Transcripts For CSPAN QA Supreme Court Chief Justices 20240713

The answer is in this era, as always, we have a chief justice first and foremost the head of and a steward of our three branches of government. I think there are some unique aspects about that job in the sense that the court is not a political branch, but deliberately designed not to be an the chief has in some because a unique job the chief justice is the first. She has had administrative responsibilities but she cannot control the other justices. The chief justice has the power to control but not control. There are some great areas in history that explain that. Role and whove a writes the opinions . Twof course, those were the distinctions as the chief justice. They reside over the conference which is leading on both which cases to take. I think as you know, a very small number of cases that the court actually takes and hears out of the number that are petitioned every year. It is under 10 . Chief has as role in the discuss list. That and itrculates is presumptively denied. The chief resides over the conferences. Certainly, a role in managing the docket and what gets taken in the same process, you mentioned the opinions which are extraordinarily important and it is one that the chief has when the chief is in the majority. Court, buty of the we can talk about some stories aout when a chief might join majority and try to keep consensus on the court. What number is chief roberts. I am not sure. Between 10 and 15 , very few clarion the first clip we have of him, we have a couple to show is him describing his job and is a metaphor he uses often. [video clip] if you understand his role in making sure the Court Function and you go in the next room and you see Charles Evans hughes and you think about the importance of the independence of the judiciary. And things like that. He talks about how one makes history. He often refers to himself as calling balls and strikes. How has this chief justice approached his tenure on the court . Justice roberts steward yout would see and he says this publicly and it goes back to chief justice John Marshall, who had this incredibly Important Role in establishing where the courts place is and our democracy. It is very hard to have a proper conversation about chief justices without spending a moment on John Marshall. You probably know this story, where weback in 1800 had a situation where the federalists were in the white house and congress but lost the election. He is present and he has two months before he has to cede control of the white house and to Thomas Jefferson and the antifederalists. He decides one thing he could do is put a number of judges on the bench before he leaves. He ends up choosing as chief justice of the United States, John Marshall, who is his secretary of state at the time. I dont now how many people know this about John Marshall but he was at the Constitutional Convention in virginia and he spoke about what chief Justice Roberts just said, the independence of the judiciary. He said at that time, to what quarter of society do we look for protection of rights and overreach in the political branches if not the judiciary . Adams appoints John Marshall as chief justice and tries to put judges on the bench before he leaves and he runs out of time. That leads to one of the most consequential cases in Supreme Court history. I am sure you know a little bit about that. Host which one . Elizabeth marbury versus madison. Its so much what chief Justice Roberts is talking about today. You asked the question about how he approaches his job and the role of the court. It was in that case the court established its role in our constitutional democracy and we have seen it across the administrations, all the way through history into the present moment. The court has this role where it has to be independent of the independent branches, so it can serve as a check, but it cant be seen as unaccountable or unresponsive to the people. Chief Justice Robert understands that. The way it was handled in marbury versus madison was extraordinary. He ended up on a Supreme Court where one of the judges, that , president adams had appointed and confirmed did not get his commission from the new administration. The judge said, if you them to give them the commission. There was a provision in the statute that allows the Supreme Court to do that. What John Marshall knew was that if he issued the order, he had no way to compel jefferson and the administration to follow it. If he issued the order, if it wasnt followed, it would weaken the court as an institution. What he did instead was say, yes indeed, the commission should have commissioned in marbury was right to file a lawsuit and bring it to the Supreme Court. The provision in the law that he wanted the Supreme Court to enforce, the underwriting the executive branch to do something, is beyond our power as a court under the constitution, so we cant do it. What he did was that we, as the Supreme Court, are here to interpret the constitution, even as against legislation as an act of congress and were the ones who say what the law is. He did it in a moment where he was taking away the courts own courts own power so there was no backlash. That is the case any chief justice looks to to say that was the principle that was not established at the time, but the but is now the foundation of the courts role in society. Host lets return to clips and hear what he has to say about marbury versus madison. [video clip] many countries that have constitutions, their political documents. If you have a dispute under the constitution it will be resolved , however disputes will be resolved. Any election if you are lucky. Force of arms if you are not. However political disputes are resolved, that is how they would dispute constitutional questions. John marshall said this is different. The constitution is a political document. It sets up the political structures but it is also a law. If the law, we have the right to tell others what it means. It is binding on the other branches that important insight. Into how the constitution works has been the secret to success. Host do you have more to say about that . Its funny that John Marshall was our fourth chief justice. People would think of him as the first because of this ruling. Was it immediately known how significant it was or did it play out over time . Elizabeth the significance played out over time. The chief justice, John Marshall certainly knew the import of , what he was doing. Again, whos doing it in a way where he wouldnt cause rancor and we can talk about how one of the key roles of a chief justice is exactly that, to preserve the courts role but do it in a way definitely deftly preserves the structure and doesnt provoke. He mentioned chief Justice Hughes and fdrs Court Packing scheme. This was the point when we saw the import of marbury versus madison coming into play. Its another great story in history. Host let me work my way through history a bit more. One thing before we leave this case. I understand that the court under marshall also established the tradition of speaking with one voice on opinions. Before that there had been many chief justices with many opinions. What is the importance of speaking with one voice with the court . Elizabeth it goes to the credibility of the institution and the notion that weve been talking about with chief Justice Roberts, that the court is nonpolitical. You hear this in the parlance of the court. Constitution. Not constituents. Caucus. Rence, we do not we are all here to do the work of the court. I had the privilege of spending a year there as a law clerk. , chiefmy impression itssaid publicly where it is different in time. Susan lets spend more on you. The u. S. A trustee of Supreme Court historical society. What is that organization . Elizabeth i fantastic organization that does a lot of great work preserving a lot of the history we are talking about and also increasing public understanding of the Supreme Court as an institution. It is not institution you might be as familiar with as president or the congress. It a terrific organization and some of the historical material, if you visit the website, you can see its audio clips, its papers, understanding the role of the court and some of the most consequential decisions of our time. Its a terrific organization. Susan susan what kind of law do you practice . Elizabeth mostly civil law but i have done constitutional work. I have the privilege of serving of theexecutive Branch Justice Department as well as a law clerk in the court. I was able to work with members and staff when i was at the justice department. Ive testified there several times. American. Generation i have lived and been lucky enough to live some of the things i read about in school growing up. Susan where did you go to law school . Elizabeth i went to law school at harvard. ve always loved history theres such an intersection between law and history. Natural if a cant say im one of these people who woke up in the middle when i was 10 years old part of it was i was looking for a good job and i had studied some science and thought maybe thats going to maybe going to medical school but law school was shorter and i could get out into the work world sooner. A lot of it is relationships. You meet Extraordinary People along the way. He was one of , those. Many people in my career have encouraged me as a lawyer, but because what we contribute to society has moved me. Susan what does it mean to be a clerk at the Supreme Court . What do you do . Elizabeth a lot of it is work on opinions and petitions that come to the court. Both as a justice and the court as a whole. Its a tremendous privilege. One of the privileges that we dont talk too much about what happens in the court process. There are rules around that. Its really about the support of the court. The amount of work is tremendous. The volume of petitions that come in are thousands. For each case, managing the research, the opinion drafting, the justices do their work in the writing. The law clerks are there to pick in the work of getting the opinions out. Host what year did you clerk for Justice Thomas . Elizabeth i clerked for Justice Thomas in 2009. Host how many clerks does a justice have . Elizabeth there are typically four. Host we have a clip from 2016. Apparently he has a tradition of taking his clerks to gettysburg every year. Lets watch. [video clip] in these jobs, a lot of negativity comes in. Thats the lesson i learned, that somehow, you keep it together and you say, look, i know i am experienced. Ive seen how the sausage is made. All we have left is the ideal of what the perfectibility of this great republic. Thats basically the reason. Plus, it is kind of fun. You can contemplate how our country could have gone in a different direction. If lee had one, that would have been a problem. [laughter] probably more of a problem for me than you. Host we see his sense of humor. He is talking about how people watching the sausage being made can be jaded about it and how its important to the about the ideals. What did you learn about being inside the court that you did not realize before by studying . Elizabeth its an extraordinary institution. The cases are difficult and they can be controversial. There is no way to report on them without taking a topline in some respects. I do think what you experience and certainly that i experienced as a law clerk is what the chief justice and Justice Thomas were talking about. Regardless of votes or views on a case, all the justices, every law clerk is there to further the work of the court. And going to places like gettysburg or walking the halls of the building, you see and feel the history. You realize you are a small part in a moment of a Great Institution that has survived tremendous things. Some Great Stories and great drama we can talk about. It has always survived and protected our country. What i remember seeing is everybody working hard to further the courts role. There was a civility and collegiality where you could have the most ardent disagreements intellectually, but everyone knew we were there to do the work of the court. To this day, i was at a dinner recently, and there was a hundred years worth of Supreme Court law clerks. There were people going back to the 1950s at the dinner. There is a sense of, youre part of something bigger and you had these friends for your life. Susan we will return to history. You talked about the court and years of particular strife, and one of those was during the roosevelt administration. A frustrated roosevelt decided he was going to expand the size of the court. What are the interesting stories from the area of attempted Court Packing . Elizabeth i will focus on the role of the chief justice. The country in the great depression, a lot of people were suffering. Fdr, in his first term, brought a lot of relief with the new deal program. Elected in a landslide for his second term. The court, some of those programs came up for judicial review and most of them passed muster. A few did not. The few that did not were ones where the administration was trying to regulate the domestic economy in a way that infringed on the rules of the state, because in our democracy, there is a vertical component there is a horizontal court for the executive branch of the president. There are the states that are sovereign. There were two big cases that frustrated fdr. The court had declared that the things the administration wanted to do were unconstitutional, and that frustrated the president because he had such a popular majority behind it. One of the functions of the chief justice is to inaugurate the new president. It was funny, the marbury versus madison case, it was chief Justice Marshall inaugurating Thomas Jefferson before this court case came that pitted them against one another. The same thing with fdr. He wins the second term, and he is being sworn in by chief Justice Hughes, who presided over the Court Decisions that obstructed some of the new deal programs. The swearing in, historical account is funny. A windy day, chief Justice Hughes had whiskers flapping in the wind. Chief Justice Hughes had the idea that maybe they were going a little bit far with the programs. Chief Justice Hughes read the oath very seriously and solemnly. Fdr responded after, i understand that you say my oath is to uphold the constitution, but the constitution as i see it is a flexible one to adopt to the challenges of democracy. This will set up a contrast between the court and executive branch. What fdr did after that was open unbeknownst to most members of the court, he invited them to his house. Everything goes swimmingly. Three days later, this is february of 1937, he announced a Court Packing plan and his plan is, for every justice on the court who is 70 or older, the president can appoint, if that justice does not retire, the president can appoint a new justice, up to six. That would have allowed fdr to put up to 15 justices on the court. That will ensure his new deal legislation would not get struck. Chief Justice Hughes handled this in a way that is extraordinary and may explain chief Justice Roberts reference. He was lobbied by people to speak out against this plan. He refused to do so. He ended up writing a letter that was widely understood to say, i do not agree that there is any need to change the number of justices on the court and the president s reason, which was purportedly that the older justices could not keep up with the caseload was pretext and unjustified. I have to laugh a little bit. If fdr had met justice ginsburg, he may not have been able to put the narrative out there. He issued this letter saying, this is pretext, it is not right. There are different historical explanations of why the Court Packing plan did not exceed the chief justices approach, but it exemplifies the point that the Supreme Court embroiled in politics and you have to have a deft hand in managing them. Susan he wanted to be a candidate for president , but he had his very own these of president ial power and how it should be wielded that he brought to this conversation. Elizabeth you have probably heard the expression a switch in time saves nine. Chief Justice Hughes was deft at not being drawn into the fray on the Court Packing plan, but also after congress voted down the legislation, he managed the conference and started putting more hospitable toward fdrs legislation. Another justice retired, and that opened a spot for fdr to appoint a new justice, who he could hope would be consistent with his program. That was hugo black. That was another era of the court. Susan there is no constitutional mandate for the size of the court. Elizabeth correct. The deftness i was referencing, its hard to convey, but there is a structural component to the courtss place in our democracy. It is on coequal footing with the other branches, but it does a different job. There is no constitutional restriction or prescription on the number of justices. Looking back, and certainly the chief justice saw the Court Packing plan as a way of the executive overstepping its bounds. And unseating the constitutional bounds by allowing the president to pack the court. If you are an fdr fan, you might have had no problem. If that is allowed, what happens when the president does that to someone who is not so excited about. We want this to be for the democracy. Susan the next chief justice was appointed by harry truman. Chief justice fred vinson. We have video, some newsreel of the era that shows when he was sworn in. Lets watch. Before the south florida call of the white house, a large crowd witnesses Justice Grover swearing in fred vinson as chief justice of the Supreme Court. The former secretary of the treasury is congratulated by members of his proud family. On his shoulders rests the task of bringing harmony to the nations highest tribunal. Susan interesting to see the crowds that were attracted to watch the swearing in of a chief justice. What was america like in the postwar era that this court was going to be part of . Elizabeth you heard the quote in the clip that part of the idea behind this appointment was to bring unity to the court. To understand that, you have to understand what immediately preceded vinson, which was chief justice stone. This is a funny segue, because we talked a little bit about the Court Packing of fdr in the new deal and chief Justice Hughes. He retired and fdr gets a new court pick. It is hugo black. He had a notorious feuds with several members of the court that chief Justice Vinson and the clip we just saw was appointed to try to unify. Very tough job. Chief justice stone immediately preceded vinson. Hugo black, robert jackson, significant jurisprudence. A big part in brown v. Board. They had a notorious feud. Hugo black had been in the senate. There were cases leading up to his appointment. One was about fair labor standards act issues. Basically, hugo black had taken a position on the u. S. Senate and jackson felt like he was conflicted in some of the rulings. They had this feud. Chief justice stone was unable to make peace and control what was a public airing of divisions on the court. Justice jackson was very frustrated with justice stones inability to manage the court and manage black. He had gone out to do the nuremberg trial. He was still an active member of the Supreme Court, but not sitting. You had an eightmember court. No tiebreaker. The chief was frustrated by that. Trumans idea was, appoint vinson and see if he can bring some order to this. He was unable to do so. He inherited a fractured court. Rather than getting better, all of the historical accounts is that it got demonstrably worse. Host did he have a judicial philosophy he brought . Elizabeth i dont know that he had a judicial philosophy the way some people think of chief justices today. He was close to the president. Etiquette was difficult for them, because some regard him as a crony, Felix Frankfurter was a harvard professor. Chief Justice Vinson felt like he had some disdain for him. Vinson was the presiding chief justice when brown versus the board of education before the first argument for the Supreme Court. The historical accounts are that the court at that time had open contempt for the chief. His inability to manage the court as a first among equals is that he cannot control what they do. It is cajole, not control. That has consequences for the first round of brown. The case was argued, vinson, and this is in the record, he was in conference. He had one justice as you would have upheld segregation issued in brown. He could not get it clear majority and was basically paralyzed. His inability to handle that people talk about vinson pushing out the timeline and having the case come up for reargument and buying the court sometime to figure out what it was going to do, it was Felix Frankfurter who came up with the idea that they should have five questions to be reargued. They could buy some time for the court to sort out its position. What happened after that was chief Justice Vinson died before the reargument. This article accounts are, this is a rather unflattering thing. Its reported that he said his first find ever was that there is a god that chief Justice Vinson past. Earl warren was appointed and it was a very different approach. Host there is a major private nose project going on that you know about where the notes that these justices take are beginning to be digitized and made available. I saw in a story that in december of 1952, when this case, called briggs versus elliott was being heard, the conference notes show that split, that four justices were ready to find segregation unconstitutional, and one, stanley reed, voted to uphold it. Chief justice fred vinsons notes say that im not sure what we should do today. He could not find a way out of that. Ultimately, it was important for brown, heard by the next court, to be unanimous. What is the strength . Why could it not go as a split decision . Why was it important for it to be a unanimous decision . They thought it was important for brown heard by the next court to be unanimous. It seems obvious, but why could they not let it go as a split decision . Why was it important for brown to be a unanimous decision . Elizabeth i will comment on the digitization project in a moment because i think that is a significant one. But to the point the unanimity was the idea. Chief Justice Earl Warren, who was appointed to replace vinson, the idea was really try to bring unanimity to the court on decisions like brown. He was governor of california. He was very deft at looking at the conference and the country and saying, if we do this, it has got to be unanimous. There were two reasons for that. One, it was a fairly divisive issue even at the time. Secondly, they were overruling a major precedent. As you have probably know and have heard, the Supreme Court is not a political body, so it cannot just change its mind or overrule its own decisions on a whim or because of Political Sentiment in the country. There has to be a reason. Chief Justice Earl Warren was extremely sensitized to the fact that if they overruled the segregation before the court in brown, they would be overruling the courts 60yearold decision in plessy v. Ferguson that said under the reconstruction civil rights amendments, equality is fulfilled by having separate but equal facilities. So chief Justice Earl Warren understood you had to get to a unanimous opinion and more than that, and we can talk about how he did that, which i think is an Important Role in the chief justice in getting consensus on a court that was still split, getting it short enough so the papers could publish it. So people could see the work of the court as one. Everyone could read it. And then there came how to administer that, which we know from the Civil Rights Era was very difficult but that was a follow on chapter. Host which chief Justice Vinson couldnt get done. Elizabeth could not get done. Host one of the other big cases we dealt with in our landmark cases series during the vinson years was Youngstown Sheet Tube Company versus sawyer. Why is this a landmark case . What was significant about it . How did chief Justice Vinson approach this case . Elizabeth this was the steel seizure case. The chief justice i think again it was a function of maybe not fully understanding the views of the other justices in his conference. In fact, in that case it was one where obviously the executive branch wanted to seize Steel Production factories in the country, wartime justification. The question was, does the executive branch have the power to do that . It infringes on commerce and states rights and the like. And vinson thought and assured the president the court would approve it and he did not know his own conference well enough to know they would not. They reversed there and it was significant because one of the courts major roles, and it is a delicate one as you can imagine, starting with marbury, is acting as the final word on when the constitution draws a line on another branch of government. So the steel seizure case, like some others we have seen and can talk about, are about the court saying when another branch has gone too far. In that case it was the executive branch. Host one part of the story caught my ear. The chief justice assured the president this would not be overturned. How much do we know from history about the conversations between chiefs, especially when they are the same party, signaling to a president which direction a major case might go . Is it rare . Elizabeth my sense is that it is rare, but it is hard to know. This is where, frankly, some of the projects like the digitization project you mentioned can be illuminating. Because you can get contemporaneous notes from the other justices. By the way, i should say the notes of the justices typically the conferences are not public. Theyre closed. But the notes are the personal property of the justice, so they can decide to leave their public papers with the library of congress or an institute. It is illuminating. My sense is that it is not common. That was one of the reasons that i think undermined chief Justice Vinsons credibility with the court. I mentioned the cronyism point. There was criticism he was too close to the president , and that is not the job of the court. That is not the job of the chief justice. You are not partisan. Youre not a crony. You are there to do a particular job. There was criticism i think that damaged his credibility with the conference. Host we segued into earl warren, who was successful in the unanimous decision on brown v. Board of education, another landmark case. Lets talk more broadly about the warren court. It was a long one, 1953 through 1969. Eisenhower appointed him. Did president eisenhower get what he expected philosophically from earl warren . He was a law and order governor. When he appointed him, what was he hoping his view might be on some of the big issues in society at the time . Elizabeth it is hard to say what the president had in mind or if he had a view in mind. One thing president said publicly in appointing chief Justice Warren that he certainly got was someone who could bring unanimity and some consensus to the court. Host but the court is thought of now as a much more liberal court. We had a republican president appointing him. Philosophically, were republicans surprised at how the warren court turned out . Elizabeth perhaps in some respects. The Party Alignments on a partisan level are different than they are today. In some respects, the republican party, the party of lincoln, it was not a great surprise that the chief Justice Earl Warren and the warren court would be as active and supportive of civil rights as a was, which was inline with the party of lincoln and the idea that there should be equality. I think in that respect, maybe not so much of a surprise. Again, the issue is the question highlights an important point about the relationship between the appointing president and the court. Which is that once the justices get on the court, this is the balls and strikes. You get these cases and you have to call them as you see them. Justice thomas has said that, you heard the chief say that. Whatever a president s expectations on some level, if you see some diversions, that is probably a good thing because it means the justices are doing their job. Host during the earl warren years, besides brown there are number of landmark cases and categories. Voting and redistricting, baker versus carr, reynolds versus sims. We dealt with a number of the criminal procedure landmark cases, miranda, matt versus ohio, gideon versus wainwright and katz versus the United States. Why dont we we talk about criminal procedure since he was attorney general, and a law and order governor . Those landmark cases in the area of criminal procedure, how does that change the country . What did they do . Elizabeth they change the country in innumerable ways. Going back to the foundation of what the constitution talks about, it goes back to the notion of due process. A lot of governors, not surprising to say, look, the only way that law and order maintains its credibility and even as a prosecutor, if your prosecutions hold, is if they are done fairly. And if the criminal defendant has rights that our constitution contemplates. We saw basic fundamental constitutional concept of due process. That was not as surprising. It is a great example and im glad you raised it of how the court is sometimes misperceived as having jurisprudence on a partisan basis. When you look at for example, Justice Thomas Fourth Amendment jurisprudence, a number of his decisions are prodefendant in the way the warren Court Decisions are. They ensure the defendant has certain rights against the government or law enforcement. Look at someone like Justice Thomas, who i think is perceived if you look at media counts as a conservative justice on the socalled right of the court, who has many cases that are procriminal defendant, because they derive from the same constitutional principles as some of the Earl Warren Court jurisprudence. Host free speech, the famous New York Times versus sullivan, student free speech, tinker versus the Des Moines School district. In the area of free speech, what is the Earl Warren Court known for . Elizabeth very significant in terms of galvanizing freespeech rights. Particularly in the school context. The no School Prayer case was also during the Earl Warren Court. I think very much a proponent of the First Amendment. Again, that was not necessarily as surprising. When you look past earl warren for that next chief justice, who nixon campaigned as someone who would reign in the Earl Warren Court you still have significant opinions like the case, i think the burger court upheld say you cannot compel the media or newspaper to print the response of a political candidate whose position the paper attacked, because that is compelled speech. The burger court also held that the right of the free speech of the First Amendment can a can encompass right not to speak. Some of the decisions from there warren court werent extraordinary are lined with one plug of philosophy or another, then it was with constitutional first principles. Susan another we hear about is griswold. Elizabeth griswold versus connecticut was one of the cases i think is a foundation or widely regarded as the foundation of privacy rights, in the 14th, constitutional due process. It has led to a lot of cases, roe v. Wade, planned parenthood versus casey, that talks about a right of privacy that it hears in the constitution that the court has built out. That is one of the areas that is a controversial part of the Earl Warren Courts jurisprudence, and certainly now in the burger court, and the current court. The court is looking carefully at those precedents. When you look at that light of cases and some of the examination going on now, as a matter of process, it is not fundamentally different from the kind of reexamination and thoughtfulness the court engaged when it was considering brown against years of precedent under plessy. People sometimes focus more on results than process. What strikes me about those instances is the court is doing its job of not overstepping its role but also reexamining where also reexamining were necessary some of the jurisprudence as time proceeds. Host we have a clip earl warren gave before retiring talking about one of the most important cases he saw. I want people to hear what he looked and sounded like. We have the legislatures must give equal representation to everyone. That was where the expression one man, one vote came into it, into being. Of course it is not just state legislatures. But it has been expanded to the congress, and expanded also to local government. It is this right on all levels of government. In that sense, i think that that case, from which all the other reapportionment cases followed, is perhaps the most important case that we have had since i have been on the court. Host the case he is talking about is baker vs. Carr why would he see this at the most significant during his term . Elizabeth it is significant in terms of the point he was making about, this is a fund mental notion of equality, what does that mean and how is it enforced or safeguarded in a political democracy, if you do not have that sort of representation. It raises questions about the respective roles of government. I think the courts role is the safeguard. That individual right can be exercised in electing members in the local branches. That is a fundamental part of our jurisprudence. If the court were not to protect that, the foundation of democracy would erode. Host you told us that Warren Burger was appointed by Richard Nixon when chief Justice Earl Warren retired. He referenced other chief justices from history and their ministry to scales. What is the view of the way that Warren Burger administered the court during his term . Elizabeth in the historical accounts he was initially aligned more with the stone vinson era. Chief Justice Earl Warren was a superb chief. When Warren Burger came in had in he had difficulty. He was not wellliked by some justices, notoriously Justice Douglas, who was concerned that to the point we discussed earlier, chief Justice Burger would be there to carry out the president s mandate of walking back some of the Warren Court Era jurisprudence in a way that was more political or agenda driven then should be the role of up chief justice. How much was driven by dissenting justices own agendas is hard to say. One could make the argument both ways. But chief Justice Burger had a harder time. You saw this in some of the cases. I think it was roe, on the first argument round. That case was reargued just as brown was. That was a case where the course court reargued to buy some time. I think it was Justice Douglas who leaked a dissent and try to publicize some of the divisions on the court and make the chiefs job harder. He faced a more uphill environment than perhaps warranted. And if he didnt, perhaps warren was better at organizing. I will tell you on brown versus board, i will tell you the story Justice Jackson was a big , proponent of judicial restraint and was concerned about the court overruling precedent, and how to get to the result in brown that Justice Jackson agreed with, but was worried about who should do it and what the courts role was. Chief Justice Warren, Justice Jackson had a heart attack, and he went to his bedside to try to get by and, including also from the dissenting justice you mentioned he was going to vote for segregation. He got the Unanimous Court in the room to announce that opinion. Burger had a harder time getting that consensus. Host they had big cases. You mentioned New York Times versus United States, roe v. Wade, greg v. Georgette Death Penalty case, regents of the university of california affirmative action, which we continue to see cases referred to that decision. And then United States versus nixon. That was a case that pitted the branches of government against each other. Why was that case so important . Elizabeth that was the executive privilege case and the nixon administration. The whole question before the court was, is there a Constitutional Foundation for the executive, or the president s assertion of privilege over president ial papers and communications . This is going back to marbury or the new deal era. The courts consequential role in saying what the law is, and then mediating this structural separation of powers game, where it is who gets to do what in our government . What was significant in the case, the court said we are going to uphold the privilege. Privilege, whether you like how it is being exercised or not, exists to protect the role of the executive branch. There is a deliberative process. We want our elected representatives to have debate and liberation. And to have deliberation. There is a president ial prerogative as an executive to make certain decisions and not have them secondguessed or monday morning quarterbacked. The court saw that and said this privilege has a constitutional underpinning so we will uphold it. It was a very significant decision. Host another appointee of nixon was William Rehnquist, appointed in 1972. When ragan was president he elevated him to chief justice in 1986. Can you talk about William Rehnquists judicial philosophy. What with his view of the role of the constitution, for example . The great tension is the original versus the living document. Elizabeth if you are to categorize him and im not sure it is possible to do so, simply possibly more on the , original list side. What stands out to me in , contrast to some of the justices we have been talking about, William Rehnquists jurisprudence focused on the vertical component, between the federal government and the states. Host Ronald Reagans issues. His federalism issues. Elizabeth exactly. Very relevant, the federalism. The William Rehnquist court reembraced the idea that, and this harkens back, it has echoes of chief Justice Hughes reacting to the new deal legislation. There are certain prerogatives the federal government and local branches have, but it is for the court to say when they go too far, whether infringing in a branch of the federal government or the states and individual rights. So i think what we saw during chief Justice Rehnquists tenure thekind of a refocusing of courts attention on the relationship between the federal government and the states. Host that being said, will he not always be known for two decisions that really work the balance of powers, that is of course the impeachment trial of present clinton in 1999, and then bush v. Gore in 2000. Elizabeth it is funny, he said this in relation to one of the significant duties of a chief justice, he was a big gilbert and sullivan fan. And i think when asked about how he perceived his role presiding at the senate trial, he said you know, i did nothing in particular and i did it very well. So i think he did not relish the role. To the point we have been talking about the issue of where the courts work in the role following the government, chief Justice Rehnquist did, and coming out of the impeachment proceedings on what he termed sort of tongueincheek, the relative order of the Supreme Court as against the three freeform environment in the senate. And he was happy go back to the court. Host let me stay with that for minute because it is all the towns thinking about now. I found a usa today story from october of the sierra. A little historical note the , late chief justice William Rehnquist was a busy man. He had a stop presiding over the oral arguments to move to the senate to preside over the trial. One of the lawyers arguing before the high court that day was john roberts. Here we are, as history moves forward, john roberts was maybe the chief justice in american third history to preside over and impeachment trial. John roberts had led the caucus through a process orientation. On whether the Current Situation leads to impeachment trial in the senate. Has anything come out on the Supreme Court about preparations for the justices or the role of the chief justice might be . Elizabeth no and he actually consulted or had with him a congressional parliamentarian. And at he saw his role it is a constitutionally prescribed role of the chief justice of united state presiding of the senate and an appeasement trial an impeachment trial. I do not know that anything about the role has changed. The question is more, is there something going on where in anticipation of such a trial and having maybe the chief justice otherwise occupied, that they have altered the schedule. Certainly not to my knowledge, but that is something that would be internal to the court. I might be surprised. Host there only two times before that this has happened. Are there records available to know how the chief justices role shapes up during this . The last one was Andrew Johnson and it was a very Different Congress and country at the time. Elizabeth may be. It may be something where the visit to the historical societys website. The chief justice remains the chief justice. They vote and there are people there to do the work of the cases. So i would imagine the work of the court will carry on. Host lets bring it back to the current court. We have been looking at chief justices. Justice roberts is going into presiding over this court. What are the broad observations one might look at, about the Roberts Court and how he has approached it . Elizabeth this goes back to a point you raised in the beginning and is evident in the clips you showed at the start of the hour. One of the big points is that that chief justice has been very cognizant of and on a tremendous job of being a steward of the court as an institution, balancing the importance of maintaining Public Confidence and access to the court, with its role, meaning a nonpartisan, nonpolitical role. That goes to the digitization. Transparency and access are very important. But if the Supreme Court, i think that the chief justice had this publicly, the discourse inside the court needs to maintain its integrity. There something to be said for preserving that. You saw this last month in the gerrymandering case. There was a bipartisan request out of congress to of Live Streaming of the oral arguments. The chief justice counsel wrote a letter to the Bipartisan Coalition and said, we cannot accommodate that request. Because the court is concerned that it may alter or adversely affect the nature and quality of the discourse on the case. But i think what chief Justice Roberts has done, in counterpoint to maintaining the line on things like that, is he has gone out of his way to make Public Access available in other ways, like the audio is now available i think on the same day, transcripts of oral arguments by the week, publishing the opinions quickly. Chief Justice Burger had the same thing. He revolutionized the court in terms of Public Access to the building. Some things that helps people understand the courts role. And preserve some transparency, while ensuring the courts work still has the nature and character necessary to do its job. I think that will be looking back, big part of the legacy or a notable one. Host we have one last clip of the chief justice, 2018 university of minnesota law school. He hits on the themes you just discussed. The court has from time to time erred, and erred greatly. But when it has it is because , the court yielded to pressure. We need to know that at each step we are in this together. There is a concrete expression of that collegiality and a tradition at the court that has prevailed for over a century. Before we go onto the bench to hear argument in a case, and before we go into the Conference Room to discuss a case, a pause we pause for a moment and shake each others hands. It is a small thing, perhaps. But it is a repeated reminder that, as our newest call he put it, do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. Host hitting on the themes you talked about throughout the hour. But the reality is appointments to the Supreme Court are partisan these days. The atmosphere around the last couple appointments, especially the Brett Kavanaugh hearings, brings a lot of partisan attention to the court. You hear the justices talking about how they approach in a nonpartisan way, but how really can a 54 court not be partisan . Elizabeth because the vote and basis of the vote, if it is 54 or not, is not about partisan and political ends, it is about the jurisprudence i think there the jurisprudence. So i think there is a huge distinction there. This is why a mentioned Justice Thomas Fourth Amendment jurisprudence. Another example would be in the Commerce Clause, if you take on a partisan level, and i remember well, as one of his law clerks, i do not know if you remember the partialbirth abortion case, congress tried to pass restrictions. The authority for that was the Commerce Clause. Justice thomas went out of his way to say i do not think the , Commerce Clause authority extends that far. It met with a lot of anger and some surprise on what i will call the partisan right. So the answer to your question is, it is not about partisanship when you look under the hood of the jurisprudence. I think it is hard in topline reporting to do that sometimes. You see that people are voting on principles. Sometimes the outcome is one way or the other. This is calling balls and strikes. This is what differentiates the court from the local branches. From the political branches. I agree with the point chief Justice Roberts makes. It goes back to you showed a Justice Warren reflecting on his tenure. Theres another where he reflects on the japanese internment keys. It was a struggle for chief Justice Warren. He had tears in his eyes looking back on that case and sank that was one part of my tenure i very much regret. That i voted to uphold that internment and treatment. I think that is what the chief justice means, that the court errs when it bends too, oh well. If you go back to the time and look at the political will and sediment in the country, that was the sentiment in the country. But chief Justice Warren be the first to agree it was the wrong result. If the court had done the courts work, maybe we would not have had that result. Host and that is the last thought as this court embarks on a term with some very big and likely controversial cases. Thank you for spending an hour with us. Elizabeth pleasure. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] all programs are available on our website, or on the podcast, at cspan. Org. On the next q a, a journalist discusses her book, the great pretender. It is about a benchmark experiment in the 1970s, designed to test the reliability of psychiatric diagnosis is. Healthy people check themselves into mental asylums claiming to have hallucinations, and in turn were diagnosed with psychiatric disorders. Then as a condition of their release, they were required to admit having a Mental Illness and take antipsychotic drugs. Halen, next sunday. Bryant has been with me since 1999. It was the year i had colorectal cancer. And as the surgery, chemotherapy, radiation, my dear spouse said, you look like a survivor of oshawa its. You must do something to build yourself up. Seemedked around and he just right for me. His day job is he works at the Clerks Office in the u. S. District court, for the district of columbia. And we meet to this very day. I met with him last night. The only one who has gone through the routine, in part, with me is steve colbert. [laughter] i think i remember he was gasping for air. He was. Announcer you can watch this program with Supreme Court Justice Ruth Bader ginsburg, in conversation with bill and hillary clinton, tonight on cspan. And a reminder, you can follow all of our programs online at cspan. Org, or listen with the free spaceman free cspan radio app. The house will be in order. Announcer for 40 years, cspan has been providing unfiltered coverage of congress, the white house, the Supreme Court, and Public Policy events from washington dc and around the country. So you can make up your own mind. Created by cable in 1979, cspan is brought to you by your local cable or satellite provider. Cspan, your unfiltered view of government. Announcer coming up this afternoon, a discussion about impeachment, foreign interference and how best to safeguard the 2020 elections. Live from the Brookings Institution at 3 30 p. M. Then later today, Donna Brazile and the former white House Strategic communication director for President Trump will talk about the current Political Climate in the u. S. And how to restore civility. That will be live at 6 30 p. M. On cspan2. This evening, President Trump holds a Campaign Rally in lexington at 7 00 p. M. Eastern, live on cspan. You can follow all of our coverage online at cspan. Org, or listen with the free cspan radio app. This week on newsmakers, congressman mike johnson, a republican of louisiana. Thank you for being with us. Thank you for having me. We also have scott wong who covers capitol hill. Another capitol hill reported. Scott, go ahead with your first question. Been republicans have come up until now they have been complaining about the impeachment process as the hearings and depositions have been behind closed doors, but