- almost all of them they want to be judicial law clerks to work in the judiciary rather than congressional clerks or something. the judiciary has a lot more
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influence because there are a lot more of them, the supreme court gets to decide which cases it is going to pick which gives it a certain power and agenda. so there are many factors. we the people have increasingly punted issues to the court for resolution, we have adopted a whole bunch of constitutional amendments over the years that presuppose vigorous judicial enforcement, the bill of rights, the 14th amendment, 15th amendment and others. but here are two, one of which has particularly a new york story. one divided government. in a world of divided government no matter what the court does, you know, either the legislature is going to like it or the president is going to like it and the court can't be over turned unless basically the legislature and the president all are on the same page to invalidate. in a world of divided government
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the court has more running room. every single president since lyndon johnson except jimmy carter has faced an opposition house of representatives for at least part of their time in office, has faced divided government, which gives the judiciary more ability to do what it wants. john marshall had less running room because the jeffersonians controlled not just the presidency but the house and senate. and he starts misbehaving and he's going to get smacked down. and indeed just to go back one last moment to that first point about the faceoff, here is another way of thinking about the drama from a new york angle, if we pick, we the people, the republican -- the democrat new
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yorker, hillary rod a.m. clinton, how will new yorker john roberts play that because now he's going to be basically a minority faction of the court because merrick garland will be confirmed. and we haven't had very many examples of chief justices in the minority before, but one that we did was john marshall and he managed to make it work even though he is the last of the mow heek cans, the last of the federalists and they have a good base because they're unanimous when jefferson -- they've got all the slots, but jefferson wins and wins again and madison wins and wins again and monroe wins and wins again and john marshall is on the court for 34 years and these are basically jeffersonian appointees and he's got to work with them and make it work and he mansion to do that, but sometimes he is kind of leading from behind because he has to create a coalition. he dee sents, john marshall does in only one important constitutional case in 34 years
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on the bench. wow, that's an interesting fact. yeah. ogden versus saunders in 1827. so is roberts going to be able to do that if he finds himself in the minority because ril yam rehnquist wasn't in the minority and neither was warren burger. yes, an appointee but a liberal republican appointee. so it will be a distinctive challenge. tawney was supported by all these jackson democrats and pierce democrats and buchanan democrats on the court. contrariwise if donald j. trump -- if we the people pick him you have to understand that that is a real possibility, my friends, and if he does how are these new yorkers like ruth bader ginsberg and sonja sotomayor and elena kagan going to react to that? so that's a new york story, too. okay. so one thing that makes the judiciary more powerful today is
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divided government because it enables the judiciary to be right wing or left wing and at least, you know, one of the two parties and one of the two branches and neither divided government will be happy with that. so if hillary clinton manages to win and win the senate and actually win the house, which could be in play because donald trump could lose the house of representatives for his party, well, that's going to be a very different world for the likes of the republicans on the court. that could happen. and contrariwise it could be the case, both are actually possibilities, that trump wins and carries the senate and of course carries the house and of course he will have the judiciary then, too, that he will be able to replenish with a person of his choice, it won't be merrick garland, and now the unified government with a vengeance, the republican controlling all the branches. that could happen, too, in this
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election. that's what makes it election so interesting. so one is rise of divided government has led to much more judicial power. maybe one other factor then i will give you the new york angle. in an era after watergate and vietnam you lost a lot of confidence in the other branches of government. they lied to you after watergate and vietnam. the nicks on tapes case, pentagon papers, they weren't part of the problem, they were part of the solution. i think they lost some of that, bush versus gore lost them a lot of credibility. here is what's unique about today's supreme court, there have been moments in american history when the left hated the court, that would be 1930s, the old court, and there have been moments in american history when the right hated the court, impeach earl warren, 1960s. we are living in a moment when the supreme court is being simultaneously attacked by both left and right. that's a new -- because people are just pissed off with
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everything. teed off for my friends on c-span. there's just a lot of anger in general and that's a new phenom in a. okay. so watergate and vietnam i think have made the court less -- still held in higher regard than, say, the congress and divided government has given the court more power and there are a lot more judges that they can order around and all these -- and lawyers become lawyers basically getting their first start in the judiciary. here is one other thing that's interesting and this is going to lead into my next point, which is the rise of claims of judicial expertise, the judicial zags -- we are start people, we actually have special expertise because we want to law school and this constitutional stuff is really complicated, so just to remind you -- and john jay was very well educated but not all the other justices you see over
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the course of american history have gone to fancy schools and had fancy degrees. most of them weren't even judges before they were justices. john marshall wasn't a judge before he was a justice and his replacement, roger tawney, wasn't a judge before he was a justice, and his replacements, wade and fuller weren't judges before they were justices. and earl warren wasn't a judge before he was a justice and before him charles evans hughes before he was an society justice wasn't -- and later became chief -- wasn't a judge and neither was william rehnquist before he was an socieassociate justice. william howard taft was a judge before he was chief justice but he had some other really important jobs also. you're thinking boats, i'm thinking professor at yale law school. whereas today except for elena kagan -- the court that gave you
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brown versus board of education none of them except one was a federal judge and the one none of you will even remember. not earl warren, not williams douglas, not hugo black, sherman minton. anyone remember sherman minton, he was also a senator. he had a lot of political experience. today except for elena kagan all the justices were sitting federal appellate judges at the time of their appointment. you rise been the judiciary itself and here is how it begins, by going to a fancy law school, often, you know -- or college in new york or in adjoining state, doing a clerkship, becoming a baby judge and working your way up through the system. i told you that's john roberts who learned his law, learned how to be a judge by studying at the feet of the great henry friendly. merrick garland studied at the feet of the same great new york city judge. it's the rise of new york in
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some ways, the great universities. here is one way to put it and then i'm going -- we're going to move to questions and answers. just if you think about the rise of claims of expertise and their suspicion about expertise because all these experts on wall street did things to their own advantage and experts in the accounting industry and legal academics are just into their own power trip critics claim, but new york plays a huge role here because within commuting distance of this lecture hall, you know, are three of the six greatest law schools on the continent, you know, just a cab or a commute ride away, yale and
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nyu and columbia. so these claims of expertise actually mean, for example, that the court today is no longer geographically balanced. it used to be when justices rode circuit there was a geographic balance. now you focus more on a demographic balance, how many women, how many non -- how many jews, how many catholics, how many blacks, how many asians and the like. it's -- it's -- and that creates the possibility of a very new york-dominant court, for example, which you couldn't have had in an era of circuit riding. okay. i think i've said enough just to get the conversation going and one thing that we haven't talked about -- we talked about how you get on to the court. we haven't talked about merrick garland a lot. i'm happy to do that. we can also talk about off ramps from the court. how people leave the court and
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whether they are leaving the court in politicized ways or not. so there's lots of stuff to talk about and i think it's now time to move to q & a. so please up to the microphones. i ask you to please actually ask one question and indeed request a question. [ applause ] thank you. >> professor, could you please comment on your opinion as to why chief justice roberts seemingly abandoned his republican brethren on obamacare. >> that's the perfect question. the question is about john roberts and obamacare and that is his john marshall moment in which he rises above partisan politics. he might be right. he might be wrong. i think he's right. but even if you don't, here's what you can't say. and if you think he's wrong, he
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was not a partisan about it. he doesn't like this law. his party doesn't like this law. and yet he sided with democrat appointees, good for him, because washington, d.c. almost no one ever crosses party lines, and he did. good for him. and he did it not once, but twice, because it was the -- case which he upheld obama and the king versus birdwell decision is one in which he read the statute purposefully, generously, and didn't sort of try to undermine it with clever technical lawyering that really was not faithful to the larger purposes of the law. and, again, you might disagree with him, i think he was right, but even if you disagree with him, note that he was not a partisan -- by the way, since used as a chance to say one other thing, we talked about getting on the court, other people get off the court. what i said as a political appointment process, but there
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is life tenure after that. true enough. but for much of american history you had pauls on the court, once and future politicians, who didn't give up a political life when they donned the robe. why did john j. leave the court? to become governor of new york. and his colleague cushing would have left the cord hurt had he elected governor of massachusetts, but he lost. i can give you some new york angles on all of this. charles evans hughes, former governor of new york, he's an associate justice, he leaves the court, cushy gig. why does he leave it? to run for president of the united states. and he only loses california by 40,000 votes. if he had won california, he would have been president of the united states and then becomes secretary of state because there say connection, you see, between secretaries of state and
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presidents. in american history, many of your early presidents, half of the secretaries of state who served four year terms become president and others came very close like henry clay and darryl webster. there is a new york angle with hughes then becomes chief justice later on. william o. douglas, who learned his law over there at columbia wants to desperately be vice president of the united states and he comes this close to being fdr's running mate in '44. he's fdr's poker buddy and he had a more political personality, frankly, than a judicial one, more suited to his temperament. but critics would say he was a trump-like figure in various ways. and maybe perhaps not suited for that. he thought even after that about running for the presidency in his own right. that's another new york angle. in an earlier world, it would not -- in our world, preposterous what i'm about to say. in an earlier world, you know, because justices didn't give up
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politics when they were -- political ambitions on the court. solomon p. chase wants to be president of the united states. he's linked as an appointee and angling for it as he's presiding over the impeachment trial, he's angling to basically replace johnson as the democratic nominee for the presidency in 1868. so -- and almost all the people that lincoln put on the court actually are angling for the presidency. so the republicans sanest choice, you know, because paul ryan, you know, is a good looking young guy, heartland of america, good looking, sensible, centrist, really smart republican, heartland of america, former high school quarterback and, you know, just right out of central casting, his name is john roberts, you know. and he's a smarter and younger and better looking version of
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john kasich, you see. you know, just saying. and -- but of course what i just said is preposterous because actually he's not a pol and good for him he's not. i don't always agree with him. but chief justice roberts, if you see this on c-span, you have a big fan in yours truly. and you learned your law from the great henry friendly who -- who taught merrick garland and many others. and henry friendly believed that law is different than politics. so do you and so do i and we're lucky that you actually have that view. yes. >> i have a question. have any justices been impeached? and how would we do it if you could? i have a couple in mind. >> yes, we do have -- well, remember in the 1960s, i told
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you that the court was reviled by the right, and bumper stickers, highways in the southland. >> i remember. >> impeach earl warren. >> i was in the south. >> you were an infant, but -- so impeach earl warren. so, yes, remember impeachment isn't limited to presidents or vice presidents or cabinet officers. john marshall is afraid that if he actually orders thomas jefferson to appoint this guy named william marbury to this position, that's that marbury is all about, marbury comes to court saying i want you, the judges, to order james madison, who is jefferson's wing man, secretary of state, i want you, john marshall, to order madison to give this guy a piece of paper saying he's a judge. remember, at the end of the administration, adams tried to pack the judiciary with all of these featherless types.
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marshall is afraid, if he does that, he's going to be impeached. and maybe convicted. and that's actually only the second worst option -- scenario. the best scenario is he'll just be ignored and made a fool of. second best is he's going to be impeached and i'll tell you why he thinks that. other possible scenario, remember, we have an -- we know how history turned out. he doesn't. thomas jefferson was there in france, he says lots of things about the french revolution and the, you know, the tree of liberty must be watered by the blood of tyrants, so maybe the guillotine. he doesn't know this guy is not going to be an hugo chavez type or fidel castro type. jefferson says a lot of, you know, bad, crazy stuff. c-span is here. so and why is he thinking that he might be -- so he doesn't, he says jefferson -- all these horrible things, but too bad we don't have jurisdiction. >> what is the process for
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impeachment? >> i'll tell you who was impeached. a justice who sat on marbury versus madison. manning chase. not solomon p. chase, but samuel chase. and he is actually being -- and is the same process as any other impeachment basically, majority vote of the representatives, for other -- otherwise, who would preside, the vice president and that's wrong because he would win the presidency upon conviction. so he's sort of -- he has a conflict of interest. but for every other impeachment, it is just chief justice doesn't preside, majority of the house, two-thirds of the senate, i myself have been involved in the impeachment as an adviser of a lower federal court judge. impeachment proceedings, thomas
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porteous, who was basically a crook. and convicted and ousted. but here's what chase did. chase was a justice who was a federalist and way partisan. and he threw the book at jeffersonians who spoke out against john adams, he threw the book at them in prosecutions under the -- sedition act and was a little too vigorous in enforcing the sedition act. he wouldn't let juries hear the first amendment, and other constitutional defenses of the defendant. he was a little too vigorous in all that. he gave political speeches. so he's impeached. and there was an earlier federal judge who was actually impeached and removed, critics said he was abusive of power, defenders said maybe he's just drunk. he was an old guy. but we would say today, maybe he was suffering from dementia and
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alzheimer's. is that a high crime and misdemeanor? in. wou no. this guy was already ousted. his name was pickering. chase is impeached. he's almost convicted. majority votes to convict but not by two-thirds and here is -- and i have to tell you the story, i know i'm about to get the hook, but dale told me you like stories, so here is the greatest story. at the same time that chase is being impeached for his partisan misconduct, burr killed alexander hamilton in a duel. burr is the vice president of the united states. he presides over the senate and therefore the impeachment trial of chase. leading wags in the newspaper to say in most countries, the murderer is arraigned before the judge. but in our country, we have the
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judge being arraigned before the murderer. thank you very much. [ applause ] american history tv is in primetime tonight with a focus on the u.s. supreme court. our lineup includes justice stephen breyer talking about the influence of foreign relations on national security and civil liberties. as well as a discussion on the relationship between chief justices and the president. we'll also take a look at the 1905 supreme court case lochner versus new york and its impact on state and federal labor regulations. that's tonight on american history tv, beginning at 8:00 eastern here on c-span3. up next on american history tv, the supreme court historical society hosted a discussion among authors and academics on the 1905 u.s. supreme court case lochner versus new york. in that decision, the court
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ruled a new york law limiting the number of hours a baker could work violated the 14th amendment's guaranteed liberty of contract. the decision ushered in what is known in legal history as the lochner era, but the court striking down many state and federal regulations on working conditions over a three decade period. supreme court justice stephen breyer introduces this event. it is about an hour. >> let me now mention how much we appreciate the fact that justice breyer has agreed to host this evening. we are sincerely grateful to you for that. brief comments about justice breyer can't begin to do justice to him, so i'm going to have to be unjust in light of time constraints that i'm subject to. justice breyer has always been remarkably generous with his time and supporting society


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