Transcripts For CSPAN2 Supremely Partisan 20170723

Tory mac good evening, everybody. Thats nice. You dont usually speak back. Thanks for coming to another in the series. Just the right thing to do turn your phones all the way off. Anyway, and as a reminder we have dinner upstairs afterwards for those that wish to stay. Thank you again. Tonight, we are pleased to have chin to speak with us as the author of two books, tales of cases that mattered in americas greatest trial court and then of course tonights book supremely partisan how politics tips the scale in the United States Supreme Court. As many of you know and i think lets see here hes the host and producer of a Popular Television talk show conversations in the digital age just seen weekly throughout the metropolitan area and guests on the show are a range of personalities from the world of politics, law and business, theater, lifestyles. Hes a leading litigator having served as an assistant United States attorney for the Southern District of new york in the Criminal Division under our former speaker here, robert morgenthau. [applause] thank you for that generous introduction as you begin to describe what he thought my accomplishments were. I kept looking behind me wondering who you were talking about. Im honored to be here at the Downtown Association and im always happy to talk about my favorite subject, the Supreme Court of the United States but its particularly fitting and proper to talk about the Supreme Court and the shadow of the grave of Alexander Hamilton who was one of the authors of the constitution. The book, and people get to it a little leader is about the politicization of the judiciary. As i have gone around the country talking about the book i find that lawyers and law and lawyers alike are keenly interested in the Supreme Court. Whats going to happen to our constitutional freedoms in the era of trump. Questions like has the rule of law then undermined con is the independence of the judiciary undermined or how can it be that a court can tell the president he cant do something in the interest of National Security, or why cant the president to ban muslims from the United States, muslims are responsible for terrorism, so they can be banned from the United States if the president isnt going to do it, who is going to do it. And i try to answer these questions in the context of the decided cases in the history of the Supreme Court but some of them there are no answers that can only be perhaps educated guesses. The court of course has become increasingly politicized in recent years. Im often asked the question hasnt it always been politicized and the answer is. Its never to the extent we have seen in the recent 5for decisions on certain issues. They are not politicized on every issue that comes before them. They decide tax cases and regulatory cases and business cases that have nothing to do with the constitution and nothing to do with some of the ideological issues which we hear about so much. But when it comes to the core ideological issues like guns, god and abortion, you find that they seem to break out 5four. It is predictable how they are going to vote before the briefs or even filed because their positions on these issues are quite well known and have been well known. So, we had a politicized court in that sense. What is a liberal and what is a conservative . Is a definition that almost eludes sensible operation, so i use a convenient one. The liberals are all appointed by democratic president s and conservatives ar that are all appointed by republican president s. Its easy. The fact that ruth Peter Ginsberg was appointed by bill clinton doesnt mean that she asks herself before she writes an opinion how would bill clinton like me to vote on this. But its always interesting that she has certain preferred policy preferences and those are the preferred policy preferences which are by fa far and large fe online with the agenda of the democratic party. And when you have Clarence Thomas and scalia writing an opinion they ask themselves what would Ronald Reagan have done it with what george w. Bush has done on this issue. Maybe they know what they would have done but by far and large, they vote for outcomes that are consistent with those president s. The people ive been talking to not only in this country but also long been, where they are interested in the issue of the politicization. People ive been talking to are interested in outcomes. Lawyers like to get into the wee to discuss original as amanda textualism and doctrine as to how they get to those outcomes and scalia was in originalist and made a contribution to the court by saying number one, you look at the text of the constitution as lawyers did and what the text of documents. Secondly, that you look at the original understanding of the people and society at the time of the enactment of the constitution, 1789 for the main body of the constitution seminars and for the first time the amendments in the bill of rights, 1791. So, he would have looked at the understanding of that society. And you get some extraordinary interpretations. For example on the issue of Capital Punishment he was strongly in favor of Capital Punishment and said it was informed by his catholicism because it says in the new testament dungeons is mine the e saith the lord, and who is the lord in the context of Capital Punishment, if the state to Capital Punishment is authorized by the constitution in the fifth amendment if talks of no one shall answer to the capital crime unless by indictment no one shall be deprived of life without due process of the law, so you know damn well that the state can in the minds of the office of those words could deprive people of life but at the time of the constitution, we hang people for stealing horses. At the time of the constitution we hang people for other crimes short of murder. We dont do that anymore. So, is it in the constitution that might prevent that its the eighth amendment, the cruel and unusual punishment clause. And there arises an interesting question. In 1791 we threw a man in the stocks for kissing his wife in public on sunday for 30 days. He would consider that unusual. Today we would consider that perhaps even cruel. But at the time it was certainly the understanding of society. In the wall now said that, scalia would say its stupid but constitutional. I think most judges would say that its unconstitutional and would not enforce the punishment. So, that is an example of how constitutional interpretation might depend on an originalist view of the constitution versus a more enlightened view of the constitution because earl warren said the meaning of the eighth amendment to cruel and unusual amendments calls must be drawn from that standards of decency that mark the progress of a maturing society and scalia barked that inside the standards of decency, i dont know what wt is anthat is and i dont want to know. But, thats was his view of the living constitution that he defended because he was afraid that if you allow it to be interpreted with the accordance of the decency of the judge, the night just outcomes even tyrannical outcomes that none of us would like. So he said the rights we have should be incurre anchored intoe language of the constitution does not evolve. The constitution does not that is a doctrinal divide. So what is interesting is originalist on more often than not leads you to a result that might be endorsed by the republican party. And the evolving standards of decency approach would lead you to a result that is more in line with the democratic party. So, you see the politicization of the rising and how these things are determined. The days gone by you had homes and dissent. Helms was appointed by Teddy Roosevelt and Woodrow Wilson and get, they voted together quite often most often in dissent on issues involving basic political rights. In the period of the new deal, Franklin Roosevelt, a liberal didnt like what the Supreme Court was doing. And there was a period called the lochner era because of the 1905 case fair they struck down social legislation that prohibited bakers from working a certain number of hours every day or every week. The Supreme Court said that interferes with freedom of contract and that interferes with the due process you cant tell an employer and worker what kind of contract to make for themselves. But a whole series of cases largely 54, Franklin Roosevelt said decisions not under the constitution that over the constitution where they struck down the new deal legislation. So what was roosevelts solution . To pack the court and attack the independence of the judiciary. So he introduced a bill in the senate which his opponents referred to as the Court Packing bill and the reorganization bill where he said too many justices over the age of 70. Congress can do this and has the right to appoint up to six justices and every justice over 70 so there could be a court off 15 justices. We started with the justices on the court not even an Office Number and it was increased to nine. Certainly, the better view was it was a terrible attack on the judiciary and one justice who always voted with the conservatives in the Important Hotel case voted with the liberals and that was called the switch in time so it was no longer necessary to pack the court and a number of them retired because the age caught up with them and roosevelt got to appoint nine justices and the new deal legislation started to be approved in the Supreme Court. So, we come down to the next issue we saw play out very recently which is how do these judges get their, who are they and how do they get their. We were struck with a painting in the migration series which i saw at the museum of modern art, where you have a black defendant, two black defendants reminiscent of software before a white judge and the illustration asks the question who are these judges and how do they get there and can they administer equal justice under the law. So, we look at the composition of the court and when the scalia was around, it consisted of six catholics in three jews and did not believe that the protestants represent the majority. At that point, we had 116 justices e. Nine of them were anglosaxon protestant males and gave the report of education. If you look at roe v. Wade if you look at the lifetime it was made possible by the votes of three nixon appointees. The opinion was written by blackman. So these were appointed by nixon and made the statement i dont like abortion. I really hate abortion and i would never allow anyone in my family to have an abortion, but i felt this is what the constitution required. And we have seen a number of instances there is only one instance where the democratic appointed judge where the republican appointed justices like stevens, souter, brendan voted with the liberals and even kennedy was a swing voter on the court voted 98 of the time switched because of their view of what the constitution requires. We had the dred scott case decided by roger who was the first catholic chief justice who ruled African Americans were not citizens of the United States. An extraordinary mischaracterization of the justice. There was a jewish seat we know for 53 years starting with brandeis in 1969. In 1969 when they had to reside because of the propriety, the white house tapes show that the attorney general mitchell came to see nixon and said ford is going to have t have to resignd nixon said good. Well, we have to appoint a jew to fulfill the seat and he said im not going to appoint a jew. Im appointing Harry Blackmun and he said we cant do that, mr. President. He said after im dead. Theyve been conscious of identity politics to replace Thurgood Marshall and free time the issue is presented, so the personalities and backgrounds of the justices are very much in play in terms of the decisionmaking. Decisionmaking. Over journalism, text with some would work well on most issues but when you get the right to keep and bear arms of course theres the preamble for every word in the statute and there is a preamble that says a well regulated state militia being necessary for the free state and right of the people to keep and bear arms shall not be infringed. Well, they ignored it pushes antitextualists and originalist and said it was a personal right to keep and bear arms created that apply to a handgun in your home and in the district of columbia i dont know if it would apply to having a bazooka in your home, but i guess the right to bear arms wouldnt include because you cant carry it. A bazooka you could care he and you do have a constitutional fundamental right to have a bazooka in your home are military weapon. Far the court has not extended to the military weapons will although it remains to be seen. Well see if they can regulate the carrying of guns even openly or concealed handguns on the street. So that is the state of play at the moment. I will leave it at that. I know that you must have a lot of questions. I dont want to keep you too long and i think that your questions are more important than what i have to say. Yes maam. Its interesting Citizens United was at a time the republicans were out of power and wanted to raise Campaign Financing and the departure from originalist him because certainly none of the framers of the constitution ever thought in a million years that Campaign Financing is a form of political speech to even a Million Dollars of aipac for the congress doesnt have the power to regulate that. But 54 they decided it is every indication of course it feels exactly the same way since hes taken the spot so i think it will be open season on political finance for years to come. We didnt talk about when he replaced segovia in the way it really wasnt such a big setback for people who are interested in liberal values because number one, it didnt change the voting composition of the court and number two, you were not getting the intellectual heft it was so persuasive however not even 50yearsold so there is every prospect that hes going to be there for another 30 years or more and if you have other retirement i dont think hes going to retire until shes on life support but i think there may be other retirement and then trump will have another nomination as every prospect of the nominee would be confirmed by the senate. Who are the least publicized members of the court today . It may very issue to issue. He was the decisive vote in that marriage case but he has been a consistent upholder. So just as Justice Scalia was an opponent of rights and if you have any doubt about that, i dont know what you are smoking because in the argument of the marriage case a man stood up in the courtroom and said you are all going to roast in hell for this and he was dragged out of the courtroom and as they dragged him out, segovia leaned over and said i find that rather refreshing. [laughter] he believed in the devil, he said. These are all highly qualified and highly intelligent people, highly experienced people which is perhaps the most important factor but all those classifications so why was he blocked, because of political reasons. Do you believe they are all at this kind of intellectual stature . They would qualify under a standard of intellect and integrity. I know there was a big flap about Clarence Thomas is the furthest right of all the justices he believes in natural law and that means a lot of things to a lawyer that means you find a basis for the decisions other than the constitution if for example the right to bear arms, he said was a fundamental right which was given to citizens before the constitution and declaration of independence and as a part of the right of life, liberty and pursuit of happiness and that trumps the constitution. He studied natural law when he was at oxford on the marshall scholarship and a. A. Theres tha. That is the question of Clarence Thomas that he is undoubtedly a very bright jurist. I dont know what motivates them to come to the conclusions that he does. Versus the characterization with no religious backdrop seems that as my first question. The state has gone therefore i justify my views biblically. Hes never said that judicially. As i understand your question there is Something Different between the origina the originae that may be based in religious belief but he certainly was a conservative which is not based in religious belief. [inaudible] theres the original interpretation [inaudible] the opinions on Capital Punishment extrajudicially in speeches and law review articles and comments to his biographer he justified on the basis of religion and kept saying you cant separate me from my catholicism because its who i am. He did say if there ever came a time when of course under the oath of Office Complexes with his religion he would resign but he never saw a conflict. Can you talk a little bit about that in the context of the interpretation . John roberts is a conservative and is an institutionalized with a deep feeling about the court and its place in the constitutional system and while he said a lot that was nonsense about being in partial to call balls and strikes and no one is going to go to the stadium to see the umpire to go to watch him play. John roberts said he deplored the lautner era and said that without the court into disrepute so i think interestingly in the obamacare case, and he clearly didnt like obamacare and he didnt like the statute he thought that it was unconstitutional he was willing to sustain it in the power because he thought otherwise they would be invalidating a signature piece of legislation of the new Obama Administration and he didnt want to put the cork in that position, so the court has to depend on its legitimacy on Public Acceptance of the decisions and the polls show when the court is perceived as a court of law and interpreting the constitution even when people disagree with the decisions they have confidence in the court and rule of law but when the court is perceived as being partisan, that is a dirty word and then they say they have no confidence in the court or in the rule of law. Another example is a a court of law both men and women the case on lateterm abortion and 2000 and at that time Justice Oconnor was the Supreme Court and they voted 54 and any restriction on lateterm abortion was unconstitutional unless there was an exception for the life and health of the mother then oconnor retired she wants to be with her husband who is in an old age home and she is replaced first by nixon bush wanted to appoint someone else and eventually by justice alito. Exactly the same facts and the statute from another state and the same issue 54 but the ban on partialbirth abortion is constitutional even when it does not have an exception for the health and life of the mother so if that changes the wall the question is what is the law anyway, seven years and they overrule the decision. Yes sir. The first decision was establishing the judicial review he did it in such a way because he knew if he tried to order something, jefferson would refuse to do it, so this is something that happened from the very beginning of the Supreme Court. Yes. There were instances you can fight in history and what is fascinating is there were many issues the framers of the constitution could not agree on. Another issue is what the Supreme Court was supposed to be doing and nowhere in the constitution does it say they have the power of judicial review. Nowhere does it say they have the power to declare an act of congress unconstitutional. So where they get the power from, hamilton was killed in the duaaduel with 1804 but before he died he had a power the fourth chief Justice John Marshall and he wrote this opinion where he used the power of judicial review and assess for us as judges of course this is what was meant to declare that the law is. That was a starting point when it all started with. It has to come from the fact that they have lifetime tenure and they are independent so from that, John Marshall said he had madison arguing that they should have the power of the judicial review but they didnt put it in the constitution because it wouldnt have gotten past and jefferson had nothing to do with the constitution but the power became established and you have a succession of pieces of course in the court of last resort inevitably will be the case before them, but deciding for the future. We are not final because we are infallible, we are infallible because we are final. I probably didnt answer your question. If i didnt come it was delivered. How did the socalled muslim men play golf in the Supreme Court . Muslim ban play out in the Supreme Court . They didnt base it on the constitution, they based it on the immigration act and said that under the immigration act, he didnt have the power to ban people based on their nationality or to discriminate against them based on their nationality and what was interesting is they were willing to use the messages as evidence of what the policy was. However they did not go so far as to say we can find from what he said during the campaign or after the campaign. I dont think they are going to take the case there is no split in the circuits and i just dont see that they are going to get into it and get into the question of separation of power and National Security and all the rest. But if they ever did they could clearly find the intent to discriminate against muslims based on religion and i think they could find that there is no overarching National Security interest to. What is the rational basis with the guantanamo cases in other cases they have shown lately a willingness to look beyond the assertions of the executive to with his National Security and that is for the japanese internment cases and world war ii where the court was lied to. There was this canard of japanesjapaneseamericans were receiving radio signals from japan directing them as to what to do to establish all affidavits to the Supreme Court by the military. So, i think that they may be skeptical of the National Security claim. They said it was an extension of the first order. If theyve forgotten the constitutional question which i dont think they would. I am glad that you brought this up as a very clearcut ca case. That actually takes the health of the mother out of the picture and it quite a viable issue. Thats why the was the band politicized, why did they go after the citizens which would arguably be the exact same thing . Im not clear on what your question is. Im happy that you touched on the issue because they were very similar cases and because the health of the mother is still very relevant in the fact 20 v. Wade, do you think it will come up again in the future that is a classic case of the politicization so you made that point and that was good but i was curious to know whether you think that will come up again in the future and then to follow his case because i think that they did have a travel ban. How is it that it was never challenged to the courts . I think that it only related to the iraqi citizen and we had a military involvement in iraq and it didnt seem to have the implications of the muslim ban which was the preference of particularly the preference to christians from those countries totally infected with religious preference which the ban was not under the misapprehension it decides the case is that seemed to be timely someone has to bring up the case and i do think that the abortion issue is going to come up again. There was pending in congress a national ban on abortion, and i think after 16 weeks in all cases if that is enacted it would be a constitutional attack on the issue of whether roe v. Wade is still a them play and then i think theres all sorts of cases coming up from the states where there are serious restrictions on a womans right to abortion that has to be done and in a clinic with certain standards and everything they can dream up to put hurdles on the path particularly who happened to be seeking this form of eye view it as a form of womens healthcare but others may differ. Theres been a lot of talk lately from the Trump Administration reforming and breaking up the ninth circuit. Would that be a lower bar for congress to clear them impacting the courts . Do you think there is a change in the ninth circuit or any circuit . I have no idea what the congress is likely to do. It would take an act of congress to do it but i dont know, you only need two or three defecting republicans to prevent that from happening. I think obviously, it would be an attack on the independence of the judiciary. The. Of the points of the justices and judges of the lower courts mostly appointed by democratic president s, clinton and obama and deciding cases that is what was intended and then to try to dilute the power by breaking up the circuit and appointing new judges is quick packing. He woulkeyword then wants to apt his own judges to another division of the circuit. How you decide which pieces go into which division, i dont know. But there would be certainly the aim of the legislation would be to undermine the independence of the judiciary and undermine the constitutional system. And that itself might be unconstitutional so theres going to be a lot of litigation. What is so interesting about this whole era is the pushback against him seems to be coming from a free press from a Resilient Society and resilient economy that seems to ignore the worst aspects of what he says is his policy, and been particularly from the courts because the litigation challenging these various things that he wants to accomplish. They wont be a sufficient agreement. Without the polarized country. That is why the Supreme Court ironically enough before they go into the conference every day they shake hands with all the other justices, so that is a total of i dont know, 36 shake of the nine justices and its supposed to symbolize a sense of shared purpose and commitment to the constitution but the fact is it is deeply divided. The congress is deeply divided and our people were deeply divided. And indeed of the media is the y divided between fake news and all the other news. So i think given that its impossible to get a consensus on almost anything that would be necessary for the new constitutional convention. And they disappear. In the past how have they gone from extreme politicization [inaudible] i think that it grows out of the doctrine which means it is a lawyers term but the judges should stand by the decisions and its the environment in which the judge operates. So you look at what the original understanding was that you must also look at the decided cases. Now Clarence Thomas says they will overrule any case to the constitutions of the politicization continues but if you have judges who may not necessarily agree with the outcome and he said he would overrule roe v. Wade and other cases he thought was malicious but he thought he would follow the deciding cases because its easier and correct to do it but you have some reliability in the whole judicial process from deciding the accordance in the wall the way that other judges are decided, so as long as they continue to do that there is a court of law or less knowing there will always be areas of majestic ambiguity where their own views are going to creep in and then it goes on. Its been rather subtle with the exception of the past. He didnt say im going to side with republicans and ideological issues, but what is preventing the justices from doing so. And a pair of ideological perspectives only one justice in the history of the Supreme Court has been impeached in his name was samuel chase and he was appointed by george washington. He was acquitted in the senate even though he was impeached. They talked about impeaching Justice Douglas is no justice has ever been impeached. I dont know what hes likely to do. I think that he is a good enough lawyer to find the Legal Support he will be an ideologue even though he has a tremendous basis on what that advocates did to his mother and the democrats did to him to be a partisan justice. They take an extraordinary human being to ignore those experiences. I would like to find out your thoughts on justice thomas. He is unusual in that until recently asking no questions whatsoever. Could you speculate. He is personable and outgoing. In the book my grandfathers son, which he describes his life up until he is appointed in the course, he calls himself an ordinary man to whom extraordinary things happen and he came from a typically disadvantaged background. He hated Yale Law School at the night he was the product of affirmative action and couldnt get a job when he graduated from law school they became attorney general of missouri. Hes always been angry and has always been resentful after the anita hill episode. It was 15 years nearby his wife called and left a message saying what you please apologize to my husband for which he did. Why should they bear so much anger and hurt after all this time. And i think that whole episode was unfortunate and i dont fall for any of that. What i fault them for is the case of katherine g. Georgia where the unusual thing happened, they have access to the files of the prosecutor and found they challenged the jurists off the panel. The Supreme Court finally reversed aon it was Clarence Thomas. I think that job of being a judge is to look at the outcome for wherever that leads him or her to say the outcome is harsh or unfair and in this case, the outcome that he advocated was against the constitution. As chief Justice Roberts wrote for the majority, two challenges based on race and constitution. This, that is an example of the views of affirmative action and other issues. Partisanship is going to increase with new members of the court. What kind of environment do you think needs to happen to prevent that or have that at least decrease . I think there is a chance that the composition of the senate could change in two years. And there is perhaps a greater chance that it could change in four years. So that is the only possibility where you could have some pushback against the conservatives and the appointed authority because even if trump goes before that time frame and might i would think mike pence and whoever succeeds him will continue to seek to appoint judges who are of conservative political views. I mean, after all, mike pence, when he was governor of indiana, wanted to hold a christian burial for every aborted fetus. He wanted to rename i. 69 the expressway so he is a lawyer and he is influential in the appointment of the judges because he doesnt have the legal background and i think that h you will want to continue to appoint a hard right judges. A couple of opinions that were surprising and what side they were on. It isnt well known in 15 of the cases. My friend wrote a book called the unexpected opinions, a very thin book. [laughter] but he did in the search and seizure area vote with the liberals in the flagburning case he found that it was a form of symbolic speech even though trump wanted to deploy anyone who burned the flag. So i think that is an example of some decisions that were unexpected. Quite conservative on rights was expected because of other cases he had shown based on his personal experiences had some empathy with aspirations and rights. Kennedy unexpectedly had voted against reproductive rights in the last couple of cases has gone and voted with the liberals and the other way and therefore kennedy is in the majority in 98 of the cases hes been the swing vote on the court and this is why he may not retire sometime very soon. So those are the ones i can think of off the top of my head but im sure there are others. There is ginsburg and breyer that are much more predictable. Hamilton said that, i didnt. Do you think it would be possible for an executive to simply ignore a Supreme Court decision and what would be the implication . The president has the executive function for the state department, homeland security, a lot of things in control if they just direct them to do something in the judicial decision. I think one president tried to do that, that was Andrew Jackson and he said John Marshall has made his decision now let him try to enforce it but eventually, that was in one of the cherokee indian cases but i think eventually, they came around, jackson came around and did enforce the decision. You will see that even this government in the lower court cases on the travel ban for which it disagreed and suspected the injunction and has slowed down the process and dragged its feet but certainly would be a constitutional crisis if the president justified the Supreme Court and defied the courts and did something else. Thank you very much are coming out tonight. Thank you. Thank you. [applause] it was terrific. Authors like to sell their books and there are books in the back coincidently. Which i will be happy to sign if anybody wants me to. Thank you. [inaudible conversations] [inaudible conversations]