He knew it at the time. So they wouldnt sign the brief. They said were not signing it, were not going to defend this. Then they a big fight between departments and who was brought in to mediate, herbert j. Wexler. He was running the war part of the Justice Department was a Master Genius and he wrote a footnote, disowning the army on this issue and he wrote it in words that no one could understand. So he convinced burly to sign the brief and the Justice Departments position, i dont know, you read it and see if you can figure out exactly what it was. In fact, who won the case . The government. 63. Famous case. And who is it who upheld . The government. Black, douglas, frankfurter, the liberals who had, in fact, would sign brown versus board. And they were all on the government side. It was the three dissenters were be roberts, murphy and jackson. And there was 63. I thought for a long time maybe they didnt understand there was so little evidence. Footnote, who reads footnotes. [ laughter ] Arthur Goldberg told me that years ago. He said dont write anything in the footnote if you want anybody to read it. In any case i thought maybe of the oral argument and charlie worski was representing the japaneseamerican Defense League pep said to the judges go read the footnote. That footnote denies that theres any basis to this whatsoever and it can. And it did. So they had read it. What were they thinking . My guess, my guess is they were thinking cicero. And while it was a guess, i later met someone i hadnt gotten this source, he got the source of the conference and he said black walked into this conference and he said, well, somebody has to run this war. Its either us or its roosevelt and we cant and so we better let roosevelt do it. And that was the argument. You read the opinions and you see if you dont think i think it was the argument. I think thats what did it. By the way, the only one that has 100 right was murphy. Hes got every fact right. Thats problem with a historian. I figure ill find out and somebody must have told him. He couldnt have known all this stuff. Burly must have gotten to him. I phoned his law clerk. Gene is 90 years old, hes alive. I hope he still is. I called him. I said, now tell me, tell me. Somebody must have gotten to murphy. How did murphy get all those facts right. You know what he said . I dont remember. [ laughter ] so there we are. Now, thats koramatsu, there we are cicero. Now march on to the korean war and you have the steel seizure case. Very interesting. Because the court there during the midst of the korean war, jackson and the others say to president truman, no, you cannot seize the steel mills even though they were told and truman was told by cabinet officer after cabinet officer if you do not seize the mills there will be a strike, no production and people will be killed in korea, a lot of them as a result. But the court went the other way. So what i do think, my own view after reading this and going through the history of it . They told roosevelt he couldnt do it. Roosevelt had gone too far. Of course he was dead. So it was easier to tell him. Moreover truman wasnt nearly as popular as roosevelt had been. But there you have it. Whatever the reasons, i mean they had gone too far and i think people on that court thought koramatsu was going too far. They thought there had to be a stopping place. But there isnt much in the u. S. Reports. Theres some but not much. Shows a stopping place until you get to steel seizure and read jacksons opinion. Its absolutely fascinating. Its become wellknown because he categorize the different source of Congress Agrees with the president he can do a lot of things, doesnt agree. But the real interest to me at this time is his view about president ial power being exercised and hes very cautious and hes saying, he says look what happened in europe when the president starts, when a president. Im not saying what happened here but he says but, but, but. Stop. Now you come up to more recent cases, four cases out of guantanamo. Four. All brought by the detainees. Everyone of them. The detainee, not necessarily the most popular person in the united states, bin ladens chauffeur was not and is not the most popular person in the united states. Brought against the president or secretary of defense, all four, the detainee wins. Congress has passed a statute first we had to interpret the statute then Congress Passed a statute specifically saying they cant get into court. They said it was unconstitutional. One of the cases says but im not an enemy combatant. You cant hold an enemy combatant if youre in an active war but if they are not an enemy combatant, some said were not. I was a peaceful farmer. The government said why did you have a bazooka. He said every peaceful farmer in afghanistan. See theres an argument there. So were asked to say what do they have to do . They have to go through due process. So in essence we have four detainees who won. But what is the case about . What was cicero replaced by . If i had to choose four or five words it would be Sandra Oconnor who wrote in one of cases and i joined her opinion on this and it was the courts attitude in those cases, it says, she says the constitution does not write a blank check to the president. Not even in time of war. Great. Fine. The only unfortunate thing about that is well what kind of a check does it write . Now youre beginning to see the problem. From our point of view, from the point of the view of judges and lawyers and others. What kind of check does it write . Its not too hard when youre not in the business. But now were in the business. So if we are in the business of answering that will kind of question there has to be answers and now maybe youll see as well why our opinions are not particularly popular. I mean there are some groups who say you never should have gotten into this. You should go back to cicero. You want japanese, 70,000 citizens. The other side said you should have been more thorough, not thorough but more definite. You should have had a few rules here. You should have said if they could use hearsay or not hearsay in these cases. Why was it so vague . Why is it so narrow . I said the reason, the true reason so narrow, because we dont know the answer. Thats the truth it. We dont know. Lots of situations can erupt. Now thats the long wind up. How are we going to find out . Thats not something we alone have to think about. If were in the business of saying when it goes too far these efforts by congress and the president , too narrow Civil Liberties in the name of security, if were in the business, we better know something about what were talking about. And that, i think, requires in part knowing what other countries do and thats why we had an exchange with the brits we spent two days trying to figure out what they were doing. We discussed all this. What does france do . What does israel do . Why . What works . What doesnt work . The lawyers are going to have to find out because the lawyers will have to tell us. And that requires sources of information, they will come in and say to the jjudge theres no good reason for this. Theres no reason. Why are they doing it . Well they have an answer. And somebody has to figure out under what circumstances did the judge look at the answer and when do you do it in camera and when dont you do it in camera. Then why not. Its called less restrictive means and thats up there as a question too. So it will be the lawyers and probably some professors and the judges doing what they usually do trying to go into the subject which they dont know that much about, blaerng it and trying to come out with sensible answers and that will involve knowing what happens abroad as long as terrorism is just not a National Problem and no one just thinks its a National Problem. So thats what i say. A low wind up and a short pitch. But some of it is not such a short pitch. I mean try cases involving international commerce. A case i really liked i thought it was so interesting, explained quite a lot to me, was student from thailand, cornell. He discovers that books, same books, text books, same textbook, same language is on sale in bangkok for a lot less money. So he writes to his parents and says send me a few. They send a lot more than a few. He sold them. The publisher got annoyed. So the publisher brings a case against him. Now whether he can or cannot buy and resell from thailand, theres an answer and its in a statute and the statute, that footnote was compared to nothing to that statute. Its really hard to understand. Thats not my point. My point is i go into my office and theres a stack of briefs like this. And they are from every place in the world. I mean they are from asia. They are from europe. And they are not all about books and i said why are all these lawyers and countries too filing briefs in this case. I mean its sort of an interesting case, but i mean this many briefs and i find the answer down about here. Where one of the briefs says you know copyright today is not just a matter of books or books, films and music. I mean buy an automobile, its filled with software. And a lot of the software in some places is copyrighted. Or go into a shop, any shop you want. And youll see goods and the goods will have labels and the labels will be copyrighted. And it will tell you something, your answer to this case, this student from cornell, we think will affect 2. 3 trillion worth of commerce. Even today thats a lot of money. Thats why they are there. Eventually the student won but that isnt my point. My point is this is all over the place. Can someone in australia, can someone in australia who bought some shares in an Australian Company over an australian exchange, you see, sue under 10 b 5, securities act for a claim that the Australian Company lied about a purchase it made in florida . Of a company . Can they or cant they . I mean we have to decide and we have briefs from the european union, from britain from the netherlands, grrr the governments, we have briefs from lawyers that say the government is wrong, completely opposite. Thats norm swrl. They are from all over the place. And we came to a conclusion that they couldnt sue primarily because it was Justice Scalia who wrote the opinion, i joined it. It interfered with their own efforts to enforce their own antifraud law or antitrust. Thats an old question here but my goodness it comes up with a force, a vitamin distributor in ecuador sue as Company Maker of vitamins in holland and he sues them in new york. Why did he sue in new york . Lets think about that. Maybe the vitamins were so expensive because of the cartel, he was too weak to europe. Thats a possibility. Theres another possibility called trouble damages. Hes in new york. Can he sue or can he again we have briefs from eu explaining to us if we allow this lawsuit they will have real problems with their own antitrust. That comes up in security, antitrust, intellectual property where the only way youll get a sensible answer interpreting a statute of ours which clearly doesnt have the answer is to know how to interpret so that these laws begin to Work Together in harmony to achieve an objective and the word that will be used is the word comedy which is a perfect word which nobody ever knows what it means. Can you find case after case where were trying to get laws of Different Countries to work harmoniously together and that doesnt divide the court. Or treaties. Were interpreting treaties all the time. Time. Lets think of another good example. Shes from paraguay. She came to new york. She came to new york because she wanted to find and did find another man who tortured her brother to death. She also found a statute passed in the 1790s. The alien tort statute. It says that a person, an alien can bring a suit in a court for harm caused by a a violation of the law of nations. What was it about . Pie the ras probably, at least in part. Because the rule used to be in the 1790s you find a pirate and you hang it. By the way, first you hang him upside down and give it to the victims. Who are todays pirates . Torchers. And that produced a whole industry. And then the question was what are the limits. Those are harder than you think to figure out. Its not just who are todays pirates. All complicated statutes are complicated. There are some special things about this. And one of the special things, the law of nations, where do we look . Why is that a problem . Its important to understand one reason why its a problem. Or difficult. Not overcomable, but still raises a special difficulty. And thats what madison said. I like to keep these words in mind when im dealing with something that stems from abroad. I think it helps explain some of the opposition to the attitude im taking. He said that it this constitution unlike europe is a document. It is not a document given by power to liberty. Its a document given by Liberty A Charter of power. Its still at the center. That power may produce a charter of liberty. They may add up to the same place we do but its not the same theory. What this says is residue of power where the power comes from is the people. And this is a document that if they dont give you the power, you dont have it. You see . A difference. Now it think of people being taught that for 200 years in this country not always practicing it, but nonetheless. And sudden ly it becomes cleare why theres an emotional reaction. We elect the congress. The judges we dont elect them but at least they are american judges. But who appointed those people . Now that is a special problem that we have. Doesnt mean they dont have the power. But it does mean that you have to explain it pretty clearly. Why and how they got it. Or start thinking about what are e we going to do it . What about a par tide. Maybe so and people brought cases against Companies Based on that theory and the South African government filed brief saying we dont want judges in the united states. Getting involved in this, we have our own system. Its called the truth in reconciliation commission. All that american judges are going to do is start getting everything mixed up. Let us deal with our own problem. So how is it the american courts will treat that. Do whatever the state Department Says . Do we work out a system . Now were beginning to see special problems and if its areas like this, remember, theres no Supreme Court of the world. Other countries may have similar statutes. We better be able to have a system however we interpret similar words here that will work out overall. I mean the example to use is e we always read in the paper whether its true or not. Every single foreign country. I dont know why, but we cant have a system where they are going to be sued. But the problem is this. To have a final rule on such matters. And all those kinds of difficulties and more are involved in those 10 or 15 or 20 words in that alien tort statute and its difficult and its been to this court at least twice. But thats human rights, a little example of it. Its right there. Why did i say treaties . I started out with treaties because i began to think of treaties as always being subject matter for a court. Of course, but suddenly but cases over two years that involve a single treaty but you know something about abducting children in the law. They are called domestic relations judges in the states. I know some of them. Its a really hard job. A very difficult job. And one of them up in cambridge told me he always starts when he has a fighting couple before him i h said i hope you can work this out. Ill decide it and whatever i decide is going to be worse than what youd work out. Its very hard. And who knows even less about it . Federal judges know nothing about this subject. We stay far away from domestic relations. State matters, so why in heavens name are we starting to interpret a treaty on child abducti abduction . Because its a treaty. And well get into that. My goodness there are groups. One group is very much against child abduction. Nobody is for it, but before just wait. It has to be interpreted a certain way or too much child abduction. People who feel just as strongly about abuse of women. Because very often its motivated by abuse. So they have to go to different courts and different parts of the wofrld making similar arguments to different courts and asking us. We have two cases. Why are we into this business. Why is it in the troetty . Because marriage is more and more a question that crosses national boundaries. Nobody is going to change that. Its just going to get more. There are treaties. Nobody disagrees with the problem sigs that you have to look to foreign law. You should look to foreign law. You must look to what foreign courts say. Everyone agrees with that. All nine of us. We said that. And well, okay. Is that something that comes up oft often . The professor had his students look to see if he had an answer to this question. How Many Organizations are there in the world . Lets do that loosely. Lets say created by treaty or by executive order or created by something. Which have the power to have a bureaucracy and that makes rules. Those rules have this characteristic. They bind individuals or companies for more than one nation. So you can think of the World Trade Organization or parts of the united nations. But now you want it to count up how Many Organizations are how many do you think there are . How many think theres more than 100 . Nobody thinks they are more than 100. More than 1,000 . There are more than 2,000. We belong to 800 or 900 of them. Theres a blue thin whale commission. Students will know in two seconds. Whats the organization that affects you every single day. Icon is the organization that regulates the interpret. What is icon. Its a company in los angeles or sort of a company. It has some kind of status there. They are making rules that affect everybody. Or go to the ball who meets. The banks meet in ball. So do our regulators. And they go to ball and they make they sit discuss and agree what to do. Then the regulators come back to their countries and promulgate the rules giving everybody a chance to comment on what they already decided. That is an overstatement. But nonetheless, thats going on in a lot of places. And gradually these questions are coming up to the court. Gradually. Ill give you an example of a big question thats decided all over europe and we havent had it yet, but we have nibbled around the edges of it. I mean can congress delegate the authority . To do what . I mean, if we say they cant delegate any authority, how are we going to solve the worlds problems. We do make a dent. But if they can delegate to the blue fin whale commission, whatever it is, delegate whatever they want to delegate, what happened to article i which said the legislative power is in the president. No, sorry, hes in the congress. They gradually solve the problem. Are we going to be in a similar situation but not visa see . But rather visavis all kinds of organizations that make up that seven or 800 or 900 or 1,000 different institutions that e we now belong to that make rules that in practice does. I mean, they certainly have the problem in europe. They have this the problem in europe in three courts. Germany, austria, italy. At least has had to look through the eu treaties and say does our constitution, in fact, delegate. That eu does it guf them the government, the power to make a treaty that gives all that power to the european union. All three have said no. They never actually found one. But they just say in principle there are certain things reserved. We havent had that kind of question yet. Unless you go back to the agencies or Something Like that. I think u it will come up. I cant predict the future, but nonetheless. Maybe, good chance. We have nibbled around the edges. There have been cases that brought up something somewhat similar. All i am trying to do is to give you a taste, a report, a report of whether youre talking about treaties or youre talking about human rights or whether youre talking about commerce, or whether youre talking even about things where there are few cases but very important ones. Security versus Civil Liberties. The world that were in is a world where you must look beyond your own shores. And how and when and under what circumstances is going to be what the lawyers and the law professors and the judges are busy doing. More and more and more and more. Thats all this book is about. But it does have some reasons as to why. I think thats fairly important. The least important reason, perhaps is there are a a lot of people that think you should never cite foreign cases. I dont agree with that, but there are a few. I want to say to those it people, look, if youre not looking at what goes on elsewhere are you serious . I have tried different kinds of arguments and different kinds of forums and i will think it makes a great argument. I sent him a. Copy of this book. But he said, well, he had a he was very much against referring to foreign cases so i said probably thats aimed at me. He said, yes, it is aimed at you. So i said let me tell you why we do that is more and more countries have constitutions like ours. They have judges who are enforce ing the documents. They have problems like ours. So if i see a a person who has a problem like mine and he has a job like mine and has a document like mine, why dont i read what he says . Maybe ill learn something. I thought that was a great argument. He said, fine, read it. Just dont refer to it in your opinion. Not knowing when to quit, i said, well, there are a a lot of countries where this is a a new thing. This new thing is their courts want to go to their legislatures and say its important to Pay Attention to judges. Youre the Supreme Court of the united states. They refer to us. That gives them a little added prestige. Whats wrong with that. Thats a defense of trying to get them in a position where they find it easier to defend Civil Liberties or defend personal rights of some kind. He said send them a letter. So i want to say, just read this. Read it and now you tell me how were going to solve these problems. Unless, in fact, we can know what is happening in other countries. Sometimes we have to follow it, sometimes we dont. But knowing about it is in more and more and more cases. What youre really concerned about is preserving basic american values. I agree with you. That is important. But when you read this youll think the best way to do that given the nature of the problems that are in front of us the best way to do that is to know whats going on elsewhere and to help because after all, if we dont help, if we dont help, the world will go on without us. I mean, well be affected by what people do any way. So whether its the whale commission or some other thing, maybe we ought to find out so that it wont go on without us. And we will make contributions to problems like the environment or security or health or commerce, which are all around us, as you just read in 200 well chosen pages. Did you see the point im trying to make there . If you go really deep, and i think this drives us, all of us to some degree. The thing that explains our predicament in a sense and when you Start Talking about american values, i think it was lincoln. Its corny, but true. He says there at gettysburg, i have forgotten most of it. Four score and seven years ago, why four score and serve . That does not bring us back to the constitution. It brings us back to the declaration of endependence. It says all men are created equal. And the constitution doesnt. So four score and seven years ago our fathers came forth and created a new nation, conceived in liberty, dedicated to the proposition that all men are created equal. We are now engaged in a great conflict. To see if this nation or any nation so conceived and so dedicated can long endure to memorize because when they created and you dont think about that too often, but when they wrote that document in the 1780s and 90s there was no other place. There wasnt. It was an experiment. They were saying it wont work. It depends upon democracy. It might be good on paper. Maybe it will never work. They thought this experiment might work. Now lincoln is there. Why did he ever say i would fight this war, which he did say. Ly fight this war even if no slave were free. I always thought maybe he department believe that. Maybe e he did. I would fight the war to free half and not the other half. But what hes thinking is why fight this war because if the country falls apart and its divided, the experiment didnt work. It fell apart. And thats the part i want to communicate. Were still in it. Were still in the experiment. Will the experiment work or will it not work . I think today that experiment means, for all of us who are lawyers or judges, it means that problems, whether its environment, commerce, human liberty, e treaties, whatever they are. They are global. In exactly the sense i just described. Once you accept that, you say, either we show that you can somewhat deal with these problems, at least help a little bit through cooperative efforts, which means trying to have rules, which we call laws or rules or rules of law. So maybe its just a description of whats going on. But really there is a program in my thinking. Hard that may be to see sometimes. But the program is simply to show people. The tremendous importance. There is a rule of law that does protect human rights and democracy, can contribute something to these world problems. Thats supporting the rule of law itself. So there you have it. When you signed up, everyone was given an opportunity to ask questions. We have time for a few for the justice. And ill just read a couple so you can respond. This is from an alum nis of the society Supreme CourtSummer Institute for High School Teachers program. My Foreign Policy class is conducting a simulation of a National SecurityCouncil Debate over the used of enhanced interrogation techniques. How do you recommend we prepare for such a debate . What legal principles are essential for students to understand in this complex issue . They will know more how to prepare for it. There are studies and documents to read and see what the facts are. Thats a good point. Start with the facts. Oddly enough sometimes the facts respect quite what you think and sometimes they are worse, sometimes they are better. I think i would read jacksons opinion. I think thats a very interesting opinion. Because you get that and start asking questions about that opinion and youll say why is he hesitant. And why does he think that harry truman went too far. Why would all of his advisers told him youve got to do this. Or it will be terrible. And what rule would you have. And what does europes experience in world war ii and just before tell us, et cetera. In other words, i think something she might not otherwise think of is that opinion. And the case. So id look at that. You can look at guantanamo, but it isnt going to give you an answer. It might start you in the direction of the answer. You could have a a good debate in the class. What do these four cases tell us about the proper answer to this case. And i read. It depends on how far she goes in the torture direction. You can go short of that and get more interesting. Get the debate going. Barack wrote a good opinion about the use of some form of torture. He was chief justice of israel. He writes in there, which is so interesting to me and it wasnt some not terrible, but it was a form of torture. He says do you think i dont understand . Do you think i dont understand the fact that there can be somebody who knows where they are going to blow up a a cafe and indeed what hes trying to say by telling my mother im fine. Go put the bomb underneath the chair and set it off. Do you think i dont understand that . I do understand that. I do understand it very well. And i understand why you think theres a need. But he says, this appeals to me, he says we are judges. And you cannot ask a judge to approve torture. Read that opinion. The second question is in an increasingly globalized legal world, the Supreme Courts decision serve as a guide sometimes, pli sitly through quotation for foreign courts around the world. In what circumstances does the justice consider the courts global audience when crafting his or her decisions. What are the thoughts on increasingly citing u. S. And state courts. Increased focus on gaining seats. Its not of concern. People can cite what they want. So i adopt see anything wrong with citing whatever people want to cite. As far as an audience is concerned for our opinions, abroad, no, thats their problem. My problem is to get this thing done correctly. But in doing this thing correctly where its helpful to know what other people have done. But we get done is helpful to them, thats fine. But thats their problem, not our problem. My problem is to get this opinion written correctly. One last question. If someone were going to make a study of legal texts to better understand the global judiciary, do you have any that youd recommend for their review . I would read baracks things because hes written on this. I would try to read something about what the german court has done. Its pretty interesting. They have had quite a few cases in this. Thats changing rapidly. I would look up what hes written on the subject. I want to thank you in particular. This is the most demanding time of the year for the court as they come closest to the end of term. To devote this time is something we really do owe a standing ovation for. [ applause ] i want to thank everyone who has come here today for those taking the tour at 3 00 you meet right outside there. I do want to mention that the book shop is open. If it youre thinking of graduation gifts, theres one in mind that is signed down stairs. For those going to join us at the annual meeting of the trustees and society, its at 6 30 tonight in this room. For those at the reservations, the reception will begin at 7 00 and the dinner at 8 00. Thank you very much. I look forward to seeing you this evening. Youre watching American History tv, which aurs every weekend here on cspan 3. You can follow us on twitter and visit our Facebook Page or website to find Schedule Information and learn more about our programs. Coming up next, more on the Supreme Court with a look at the relationship between chief justices and the president. Thats followed by a a discuss on the 1905 Supreme Court case lochner v. New york and its impact on state and federal labor regulations. Next on American History tv Yale University professor Akhil Reed Amar discusses the complex relationship between u. S. Supreme court chief justices and american president s. 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 hosted this hourlong 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 medal, yales 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 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, were 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 were 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, its only really this week that has become, i think, pretty apparent that the upcoming president ial election will be a subway series between two not just two new yorkers, but basically two people headquartered in manhattan. Shades of burr and hamilton. And and why am i mentioning a new a president ial election given professor that this is a conversation about the Supreme Court . Well, therein lies my first of five points and its going to be about the interesting relationship between president s 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 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, im going to say more about that, the chief justice because we are going to be talking about the Roberts Court thats 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 Alito isnt from that far away, newark, i know its on the other side of the bridge. So its very much a new york story that were going to be exploring together this evening, but i want to begin with the relationship between president s and justices and offer you an account of the structure of that relationship and in particular here are two big points. That theres 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 president s and justices. So here is the structure of the situation of the constitution, our justices are chosen politically. Justices dont pick their successors quite. Its not a selfper 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 selfper 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 system. So its political selection and then Judicial Independence kicks in and theres life tenure. Tenure for good behavior. And that creates an interesting dynamic. The justices in the modern era stay on much longer than do president s and indeed president s now are term limited in a way that they werent 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 couldnt wait to just get off the court, and the tenure of the justices early on was very short and you had president s 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 threeyear term and he 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, president s have come and gone. We have basically 44 president s in American History. You could say 43 because were counting Grover Cleveland twice, but okay, and 17 chief justices. So way fewer chief justices than president s. Now, here is the tidal pattern and the faceoff. The way americas presidency has tended to operate, if a coalition emerges that manages to capture the presidency once, very often its 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 president s 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 handpicked wing man, their apostolic successor and in the next period, even though when we were rising to power really it was the other faction, another vision of america that was ascendant for the next period its really their vision that generally wins far more than it loses until Something Else happens and the tide turns again. Now, if thats by definition of tide turning presidency, here they are, they are in effect what a political scientist would say are the rushmore president s and this is im giving you i wish it were my own theory, its not quite, migrate political colleague at yale this is his model. So theres 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 doesnt last very long because john adams signs his name to 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. Hes 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 jeffersons party basically Jacksonian Party that is the dominant Political Party in america. They dont 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 president ial 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, were 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 dont pull a mitch mcconnell, instead they walk away from a game that theyre 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 Roosevelt. In this whole period no democrat wins a majority. Woodrow wilson, Grover Cleveland they dont 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 thats 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 cant return for a third term, he is term limited and until now we have been living basically in the era of reagan. Those are the tide turning