Transcripts For CSPAN3 The Presidency FDR The Supreme Court 20220802

On september 17th, which is Constitution Day. What better way to celebrate Constitution Day then talking about the Supreme Court . With two outstanding experts on the subject. No president had a more Significant Impact on the Supreme Court than fdr. He appointed eight justices during his administration, some of whom help change american democracy for the better. He got to a point that no Supreme Court justices during his first term, which is a point of extreme frustration for him. Well talk about that later. The role of the Supreme Court has changed over the years. Certainly today it plays a central role in our political process. Make no mistake, the court has always been political. Joining me today is john barrett, professor of law at st. Johns university. And hes the biographer of justice jackson, a popular email newsletter and website. And then editor of jacksons acclaimed 2003 posthumous book, quote that man. And insiders portrait of franklin d. Roosevelt. The last new deal insider memoir. Also with us today, ralph blumenthal, from Baruch College in new york. A former New York Times reporter, continues to be a contributor to the times and other publications. The author of five books, including the believer, about the harvard psychiatry wrist, john matt, who investigated ufo an alien encounters. He has a very direct connection to the fdr to straighten. Well talk about that in a minute. Well start with professor barrett. Give us a little bit of a background, in regards to the Supreme Court, and specifically your work on Justice Robert jackson. Sure, well, thank you, paul, for this opportunity and the privilege to be at the Roosevelt Library at homestead, in every sense except actually. The path that led me to all of this was really being a lawyer in washington at first. I worked in the department of justice in different federal investigations for about seven years. I then became a law professor. Among white areas public life, public figures, legal ethics, and constitutional law. Sort of a converging on the Supreme Court and the people on the court. Robert jackson in particular. Someone who is in roosevelts cabinet as attorney general, was confirmed by the senate through roosevelt appointments to five separate jobs in a very short amount of years. He became my big project. For our topic, it matters that jackson was assistant attorney general in 1937, a principal witness defending the president s Court Packing plan, and then the solicitor general over the next two years, argued in defense of new deal laws, constitutionally before the Supreme Court. Its the jackson path that brought me into this roosevelt world and court reform as a topic. Jackson was of course part of the nuremberg trials. Which we can talk about separately. So, professor blumenthal, give us a little bit about your background, both as a reporter and an archivist in brooklyn for a collection. One of the key members of fdrs administration . Thank, you paul. I really appreciate being on with you and john. Im a distinguish lecture at Baruch College, as you mentioned, in that capacity supervise our archives collection in the newman library. Collection of the papers of a member of the committee that reorganize the executive branch for fdr. That came up, actually, right in the middle of the Court Packing fight. Thats interesting. I also was on the New York Times for 45 years, one of my happiest stories, actually, was being up at the roosevelt hohman library to do a story on top cottage in 2001 when it was renovated. Also, i have written a lot about the holocaust and Robert Jackson rolls prosecutor at nuremburg. Its a very sterling episode, the prosecution of these nazi criminals. Anyway, and, i should say, i came into the subject through a book called 168 days, which is a virtual diary of the Court Packing controversy by, its cowritten by turner can bridge, who is editor of the New York Times when i started there 1964. It was a book cowritten with joseph, its a wonderful account, not completely unbiased, as we can discuss. Of the day today struggles back and forth with, you know, over the Court Packing controversy. So, its a privilege to be here. Glad to have you here. For those who dont know, top cottage is a home that fdr built in hyde park here during the late 1930s. He plan to move into and live in after he left the presidency. The design, its one of the first houses in america designed to accommodate a handicap person with a wheelchair. Theres no thresholds on the doors, the doors have certain kinds of it really wasnt architectural marvel. Its part of the time, its part of the National Services collection. They have the roosevelt home, eleanors home, south cottage, the vanderbilt mansion. Quick plug, anyone coming up to hudson valley, make sure you stop here and visit in. Back to the subject at hand, lets talk about fdrs Court Packing scheme. John, well start you, set the scene, what were the circumstances that made fdr so frustrated with the court . When hes done, ralph, talk about, what did he try to do to change . Well, i think you have to go back a little bit before his presidency and remember that we are in the great depression, the stock market crash in the fall of 1929. Coincidentally, during that term, president Herbert Hoover ahead three Supreme Court appointment opportunities. He made great appointments, no denying that. And its the luck of the draw that the president gets vacancies and the chance, President Trump got three, president hoover had three. Franklin roosevelt elected in 1932, inaugurated in 33, during that first fouryear term, he got zero. As you mentioned, paul. He had a super majority in both the house and the senate. There was an attack on legislation on the problems of the depression. The torpid volunteerism of the hoover era was replaced by the new deal. The new deal ran into a Supreme Court roadblock. In the course of that fouryear term, not only did roosevelt have no chance to appoint justices, but the nine where theyre struck down major reform relief laws. This is a quick laundry list. National recovery act, the real road retirement act, Section Three of the National Recovery act, the fraser lemkin act, the tax component of the agricultural adjustment act, pull conservation act, the amendments to the Bankruptcy Law and a state new york minimum wage law that was kind of state level counterpart progressive efforts. Roosevelt was the popular, powerful, and democratically responsive president. The Supreme Court was a tremendous obstacle. Reelected overwhelmingly in 1936, he decided to use his Political Capital on his Supreme Court problem. Ralph, what did he do, what was his strategy . Was he trying to accomplish here . Well, he took it very personally. Actually, he had the stream that the Supreme Court would cooperate with him in getting his programs going. Now, maybe john can help me understand, and our listeners, whether roosevelt was being disingenuous or whether he really believe that the separation of powers didnt apply to him. Because the idea that, you know, as he came up with the idea to appoint six new justices, that he would cooperate with them, or they would cooperate with him and getting his program through, its insane to our way of thinking today. So, its a mystery to me how much he believed that, you know, he could really merge these two branches of government. But what happened is, he guy, he was really smarting under these rejections, although the court overturning of the nra actually probably helped him in retrospect because it was so unpopular. Anyway, he was resolved. This was really unlike him with his perfect temperament and his great sense of timing, you know, his wonderful way of reading the country. He kind of lost it. He decided to put all his chips on this plan to change the court. There were several, their will for actual proposals given to him by home or cummings, his attorney general. One is a constitutional amendment, which weve very difficult. One was statutory to change the jurisdiction of the court, and they were, you know, various ways of tinkering. The last one is to add the provision that whenever a justice reached 70, here she, he in those days, know she, would have to step down. Or roosevelt could appoint somebody to take his place. So that was his plan and he somehow got convinced that this was doable. As john said, he had this wonderful supermajority, he had coasted in with 27,000 votes, a huge majority in 1936. He had every reason to think that the country was just waiting. Labor was on his side, liberals are on his side, that this would be welcome, of course, it was not. , was the so, a little context her. The 1936 president ial election, as you mentioned, was the largest electoral landslide in american political history. And i always think that fdr had just an extraordinary political instinct that had gotten him to where he was. The fact that he was elected and reelected in a wheelchair is simply incredible, on another level. In American History. I would also like to point out that he made the three biggest mistakes of his entire political career, i think during that period after the last landslide victory. He said then he would try to pack the court. Decided he would primary the conservative southern democrats who were [inaudible] legislation in congress and he cut the budget leading to the roosevelt recession of 1937. As you said he lost it. I think he was so in trawled with his own success and popularity that he tried to do things that were way off the path of what the American Public wanted. John, talk a little bit about what the reaction was when he put this forward. Even his own party had trouble supporting him in this Court Packing scheme. Yeah. The constitution does not prescribe a size for the Supreme Court. It is a creature of statute. Right. And originally the court was six, went out of, ivan oscillated a rounded in the 19th century. But since the 1870s, we have had a nine member court. And so it is now about 60 years the country being used to nine, as if it is etched in marble. And i think thats a visceral source of the reaction thats trying to somehow, in one fell swoop trying to grow the court fell to 15, and fill it with likeminded new dealers is somehow unamerican even though it is not unconstitutional. And it opened up some of the fault lines in the democratic party. There were old barons who were the committee chairman. And there were southern segregationists who were part of this coalition that was almost trying to hold together. And the court as a target was not such a publicly Notorious League People Institution especially the way roosevelt spun without. He claimed in the announcement that the justices were so far behind on their work. There was a pile of unaddressed social wary petitions which is of course, jargon and wasnt true. He also claimed that these aged justices no longer had their fastball. And that was a hard thing to claim about louis brandeis. How [inaudible] was the bunch . And that sort of spin hit a wall of hostility. And it immediately became controversial. Now roosevelt did try to recalibrate. And Robert Jackson was one of the people who told them. You need to start telling the truth about this. Its not about age, its not about backlog. Its about interpretations that, particularly, the foremost conservative justices have poured into the constitution. They read congresss power to read interstate commerce too narrowly. And they red states powers to protect social welfare and use Police Powers much to restrictively. This is about the court putting itself in political preferences in its place of the proper understanding of the constitution. And so democracy should can and should respond by appointing more straight shooters i would even say more conservative justices in terms of constitutional interpretation than these four horsemen radicals who were roosevelts problems but you know what would i found interesting, would i if i could just jump in here it wasnt dead in the beginning. It might have seemed that it would be because Vice President goner came out of the meeting, from [inaudible] holding his nose and going like this. But i think he had a shot, a good, shot at getting this through. Etc. But throubecause of all the reae mentioned. His popularity. His election landslide, et cetera. But through a series of almost biblical greek, whatever you want to call, it missteps, he just succeeded in sabotaging himself, roosevelt. So even though it was not a popular thing to change the third branch of government, it could have been done, it seems to me, if it had been handled differently. And its not just self sabotage. There are external events. There are a couple of things that happen in that first 30 or 40 days. Announcement of the plan in february. By early, march the Senate Hearings are starting. The Supreme Court justices sent a letter to the chairman of the committee that basically says, we are current on our work. So, they blow up the coverage story. But then the Supreme Court in mid march starts to handed down decisions upholding new deal laws and all of a sudden this Supreme Court problem is receiving a statement of wages upheld. The National Really Labor Relations act is upheld. Social securities argue that bring by charles and resilience key. In may its constitutionalitys upheld. Enough constitutionality of events made it much less necessary to do something dramatic. And of course that change in some of their decisions led to one of the great catchphrases in Supreme Court history, which is, a switch in time saves nine. You want to explain that, ralph . Yeah. Roosevelts, as i made a note in my notes here, he wouldnt take yes for an answer. The court went out of its way to i dont know whether they designed their decisions in order to placate him i mean, thats a good question. Or was it done with design or whether they saw the light and had to uphold these good new deal programs for whatever reason the court started to give him what he wanted. And they basically i dont know if you want to use this image but dug his grave for him. And we jumped in. He didnt have to. And he just i mean, it really is amazing how he missed all the signals and just plowed ahead. He was determined to remake that court, to put on the six justices or up to six who were carried through his programs. But its just astounding. There is still a political mystery because the turn archaeology book that i reference, he and all stop interviewed everybody but the president. Apers about whatso, we dont know i dont know how much maybe john knows in roosevelt and writing and what has come out in this papers about what his thinking was as why he would take yes for an answer he was much too careful to leave a paper trail on anything. [laughs] we have a question from the audience, camilla, i hope i pronounced that right. She says, how do we know Court Packing was unpopular outside of the conservative voices in the party . Did average americans in the 1930s depression have a strong opinion on the court . Forming two strong constituencies of roosevelt, the farmers and labor, and liberals, all turned against it pretty quickly. So, he lost his natural constituency. So it was not popular from the beginning. Its interesting. He thought, obviously roosevelt thought it might be, which is why he embarked on it. But he started losing his natural allies from the beginning. Am i right on, that john . No, i think thats correct. And look at the mailbags, some of which is archive there. We have millions of letters right. You can venture page i page, the public reaction, and a lot of it is very critical and you can look at the Congressional Committee votes. And ultimately, the congressional rapidity Committee Report the Congressional Committee wrote port rejects the first version of the proposed bill. But as the urgency is receding in the springtime, the president does pull back and theres a second version that wouldve only expanded the court by two seats. That, you know, i think he well would have won if that had been pushed through to a vote. And he kind of had to deal with a senator majority leader, senator Joseph Robinson from arkansas who is going to get that over the finish line and roosevelt had frankly promised him a Supreme Court appointment, one of the two seats and roosevelt was making nice. Jefferson island picnic with every member of Congress Early that summer and robertson dropped dead right after the fourth of july. And at that 0. 1 more, Development Justice where designing and he finally had a vacancy to fill. At that point none of it is worth any more trouble. We can live with nine and you see the dominoes, tow black is appointed in august. Read the next year. Felix frankfort and William O Douglas the next year, frank murphy the next. Year Robert Jackson and james burns the next year. I mean, there is eight roosevelt appointees, just one after another, in the wings, starting in the summer of 37. There were so many opportunities for him to compromise, they came to him, comer cummings, not so much home or cummings, he was a true believers and attorney general, others came to him repeatedly with wheeler, montana, with offers to compromise. He just wouldnt have it. He was dead set on moving ahead. He wouldnt even recognize the reality of what was happening. His own allies were coming to him with stories of what was going on out there. How he was losing, you know, support and constituencies. He was variable headed in that. It is extraordinary, you know, with the sense of timing we credit him with, is exquisite sensitivity to political lens. He just was dead set on this. Theres a little colonel in this that i think is maybe an explanation of that, home or cummings, the attorney general, was really the draughtsman in the proponent of this. Part of the problem on the Supreme Court was Justice James mac reynolds, he was one of the four horsemen, he was a wilson appointee, in the Wilson Administration with fdr. And as attorney general, Mick Reynolds had drafted, in effect, a Court Packing plan. When cummings found that and told it to roosevelt, they both thought it was such an incredibly wonderful comic thing to take up mcdonalds with a mcdonalds proposal, if you will. I think they got to attach to the idea. That kind of held their enthusiasm in february, march, and into the springtime, before finally recalibration starts. So, we have another question here from my wife, she wants to know whats determines how many justices can be on the court. Does congress have the power to change that number . Can they change it down . As you said earlier, its been five, its been seven. You know, basically, is that a set . Its an entirely statutory matter, its a judiciary act if you will. It could create a Supreme Court seat or if one became vacant, it could abolish one. I dont think a law could abolish a sitting justice. The constitution protects against that. Also, in older history and in recent history, weve seen that the senate has the power to sit on a nomination. To shrink the court. That happened under president Andrew Johnson and under president obama for a stretch in 2016. Also, congress has the power to limit the jurisdiction of the court. I mean, they could say that the court would need a supermajority to overrule any decisions or, i mean, they could tinker with the mandate of the court and so many different ways, which is interesting, we think somehow thats protection in the constitution, but its not. Congress could not only have changed the number of justices, but reorganize the responsibilities. I wanna go back to something that john was talking about, which was this string starting in the second administration, second term of the administration, disappointment of eight justices. I can ask you both a difficult question. Its like who is your favorite child. Who do you think was the most significant appointment that he made in terms of both changing the court and changing america . John, im pointing to you first. Well, ive got a bias, i think its well founded, im in favor of Robert Jackson, i think he was a special and incredible talent. A beautiful pen, probably the best writer in the courts history. I case by case he didnt pigeonhole easily. He turned out to be quite a fractious court, this Roosevelt Court that began in the late 30s and lived on through the 1950s. And jackson was kind of more on the conservative side but in the middle, if he will, and much more a case of the times person. So hes in the center of the japanese american exclusion case. So, you know, i think as talent, jackson is the person. In terms of significance, i really think maybe hugo black because he broke the ice. You know, that really started the flow, and of course, black serve until 1971, a long and distinguished career. Perhaps to overcome the stigma of having been a ku klux klan member, that coming out just after he was appointed to the court, undeniably. He charted that solitary and path through a constitutional law. By the late 1940s, really was becoming the leading civil Liberty Justice and was that for most of the rest of his career. I think hes also very important. I have two children, i dont pick favorite children. I look at these justices and think really it is an allstar team. It is quite a talented roster with almost no exception who would you put your money on, ralph . I would say black also. Its interesting that roosevelt he was blindsided, he didnt really do his homework on black and his clan membership. Although it ended up pretty irrelevant based on the direction he took on the court. But, you know, its also interesting that there was a steal to appoint joe robinson to the vacancy after defense a retired. Robinson, of course, was carrying a president s order all through the Court Packing case. He was Senate Majority leader who literally worked himself to death and died before he could be appointed to the court. Roosevelt had turned on him and he was afraid that as a southerner he wouldnt carry through his liberal agenda. So, he left robinson hanging. Really, a very sad episode in history. And robinson, i found out, his best friend was bernard brandnew, i didnt know that. There is a college named after him, isnt it . Well, thats where i work. Being a famous Financial Adviser to fdr. And it is strange that, you know, the way things turned, the whole thing could have been settled long before it went down to defeat if the plan had been carried through. Roosevelt was going to appoint robinson, compromise, maybe a two justices, not go for the full six. But, as i keep coming back to this, he was adamant that he was gonna have at his way or the highway. Paul, i have two more quick comments about the appointees. I want to flag felix frankfurter, he was of course brilliant. And sort of in his career stood, i think, most closely to the judicial restraint model that actually the Court Packing proposal is about. Our policy in our country should, by and large, we made by our elected representatives, its the Supreme Courts job to get out of the way of a government that the National Government and also State Government have ample powers and our systems. So frankfurter is a through line. Also charming and fascinating character. The other person that i think we all forget is that roosevelt elevated harlan stone to be chief justice. He was already an associate justice, he was a republican, he was an appointee to the court in the 1920s. Roosevelt did that in the summer of 1941 as a sort of bipartisan non political move. And that is a lost art, that was a great thing that the president did. He was a member of the liberal minority though . He was not one of the four horsemen, to be fair. Right. Interesting, frankfurter actually oppose the Court Packing plan, right . In his private heart he held his powder and did not do anything publicly. Roosevelt became very frustrated frankfurter. So, were gonna go back in time for a minute, and then were gonna come up to present day. I want to go back to talk about why the Supreme Court has this power to determine what is constitutional law and what is not. It really goes back to the, you know, the early 18 hundreds with a rather extraordinary legal case of versus madison. Well start with you and talk a little bit about this. Why it is lay this foundation that said, well, Supreme Court gets the final say . Was that to me . Yes, sorry. It established the right of the Supreme Court to rule on all legal matters in the government. Its not in the constitution, they took on the power, and later on, it was deemed worthwhile, in terms of the balance of powers. With a by the court wouldve been a really weak system to the other two branches. Its an interesting example of how the Founding Fathers hadnt thought of that. Once the court came up with it, everyone said, this is a good idea, the court should have a power. So, it became, you know, ingrained in our system. Today we can think of, you know, would be like without it. So, it really is a great example of how the constitution actually is a living document. I mean, it just added this element that never had in the beginning, everybody said, thats a good idea. Right, well, in marbury, there is a sort of logic that gets them to the assertion of the power to engage in judicial review. The court has to decide cases, it decides cases that arise under the constitution, sometimes provision of the constitution might be in conflict with statute. Decide in the case means which of those carries the day. So, the answer is that the constitution defeats the statute, the Court Strikes down an unconstitutional statute in the context of the case. That power of judicial review though is different than that answer becoming the authoritative last word, in other words, judicial review becoming judicial supremacy. And i think that process is something that we all sort of wrestle with, because with the Court Packing plan what is pushing back on, who is judicial supremacy, being asserted over a new deal laws in the 1930s. Robert jackson wrote a whole book about this called the struggle for judicial supremacy, published just as he became attorney general in 1940. Which is about historically the Supreme Court as an institution as much as it can get away with, as well let it get away with, and marbury was the start. We have kind of admired the craft and maybe let that grow too big. At other times, we have pushed back. 1937 in Court Packing as one, judicial cell first rain by individual justices as another. And proposals for court reform today, you know, obviously, it would be in that vein. So, weve got some good questions coming in here now. Please, if you have a question, put it in the chat. From julian, she wants to know, what argument was given for increasing the court from six tonight in the first place . When and who did this . Did they face similar opposition . Thats a great question. Yeah, it wasnt in one swoop. Generally, it relates to the structure of the creation of the lower federal courts. As the number of Circuit Courts grew, a corresponding Supreme Court justice because of the circuit writing responsibilities, largely explains the early growth and the oscillation. Because the circuit panels where justice visiting, writing, and joining in the Circuit Court activity. And then i think its fourth low driven, there is more and more cases coming up in the jurisdiction of the court, im sure the Supreme Court was communicating to congress, we could use another guy appear. So, laws grow the size of the court, and, you know, thats largely what got us to nine. It is less political and more workload. I think structural for the judiciary and workload. The political moment is more in the post civil war, non filling vacancies when the legal tender case was pending for the Supreme Court. And basically the congress let the court shrink rather than law Andrew Johnson grow the court in the wrong direction that wouldve threatened reconstruction. Interesting, one of the original proposals for reforming the court, along with the packing, was to designate different districts for each of the justices, right . They would come from nine different parts of the country and all of that. That actuallylimited roosevelt at one point when hes trying to think of two people, wasnt robinson from one of the places, arkansas, somebody came from the same place as another justice, so, he had to be ruled out. That was one of the ideas, to try to get the justices picked from different parts of the country. We have a question from princess michelle, your highness, do you have any information about how celebrated the american holiday thanksgiving. My mom and dad were born here during his tours in the usa, my mom thanksgiving same year. I can answer a little bit of this, for many years fdr would celebrate thanksgiving in georgia at the center for polio that he created down there. He brought this whole [inaudible] Polio Research and rehabilitation center, hell go down there everythings giving and spend time with the patients that he saw in the mid 19 twenties. He went there for quite awhile before he became president. Even as president he would go down there, he could drop his act and he could let people know that he was crippled and handicapped. He would swim in the pool with them. They called him doc roosevelt. It was a tradition that really meant a great deal to him. So, good question. That image from photographs as the first thing that came to mind when i heard the question. The other thing i know, but not in detail, is that the date of thanksgiving, the sort of, that particular thursday was standardized under roosevelt. So, it made it more of a National Holiday and a fixed day. It was standardize because he created a controversy. He tried, the Retail Industry asked him to move it up earlier so they had a longer period between thanksgiving and christmas for people to buy things. He moved, there was such an outcry that he had to move it back and solidify it forever. You mentioned his polio, we should not let weve lost you. How is that . This is the 100th anniversary of fdrs polio. That of course made him, you know, the great leader he was. It gave him the empathy, it gave him the strength, the power to overcome adversity. Skills that kind of, you know, he abandoned or abandoned him during the Court Packing thing. I mean, the empathy, his wisdom, he was left with a strength, which he had in excess, maybe too much in this case. It is interesting that this is that important anniversary, how history wouldve been different. I know he may never have developed into the leader he was if he hadnt had that adversity to battle against. I believe that. We have a great question which has come in from christopher ago. He says, was james hepburns appointment, was that Roosevelt Way to pay him back for not taking him along as Vice President . Well, the political history as well as Court History here, certainly an interesting character, burns was defending to run against roosevelt as well. Any comments on that . Yes, i am not sure how explicit that was. It is 1941. So this is after 1940 has occurred, it is over and done. Im not sure what senator burns would have done to a third term president. And obviously, they had a fine relationship, roosevelt had a fine regard for his talent, but only because he put him on his court, but one burns frankly hated the job anyways, he pulled them off of the court and brought him into the white house, basically to manage the economy during the war. I think temperamentally, burns was just an executive Branch Manager or a legislator, way ahead of being a judge. Right. Do you agree with that, ralph . I will refer to john here, much more of an expert than i am. It is interesting, the people who ended up being with the president on this court failing, the ones were against him. It was a very, very select group that gathered around him, a loyal group, Tommy Cochrane and others, who really stood with him, at a time when so many other people were abandoning him. Wheeler, connally and others. And garner, of course. So it is interesting that he had this small circle of people and jackson i mean, jackson was one of the people who really stood by the president , right . That is right. Jackson, in that man, his memoir, which was never published in his lifetime. But i had the luck to find the manuscript and the Family Support and publishing it. In about four pages, he tells about his experience with Court Packing. He recounts going over to the president , to the white house for a meeting of that inner team in february, when this has been announced, and off to a bumpy start. Jackson tells the president , before you go fishing, before you head out of washington, you really need to sort of have another crack at explaining this. Because a pile of unaddressed social rarities is really not carrying the day. And roosevelt replies, yes, that is really a pretty terrible explanation, isnt it . Then he went to a fireside chat and started to tell the truth. It was much more of a political process that have a chance thereafter. Right, we got a lot of questions coming in. I want to jump up. There is a question here again from kamala, about the connection between justices and political perspectives. The question is, did the 1930s justices have similar controversies, or is this more of a modern development in terms of the over political connections outside of the court system . We will start with you on that one, ralph. I would say, the joel salk book, 168 days really opened my eyes to the poisonous atmosphere in washington then. I had this sort of halcyon vision of the new deal as a program that everybody subscribed to, sailed through, roosevelt saved the country. And you look back. We think, our time is, you know, full of internal strife, political poison . My god, what went on then, the back and forth. It is amazing i dont know how much the court itself took part in that because we do not know. The book itself, we really do not know what went on behind closed doors. We still do not. But certainly, all around the court, the atmosphere in washington those days was murderous, you know, in that sense nothing has changed. Right. But if i am understanding the question, if she is asking about Supreme Court appointments, and where theyre any poisonous fights in that context . Generally, no. I mean, roosevelt had a big majority of the senate. He could get his appointees confirmed, that is a fundamental difference from his time to our time. The one who had not hard sailing, if you will but an ugly, ugly whispering Campaign Around it, from the that side was the nomination of frankfurter in 1959, and the antisemitic reaction to that. Frankly, the whole nomination was roosevelt not giving a about antisemitism, and we sort of flicking his chin at adolf hitler, by putting americas lead being lawyer and prominent american jew on the Supreme Court. Yes and also, they senatorial courtesy every day is really strong, and when it senator like hugo black, that immediately sailed through because of senatorial courtesy. I dont know if we still have that today. Seems highly unlikely. But there is a sense, i think, that many people have today, particular people who are history buffs like we are, like we have this contentious nature of the Supreme Court, it is new. This is the new phenomenon. And it used to be that they would sit in their black robes, and everything was fine. I always like to point out, have you heard of brown versus the board of education . I think that is an interesting thing to look at here because of the connection that it has back to the Roosevelt Court. And perhaps, there is no decision in American History that has had more, maybe throw the weight, but more significant consequences on the way that millions of americans live. Talk a little bit about brown v. Board and how that came about, and why it was such a revolutionary decision, it really did take them out of their traditional roles. We will start with you, john. Sorry, i have not picked your name. Well thats a huge question. The starting point is obviously the creation of this country, as a slave country. With our constitution, docking that fundamental, moral question. The price of ratifying unity of slave states and free states. And race through the 19th century, the civil war, the amendments after the war, is, you know, our fundamental, historical reality. Our permanent challenge. Our deepest sin. And, we won world war ii with a segregated army, fighting against, you know, rachel supremacy, theory, opponents. That all came home and had to be sorted out. The dissonance of nazism, and imperial japan, coming home and being a racially segregated country. It is of the naacp attacks, is where a court filled with roosevelt appointees still, frankfurter, jackson, black and douglass are the heart of that court. It is beginning to deal with it in the 1940s. And they are the leading edge. For them, this is not at all a hard question, morally or personally. In various ways, it is a challenging legal question. Because the guys who wrote the 14th amendment or segregationists. Frankly, jimmy burns, who we spoke about earlier, by this point as governor of south carolina. And he is a segregationist. And a lot of the country is still, you know, ugly in racial terms, segregationists. The Supreme Court, with warrens leadership, and the trumans completing the roster, in a series of decisions, work its way to giving meaning to equal protection clause. I think it is our finest moment in constitutional history. And you could not draw a Clear Division between the congress and the court at that time. The congress was controlled by southerners, with the seniority system. All segregationists, powerful committee chairman. People who roosevelt of course had dealt with all through his administrations. And yet here, we have a Supreme Court that is taking a radically different approach to equality, the new shape of american society, its been up to congress, we never would have desegregate to the schools. Yes, and i find it interesting book and, to the court of notsocase, the other japanese incarceration cases the came up during the roosevelt administration, for this idea of protections of the american citizenship, essentially being thrown out the window, i have to wonder what those conversations were like, as you pointed out, jackson of course, dissenting invoice as he was in a notsojudicial sense i think the korematsu case really stressed the court in a way that forced it to make it decision because you are in the midst of this war and you have this sort of fear, gripping the country. How did that decision come down . Why did they not acknowledge the Constitutional Rights of american citizens who happens to have japanese ancestry . Well, they did and they didnt, the Court Decides the series of japanese american cases and a kind of slow walk. So, the case doesnt get decided until 43 and the exclusion and internment cases dont get decided until the late 44. At which point the war in the pacific is far offshore and approaching japan. Through the Island Hopping carnage that we were winning. So, the imperative of National Security is gone by that time. The majority fictionalizes that were still at the time when the president and the army decided we had a security concern. The Court Majority differs to that. National security is of course a real thing and a vital thing, its also something that can be used as a cudgel, and the Supreme Court, you know, was beaten down by the claim of National Security. You know, youll have to look at the climate in this country after 9 11 to see how inflamed, you know, the society can be by pearl harbor tax then and the 9 11 attacks then, now more recently all the statutes that were passed by militarizing the police and invading, you know, privacy and monitoring the muslim community. I mean, all of the patriot act. We dont have to look back that far to understand the mentality of the country after pearl harbor. Look at what happened after 9 11. I think its interesting that the Supreme Court, again, played a key role there in determining whether these muslim bans, travel bans and things were constitutional. Again, it found itself in the middle of this political firestorm as it has with so many cases. So, when President Biden was elected after the three Supreme Court justices appointed by trump, there was this movement that he should pack the court. And sort of walk through, well start with you, john, walk us through with that would mean, how could that even happen and todays political environment . And whats with that process look like today . Well, thats the key qualifier. Theres not the votes on the political priority to do that. The means would be what roosevelt proposed in 1937, it would be a new law that grows the court. There is a fair basis to think that the ordinary process was manipulated, both in 2016 and 2020 after the death of Justice Scalia and president obama not getting a city. After the death of justice ginsburg, President Trump very promptly getting to fill that seat. Those two being consequential appointments that distorted something that, you know, naturally shouldve been the other way. President biden very properly wants to spend no Political Capital on this anytime soon. He has created a commission that is filled with over 30 very brilliant, largely legal academics who have been talking and studying and writing. There is a range of proposals ranging from statutes to constitutional amendments to retirement schemes and rotations that would try to politicize the court. I think that could be done without a constitutional amendment. In other words, a justice serves for good behavior, under article three, which is interpreted to mean for life. That doesnt necessarily mean a right to sit on Supreme Court cases until one expires. So, after a period of time, it could be structured that justices rotate into service on Circuit Courts or become a senior bench waiting in reserve in the event of a recusal or something. These people to continue to be justices, in the meantime, it would be a vacancy that we created, and lets say every president in a fouryear term got two appointments, that became a much more regular thing. That might take some of the political venom out of this process. Of course, it would take a statute, and it might be challenged. Its ironic to think about how the Supreme Court would be asked to participate in deciding that. After we got past that it would take some number of years before we were in the new regime of orderly unless politicized Supreme Court appointments. So, its a very hard question. You know, also, when roosevelt came up with this court plan it was immediately seized upon that one of the justices, im trying to think, not cardoza, was a brandeis who is 80 . He wouldve been knocked out, he was very popular. So, now, people are living longer, that age doesnt seem so old anymore. Secondly, look at the difference between biden and fdr. Biden is much more careful, not, as you know, sure footed a political animal, always good politically as roosevelt. And biden didnt come off a 27 vote landslide, 27 million vote landslide like fdr did and 36. Theyre very different people. Roosevelt was very headstrong on this issue, biden is not committed to this issue, from what i can say. And yet, the latest refusal of the court to delve into the texas abortion law really, i think, flung a new element into it, for a long time people are thinking, well, bidens not gonna invest his prestige on this issue. Now, this of all issues is a very volatile, it caused a lot of, you know, fear around the country. I think thats a new element, its interesting. A few more decisions by that around the court, it may move this panel and its 32 member whatever panel that biden appointed to come up with something. Okay, we have a couple of questions that have come in that arent strictly related to the court. Ill try to answer a couple of them. Princess michelle asked again, who is president Franklin Roosevelt friends with from the monarchy government of the United Kingdom . Very famously invited the king and queen of england to come to america in 1939. America americans back then didnt particularly like the british monarchy, they had very low popularity ratings, the previous king had abdicated because he married in american. So, there is a little sense that english monarchy wasnt roosevelt knew that we had to solidify our relationship which with britain, the war was coming, he knew the war was coming, he knew theyd be a critical ally. They had a big fancy dinner in washington, they come up to here to hyde park, fdr famously has the hot dog picnic in which he serves hot dogs to the king and queen. They serve other things too. I think we talked a little bit about that ralph in your article. I think they try to serve some kind of a fruity cocktail to Winston Churchill who spotted out. But, no, absolutely, that was a famous episode. And roosevelt saw the need to cultivate closer relations with england, which was embattled, could very well have lost the war once and for all of that point from the west. And, you know, this wonderful relationship with churchill, of course. I think roosevelt addressed him as, i forgot, it is a navy title. He was the former naval person. Former naval person, right. Originally because at the start of the correspondence with churchill when he was still before he came prime minister, he would refer to him as the naval person. The president at that stage is not supposed to be talking to englands navy. Fdr is a former naval person. I spent the pandemic reading all six volumes of churchills world war ii history, the only good thing that came out of the pandemic. We have a couple of quick questions. Were running out of time here. A question from andrew smith, i appreciate the important Supreme Court stuff, but i wonder if you plan to have another live conversation about other fdr subjects in the future . Well, first of all, weve been doing this for a year and a half, we do it every week or two, a new program, whether the education, the curator, or i do it, theyre all available on our youtube page, facebook videos. Weve done everything from with different president , eisenhower, johnson, to the great depression, to the conference. There is lots of material there, we had to stop doing programs were up to 75 of these conversations with authors and historians. Were gonna continue to do this, and hopefully someday as the pandemic eases, it will go back to doing live programs, i wish point will continue to live stream them and require them and put them on our youtube so that we have a collection of this content. Okay, this is going to be the last question, its a really good one. So, its from julian, is it the lifetime appointment supposed to be a way to avoid politicize a shun . Justice is beholden to lifetime appointment, ralph, well start with you, john morgan and with, you have the last word. Well, that was the idea. First federal judges below the Supreme Court, as well as the court. You know, it is a wonderful mechanism, insulating them from daytoday political pressures. It used to be the fbi director had a similar tenyear term that insulated him. So i think that, historically, and you know i think it will be difficult to take that away. I defer to johns expertise, here. I completely agree. It is valuable insulation. The question is, how much do you need . And lifetimes today can be very long things. So if there is a way to permit a justice to serve out beyond the politics of his or her appointment, that is desirable and insulates them. I dont think that used to be 30, 40, 50 years. I will note due to heart disease, Robert Jackson died at age 62 after only serving 14 years on the court. And one of those, he was a wall, being prosecuted at nuremburg. One of those can make a remark, doing Great Service to Supreme Court justices without needing many, many decades. And also, if we are not trying to play for forever, we might not prioritize appointing younger people. Perhaps, we would get more of the career, wisdom and experience of more senior people. 60 and 70yearold people, including people who have held high, public offices are not viable Supreme Court candidates today. I think that is a terrible loss. Right. All right, ralph, john. Thank you very much. Great conversation. And i think we all know, as the u. S. Constitution today, there are three branches of government. They do Services Less than 3 of americans can name all three branches. So here is your lesson for today, the executive branch, the legislative branch which is congress, and the Judicial Branch which is the Supreme Court. There are supposed to be three equal branches, although none of them feel the others live up to their potential. [laughs] on that note, i will thank you guys. Thank you all for watching. Cspan has unfiltered coverage of the house january Six Committee hearings, investigating the attack on the capitol. Go to cspan dot org slash january six, our web resource page to watch the latest videos of the hearings, briefings and all of our coverage on the attack and subsequent investigations since january six, 2021. We will also of reaction from members of congress, and the white house, as well as journalists, authors talking about the investigation. Go to cspan dot org january6 for a fast and easy way to watch, when you cant see it live. V wade in their confirmation hearings. We begin with Justice Samuel alito the author of the new leaked draft opinion which seeks to overturn the row we begin with Justice Samuel alito, author of the new leaked draft opinion, which seeks to overturn the roe case. His nomination hearing was held in jay,