Politics of president ial with the fulcrums editorinchief david hawkins. Watch live at 7 00 eastern monday morning. Join the discussion. Host who we get to talk about the Supreme Court history for an hour. I want to start by understanding the court today. The way our court is structured and evolved, how does the chief justice in this area will authority . What tools do they have . The question is, in this era, as always, the chief justice, first and foremost, is of one ofnd steward our three branches of government. I think there are some unique aspects about that job, in the sense that the court is not a political branch. It was deliberately designed not to be. Has a difficult job, because im sure you have had heard this expression. He is they are the chief among equals. They cannot control the other justices. The power to cajole, but not control. Specifically, does the chief have a role in what cases are heard, and who writes the opinions . Elizabeth those are probably two of the extinction stinks and the chief justice. Stations of the chief justice. They preside over which cases to take, and it is a small number of cases the court actually takes and heres out of the numbers that are petitioned. Its under 10 . Some they have a list that is called the discuss list. If it doesnt make that list, it is practically denied. He also presides over conferences. Certainly a role in managing the docket and what gets taken. And that is the same process in the boat. Then you mention the opinion assignments, which is an extremely important job. Its when the chief has when he is in the majority. If the majority of the court if he is not in the majority, it is the most senior justice. We can talk about stories when a chief might adjoin a majority and have a hand in trying to keep consensus. Host what number of justice is john roberts . Elizabeth im not sure. There have been 102 justices. I want to say between 1015. Very few. Host host we have a few clips to show during this hour. The first one is him describing his job, using a metaphor he uses often. Not give you a prominent role or historical significance just because you hold the job. Youlook at folder and understand his job and how the court functions. In the next room, Charles Evans hughes, as you recall his role to turn back the Court Packing plan. You think about the independence of the judiciary. Things like that. Lot about how a one makes history. He often refers to himself as calling balls and strikes. How has this chief justice approached his tenure on the court . Is theth i think he consummate steward he was describing. It goes back to chief justice John Marshall, who had this incredibly Important Role in establishing where the courts place courts place is our democracy. Its hard to have a proper conversation about chief justices without spending a moment on John Marshall. This was in 1800. John mack before heat adams, he has two months before is to cede control of the white house and congress to the antifederalists. He decides one thing he could do is put a number of judges on the bench before he leaves. ,e chooses, as chief justice John Marshall, secretary of state at the time. He was at the Constitutional Convention in virginia and he spoke about what chief Justice Roberts just said, the independence of the judiciary. What quarter of society do we look for protection of rights and overreach in the political branches if not the judiciary . Adams appoints John Marshall as chief justice and tries to put judges on the bench before he leaves and he runs out of time. The mosts to one of consequential cases in Supreme Court history. Host which one . Elizabeth marbury versus madison. Its so much what chief Justice Roberts is talking about today. He talks about how he approaches his job and the role of the court. It was in that case the court established its role in our constitutional democracy and we have seen it across the administrations, all the way through history into the present moment. The court has this role where it has to be independent of the particle branches, so it can serve as a check, but it cant be seen as unaccountable or unresponsive to the people. Justice robert chief Justice Robert understand that. The way it was handled in marbury versus madison was wonderful. He was on the Supreme Court, where one of the judges, that president adams had appointed and confirmed did not get his commission from the new administration. Said, if you them to give them the commission. There is a statute that allows them to do that. Was that marshall knew if he issued the order, he had no way to compel jefferson and the administration to follow it. He could issue the order, but an order but not executed, it weaken the court. Marbury was right to bring a lawsuit and come to a Supreme Court the Supreme Court. He provision in the law that wanted the Supreme Court to enforce, the underwriting the executive branch to do something, is beyond our power as a constitution, so we cant do it. We, as the was that Supreme Court, are here to interpret the constitution, even if it is against legislation as an act of congress and were the ones who say what the law is. It in a moment where he was taking away the courts own power. That is the case any chief justice looks to to say that was the principle that was not established at the time, but the foundation of the courts role in society. Lets return to clips and hear what he has to say about that case. Many countries that have constitutions, their political documents. If you have a dispute, it will be resolved however disputes will be resolved. Any election if you are lucky. Force of arms if you are not. Resolved. Disputes are John Marshall said this is different. The constitution is a political document. It sets out the political stage. Its also a law. If the law, we have the right to tell others what it means. That important insight into how the constitution works has been the secret to success. Host its funny that John Marshall was our fourth chief justice. People would think of him as the first because of this ruling. Wasnt immediately known how significant it was or did it play out over time . Elizabeth the significance played out over time. Knewhief justice certainly the import of what he was doing. Whos doing it in a way where he wouldnt cause rancor or be seen. Thats one of their jobs, to preserve the courts role, but do it definitely definitely deftly in a way that supports the structure and doesnt provoke. He mentioned chief Justice Hughes and fdrs Court Packing scheme. This was the point when we saw the import of marbury versus madison coming into play. Its another great story in history. Host let me work my way through history a bit more. One thing before we leave this case. Marshallt under established the tradition of speaking with one voice on opinions. Before then, they had many many they had there have been many opinions. What is the importance of speaking with one voice . Elizabeth it adds to the credibility of the institution and the notion that weve been talking about with chief Justice Roberts, that the court is nonpolitical. You hear this in the parlance of the court. They say they serve the constitution, not constituents. We conference, we do not caucus. There is no i o. We are here to do the work of the court. It was my impression that chief publicly,berts said how things are perceived when people talk in prison terms. Lets partisan terms. Of theou are a trustee u. S. Supreme court historical society. What is that . Elizabeth its a fantastic organization that has done a lot of great work preserving a lot of the history we talked about today. Also, public understanding as institution. Its not an institution you are familiar with. Its a terrific organization. Some of the historical materials, if you visit the website, you can see videos, audio clips, papers, understanding the role of the court and some of the most consequential decisions of our time that people talk about every year. Just a terrific organization. Host what kind of lardy practice . Kind of lardy practice . Lawabeth papez host what kind of lardy practice law do you practice . Inzabeth i have testified the Justice Department several times. Its a testament to our great country that i am sitting here with you. I am a first generation american. I have been lucky enough to live about things i was reading about in school. Host where did you go to law school . Elizabeth harvard. Host how did you first get interested in law . Elizabeth ive always loved history. Theres such an intersection between law and history. I cant say i am one of those who woke up and new at 10 years old that i wanted to be a lawyer. In college, part of it was, i was looking for a good job. I was thinking about going to medical school. Law school was shorter. A lot of it was just relationships. You meet Extraordinary People on the way. Thomas, he was one of those. Many people in my career have buturaged me as a lawyer, because what we contribute to society has moved me. Host what do you do . Elizabeth a lot of it is work on opinions and petitions that come to the court. A justice and the court as a whole. Its a tremendous privilege. One of the privileges that we dont talk too much about what happens in the court process. There are rules around that. Its really about the support of the court. The amount of work is tremendous. The volume of petitions that come in are than the thousands. Managing the, research, opinion drafting, making sure that the conference and vote is reflected in the opinions and getting them out of the public in a timely way is a tournament of work. The justices do their work obviously in the vote in their writing. To do the are there work of getting the opinions out. I clerked for Justice Thomas in 2009. Typically there are four judges. Host we have a clip from 2016. Apparently he has a tradition of taking his clerks to gettysburg area. He was asked every year. This is his expiration. In these jobs, a lot of negativity comes in. Thats the lesson i learned, that somehow, you keep it together and you say, look, i know i am experienced. Ive seen how the sausage has made is made. All we have left is the ideal of what of this great republic. Thats basically the reason. Plus, it is kind of fun. Ourou can contemplate how country could have gone in a different way. If we had one, that would have been a problem. That wouldve been a problem for me. Host we see his sense of humor. He is talking about how people watching the sausage being made can be jaded about it and how its important to the about the ideals. What did you learn about being inside the court that you did not realize before by studying . Elizabeth its an extraordinary institution. The cases are difficult and they can be controversial. There is no way to report on them without taking a topline in some respects. I do think what you experience and asked certainly what i experienced, was what he was talking about, which is, regardless of votes or views on a case, all the justices, every law clerk is there to further the work of the court. And going to places like gettysburg or walk in the halls of the building. You see and feel the history. You realize you are a small part in a moment of a Great Institution that has survived tremendous things. Some Great Stories and great drama we can talk about. He has always survived and protected our country. What i remember seeing is everybody working hard to further the courts role. There was a civility and collegiality, where you could have our disagreements intellectually, but everyone knew we were there to do the work of the court. To this day, i was at a dinner recently, and there was a hundred years with the Supreme Court law clerks. There were people going back to the 1950s at the dinner. There is a sense of, youre part of something bigger and you had these friends for your life. Host we will return to history. You talked about the court and years of particular strife, and what others was during the roosevelt administration, when a frustrated roosevelt decided he was going to expand the size of the court. What are the interesting stories from the area of attempted Court Packing . Elizabeth i will focus on the role of the chief justice. Country in the great depression, a lot of people were suffering. Fdr, and his first term, but a lot of the relief with the new deal program. Elected in a landslide for his second term. Court, some of those programs came up for judicial review and most of them passed muster. A few did not. The few that did not were ones where the administration was trying to regulate the domestic economy in a way that infringed on the rules of the state, because in our democracy, there is a vertical component there is a horizontal court for the executive branch of the president. There are the states that are sovereign. There were two big cases that frustrated fdr. The court had declared that the things demonstrated wanted to do demonstration wanted to do unconstitutional, and that frustrated the president because he had such a popular majority behind it. One of the functions of the chief justice is to inaugurate the new president. It was funny, the marbury versus madison case, it was chief Justice Marshall inaugurating Thomas Jefferson before this court case came that pitted them against one another. The same thing with fdr. He wins the second term, and he is being sworn in by chief Justice Hughes, who presided over the Court Decisions that obstructed some of the new deal programs. The swearing in, historical account is funny. A windy day, chief Justice Hughes had whiskers flapping in the wind. Chief Justice Hughes had the idea that maybe they were going a little bit far with the programs. He read the oath very seriously and solemnly. Solely. After, inded understand usa my oath is to uphold the constitution, but it is the constitution as i see it, and effects of a one, to adopt to the challenges of democracy. Set up a contrast between the court and executive branch. What fdr did after that was open and by the members of the court to his house. Everything goes swimmingly. Days later, this is he announced a7, Court Packing plan and his plan is, for every justice on the court who is 70 or older, the president can appoint, if that justice does not retire, the president can appoint any justice up to six. That would have allowed fdr to put up to 15 justices on the court. That will ensure his new deal legislation would not get struck. Chief Justice Hughes handled this in a way that is extraordinary and may explain chieftice roberts Justice Roberts expiration. He was lobbied by people to speak out against this plan. He refused to do so. He ended up writing a letter that was widely understood to say, i do not agree that there is any need to change the number of justices on the court and the president s reason, which was the reason that the order justices could not keep up with the caseload. Was pretext and unjustified. I have to laugh a little bit. He might not have been able to put the narrative out there. I issued this letter saying, this is pretext, it is not right. Different historical the chiefns on justices approach, but it exemplified the bee dont what the Supreme Court embroiled in politics and you have to have a deft hand in managing them. He wanted to be a candidate for president , but that changed. He brought it to this conversation on president ial well. Elizabeth you have probably heard the expression a switch in time saves nine. Chief Justice Hughes was deft at not being drawn into the fray on the Court Packing plan, but also after congress voted on the legislation, he managed the conference and started putting more hospitable toward fdrs legislation. Another justice retired, and that opened a spot for fdr to appoint any justice, who he could hope would be consistent with his program. That was hugo black. That was another era of the court. Host there was note there is no constitutional mandate for the size of the court. Elizabeth the deafness i was rough referencing, its hard to convey, but there is a structural component to the courtss place in our democracy. It is on coequal footing with the other branches, but it does a different job. There is no constitutional restriction or prescription on the number of justices. Looking back, and certainly the chief justice saw the Court Packing plan. He sought as a way of the executive overstepping its bounds. Constitutionalhe bout by allowing the president to pack the court. If you are an fdr fan, you might have had no problem. If that is allowed, what happens when the president does that to someone who is not so excited about. We want this to be for the democracy. Host host the next chief justice was appointed by harry truman. Chief justice fred vinson. We have a newsreel of the era that shows when he was sworn in. Florida call south fred vinson house, is sworn in as the 13th chief justice of the Supreme Court. The former secretary of the treasury is congratulated by members of his proud family. The taskoulders rests of bringing harmony to the nations highest tribunal. To see theesting crowds that were attracted to washington a swearing in of a chief justice. What was america like in the postwar era that this court was going to be part of . Elizabeth you heard the quote in the clip that part of the idea