Several books including the law of the land a grand tour of our constitutional republic. I akhil was voted most popular professor at yale. At least he is my most popular professor. And you are all here because he is your most popular professor. Before we welcome the popular professor upon the stage, please turn off cell phones or Electronic Devices and join me in welcoming akhil reed amar. Thank you. [applause] dr. Amar good evening. Welcome. Thank you so much for coming. York historical society. Were going to be talking about the Supreme Court and we will be talking about these Supreme Court history, but also talking about the new york angle on all of this, because this is the New York Historical society. And, yes, why is this night different from all others . Is one thought. It is really only this week it has become, i think, pretty apparent that the upcoming president ial election will be a subway series between [laughter] two new not just yorkers, but two people headquartered in men. Shades of burr and hamilton. Why am i mentioning a president ial election, given that this is a conversation about the Supreme Court . Ofl, there lies my first five points. Its going to be about that the interesting relationship between president s and justices. And i will work my way up to the present moment an election between two new yorkers for the presidency, but the Supreme Court really is on the ballot new york plays a role, because the nominee for the vacant spot learn to be a judge right here in new york city, a ry friendly. I will say more about that. The chief justice. We will be talking about the the Roberts Court go in one direction if mr. Trump wins and another direction if mrs. Clinton wins. Chief justice john roberts, to be a judgeed in new york city. To henrywas a clerk friendly. Createdice whose demise this vacancy, Antonin Scalia a, was a new yorker. Azhar elena kagan, justice ginsburg. Justice alito is not from that far away newark. I know its on the other side of the bridge. A new york story we will be exploring together this evening. I want to begin with the relationship between president s and justices and offer you an of the structure of that relationship and in particular, there are two big points. Pattern to thee dalrican presidency ti pattern to the american presidency. Pattern creates faceoffs at moments in American History between president s and justices. Structure, the situation of the constitution. Our justices are chosen politically. Justices do not pick their successors quite. Its not a selfperpetuating meritocracy the way that Yale Law School will pick it successors. The way the cardinals pick the pope and the pope names cardinals and the cardinals pick the pope and this selfperpetuating way no, our constitution provides for Political Choice to be made whenever there is to be a replenishment of the judiciary. Both Supreme Court and the lower federal court. So, the process of selection is by design political. It is on the ballot when you vote or the presidency and the senate. That is not a bug. That is a feature of our system. So, it is the political selection and then judicial thenendence kicks in and there is tenure tenure for good behavior. That creates an interesting dynamic. Justices in the modern era stay on much longer than president s, and president s now our term limited in a way they werent at the founding actually, some verye justices rotated off quickly. Im going to tell you a little bit about john jay and how he could not wait to get off the court. Justices was very short and president s could, in theory, be reelected in perpetuity. The way governors were reelected. At the time the constitution was left onlyhe governor to become Vice President , which he thought was a respectable retirement. And he died in office. The presidency could last a long time. The judges rotated off for reasons we wont get into. But over the course of history, chief justices tended to stay a good long time. President s have come and gone. President sically 44 in American History. You can say 43 because we are twice. G Grover Cleveland way fewer chief justices then u. S. President s. Pattern andtidal the faceoff. The way americas presidency has tended to operate, if a coalition emerges, manages to capture the presidency wants, comes up with a formula that enables that party, that vision to capture the presidency again and again and exogenous shot, some big change occurs and the tide shifts. There are only a few tide turning president s in American History. By tide turning, here is what i mean. Someone who, when they are rising to power are really other. A different point of view prevails. They manage against the tide to reelection,again, handoff power to their handpicked wing man their apostolic successor and in d, even when they were rising to power, it was another faction, another vision of america as sending. That wins ford more than it loses until the tide turns again. That is the definition of a tide turning president. Here they are. They are the rushmore president s. Im giving i wish it were my own theory. Its not quite. Steve, my great Political Science colleague at yale developed this idea. I have a fuse small variations, but this is his model. , of course. Ngton when he is growing up, theres a very different regime in place. George iii. He hands of power in effect to his political ally john adams. That dynasty, the washington federalist dynasty, does not last long because john adams extremelyname to repressive laws. The alien sedition acts. That generates a massive backlash and Thomas Jefferson is the next tide turning president. Very early on. He is running against a federalist regime. A very different sort of platform and political formula for success. He is getting votes for other folks and he manages to win. To handoffection and power to his wing man, his secretary of state wing man or wing women just remember matheson is going to win and win reelection and his secretary is going to win and win reelection and that party will become jeffersons party , basically the jacksonian party, the dominant Political Party in america they do not win every time, but they went way, way, way more than they lose. Because people remember the alien and edition acts, but alien and sedition acts, but the federalists never appear again, at least not on the federal stage. Washington, jefferson. What happens to that party . Basically commit political suicide when this unknown fella named Abraham Lincoln rises to power. Instead of saying basically the political wind is still at our back, the tide is still with us, we can outlast this guy, we are going to wait him out. We will say no to everything he proposes and he will be a failed reformist president , this talk, skinny constitutional guy from illinois. They are not smart enough to do that. They do not hold a mitch mcconnell. They walk away from a game they are winning. This was not a smart strategy. This unilateral secession was unconstitutional. It will mean lincoln achieves a certain greatness in resisting this and he wins and he wins reelection and it was a very close thing and in effect hands off power to his wing man, grant to rid we skip over andrew johnson. That party is the dominant Political Party for a long time because the democrats committed political suicide with slavery, secession, and not trying to accept the verdict of the civil war. Untilrevail all the way another cataclysmic event, the great depression. Their party gets the blame for it, herbert hoover. The next tide turning president is franklin roosevelt. No democrat is the majority. Roodrow wilson, grove cleveland. Franklin, the great depression, franklin roosevelt, the next tide turning president. He went again and again and again, hands off power to his wing man harry truman. And that was the dominant coalition until vietnam and just 1960s sort ofe tears apart that coalition. It becomes the great society, late 1960s, and really Ronald Reagan eventually is the next genuinely tide turning president. Won reelection, one a third term called h. W. He cant run for a third term. He is term limited. Until now we have been living of reagan. N the era those are the tide turning president s. Washington, jefferson, lincoln , roosevelt, and reagan. If Barack Obamas secretary of state, his wing woman were to win, we would say the tide has again turns. He won, one reelection, handed off power. If theyemocrats become basically the dominant residential Party President ial party then ok, now. The structure, the rhythm of the presidency, and if you are a democrat i am going to him you bum you am going to out. Since just remember the democrats are overwhelmingly the and the Political Party civil war looms so large in our memory that since lincoln there are only two democrats that have 12 popular votes for the presidency. Franklin roosevelt and barack obama. Thats it. Wow, ooh. Kennedy, not harry truman, not bill clinton, none of them. But the democrats have one popular votes not always majorities at least five of the last six president ial elections. If they prevail again and go forward, and the republicans do thenethink their formula, they are going to be the minority for a while. Ok . That is the present. How does that interact with the court, with justices that are picked politically but have life tenure . Do not have to leave if they do not want to. Well, there are special moments when new, rising president s confront the ghost of administrations past in the form of these hold over justices that have been appointed by the other party, the party you ran against, you know . President s are change agents. They are promising a new thing. The few that succeed the jeffersons, the lincolns, the obamas are going to confront a judiciary that is largely in the hands of the regime they ran against. That is the drama of these great moments. Pattern andtidal face. That is Thomas Jefferson facing who marshall, a federalist, is basically in the washingtonadams camp and the weis a confrontation and basically call that marbury versus madison. The real drama is not marshal iidating let me should have started with washington, of course. My apologies. At there is not so much of a confrontation here. Washington picks john jay. He is washingtons guy. He does not inherit british judges. They were tossed out in the American Revolution but just so colonies,in 11 of 13 the judge of the colonies sided against george washington. Third for ais the reason. It is third out of 3 politicians are supposed to pick judges. Judges are not supposed to pick president s. Ist is why bush versus gore a disgrace. And the reason that judges were third out of three, they are not the champions. There is not this faceoff initially with washington because he is picking john jay. With jefferson against John Marshall, there is this confrontation and it is heightened because they are second cousins, they do not like each other. And note that John Marshall has jefferson just as roger tawney is going to be swearing in Abraham Lincoln, and you remember the slightly win overhe swearing in the was sworn in by john roberts . It was a slightly tense moment. Im getting ahead of the story a little bit. Invalidating an act of congress the real drama is whether it is John Marshall versus Thomas Jefferson. John marshalls opinion he goes on and on about law in the Jefferson Administration in the same way that todays court is being invited to say, well, the Obama Administration is lawless on immigration, lawless on obamacare, not just the law, but the implementation of the law, the obama admin is ration is lawless on administration is lawless on carbon rules and the epa. This is nothing new. This is a feature of the distinct structural power of a presidency that is a fouryear idal featureis t and justices with life tenure as. Marbury is a drama. Fastforward roger tawney. President n becomes by running against roger tawney, by telling everyone who will listen how imposter is this stuff is how preposterous this stuff is. The young lawyer from illinois says i love this phrase i am an astonishing in i am an in political history. He was to declare everything the Obama Administration im sorry, the Lincoln Administration does as unconstitutional. Its a conscription law. And you can buy your way out of it, just like the individual mandate. He is afraid tawney will invalidate this whole thing. When tawney dies, they find in his desk the case never materializes they find in his draft opinion. A draft draft opinion, if you will, holding conscription unconstitutional. The case had not reached the Supreme Court, but tawney is ready. He has it in his top drawer. Lincolns and emancipation proclamation, if you read it, it has all of the poetry of a bill of lading. [laughter] and it does not free everyone. Only some people in some jurisdictions. He is a lawyer. He tries to bulletproof it. He knows if you give tommy that much, he will hold it unconstitutional if you give tawney that much, he will hold unconstitutional. People appointed by franklin pierce, may he rot in hell this is a cspan event, so i paused a little bit, but i think i can get away with that one. And that is the court that lincoln confronts because s of the past,host and lincoln is running against the tide. Some of you may remember this and your history book. I will not say you remember it from your childhood to rid but remember the new deal against the old court. Franklin roosevelt confronts all of these republican justices, and in his first term he does not have a single appointment. Nine appointed by an earlier regime, threatening to invalidate every part of his program, the National Industrial recovery, after the agricultural act and obamacare i mean and his Social Security faceoffs arehese built into the structure of a presidency that is four years and tidal and these justices that have life tenure. Reagan did not really have this confrontation. Here is why. Because earl warren, who was basically a supporter of lyndon missed time to exit and wayd up doing things in a so that Richard Nixon, even before getting elected, had two open seats to fill. By the time reagan became president , previous republican justice had begin to start the judiciary in ways that were sympathetic to reagan. Ipublicans had controlled will say this again later republican appointees have control the Supreme Court since 1970. That is now no longer the case because the court is 44. We are facing an election in senate, theuse, the presidency, and the judiciary are all in play. In january, they can all be controlled by the democrats or something in between. The court has not swung since 1970. That is part of the reason why this is particularly frothy. , when obama confronts the Roberts Court, whose majority was appointed by the party against which he ran, that is the obama care that is the drama of the obamacare case. Not the new deal or roger tawney trying to invalidate everything lincoln is up to his habeas corpus policies, his his slavery,s, emancipation policies. Its very similar to the johnontation between marshall and Thomas Jefferson. There is a pattern to all of this. I promise you since this is the New York Historical society, we are not just going to do history. We are going to do new york. Let me remind you of the new york angle. George first one, washington, he is picking a new yorker, john jay, educated just down the road here, to be his Supreme Court justice. What makes Thomas Jefferson 1800 . Ent in you could say the sedition act. Or you could say new york. Ehrenberg. Swing state. Adams and jefferson running against each other and jefferson come second in that one and they do the rematch in 1800 and jefferson prevails. New york is the swing state in that election. It is looming very, very large. It is hamilton on this island. Whoever wins the state wednesday theidency, setting up confrontation. I admit the third faceoff does not have so much a compelling new york angle. Lincoln, tawney, neither has a reference. K but he does have the cooper address. It is key to lincolns success. The fourth one is one of the most new york stories of all. Charles evan hughes, the hughes court against the chief justice against franklin roosevelt. Both new yorkers, both former governors of new york, both studied at columbia. They are friendly actually, although one is a democrat and a republican. When they refer to each other governor. Governor. There are the four were spent of the apocalypse to made life very difficult for frank when roosevelt and its a very new york story. Courtrse, the current headed by a new yorker, born in buffalo, learned law in new york city from Henry Friendly. The other members of the court Ruth Bader Ginsburg, finished her law degree at columbia and was a brooklyn person, sonia. Otomayor is a bronx person elena kagan is manhattan all the way. Was no stata and island, i guess. I mentioned sam alito. But also remember Merrick Garland, who learned his law in this city. He is the guy on the hot seat right now. Its very much a new york story. . Nd what is going to decide what is going to decide elections . Who feels that slot on the Supreme Court . Who becomes president of the United States . Trump ort is donald j. Hillary clinton. The ballot, and when you have the Supreme Court is very much on the ballot, and , richardhave judges bush george w. Judges that can tell us who can vote and who cannot with id laws, the court is influencing with elections who is going to win and who is not. These things interact. It is a very interesting interaction between the presidency and the court. That is my first thinking. The others are shorter. This is another longterm trend. The rise of judicial power. So, im going to say a little bit more about this. Its a hassle. He is offer the position a few years later. Let me tell you what he says reidy turns it down. At the reason John Marshall comes chief justice, the classic winding down happens. They have to pick someone. John marshall is the only guy in town. The mail is slow. He says, its got to be you because i know you will accept. For aay sat on the offer well. But the time he actually said no, there were not many days left. What precipitated marbury versus madison . The socalled midnight judges when john adams, after losing, tries to hack the judiciary with even more federalist judges to make life difficult for Thomas Jefferson, to protect his side. Again political appointments. And they have a lot of tenure thereafter. That is the backdrop of marbury versus madison. The race of the tenure for justices versus the very different tenure for president s. Is offered chief justice again, he declines it because the judiciary lacked the basically,ght i dont know how to make this thing work. It is broken. John marshall began to see the possibilities of it. But you have heard of it, marbury versus madison. , among other things, the proposition that courts can invalidate acts of congress. First, what was the great issue of liberty involved in marbury versus madison . Correct. There was no great issue of liberty. Original versus appellate jurisdictions and who cares . Thecan see how i Important Court is initially. Do you know how many justices originale on the Supreme Court . Six. An even number. How odd. Operatea court ever with an even number . Right now, you see we have eight. At we are not imagining that the Supreme Court will be the beall and endall for things. By the way, the Supreme Court building, when was that built . Beautiful building. The 1930s. Where did they meet before that . The basement of the senate. D. C. , theys for created from the beginning and executive mansion and a congress building, but nothing for the judiciary. Of three. D out it is least and last. After marbury, 1803, when is the next time the Supreme Court invalidates an act of congress . Dred scott. And they made it all up in that case. Unconstitutional, freeze the missouri compromise, which prohibits slavery north of a certain line. The very First Congress prohibit slavery in the northwest territories. There is no Problem Congress has the power to brevet slavery in the territories. Congressrs said that could do it. Everyone knew when the constitution went into effect, they left all of that. When the missouri compromise is passed saying no slavery north of a certain line, every single cabinet officer signs off on it. Every single cabinet officer. That includes john c. Calhoun from south carolina. Yield just a newsflash is going to keep calhoun as the name of one of the colleges. I was rooting for harriet tubman. Thatudicial review is not important of phenomena and early on. Constitutional issues are really important. President s are vetoing bills all the time. Half of the president ial vetoes are constitutionally based. Thathey are vetoing bills courts have upheld or would ofold, like the constitution says,nk, but andy jackson im vetoing it. Judicial review is almost none of the important issues in the early republic. Can president s negotiate secret treaties . Can they send secret invoice . Roundingd they use errors in the apportionment of the house of representatives . Can president s fire cabinet officers at will . Debts assumption of state by the federal government constitutional . Issuesd lots of early arrive and the Supreme Court does not play a role in the resolution. They are resolved and the other branches. Nd today wow the Supreme Court is the 1800pound gorilla. It ousts president s and picks them Richard Nixon and george but twice a year it is invalidating an act of congress. And not original versus appellate jurisdictions. Who cares about that . They are invalidating or threatening to invalidate laws like obamacare, laws like affirmative action and religion in public life and immigration and so, huge constitutional questions that are being decided. Campaign finance. Really big one. Twice a year. That we have this rise of judicial power over time, that the least Dangerous Branch of the founders becoming todays 1800 pound gorilla . There are two factors i would it in a fight. We could talk about just for example there are many more judges today. Friends come and go, but enemies accumulate. Judges accumulate. You need more of them. You cant keep adding legislators. As dysfunctional as Congress Might be with 500, it would be probably worse with 5000. So at the time of the founding there are Seven Members of the house of representatives about 105 members of the house of representatives and ask justices. Sevenustices, representatives for every judge. Today there are about 1000 two federales, judges for every congressperson. Thats a 15 for change in the ratio. All of my students and some of them are here today almost all of them want to be judicial law clerks, to work in the judiciary rather than congressional clerks. The judiciary has a lot more influence. There are more of them. The Supreme Court gets to decide pick,cases it gets to which it could not do and John Marshall from day, which gives it a certain power in agenda. There are many factors. We the people have occasionally increasingly punted issues to the court to decide. There are constitutional issues that presuppose judicious enforcement. The 19th amendment and others. One of which is particularly a divided story one government in a world of divided government, no matter what the court does, either the legislature is going to like it or the president is going to like it and the court cannot be overturned until basically the legislature and the president are on the same page two invalidate it. In a world of divided government , every single president since Lyndon Johnson accept jimmy carter has faced in opposition house of representatives for at least part of the time in office, more gives the judiciary flexibility to do what it wants. Marshall had less running room because the jeffersonians controlled not just the presidency, but the house and senate. If he starts misbehaving, he will get smacked down. And indeed, just to go back one , the point about the faceoff, a huge way of thinking pick the trauma if we about the drama, if we pick, hillarypeople pick rodham clinton, how will new Yorker John Roberts lay that . He will be in the minority sincen of the court Merrick Garland will be confirmed . We have not had very many chief justices in the minority before, but one we did was John Marshall and he managed to make it work. But remember, he is the last of the mohicans, the last of the federalists. They have all of the state slots. Jefferson wins and wins again and madison winds and wins and wins again. John marshall is on the court for 34 years. These are jeffersonian appointees and hes got to work with them. But sometimes he is leading from behind because he has to create a coalition. Does,sents, John Marshall in only one important constitutional case in 34 years on the bench. Wow. Interesting fact, yeah. 1827. Is roberts going to be able to do that if he finds himself in the minority . William rehnquist was not in the minority in general. Neither was warned berger and yes,er was earl warren a republican appointee, but a republican appointee. Tawny was supported by all of these jackson democrats and pierce democrats and buchanan court. Ts on the mpntrariwise, if donald j. Tru is picked, and you have to understand that is a real howibility, my friends art Sonia Sotomayor and elena kagan and Ruth Bader Ginsburg going to react . Thats a new york story, too. Thing that makes the judiciary powerful is a divided government because it enables the judiciary to be rightwing or leftwing and at least one of the two parties in the divided government is going to be happy with that. So, is Hillary Clinton in just to win and when the senate and actually when the house which could be in play because donald trump could lose the house of representatives for his party . Thats going to be a very the likes ofld for the republicans on the court. Contrariwise, it could be the case both are actually possibilities that trump wins and carries the senate and the house and of course he will have the judiciary then, too. He will be able to replenish with his choice. It will not be merrick harland. Merrick garland. The republicans will be controlling all the branches. That could happen, too, in this election. Thats what makes this election so interesting. Maybe one other fact and i will give you the new york angle. Your watergate and vietnam, lost a lot of confidence in the other branches of government. They lied to you. You think the court is the savior. They were not part of the problem. They were part of the solution. I think they lost to some of that bush versus gore they lost some of that credibility. Here is what is unique about todays Supreme Court. There have been moments in American History when he left hated the court your that would be the 1930s. The old court. There are moments in American History when the right hated the court impeach earl warren, 1960. We are living in a moment when the Supreme Court is being simultaneously attacked a two portably by the left and right. They are teed off, for my friends on cspan. Thats a new phenomena. Have made thetnam court less, still held in higher regard than the congress. And divided governments have powerthe court more andthere are more justices lawyers get their first start in the judiciary. Here is one other thing that is interesting. This will lead into my next point. Rise of claims of judicial expertise. We are smart people. We have special expertise toe we went to loss law school and this constitutional stuff is really complicated. Just to remind you john jay was very well educated. But not all of the other justices over the course of American History have gone to fancy schools and had fancy degrees. Most of them were not even judges before they were justices. John marshall was not a judge before he was justice. His replacement, roger tawney, was not a judge before he was a justice. His replacements, weight and full or, were not judges before they were justices. That takes us into the 20th century. Earl warren was not a judge before he was a justice. Rehnquists william before he was an associate justice. And yet, it actually is true that William Howard taft was a judge before you was chief justice, but he had other early important jobs also. You are thinking president of the United States. Im thinking professor at Yale Law School. Whereas today, except for elena kagan, none of them except one, was a federal judge. One of you one you will not remember. Grow Warren Sherman meant. Anyone remember sherman m int . Today except for elena kagan, all of the justices were sitting federal appellate judges at the time of their appointment. You rise within the judiciary itself. And here is how it begins. By going to a fancy law school, often a college in new york or adjoining state, doing a clerkship, becoming a judge, working your way through the system and i told you john roberts learned his law studying at the feet of the great Henry Friendly. Merrick garland studied at the feet of the same great new york city judge. It is the rise of new york in some ways. The great universities. Here is one way to put it and then i am going to we are going to questions and answers. If you think about the rise of claims of expertise and there is suspicion of expertise. All of these experts on wall street did things to their own advantage, and experts in the Accounting Industry and legal their ownare into power trip. New york plays a huge role here. The commuting distance of this three of the six greatest law schools on the continent. Commute righta ride aw yaleay, are yaleu and nyu and nyu and columbia. They are no longer geographically balanced. Now you focus more on a demographic how many women, how manyjews, catholics, how many blacks, how many agents, and the like how , and the like. That creates the possibility of a very new york dominic courts new yorkdominant court. I think i said enough to keep the conversation going. One thing we have not talked how you we talked about get onto the court. We have not talked about Merrick Garland. We can also talk about how people leave the court and whether they leave the court in not. Icized ways or i think it is now time to move to the queue and day. Please come to the microphones. These are actually ask one question and indeed ask a question. Thank you. [applause] professor, could you comment on why chief Justice Roberts seemingly abandoned his republican brethren on obamacare . Dr. Amar that is the Perfect Question about john roberts and obamacare. That is his John Marshall moment in which he rises above partisan politics you might be wrong. He might be right. I think he is right. But even if you think he was wrong, he was not partisan about it. That he is told his party does not like this law. Yet he sided with democratic appointees. Good for him. In washington, almost no one crosses party lines. He did. Good for him. He did it not once, but twice because it was the sebelius case where he uphold obamacare against the constitutional challenge and the king versus burwell challenge is one where he read the statute perfectly, sensibly, generously, and did to undermine it with clever technical lawyering that was not faithful to the larger purposes of the law. And again, you might disagree with them. I think he was right. But even if you disagree with him, note he was not a partisan. , this gives me a chance to Say Something we talk about getting on the court. How do people get off the court . Theres a political appointment process. There is life tenure after that. True enough, but for much of oncecan history, you have and future politicians who did not give up a political life when they donned the ropes. Why did john jay leave the court . To become governor of new york. With coley pushing, would he witht the Court Colleagues pushing, would he have left the court if elected . But he lost. Evan hughes, former governor of new york, associate justice he leaves the court. A cushy gig. Why does he leave it . To run for president of the United States. He only loses california by 40,000 votes. He become secretary of state. There is a connection between secretaries of state and president s. President s, early half of the secretaries of state became president s and others came very close like daniel webster. Theres in new york angle with use. Douglas who learned his law at columbia wants desperately to be Vice President of the United States and comes this close to being fdrs running mate in 44. Running mate. He had a more political personality than a judicial one. It was more suited to his temperament. Critics would say he was a trump like figure trumplike figure in many ways. He thought about running for the presidency in his own right area thats another new york angle. In an earlier world in our world is preposterous what im about to say, but in an earlier world justices did not give up politics or political ambitions. Chase wants to be the president and his angling for even as he is presiding over johnsons impeachment trial. He is angling to replace johnson as the democratic nominee. That is not as true today. View,n analytic point of who is actually be republicans nest choice . Paul ryan is a good looking, young guy . A centrist, really smart republican, heartland of america, former high school right out of central casting . His name is john roberts. You know . And he is a smarter and younger and better looking version of john kasich, you see . [laughter] dr. Amar just saying. Course, what i just said is preposterous because actually and good for him. Justice roberts, if you see this on cspan, you have a big fan and yours truly. And you have learned your law from the great Henry Friendly, who taught Merrick Garland and many others, and Henry Friendly believed that the law was different from politics. And so do you and so do i and we are lucky. I have a question. Yes . Mar have any justices been impeached and how would you do it if you could . I have a couple in mind. Theamar remember in 1960s, i told you that the court was reviled by the right. The John Birch Society and others. Major bumper stickers chef but i missed those. Dr. Amar you shouldnt have. You were an infant. Impeachh earl warren earl warren. John marshall is afraid if he actually orders Thomas Jefferson jefferson appoints this guy marbury to this position. That is what marbury is all about. He says, i want you to order jeffersons wing man, secretary of state, i want you to order madison, to give him this piece of paper saying use a judge. Remember, adams was trying to all the judiciary on with of these federalist types. Marshall is afraid if he does that, hes going to be impeached and convicted. That is actually only the second worst scenario. The best scenario is he would be ignored and made a fool of. Second best he will be impeached. I will tell you why he thinks that. Other possible scenario remember, we have an advantage. We know how history turns out. He doesnt. Thomas jefferson is in france. He says things about the french revolution. The tree of liberty must be watered by the blood of tyrants. He does not know that this guy is not going to be A Hugo Chavez type. Jefferson does a lot of, you know, that crazy stuff cspan is here. He might be . Nking he doesnt. He says jefferson is all of these horrible things, but too bad we do not have jurisdiction. What is the process . I will tell you who was impeached. A justice who sat on the marbury versus madison court. In man named chase. Ase, but samuelh chase. It is the same process as any other impeachment. A majority of the house and two thirds vote of the senate. The present precise who would preside . The Vice President would have a conflict of interest. , thevery other impeachment chief justice does not reside. The georgia house, two thirds of the senate i myself have been involved in the impeachment, as advisor, of a lower Court Justice he was basically a crook who was basically a creek. Convicted and outfitted. Ousted. Cted and here is what chase did. He was a federalist and way partisan. He threw the book at who spoke out against john adams. He threw the book at them in under the alien and sedition act. He was a little too vigorous in forcing these additional act. Hear thenot let juries constitutional defenses of the defendant. He was a little too vigorous and all of that. He gave political speeches. , and therempeached was an earlier federal judge who was impeached and removed. Critics say he was abusive of power. Defenders said maybe he was just drunk. He was an old guy. We would say today maybe he was suffering from dementia and alzheimers. Case decidedt your by a judge with dementia . Chase is impeached. He is almost convicted. I have to tell you the story i know they told me you guys like stories. Here is the greatest story. At the same time that chase is being impeached for his partisan has killed Burr Alexander hamilton in a duel. Is the Vice President of the United States. He presides over the senate and therefore the impeachment trial. F chase in most countries the murderer is arraigned before the judge. But in our country, we have the judge of being arraigned before the murderer. Thank you very much. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2016] youre watching American History tv. All weekend, every weekend on cspan 3. To join the conversation, like us on facebook. cspanhistory. Campaign 2016 bus travels winners of to visit the student can competition. Recently the bus stopped in massachusetts. The school in foxbo rough for recognizing Honorable Mention winners and a video called veteran services. They were honored in front of their classmates, family members, and local elected officials are receiving 250 for the winning video. A special thanks to our cable partners. You can view all the winning documentaries at student cam. Org. On lectures in history, university of colorado boulder teaches a class on how the rise of
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