Transcripts For CSPAN3 The Presidency FDR The Supreme Court 20220810

What better way to celebrate Constitution Day and let me talk about the supreme with two outs any 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 helped change american democracy for the better. He had to point none during his first term, which is a point of extreme frustration for him. Well get around to talking about that later. The roar of the Supreme Court has changed over the years and certainly todays it has played a central role in our political process. Make no mistake, the court has always been political. Joining me today, as john q professor latte Johns University and the Elizabeth Roberts sure he is the buyout. Right of the jackson listed papa him a letter and website website. And editor of jacksons acclaimed 2003 posthumous book, quote that man. An insider portrait of franklin d. Roosevelt. The last new deal insider memoir. Also with us today Ralph Blumenthal distinguished lecturer from Baruch College, continues to be a contributor to the times and other publications. Author of five books, including the believer about the harvard psychologist john mack who investigated ufos an alien encounters. He actually has a very direct connection with fdr, we will talk about that in a minute. We will start with professor barrett, give us a little bit of your background specifically with your work on Justice Robert jackson. Thank you, paul for this opportunity, and really the privilege to be at the Roosevelt Library at homestead in every sense except actual. The path that led me to all of this was really being a lawyer in washington at first. I worked with the department of justice in different federal investigations for about seven years. I then became a law professor. Among my 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 was in roosevelts cabinet as attorney general. Was confirmed through this senate in five different jobs in a very short run of years. He became a big project. For our topic it matter that jackson was a named assistant attorney general in 1937, principal witness defending the president Court Packing plan, and then the solicitor general who over the next two years argued in defense of new deal laws constitutionality before the Supreme Court. It is the jackson path that brought me into this roosevelt world and the Court Performance the tide in. Jackson was of course part of the nuremberg trials, we can talk about that separately. Professor blumenthal, give us a little bit about your background both as a reporter and working at the library collection. One of the key members of fdrs administration. Thank you paul. I really appreciate being on with you and john. I am a distinguished lecturer at Baruch College as you mentioned. In that capacity we supervise our archives collection in the newman library, among which we have a collection of the papers on looser halle gilles the third, as a member of the committee that really reorganize the executive branch for fdr. That came up right in the middle of the Court Packing fight. That is 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 of course Robert Jacksons role as prosecutor at nuremberg. It is a very sterling episode the prosecution of these nazi criminals. Anyway, i should say, i came into the subject from a book called 168 days, which is a virtual diary of the Court Packing controversy, cowritten by turner caliber, coeditor at the New York Times when i started there. It is a wonderful account, not completely unbiased and we can discuss, of the day today struggles back and forth over the Court Packing controversy. It is a privilege to be here. Cloud to have you here. For those of you dont know, tom cottage is a home that fdr bill in hyde park here. In the 1930s, he planned to move into and live and after he left the presidency. One of the fully design houses in america that was made to accommodate handicap person, with a wheelchair. Theres no thresholds on the door. The doors and windows have lovers. Im really is an architectural marvel. It is only open part of the time. It is part of the National Park Service Collection of properties appear. They have eleanor home on south hill, the top cottage, the vanderbilt mansion. Quick plug, anyone coming up to the Hudson Valley make sure you stop here and visit in. Back to this subject at hand. Lets talk about fdrs Court Packing scheme. John, set the scene. What were the circumstances that made fdr so frustrated with the court. When he is done, why did he and what he did he try to do to change . 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 crashed in the fall of 1929, coincidentally during that term president Herbert Hoover had three Supreme Court appointment opportunities. He made great appointments, no denying that. It is the luck of the draw if the president gets vacancies. President trump got three, president hoover got three. President roosevelt in 1932, inaugurated and 33, and 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 in the problems of the depressionthe torpid voluntourism of the hoover air 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 who were there struck down major reform relief laws. Heres a quick laundry list. National recovery act. The Railroad Retirement act. Section three of the National Recovery act. The fraser lumpy act. The tax component of the agricultural adjustment act. There were poll conservation act. The amendment to the bankruptcy law, and a state new york minimum wage law that was a state level counterpart progressive level. Roosevelt was the popular, powerful, democratically responsive of president. The Supreme Court was a tremendous obstacle. Reelected overwhelmingly in 1936, he decided to use his Political Capital on his Supreme Court problem. What did he do . What was his strategy . What was he trying to accomplish here. Well, he took it very personally. Actually, he had this dream that the supreme 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 if he really believes the separation of powers did not apply to him. The idea that and he came up with the idea to appoint six new justices and then cooperate with them and he would cooperate. To get his program through it is insane to our way of thinking today. It is a mystery to me how much he believes that he could really merge these two branches of government. What happened is, 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. He was resolved it was really unlike him with his perfect temperament and his great sense of timing, his wonderful way of reading the country, he kind of lost it he decided to put all of his chips on this plan to change the core. There were several, there were four actual proposals given to him by home or cummings, his attorney general. One with a constitutional amendment, which would be very difficult. One was statutory to change the jurisdiction of the court. They were various levels of tinkering. The last one was to add the provision that whenever a justice reach 70, he or she while he in those days, now she. He would have to step down. Or roosevelt could appoint somebody to take his place. That was his plan. He somehow got convinced that this was doable. As john said, he had this wonderful supermajority. He 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 were on his side, that this would be welcome. Of course, it was not a little context here. The 1936 president ial election, as you mentioned, was the largest electoral landslide in american political history. I always think that fdr had extraordinary political instincts. They got him to where he was. Elected and then reelected in a wheelchair is simply incredible on every level during one of the darkest times 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 that landslide victory. He decided to pack the court, he decided he would primary the conservative southern democrats who are holding up legislation in congress, and he cut the budget, leading to the rose about recession of 1937. As you said he lost it. He was so enthralling with his own success in popularity that he tried to do things that were way off path of with the American People wanted. John, talk a little bit about whats 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 this Supreme Court. It is a creature of statute. Originally it was six and went down to five, its oscillated around in the 19th century. Since the 1870s we have had a nine member court. Its now been 60 years of the country being used to nine as if it is etched in marvel. That is they trying to grow the court in 15 with one fell swoop of trying to fill it with likeminded and it was somehow unamerican even though it is an unconstitutional. It opened up some of the fault lines in the democratic party. There were old barons who were the committee chairmans. There were southern segregationist to a part of this coalition that roosevelt was trying to hold together. The court as a target was not such a publicly notoriously evil institution. Especially the way that roosevelt spun it out. He claimed in the announcement that the justices were so far behind on their work. There was a pile of unaddressed certiorari petitions. Which was jargon in just not true. He also claim that these aging justices no longer had the fastball. That was a hard thing to claim about louis brandeis, the oldest of the bunch thats been sort of hit a wall of hostility. It immediately became controversial. Roosevelt did try to recalibrate. Robert jackson was one of the people who told him, you need to start telling the truth about this its not about age its not about backlog it is about interpretations that particularly be for most conservative justices have porn into their constitution. They have red state powers to protect our welfare and use their Police Powers must to restrictively. It is about the core putting its political preferences in place of the proper understanding of the constitution. Democracy can and should respond by appointing more straight shooters. I would even say more conservative justices in terms of constitutional as opposed to these four horsemen radicals. If i could just jump in here, it wasnt dead in the water from the beginning. It mightve seem like it would be because Vice President garner came out of the meeting where the news was sprung on him holding his nose and going like this. He had a shot a good shot at getting this through. Because of all the reasons we mentioned. His popularity, the election landslide, et cetera. Through a series of almost biblical, greek, whatever you want to call them, missteps, he succeeded in sabotaging himself. Even though it was not a popular thing to change the third branch of government, it couldve been done. Had it been handled differently. It is not just self sabotage. There are external events. A couple of things that happened in that 30 30 or 40 days. Announcing the plan in february, early march the Senate Hearings are happening. The Supreme Court justices sent a letter to the chairman of the committee that says we are current on our work. They blow up that cover story. Then the Supreme Court in mid march starts to hand down decisions upholding new deal laws. All of a sudden the Supreme Court problem is receding. A statement imam wages upheld. The National Liberal nation is upheld. Social security is argued that spring. In may its constitutional is upheld. That confluence of events made it really much less necessary to do something dramatic. Of course that changes one of the decisions that led to one of the great catchphrases of Supreme Court history. A switch in nine states time. As roosevelt other said in my notes, he would not take yes for an answer. The courts went out of their way, enough if they decide the decisions in order to placate him. That was a good question. Was it done with design. Did they see the lie in reliving need to uphold the good new deal programs. For whatever reason the court gave him what he wanted. Basically, i dont know if you want to use this image but it dug his grave for him and he jumped in. He didnt have to. It really is amazing how he missed all the signals and just plowed ahead. He was determined to remake that court. Put up to six that would carry through his programs. It is just astounding. It is still a political mystery. The turner callans book that i reference, he and else up interviewed everybody but the president. We dont know, i dont know maybe john knows. In roosevelts own writing and what has come out in his papers about what his thinking was about this. Why he wouldnt 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, i hope i pronounce this way. Carmela how do we know that core packing was unpopular . Outside of the conservative voice of the court . Did average americans in the 1930s have a strong opinion on the court . The two strong constituencies of roosevelt, farmers and labor, and liberals they all turned against a pretty quickly he lost his natural constituency. It was not popular from the beginning. It is interesting. He thought, roosevelt thought it might be. Which is why he embarked on a he started losing his natural allies from the beginning. Am i right on that, john . No, i think thats correct. Look at the mailbags. Some of which is archive there. We have millions of letters you can measure, page by page, the public reaction. A lot of it is very critical. Look at the Congressional Committee votes. Ultimately the Congressional Committee reports. It rejects the first version of the proposed bill. As the urgency is receding in the springtime, the presidency does pull back. It was a second version that expands the courts by two seats that he well would have one had that been pushed through to a vote. He kind of had to deal with the Senate Majority leader, senator robinson from arkansas, who would get that over the finish line. Roosevelt had frankly promised him a Supreme Court appointment, one of those two seats. He was making nice, a Jefferson Island picnic with all the members of Congress Early that summer. Robinson dropped dead right after the fourth of july. At that point, one more Development Justice band of inter announced he was resigning. Roosevelt finally felt he had a vacancy to fill at that point, just none of it was worth any more trouble. We can live with nine, you can see the dominoes. Black is appointed in august, read the next year. Both felix in a dog with the next year. Frank murphy the next year. Robert jackson and james burns the next year. These 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. Not so much cummings, who was a true believer as his attorney general, but others came to him, repeatedly, with offers. 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 about whats going on out there. How he was losing, you know, support constituencies. He was very bull headed in that. It is extraordinary. The sense of timing that we credit him with, the exquisite sensitivity to political wins. He just was dead set on this. There is a little colonel in this that i think is maybe an explanation of that. Homer cummings, the attorney general, was really the harassment and the proponent in this. Part of the problem on the Supreme Court was Justice James make reynolds. He was one of the four horsemen. He was a wilson appointee. He had been in the Wilson Administration with fdr. As attorney general, Mick Reynolds had drafted, in effect, a Court Packing plan. When cummings found that in told it to roosevelt they both thought it was such an incredibly wonderful karmic to take on Mick Reynolds. I think they got too attached to the idea. That held their enthusiasm in february, march, and into the springtime finally before recalibration started. We have another question from my wife, whats determines how many justices can be on the court . Does congress have the power to change that number . Could they change it down . As you said earlier, its been five, its been seven. You know, is that . It is entirely a statutory manner. It is an axe judiciary act, if you will. To create a Supreme Court seat, if one became vacant and couldve abolish one. I do not think a law can abolish a sitting justice. The constitution protects against that. Also in older history and in recent history we have seen that the senate has the power to sit on a nomination. That happened under president under president andrew johnson, it happened under president obama for a stretch in 2016. Also congress has the power to limit the jurisdiction of the court. It can say that the court would need a supermajority to overrule any decisions. They could tinker with the mandate of the court in so many different ways. We think that is somehow protected in the constitution but it is not. Congress could not only change the number of justices but reorganize their responsibilities. I want to go back to something that john was talking about which was this string starting in the second term of the administration going forward, with this appointment of eight justices. I will ask you both into question, like who is your favorite child. Of the a, who do you think was the most significant employment that he made, in terms of both changing the core and changing america . John, point to you first. I have a bias but i think it is well founded, in favor of Robert Jackson. I think he was such a special, incredible talent. A beautiful pen probably the best writer in the courts history. A case by case jurist. He did not pigeonhole easily. It turned out to be quite a fractious court. This rose about court that began in the late 30s and lived on to the late 50s. Jackson was kind of more on the conservative side, but in the middle if you will. A much more a case of time person. He was the exception in the japanese american exclusion cases. And of talent jackson is the person. In terms of significance, i really think maybe hugo black because he broke the ice. That really started the flow. And of course black served until 1971, a long and distinguished career. Perhaps overcoming the stigma of having been a ku klux klan member, and that coming out just after he was appointed to the court, undeniably. He chartered and egalitarian path of our constitutional law. By the late 1940s, he really had becoming the leading liberties justice. He was that, for most of his career, i think he is also very important. I have two children, i dont pick save a children. I look at these justices and think, really, that is an allstar team quite a talented roster with almost no exceptions. Who do you put your money on, ralph . I would say black also. Its interesting that rose about claimed him. He probably was blindsided. He didnt really do his homework on black and his klan membership, although it did end up pretty irrelevant based on the direction that he took on the court. Its also interesting that there was this deal to appoint joe robinson to the vacancy after advantage retired. Robinson, of course, was carrying the president water all through the Court Packing case. He with the Senate Majority leader who literally worked himself to death and die before he could be appointed to the court. Roosevelt turned on him. He was afraid as a southerner he wouldnt carry through his liberal agenda. He left robinson hanging. Really a very sad episode in history. Robinson, i found out, his best friend was bernard baroque, i didnt know that. There is a college named after him isnt there . Well, thats where i work. Baruch college, but baruch of course being a famous Financial Adviser to fdr. It is strange just the way things turned that whole thing couldve been settled long before it went down to defeat. If the plan had been carried through roosevelt wouldve appointed robinson to compromise and maybe a 0. 2 justices not go for the full six. As i keep coming back to this he was adamant that he was going to have 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 his career i think most closely to the judicial restraint model that actually the Court Packing model is about that our country should be made by our elective representatives it is the Supreme Courts job to get out of the way of a national government. And state goverment and have ample powers in our system. So frankfurter its sort of a through line. Also just a charming in fascinating character. The other person that i think we all forget is that roosevelt elevated harlan fixed stone to be a republican a coolidge appointee to the court, in the 1920s. Roosevelt did that in the summer of 1941 as a sort of bipartisan non political move. That is a lost art. That was a great thing for the president to do. He was a member of the liberal minority, wasnt he . Thats correct, he was not one of the four horsemen. Interestingly, frankfurter actually oppose the Court Packing plant, right . In his private heart, he held his powder and did not do anything publicly. Roosevelt became very frustrated with frankfurter. We are going to go back in time for a minute and then we are going to come up to the 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 goes back to the very founding days of the early 1800s with the rather extraordinary legal case of lamar barry versus madison. Lets talk about this and why this it laid the foundation of why the Supreme Court gets the final say was that to me well ma barry versus madison except the Supreme Court to rule on all legal matters in the government. It is not in the constitution they took on that power later on it was deemed worthwhile in terms of bounced power without that the court would have been a really weak sister to the other two branches it is 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 that power it became ingrained in our system. We cant think of what it would be like without it so it really is a great example of how the constitution is a living document it just added this element that it never had in the beginning. Everybody said, thats a good idea. There is in marbury a sort of logic that gets them to the power to engage in judicial review. The court has to decide cases, it decides cases that arrived under the constitution. Sometimes a provision of the constitution might be in conflict with a statute. The answer is the constitution defeats a statute. The Court Strikes down a unconstitutional statute in the context of a case. The power of judicial review though is different than that answer becoming the authoritative last word. Right. Judicial review becoming a judicial supremacy. I think that process is something that we all sort of wrestle with. With the Court Packing plane was pushing back on was judicial supremacy being asserted over a new deal laws in the early 1930s. Robert jackson wrote a whole book about this called the struggle for judicial supremacy, published just as he became attorney general in the 1940s. Historically in the Supreme Court it became institution that inflated itself as big as it could get away with, as we would let it get up and marbury was the start. They left that road to big. Other times we push back. A 1937 Court Packing issue is one. Judicial for by individual justices is another. Proposals for court reform today, obviously, would be in that vein. So weve have got some good questions coming in now. Please, if you have a question just put it in the chat. Joanne morris wants know whats argument was given for increasing the court from 6 to 9 in the first place . When and who did this . Did they face similar opposition . Thats a great question. It was not in one fell swoop. Generally it relates to the structure and creation of the lower federal courts. As the number of Circuit Court grew, a corresponding Supreme Court justice because of the circuit riding responsibilities, it largely explains the early growth vacillation. Those circuit panels were a justice visiting in riding and joining the Circuit Court activity. I think it is workload driven. There is more and more cases coming within the jurisdiction of the court, im sure the Supreme Court was communicating to the congress that they could use another guy up here laws grow the size of the court. That is what largely got off to nine. A lot of political and more workload . I think structural for the judiciary and workload. The political moment is more in the civil war nonfilling vacancies. The legal tender case was pending before the Supreme Court and basically congress let the court shrink rather than that Andrew Jackson grow the court in the wrong direction, that might have threatened reconstruction. One of the original proposals for reform in 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 that. They would actually limit roosevelt, trying to think of two people. Wasnt robinson from one place . Arkansas or something . Somebody came from another justice, he had to be ruled out. That was one of the ideas to trying 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 on how president fdr celebrated the american holiday thanksgiving. My mom and dad were born here during his term of service in the usa. My mom was born in the american holiday thanksgiving. I can answer a little bit of this. For many years, fdr would celebrate thanksgiving in palm springs, georgia, after the Rehabilitation Center for polio that he created down there. He bought an old rundown stall and created the worlds lead Polio Research center. He will go down there every thanksgiving in spend time with the patients in the mid 1920s, he first got polio he went there for quite a while when he first became president. As president he went down there and he could drop his act. He could let people know that he was crippled, handicapped, he could swim in the pool with them. They called him doc roosevelt. It was a tradition that really meant a great deal to him. Good question. That image from photographs was 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, that particular thursday was standardized under roosevelt. So it made him more of a national holiday, a fixed date. It was standardized because he created a controversy. 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 to, there was such an outcry about it that he had to move back and solidify that date forever. You mentioned polio, we should not let we lost ralph for a second. Technical wizardry. And im back . Are you back . Yes. Has that, is that better . Is that all right . So, this is the 100th anniversary that of fdrs polio and that of course made him a great leader that he was. He gave him the empathy, they gave him the strength the power to overcome adversity all these things that abandon him during the Court Packing thing. The empathy, his wisdom, the only thing he had left with his strength. He had that in access, maybe too much in this case. It is interesting that this is that important anniversary. Which history couldve been different. He may never have developed into the leader he was if he hadnt had that adversity to battle against. I absolutely believe that. We have a great question which has come in from christopher d. Go. Was jane hampereds appointment roosevelts way of paying him back for not taking him on as Vice President . A little political history here as well as a court history. Certainly a interesting character. Threatening to run against roosevelt as well. Any comments on that . Im not sure how explicit that was. Its 1941, after 1940 has occurred and its over and done. Im not sure whats said under burns would have gone to a third term president. They obviously had a fine relationship. Roosevelt had a high regard for his talent. Not only because he put him on the court, and a year later when burns hated the job anyway, roosevelt pulled him out of the court and into the white house and had him manage the economy during the war. I think tempermentally burns was an executive Branch Manager or legislator way ahead of being a judge. Right. Do you agree with that, ralph . All will defer to john here. Much more of an expert than i am. The people who end up being with the president on this Court Packing thing the ones who are against him it was really loyal group, tommy cochrane, others who stood with him at a time when so many other people were abandoning him. Wheeler, and connally and others. Garner, of course so, it is interesting that he had a small circle of people. And jackson you know, jackson was one of the people who really stood by the president , right john . That is right. In many more, the one that was never published in his lifetime, i had the luck to find the manuscript and these families support to publish it. In four pages, he tells his experience with Court Packing. He recounts going over to the president , to the white house, for a meeting with the inner team in february when this has been announced. It is off to a bumpy start. Jackson is telling the president , before you go fishing, before you head out of washington, you need to have another crack at explaining this. A pile of unaddressed so special is not during the day. Roosevelt, according to jackson, positive, that is a terrible explanation, isnt it. They went into a fireside chat and started to tell the truth. It was more of a political process that had a chance thereafter. We have a lot of questions coming in. We want to jump over to a question from camilla about the connection between justices and political perspectives. The question is, does the 1930s that justices have the same controversies or is this a modern development in terms of over political connections outside of the court system . We will start with you, ralph, on that one. I would tell you that the book, 168 days, opened my eyes to the poison atmosphere in washington. I had a new deal as the program that everyone subscribe to and sailed through that roosevelt saved the country. Then you look back and we think that our time is full of internal us, strive, and political poison. What went on back then, it is amazing. The court, i do not know how much the court itself took part in that. We do not know. The book itself does not know what went on behind closed doors. We still dont know. Certainly all around the court, the atmosphere in washington at those days was murderous. In that sense, nothing has changed. If i am understanding the question, if shes asking about Supreme Court appointments, where their poisonous fights in that context . Generally, no. Roosevelt had a big majority in the senate. He could get his appointees confirmed. That isnt a fundamental difference between his time in our time. The one that did not have hard sailing but an ugly whispering Campaign Around it from the bad side with the nomination of frankfurt in 39 and the antisemitic reaction to that. Frankly, the hold the whole nomination was roosevelt not giving a about antisemitism. He flicked his chin at adolf hitler by putting americas leading lawyer and prominent american jew on the Supreme Court. Also, the senatorial courtesy in those days was very strong. When and if roosevelt nominated a senator like hugo black, that immediately sailed through because of senatorial courtesy. I do not know if we still have that today. It seems highly unlikely. There is a sense that many people have today, taking the people that are not history buffs, that this contentious nature of the Supreme Court is new. It is a new phenomenon. It used to be that they would just sit in their robes and the Supreme Court would hand out things. Everything was fine. Have you heard about brown versus board of education . It is an interesting thing to look at because of the connection that it has to the roosevelt court. It is perhaps there was no decision in the American History that has had more significant consequences on the way that millions of americans would. Talk about how this came about and why it was such a revolutionary decision. It took them out of traditional roles. Lets start with john. That is a huge question. In the starting point is obviously the creation of this country as a slave country with our constitution ducking that moral con destruct as the price of ratifying a unity of slave states and previous states and a race through the 19th century, the civil war, the minutes after the civil war. This is fundamental historic reality and our permanent challenge. It is our deepest sin. We won world war ii with a segregated Army Fighting against racial supremacy theory opponents. That all came home and had to get sortled out. The dissonance of not, nazism, impaired pull japan, and going home to being a separate country. This is what the w cpa attacks. It is whats a court full of roosevelt appointees would still. Frankfort, jackson, black, douglas, they are the heart of the court. They begin to deal with this in the late 1940s. They are the leading edge. For them, this is not at all a hard question and morally, or personally. In various ways, it is a challenging legal question. The guys who wrote the 14th amendment were segregationists. Frankly, jimmy burns, who we are talking about at this point is the governor of south carolina. He is a segregationist. The Supreme Court, with Owen Williams leadership and in a series of decisions, worked its way to give meaning to the equal protection clause. I think it is our finest moment in constitutional history. And you could not draw a clear vision between the congress and the court at that time. Congress was controlled by saint southerners by the seniority system. Groups like aggregations, powerful chairmen, people who roosevelt had dealt with all throughout his administrations yet here we have a Supreme Court that is taking a radically different approach to equality, and you shape of american society. If i get it in up to congress we never want to segregated the schools. I find it an interesting book end to the other cases that came up during the roosevelt demonstration where this idea of protections of american i. D. Ills were thrown out the window. I have to wonder what those conversations were like. As you pointed, out jackson is the dissenting voice in the non judicial sense. The case stressed the court in a way that forced it to make a decision. You are in the midst of this war and you have this fear gripping the country. How did this decision come down . Why did they not acknowledge the Constitutional Rights of american citizens who have to have japanese ancestors . They did and they did not. The Court Decides the series of japanese american in a slow walk. The curfew cases not get decided until 43. Internment cases do not get decided until late 44. At which point, the war in the pacific is far offshore approach approaching japan. This is through the Island Hopping carnage that we were winning. Imperative of National Security is gone by that time. The majority fictionalizes that the time when the president of the army decided that we had a security decision. National security is a real thing. And a vital thing. Its also something that can be held as a crutch. The Supreme Court was beaten down by the claim of National Security. And you only have to look at this climate in this country after 9 11 to see how inflamed the new society can blaine be by the pearl harbor attack, 9 11 attacks, and more recently, all the statues that were passed around militarizing the police. They were invading our privacy, monitoring the muslim community, the patriot act, so we do not have to look back that far to understand the mentality of the country after pearl harbor. Look what happened after 9 11. I think it is interesting that the Supreme Court played eight key role in determining whether the muslim ban, travel bans, were constitutional. They found themselves in the middle of a political firestorm as it has for so many cases when President Biden was elected after supreme justice being appointed by trump, there was this movement that he should pack the court. Walk us through, we will start with you john, what this wouldve been . How can this even happen in todays political environment . Well with this process look like today . They are not votes, shes not the prideful party. The meaning is exactly would proposed in 1837 there is no basis to think that the ordinary process was manipulated both in 2016 and in 2020. Is that the justice of scalia and these two were being consequential appointments that distorted something that should have naturally been the other way. President biden, i think, probably, wants to spend no color capital. He began a commission that was started by brilliant academics who have been talking, a studying, writing. There are a range of proposals ranging from statues to constitutional amendments to retirement schemes and retirements that would declutter the court that could be talking without a constitutional amendment. In other words, justices for good behavior, which is interpreted to mean for life. This doesnt necessarily mean we have the right sit on Supreme Court cases. This is until one expires. It can be structured that they move into Service Court or become a senior bench in the recusal or something. They want to give it to be justices. In the meantime, it would be a vacancy that would be created. Lets say every president in a fouryear term got two appointments, that would be a much more regular thing. That might take some of the political venom out of this process. Of course, it wou some number of y were in the new regime of orderly and less politicized Supreme Court opponents. Its a very hard question. Also, when roosevelt came up with this court plan, it was immediately seized upon that one of the justices now cardoza. Anyway, he was great and really popular. Not because people are living longer, that age does not seem to old anymore. Secondly, look at the differences between biden and fdr. Biden is much more careful, not as sure footed in a Political Animal or good politically as roosevelt. Biden did not come off 27 vote a landslide, 27 million vote landslide that fdr did in 36. They are different people. Roosevelt is very headstrong on this issue. Biden is not committed to this issue, from what i can see. The latest refusal of the court to dive into the texas abortion law really through a new element into the debate. A lot of you are thinking that biden is not going to invest his prestige on this issue. Now this is of all issues is very valuable. It caused a lot of a couple more decisions like that by the court and they may move this panel to come up with something. Weve got a couple of questions that have come in that are not strictly related to the court. I will try to answer a couple of them. Princess michelle asked again who was Franklin Roosevelt friends with from the monarchy and government from the united kingdom. Very famously he invited the king in queen of england to come to america in 1939. Americas hopefully realize that they didnt particularly like the british monarchy. A matter of fact i had a very low popularity ratings. The previous king had advocated because he married an american. There was a real sense that the english monarchy did not want anything to do. Roosevelt knew that we had to solidify a relationship with them. The war was coming he knew the war was coming. He knew that britain would be a critical ally. He invites the king and queen, they have a big fancy dinner in washington. The come up here to hyde park, fdr famously has the hot dog picnic up and talk cottage. Where he serves hot dogs to the king and queen. They feared other things to. I think you talk a little bit about that ralph in your article. I think they tried to serve some sort of a foodie cocktail to Winston Churchill who spat it out. [laughs] absolutely, that was a famous episode. Roosevelt saw the need to cultivate closer relations with england. It very well could have lost the war once and for all from the west. He had this wonderful relationship with churchill, of course. I think roosevelt addressed him as, i forget by a navy title. He was the former naval person. Former naval person, right. They started the correspondence when he was still the first corner of the admiralty before he became prime minister. In that case he would refer to him as a naval person. President of the United States is not supposed to be talking to the british navy. He later referred to him as the former naval person. I spent the pandemic reading all six volumes of churchill forward to history. Its the only good thing that came out of the pandemic. We have another quick question, we are running out of time here. Question from andrew smith, i appreciate the importance of the Supreme Court stuff. I wonder if you have planned to have another conversation on fdr subjects in the future. First of all weve been doing this for a year and a half. Each week or two we do a new program. We did the Education Specialist are the curator, they are all available on our youtube page. Our facebook videos. We have done everything with fdrs relationship with different president such as eisenhower or johnson, the Great Depression, the yalta conference, there is a lot of material there. We had to start i think weve done 75 of these conversations with authors and historians. Please we have lots of content we will continue to do this, hopefully someday as the pandemic eases we will go back to doing live programs. At which point we will continue the live streams and records them and put them on our youtube that we have a collection of this content. This is going to be the last question. It is a really good one. Its from joanne moore its. Is it a lifetime appointment isnt supposed to be a way to avoid politicization and justices feeling beholden to a certain president or political viewpoint . Lifetime appointment. Ralph, well start with . You john after. That was the that was the idea, it refers to federal judges below the Supreme Court and the core. It is a wonderful mechanism for insulating them from the daytoday political pressures. A used to be the fbi director had something similar, a tenured term that isolated ham. I think it worked well historically. I think it could be very difficult to take that away. I defer to johnson fatigued here. Now, i agree completely. It is valuable insulation. The question is, how much do you need . Lifetimes today can be very long things. If there is a way to permit a justice to serve out beyond the politics of his or her appointed moment that is desirable in insulates them. I dont think that needs to be 30, 40, or 50 years. Although due to Heart Disease Robert Jackson died at age 62 after serving only four years on the court. One of those he was a wall being a prosecutor at nuremberg. One can make hitter or mark doing Great Service on the Supreme Court without needing many many decades. Also if we are not trying to play forever, we might not prioritize appointing ever younger people. Perhaps we will get more of the career wisdom and experience more senior people. 68 70yearold people, including people who have held high public offices they are not viable Supreme Court candidates they. I think that is a terrible loss. Right. Ralph, john, thank you very much. Great conversation i think we all know that u. S. Constitution there are three branches of government. They just did a survey that less than 30 of americans can name off three branch of the government. The executive branch, which is the president. Which is the legislative branch of congress, the Judicial Branch which is a Supreme Court. They are supposed to be three equal branches yet none of them feel the others live up to their potential. On that note i want to thank you guys. Thank you very much for coming. Thank you all for watching i feel quite sure that what the American People lack his knowledge. I feel quite sure that the American People, if they have knowledge and leadership, can meet any crisis just as well as they have met it over and over again in the past. I cant remember the cries of horror when my husband said we had to have 50,000 airplanes in a given period, but we had them. And the difference was that the people were told what the reason was and why. And i have complete faith in the American Peoples civility if they know, and if they have leadership. No one can move without some leadership. And for the time being, you feel we are bereft of leadership. Yes. Take a closer look at the spouses of our nations president s. Their private lives, public roles, and legacies. Watch all of our first ladies programs online at first ladies dot c dash cspan dot org. Excuse me. Great pleasure to welcome to the university of Mary Washington and to the great lives podium, kirsten downey. You dont. Well hello and aloha from hawaii. Thank you so much bill. And i also hello