1969 and 1986 when the chief justice was the nixon appointed Warren Burger received wisdom as we were just discussing at the desk about this period in the courts history. Isnt that much happened . There was some big decisions. There was roe v wade, so that was good and that that was it. Not not so much greenhouse takes the idea part and she and her coauthor Michael Gratz show the ways that the conservative mainly nixon appointed burger Court Reversed or undercut the president sat by the liberal court led by chief Justice Warren curbing civil rights and individual liberties while extending first demand that rights to businesses the first time. I could draw some connections here, but youre not actually here to listen to me talk about the court. Youre here for linda greenhouse. So please join me in welcoming her to politics. Thank you. Its really a treat to be back here. Ive been here for a couple of the other books you heard about and this is my first actual book talk with this book which came out which was published on last tuesday, and theres no better place to launch the book like this. Its a book about washington. Its a book about the relationship between Supreme Court and our politics so its much more timely actually than michael grasp my coauthor and i imagine when we launched on this project about five years ago and to be here in what i think is maybe the most dangerous place inside the beltway because nobody can walk into politics and pros without walking out with many more books and having spent more money than they anticipated thats happened to me just this evening. So im gonna start by just reading the first couple of paragraphs of the book that will give you maybe a bit of the flavor. Of what michael by the way, so michael grass is not here with me tonight because hes not a long scheduled scandinavian cruise, but hes wonderful guy that i taught with taught this material with in seminars that yeah law school for three years. He teaches now at columbia law school. So just read the first couple of paragraphs. On september 17th, 1987 and extravagant celebration took place in philadelphia to mark the bicentennial of the United States constitution. A quarter of a Million People lined the route for for parade that included a 40foot replica of a parchment scroll the constitution deified. At 4pm the albert which the delegates to the Constitutional Convention had signed the document 200 years earlier a man step forward to ring a replica of the liberty bell. His abundant man of white hair made him instantly recognizable it was Warren E Berger the retired chief justice of the United States who had ended his 17year tenure a year earlier for the purpose of presiding over this very observance which as it happened fell on his 80th birthday. Burger address the crowd quote if we remain on course keeping faith with the vision of the founders with freedom under order liberty, we will have done our part to see that the great new idea of government by consent by we the people remains in place unquote. Burgers call to keep faith with the founders reflected one vision of the project they had launched with their great new idea. But it was not the only vision. Four months earlier Justice Thurgood marshall who still sat on the Supreme Court had offered a far more sober take on the meaning of the bicentennial in a speech to a bar Group Meeting on the Hawaiian Island of maui. Marshall the aging hero of the Legal Campaign to end racial segregation first africanamerican to sit on the Supreme Court advises audience to be wary of the flag waving fervor surrounding the bicentennial quote the focus of this celebration invites a complacent belief that the vision of those who debated and compromised in philadelphia yielded the more perfect union. It is said, we now enjoy marshall said adding i cannot accept this invitation. The government the framers devised he explained quote was defective from the start requiring several amendments a civil war and momentous social transformation unquote. To better realize the promise of a more just society. Credit for the constitution and its present meaning belong not to the framers marshall concluded. But quote to those who refuse to acquiesce and outdated notions of Liberty Justice inequality and who strive to better them unquote the competition between these two narratives is in many ways the subject of this book. So the warren court which preceded the burger court had as this kind of polestar equality in growing the meaning of equality in the constitution and in the country, that was not the burger corpus polestar. Warren burger himself was the judge on the dc circuit . Who was you might say running for a post on the Supreme Court when Richard Nixon came in hed give him a series of quite sober kind of semiacademic critiques of the warren court particularly in the criminal procedure area. But behind the scenes he wasnt quite sober and and quite so discrete and in the correspondence that he had with his old friend Harry Blackman who was a judge at that time on the a circuit back in minnesota bert. We see we see the real burger on labor day 1967 burger wrote to his boyhood friend Harry Blackman that quote if i were to stand still for some of the idiots that is put forth as legal and constitutional profundity. I would im sure when i shoot myself in later years these guys referring to the Supreme Court justices. These guys just cant be right. Theres nothing to do but resist. In another letter to blackman and march 1969 which was about four weeks before he was named to the court. He was very sharply critical of the court referring to president nixon by his initials observed rn can only straighten that place out if he gets four appointments. If he gets four appointments, and of course he got four appointments Richard Nixon was a very lucky man. He got a burger first. Then he got Harry Blackman. He got lewis powell and William Rehnquist all within the first three years of his first. Administration and that change enabled the reversal of orientation that we see in the burger court. So i was signing books last week at the American Constitution Society annual convention here and and a judge who i wont name but a judge known to i think probably many of you came up and saw the stack of books and said the burger court. Okay. I mean nothing much happened in the burger court. I said read the book. Thats why we wrote the books the the sort of academic and political take on the burger court is that it was simply transitional. It was a court when nothing much happened. It kind of sat there between the war in court. We know what happened in the warren court and the rent was court which we remember much more viv. And you know the burger court the county revolution that wasnt is the title of really the only book that has been written on the burger court as such not counting the brethren actually and the which didnt go into. Fully into the whole burger quarter the brethren came out. I think in 1978 1979 and the burger court lasted until 1986. The county revolution that wasnt its really not true. So we can. Kind of tick off a number of the major initiatives of the burger court but to situate it in the politics and the social transformations of the time which is really part of the effort of this book. Its worth thinking about the legacy that the warren court left the country when chief Justice Warren tired and president nixon was inaugurated. So of course the warren courts known for brown against board of education 1954. Racial segregation was unconstitutional the warren court pretty much left it at that and didnt specify what kind of remedies for segregation for intentional segregation for de facto segregation. What were the federal courts supposed to do about it that was left. It was left to the burger court to fill in major major blanks and and so that burger court had a series of choices to make any court that followed the warren court would have had the same choices to make but would not necessarily have made the same choices very significantly for instance the burger court while all nine of the burger justices endorsed grudgingly, but endorsed busting as a remedy for segregation a few years after that decision said blessing stops at the at the District Line accepted some extraordinary circumstance, which actually never occurred as far as i know. So that really had a great deal to do with the way. Our society evolved after that we had inner city. Minority School Districts we had white suburban rings, and we had an inability to order any kind of remedy for for that problem. So that was one of the things. People were very shocked back in 2010 in the early years of the Roberts Court when Citizens United came down what you mean corporations have the right to speak in politics. Well right to spend money in politics. It was a burger Court Decision in 1978 First National bank of boston against balati that first enabled corporations to have under the First Amendment the right to spend money in politics and that was a precedent that the Roberts Court cited and the five to four Citizens United decision. People really didnt remember that there that there had been such a decision. The burger courts turned to enhancing the role of Corporate Power corporate speech corporate commercial speech First Amendment rights. Its really a fascinating story and i think shows us how in our system. The court can launch an idea. Without really having control over where it lands and so the first case in which the Supreme Court recognized the right of commercial speech the right to advertise under the First Amendment was actually a proconsumer decision. It was a the case called on virginia board of pharmacy and there was a law that prevented the that that barred the advertising of pharmaceutical prices and that was a great boon to the small mom and pop drug stores because the Big Chain Stores could undercut them in prices, but nobody could know about it because couldnt advertise prices and so the court struck down that law and gave the Big Chain Stores right to advertise those justices. I dont believe envisioned the growth of the commercial speech doctor and that we see today that really has been embraced by conservatives as a tool of deregulation. See this in pharmaceuticals, we see this in tobacco regulation. We see this all over the place and whats ironic is that the decenter from all of the commercial speech cases in those days was William Rehnquist later the chief justice it was then that was the conservative. Position not to expand the First Amendment now thats flipped as many things in our jurisprudence have flipped and we now see conservatives embracing a very robust First Amendment in the commercial speech area. I want to read. One more passage here. Because i think that one of the major challenges of this book was how to incorporate the fact that the burger court actually did something on the Progressive Side that the warren court had never done and that was create recognize a jurisprudence of womens rights to jurisprudence of sexy quality under the 14th amendment and of course role against wade. So, you know, what about that and i call that we call the chapter that discusses roe against way the Abortion Case privacy at a price and what i mean by that. What i mean by that title is that yes, the court endorsed a womans right to abortion actually as the court understood. It was a doctors right. To treat a patient in the way that the doctor thought was in her best interest. It was really a doctors rights case as the court so i but rather soon after row the question arose. What about poor women who cant afford abortions the government pays for medical services all kinds of medical services for poor people. What about paying for abortion . And the court said no, the court said no. In a case called harris against mcrae Potter Stewarts papers are at Yale University stuart was a graduate of yale. He left his papers to yale with the stipulation that theyd be closed until the last justice. He served with retired and that was John Paul Stevens who retired in 2010 and the papers open and theyre really interesting. We use several interesting collections of justices papers for the book. But stewart was assigned to write the opinion for the majority was five to four in harrison against mcrae saying theres no constitutional obligation to pay for abortions for poor women. I want to read you a bit of this. So in stewarts draft of his opinion, which is in his papers and actually was published as as he wrote it he said the financial constraints that restrict an indigent womans ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although congress has opted to subsidize medically Necessary Services generally, but not certain medically necessary abortions. The fact remains that the Hyde Amendment which is still the laws, you know. Leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if congress had chosen to subsidize no Health Care Costs at all. Okay, think about that. And we write. This was Warren Burgers constitution in the raw. The Public Health concerns for the perils faced by poor women unable to obtain a safe legal abortion. Remained unabated early in the drafting process stewarts law clerk. Its all goodman. Had tried to inject a mile note of compassion into the draft opinion while still remaining true to his justices analysis quote. This is not to say that the situation of an indigent woman who was unable to afford a medically necessary abortion is any less tragic because it results from her own indigency rather than from governmental restrictions the law clerk wrote. He continued her options in the absence of public assistance appear limited to either foregoing the mediclinessary abortion and the suffering the Adverse Health consequences or of tanning an abortion through less expensive often unsafe procedures that are elected representatives have not chosen to remedy the situation through public assistance is sure to cause her hardship, but the sad fact remains that the relief sought by the appellies is not to be found in the constitution. Thats the language that the law clerk wanted to add to Potter Stewarts opinion. Upon receiving this offering from his law clerk Justice Potter stewart made his reaction indisputably clear over those two paragraphs. He made a big x. And it never appeared. So what we see here is the constitution as giving us the negative right the right not to be prosecutor for performing an abortion or for having an abortion, but not the positive right to have any obligation of the government to provide the service and this was really the heart of the burger court turn the four nixon justices came on the court just as there was real momentum both in the Legal Academy and also in the courts to creating a jurisprudence of positive rights that the government actually has an obligation to do something about poverty to do something about the inequality and education. It sounds you know something im channeling bernie sanders. It sounds like. Something from a whole long time ago and it was you know a couple of generations ago now, but it was real and people had good reasons to think that it was to happen. So litigation was put together in texas to challenge the wealth disparity between two School Districts in the san antonio area case called san antonio against rodriguez and the claim there was that because School Financing is based on districts. Well through the property tax poor districts have to tax themselves much more to get to some level of equality and Educational Opportunity and that that violates the constitution that violates the guarantee of equal protection that education is a fundamental right . That poverty is something that the constitution needs to take account of and consequently the School Finance system is unconstitutional. That was the claim and that was a claim that was accepted in the lower courts. That was and just as that case was working this way up to the court the burger court consolidated and that claim was rejected by a vote of five to four. So think about it, so that was the entrenchment of the forget the positive rights of the constitution as exemplified by the height amendment the abortion financing material that i just read couldnt read. Just one more. Part because one effort in the in this project was to situate the court, you know, not in the abstract but as reflecting and living in living among the the social revolutions and transformations of the late 60s and early 1970s. How could the court not have has something to do with that some way of of reflecting in so i had a lot of fun riding about the obscity and pornography. Efforts of the burger courts who won to deal with those subjects, so just read this little bit. It is chapter called expression and repression. On april 1st 1969 in american newspaper carried an editorial under the headline beyond the garbage pail. Quote the explicit portrayal on the stage of sexual intercourse is the final step in the erosion of taste and subtlety in the theater. The unsigned peace began. It reduces actors to mere exhibitionist turns audiences into wires and debasis sexual relationships almost to the level of prostitution. It is difficult to see any great principle of civil liberty involved unquote. The editorial went on to deplore not only Sexual Activity on the stage, but also depictions of sex and bestselling novels and films particularly quote the more notorious swedish imports. They quote insensate pursuit of the urge to shock was common to them all quote far from providing a measure of cultural emancipation such descends into degeneracy represent caricatures of art deserving no exemption from the laws of common decency merely because they masquerade as drama or literature unquote. This was not the voice of a country newspaper editor from the heartland the editorial appeared in the New York Times. The newspaper didnt identify the offending productions by name it didnt need to. As most times readers surely knew the stage performance is so alarmed the newspapers Editorial Board was an Offoff Broadway play called che in which a nude actor depicting the cuban guerrilla leader Ernesto Che Guevara was assassinated by an actor depicting uncle sam dressed only in a hat. Before that dramatic finale was quote a frenzy of homosexual and other unorthodox sexual acts unquote according to an account of the plays Opening Night at the broadway freestore theater in the east village a reporters query to a Police Official about whether the performance might be violating any of sanity laws elicited a shrug. Quote, this is a problem. The Supreme Court couldnt agree on. So please dont ask us to rule on what is art. Or how far it can go before it becomes hardcore pornography on quotes that Deputy Inspector joseph fink. But inspector fink was evidently speaking without having consulted his departments public moral squad, which two days later descended on the theater and arrested five performers the playwright that producer and a member of the technical crew. So the court couldnt figure it out. The court was in the practice of watching journey movies in a basement screening room. And deciding case by case which ones were of seen and which ones werent and Warren Burger to his credit thought that this was preposterous and proposed that the court just take a step back and get a grip. And find some kind of First Amendment tourist prudence that would get the court out of the this kind of business and he and brennan then proceeded to have a big argument about how to proceed brendan agreed that things werent going too. Well, so brandon wanted to just say the First Amendment makes anything. Goes under the First Amendment burger wasnt willing to do that. But he said and i think this was a very valid insight. He said lets leave it up to local communities because what goes in las vegas, it doesnt necessarily go in, you know podunk and community should be able to decide and that became the law that was miller against california. Thats a law thats still on the books, but i just highlight that because it shows the court, you know, really struggling to reconcile. Jurisprudence with reality with the country there was kind of session about pornography in those days and and it was part of the burger legacy that the court got pretty much out of that out of that business. Ill just close by mentioning the fun that it is to to work in the justices archives in the justices papers if youve never tried it its addictive so you can look at the Harry Blackman papers at the library of congress. He left them all to the public and theyre available. You can look at louis powells terrific set of papers online. Theyre mostly all digitized on the washington and lee Library Website and we made major use of the pilot papers because he regarded himself as a figure of history. And he annotated his notes case by case and saved them very assiduously and so you can look at you know, the baki file or the almost anything powell was as many of you probably know the kind of tortured swing vote in bowers against hardwick the major gay rights case from 1986 and he first voted the right way and then he changed his mind about it the wrong way in the case came out the wrong way and then later on after he retired. He said he regretted it that he was wrong all thats chronicled in in his very own papers. And so that was really treat and just being able to i covered a bunch of the burger court. I started covering the court in 1978. So i was there for the last eight years not the first nine years but enough of it to give me some perspective on on this material and and i was very happy to launch it last week, and im very happy to lunch it here and id be glad to take your questions. So so linda, i think its a valuable contribution. Its wonderful that you had the patience to read all those decisions. I started law school in 1969, and i sensed what was going on and became a physician instead. How much of it do you think can be reversed . I mean they started with the burger the present Supreme Court started with the burger decisions and then they were extended by the rehnquist decisions and then we got things like Citizens United and Shelby County and heller which all represented reversals of what law had been for 50 or 60 or 70 years before that. How much of it do you think were stuck with and how much of it . I mean, i realize this is a very broad question. But are they just going to nibble around the edges or do you think we can get some movement back towards at least the middle if not the warren court. I think there could be moving back sure on. You know, probably not. Wholesale way and you know what has baffled people about the burger court was that the burger court did not act actually in a wholesale way for the most part. So by the time the burger court ended, you know miranda against arizona the miranda rights were still on the books and people say well they didnt overturn it. Yeah, but they hollowed it out so that theyre all kinds of situations where the criminal suspect is deemed to have waived his miranda rights for where miranda doesnt apply or whether when theres a miranda violation. It doesnt count and so on and so on and so courts have many ways of tackling a body of precedent that theres a majority that doesnt like it. So i would i would expect that sure. Thats why the court. Thats why its such a hot political issue right now because theres so much. Hanging by the thread and ill just say one. One thing that actually sort of meant to say the Roberts Court of today its kind of an anomaly in that we had before Justice Scalia died. You know four justices on one side for justice is on the other side in the quote swing Justice Justice kennedy in the middle who could decide every case that most of us care most about thats not the historic pattern of how the courts been organized. So the burger court there were three or four justices who were basically in the middle just as powell Justice White Justice Stewart the early justice John Paul Stevenson at least made a very different dynamic. So, you know now that i mean, who knows what the Supreme Court dynamic is going to be this time a year from now, but you know the courts are hot issue because people realize whats at stake everything is at stake. Its a very valuable book. Thank you. Hi. With the senate today debating the Second Amendment senator cruz this morning. Said that this debate over the nofly rule was in a front. To the Second Amendment. And i thought this is surprising for someone who considers himself a strict constructionist. And i mean as a columnist in the Washington Post pointed out out it the Second Amendment. Says that a wellregulated militia. So its part of the Second Amendment. Talk about regulation a wellregulated militia. And and then as you have noted no right is absolute. I mean you cant i think the Supreme Court found you can shout fire in a crowded movie. If theres no fire. What what would your response be to senator cruz . Well oh well, so the reason we dont have anything about the Second Amendment in this book is that there were no Second Amendment cases during the burger years and chief Justice Burger himself famously proclaimed that the notion that the Second Amendment conveys an individual, right . To gun ownership is as he put it a fraud. So it took years of political mobilization to get the heller case dc against heller up to the Supreme Court for the five to four decision in 2008. So if you go back and look at Heller Heller was not a blanket anything goes under the Second Amendment. It said the Second Amendment conveys are right to have a handgun in the home for the purpose of selfdefense not to walk around with an Assault Rifle not concealed carry. It didnt address those issues. So theres a whole lot of postheler issues that are getting teed up for the Supreme Court for the next Supreme Court and and well see but certainly no right is absolute and and taking heller at its word Justice Scalia having written the majority opinion taking him at his word on. I think there would be lots of situations where you know contra senator cruz some kind of gun control would be considered constitutionally acceptable. This is i dont know if it was a story you wrote but the New York Times carried a story in which Justice Brennan essentially said that Warren Burger was stupid. Didnt didnt quite use those words, but essentially that he wasnt a very smart man. And then the question is during the 17 years or so that he was chief justice who was the intellectual leader of the court. I know the brennan managed to get a number of victories, but who was the conservative leader . That is a very good question. I think it was lewis powell. Who was a very . Instinctively conservative man, you know a gentleman of the old south but who worked hard and and tried to come out with the right answer . Didnt always succeed in my opinion, but i i looking at his papers. I certainly credited him with great great deal of intellectual honesty and and i would say he was the the conservative intellectual leader more than rehnquist. Was the you know kind of junior associate justice i reckless saw around a lot of coroners. But in his time as associate justice before he became chief justice, he was most often in solitary descent. So he was pretty far to the right of the court center of gravity so much so that on you know, he wasnt sort of caring the the weight on he changed it. He kind of changed his tune when he came chief justice and was much more interested in in speaking for a court, but powell the kind of swing justice of his of his time to the extent that there was one with the caveat that i mentioned earlier so i would give him him that credit. Thank you. Hi, so what area where the burger court did seem to have moved in a progressive direction was gender equality under the 14th amendment. Thanks. Perhaps largely too litigation brought by Justice Ruth Bader ginsburg. Definitely and i wonder where do you think that line of cases fits into the larger narrative about the burger court . So where i think it fits in is that it was of course a response to changes in Society Changes in the world around them changes in the role of women in the work. Place in the home and actually Ruth Ginsburg has said kind of you know modestly. I mean she had a good deal to do with creating this jurisprudence, but she said she came along at the right time when the court was ripe for this so, you know a point we make in the book is kind of this far enough further and one case that i emphasized maybe more than people might expect was an early case of pregnancy discrimination. Where those of us in this room old enough to remember when a Public School teacher got pregnant. She had to leave. Whether whether she wanted to or not mandatory unpaid leave with the long leave and so on and this was challenged. As a violation of equal protection and the court struggled with it and the burger court couldnt quite deal with it. Like wheres the discrimination . Its not discrimination as between men and women is discrimination between pregnant women and not pregnant women. So wheres the sex discrimination in that and the court did strike down these policies but on the grounds of due process. It was kind of a copout and im here to tell you that even today in 2016 the Supreme Court of the United States has never fully embraced the notion that discrimination on the basis of pregnancy in the workplace is sex discrimination. They continue to struggle with that so that you know the burger court deserves credit, but it never went as far as strict scrutiny for lawyers in the not to engage in. Jargon. Never quite bought the the full extent of what Ruth Ginsburg is trying to sell them and left all that for for future courts. A common and a question. I think we need to remember that the aclu on commercial speech. Was one of the early strong proponents of expanding those rights not just for the listeners but also for the speakers, um the question to some extent a court is a function of the personality of the chief. And my impression from public and nonpublic things and so id like your insight. How would you describe Warren Burgers personality and how . That might have affected. What he did substantively on the merits of cases because my impression is that hes a guy who liked to be the center of attention didnt like to be disliked, you know, very different sort of personality. Not not necessarily a loner so different from other chiefs and do you have some tied into his personality affecting decisions and then can you cite other than the sex discrimination cases . Maybe some other favorable decision you would attribute to his influence. Yeah, i mean its not actually a book about personalities and i i dont fully subscribe to the notion that the personality the chief justice really determines what the court does its a collective and nobody can do anything there without as Justice Brennan constantly as he would hold up his hands they count to five so i think burger was not a particularly effective manager of the court. He alienated a number of his colleagues. He was petty he was insecure. He was kind of pompous and often as we know in life city kind of mass insecurity, right, but im not sure that i could i could link. Any of that to the actual . To the actual jurisprudence and when when reckless came in he was a much better manager of the court. He was much more popular inside the Court Whether that was part of his innate personality or whether he having been observer. Of Warren Burger had decided to do some do things differently. I dont know. So in answer to your question what . What other good things did the court . Do well, i mean, well it got rid of Richard Nixon. Thats true. And and the watergate tapes case. And somebody called out baki so so baki was just as palace decision he voted alone. That in the in the affirmative action case in 1978 that you know quotas were unconstitutional but affirmative action and in Public University admissions for the sake of diversity was acceptable that kind of affected a settlement that lasted. I mean in effect lasts until today i went up to court this morning thinking they might finally hand down the fisher decision from texas. But i mean i figured i was in town maybe i should go. You know watch some news being made, but no Nothing Happened at the court today. You know, so i think that that did buy some peace for some time, but it was like everything else. Peace out of price because since the interest that was vindicated there was not actually the interest of the minority students. It was the interest of basically the people surrounding them the diversity in the classroom wasnt their interest so when you get to a case like the case from michigan that came down a couple of terms ago where the voters of michigan had enacted a referendum that said that universities could not use it affirmative action, you know the answer to that court accepted that upheld that and said, you know diversity is nice bakkie told us diversity is nice. But of the state doesnt want to do it. They dont have to do it. So it was a very tenuous kind of kind of settlement that as i say may soon be about to collapse. Well see. Hi, i havent read your book yet, but i know i need to could you entice us by . I have this notion that some justices grow in office and some may shrink and that some interesting changes have happened to some of the justices i think. Blackman changed and i dont know whether that was so much during the burger era or how it was . Yes, but could you entice us with stories of either some who changed in interesting ways or or just became caricatures of themselves. Yeah, so i mean not to entice you wonderful. Its pretense so its really not a book about the personalities, but i did write a biography. Have just blackmon 10 years ago that maybe could be found some place in this store called becoming Justice Blackmon that that really traced. His estrangement from Warren Burger and you know bitter estrangement for Warren Burger. At least my my thesis was it had a lot to do with roll against wade and his his abrasive row as his legacy even as burger kind of pulled away from it. So im not sure what else i could. I could tell you. I mean, it was just very interesting going through the papers and seeing things like the Potter Stewart x over his law clerk. Just trying to introduce a little note of compassion in the height amendment and the abortion financing case. I came away mightily unimpressed with Potter Stewart. Who has a pretty good reputation. Written largely in the media because he was quite good on the First Amendment. So he was a friend of the First Amendment a friend of the press. But not a friend of all that much else. So so that was kind of a revelation to me to come to that. Sorry conclusion that there wasnt all that much there with Potter Stewart. Hi having followed the court for so many years. Do you have an opinion on whether term limits would be a good idea or not for the court . So i think its an idea worth seriously talking about. You know, its very interesting that. As the new democracies after the fall of the soviet union and so on were devising their new judicial systems modeled many of them after hours not a single one of those new democracies adopted life tenure for their constitutional courts. And in our states, of course, every state has a high court. Theres only one state. I think its rhode island that has life tenure for its justices. Every other state either has a term of years or an age limit. So, you know kind of people who voted with their feet the life tenure for its all federal judges. Its not just a Supreme Court is is a little bit anomalous and you know, obviously it drives our confirmation process nomination of confirmation process and not very healthy ways because it randomizes the thing so. So, you know Richard Nixon had four within three years jimmy carter had none. So every vacancy just carries a whole lot of weight because nobody knows when the next one might be if it were regularized through term limits is at least possible to think that each vacancy wouldnt be quite so afraided maybe thats naive but you know when when some people in the Legal Academy first sort of started talking this way about 10 or 12 years ago. It seemed kind of nutty because you know, if it aint broke dont fix it and life 10 year obviously is intended to protect judicial independence, but you know as time has gone on i think its ive come to think its worth a serious public discussion. In the im curious. How did the burger corps change with the introduction or confirmation of every of the most junior justices during Warren Burgers tenure. I read somewhere that the court could be described or label depending on the most junior justice since it changes quite a bit on thank you interesting. I mean just as white famously said that every time a new justice comes to the Supreme Court is a new court and and thats true. So im thinking of John Paul Stevens took the place of William O Douglas in 1976. Sandra oconnor took Potter Stewarts place in 1981. I think the oconnor. Confirmation the just so connors arrival probably of all the new justices who came on while while burger was chief justice was the most consequential because she was a solid vote for states rights within the federal system and for the prosecution side of the criminal procedure cases, and so she gave she gave burger. On the charity to cut back on habeas corpus to Justice Brennans extreme dismay, they had major battles and she not so much in the burger years because it took Clarence Thomas coming on and replacing through a good marshals to give chief Justice Rehnquist. Five salad votes to elevate the role of the states. On that was reckless federalism revolution in the early 90s, so she was a very important. Addition to the court i was very interested in what she said about when associate Justice Rehnquist was elevated to chief justice now, he was more effective on a practical level than Justice Burger. And i know that that is not a tradition in the United States Supreme Court to elevate a sitting associate justice to be chief justice whereas it is in some of the states like california, and im wondering about your thinking now if that might be something that would be good to institute in the United States Supreme Courts. Someone has experience right there in that court to take the place of the chief justice. Yeah, i mean the whole role of the chief justice is kind of you know the strange thing because the constitution itself. Doesnt specify says almost nothing about the chief justice and doesnt specify how the chief justice is to be. Pointed whether its to be appointed in a separate commission or is supposed to be just a senior. You know longest serving of the justices like we have i mean the reason Merrick Garland is chief judge of the dc circuit is hes the most senior judge serving on the dc circuit and thats how it works in other the circuit courts in the district courts, so its been unusual that is sitting justice has been elevated. I think one reason is unusual is the confirmation. Effort for that elevated sociate justice sort of becomes a referendum on the Current Court and on what that justice has been doing in the reckless elevation was very controversial. He had many votes against him because it became i mean, in fact, i see ralph and hes staring me right in the face. So, you know, its ralph will attest. It was kind of a dress rehearsal for the pork battle that people suspected was going to come a year later. But also it became a referendum on you know the burger cord and and reckless zone performances associate justices. Its kind kind of frated and its um in a way, its kind of the path of least resistance to take somebody from outside the court. Thank you. Thank you. I had several questions and John Paul Stevens books bring up the subjects that youve discussed for example of immunity in the states the rights of the states. Can you talk a little bit louder or into the money i ask in your book if you deal with the explanation for for legal problems that at the time of the burger court was more informed by social sciences then today were in seems to be a matter of political terrorism or implicit conspiracy, but do you deal with that . Do you find that an interesting subject the jury system also came are scrutiny whether it would be wise to allow citizens to judge one another given their different kinds of memory and their prejudice and their local impossible circumstances. Well, theres nothing in the book that deals with that. Of course, the jury system is why hardwired into the constitution . So its not. You know, it doesnt lie within the course power to get rid of it and the Human Sciences as an explanation for example, principle nonviolence herbert macus macus that rising explanation of resistance in a country to the constitution as an actual reform of the constitutional purpose and mission. Well to the extent that im following your question, and im afraid i may not be i think the you know part of what went on in the burger court in terms of dialing back the criminal due process. Revolution of the warren court was response to the fact that there really was a crime wave in the country. And people were very upset about it. And thats why Richard Nixon could so effectively run against the court in 1968 as a bunch of you know, criminal coddling out of touch judges. So i think you know, its an example of the fact that the court really does inevitably reflect the political mood of the country and sort of whats going on in society if thats an answer. Yeah. Hi in terms of potentially nutty ideas that might take on some traction based on unexpected events. What do you make of greg abbott . The governor of texas is call for a convention of states to amend the constitution and if republicans lose in november, could this idea sort of percolating percolate and grain gain traction on the right. Do you think well, hes not the first i mean this idea, you know, theres a constitutional process for calling for a convention and i think it would be pretty scary idea because you know could get launched and who knows what might come out of it. But and id be you know, id be pretty surprised if that happened but on. I wouldnt necessarily attribute it to greg abbott it there was some theres some number of states that have sort of a standing resolution calling for for as i recall. But more than that, i dont know. The last question. Okay. I just wondered if you had any explanation for rehnquist the moving from always voting. On womens equality rights. To a position where he actually signed on although not on Justice Ginsburgs opinion in the virginia, military Institute Case and also in a subsequent hips. Yeah, right. Yeah, i mean theres a few so toward the end of his career. Chief justice cast a few sort of more liberal votes. So the question is why did he do this . Had he kind of seen the light. Or was he trying to . Retain control of the majority so that he could not have it go any further than he had to let it go. You know, im not sure i know the answer to that but the hips case which people may not remember by its name. Was one of these federalism cases and a question was whether the states were bound to give their state employees the benefit of the family and medical leave act or whether under a theory of state sovereignty. The states were basically constitutionally immune from having to abide by this law for their Public Employee workforce and rehnquist wrote the opinion that said, yes, even though weve been embarked on this federalism revolution and you know cutting our way through the landscape of federal laws that we carve the states out of this one would go too far and the states have to abide by the family medical leave act. So, you know, the question was what happened the kind of reductive answer is he had a daughter who was a single parent and he was known to when she had a problem at work. He was known to leave court and go pick up the grandchildren at school and had some. Appreciation of the need for the family medical leave act. I dont know it would be a little presumptuous for me to try to read his mind, but it was a really Interesting Development and and i remember Ruth Ginsburg saying that when she brought the opinion home to marty her husband. He said to her did you go ghost write this . I dont think anybody had to go straight anything for william reckless. Who was a very smart man and who said exactly what he thought and did exactly what he wanted and didnt much care what anybody thought so you know, its interesting. Its a interesting color to our to our conversation. So thank you very much. Thats just a few richest language expensive two. No, lets just sound like they go. I just finished reading on the democracys girls. You needed to grant smith. History bookshelf features the countrys bestknown American History writers of the past decade talking about their books. You can watch our weekly series every saturday at 4pm eastern here on American History tv on cspan 3 this week were looking back to this date in history. From his beloved second home at warm springs, georgia the body of Franklin Delano roosevelt moves on the first stages of its journey to his final resting place. Scores of sufferers from infantile paralysis sorrowly bid farewell to their great friend and benefactor. The president s dog follows his beloved master. A board of special train beginning the 24hour trip back to washington the 31st president of the United States leaves warm springs forever and all along the 700 mile route people gather to honor president roosevelt and his ideals. Follow us on social media at cspan history for more this day in history clips and posts. American history tv on cspan 3 every weekend documenting americas story funding for American History tv comes from these companies who support cspan 3 as a public service. If you like American History tv keep up with us during the week on Facebook Twitter and youtube learn about what happened this day in history and see preview clips of upcoming programs follow us at cspanhistory. Up next on American History tv Diana Villiers negroponte talks about her book master negotiator the role of James A Baker the third at the end of the cold war. It looks at how james baker as secretary of state worked to create what president George Hw Bush called a new world order as the soviet union collapsed a new International Relationships emerged between 1989 and 1992. The Wilson Center hosted this event and provided the video. It is my great pleasure to introduce our two speakers first, of course our author dr. Diana villiers. Negroponte was a global fellow at the Wilson Centers global europe program. Where she focuses on the uks global role in following following its departure from the eu. Her focus derives from her im at the European Commission and her leadership of the conservative parties International Office in the 1970s