tv Key Capitol Hill Hearings CSPAN December 30, 2013 11:05pm-1:31am EST
if they turn out not to be dangerous and they are locked up anyway, there is less of an incentive with the freedom. but in this book i have tried not to talk about the broader question with enemy combatants or enemy fighters. i am trying to focus on criminal prosecution. but those questions do overlap in this way. and shortly after guantánamo bay was set up, the pentagon established the criminal investigation task force and the job was to prepare a detective squad for the guantánamo bay individuals. to turn him over for prosecution. and i interviewed a lot of those people and i looked at a lot of the records they came from another great cbs military seemed show and other
investigative agencies. with a raid into was a situation that was really upside down. normally they would try to find evidence and then find out what is going on and they found nothing. they couldn't find any crimes. so they did file a report saying that we don't have anything on these guys and they had seen most of them as being like dirt farmers. sort of an agricultural bounty of afghanistan. [inaudible question] >> is rhythmic that all of these legal issues arise in context with the situations for all of us. and it's great that we can learn about our systems of justice from this.
particularly for the folks that are being prosecuted. given that the administration has made clear that even if they are found innocent, they have shaped the case. and if you do conclude that this is theater for the entertainment of americans -- are we finding that the real aim for one of the things coming out of it is there is a use of these to control how this is told by the media and exemplified by how tightly the court or the judge can say about these cases and who can be interviewed and who can observe and hear what is being provided in court.
>> one of the ntis agents who objected strenuously and saw this in large share because they thought it would interfere with criminal prosecutions, he stressed that there are no such things as the secrets, but only delayed disclosures. so sooner or later things come out and this includes things that the government never intended to be released. i don't think the proceedings are fair. one thing is that you can see it and it's hard to see. although one change is that you actually can go and see this at fort meade, maryland. so to be fair, it is possible if you go there and they are not recording. they are broadcasting.
[inaudible question] >> yes, there have been about -- [inaudible question] >> he doesn't know he doesn't understand the motivations. >> as it happens, the proceedings that take place in the security courtroom, one is an audio feed that goes to a pressroom that is delayed by 40 seconds. there is also an audience gallery for some victims family people and some observers say it. and it is behind glass and you can't hear directly what is going on in the courtroom. there is a 42nd delay and it is supposed to be there so that if
something is inadvertently disclosed that the government believes is secret, they can cut off the audio feed. i will say it's interesting to sit there and see people who are talking 40 seconds ahead of you. and it is very odd. because the sound is not line up with their voices and you end up looking at the monitor. but the three or four times were a government censor has hit that button and every time the judge has ordered that information could be closed. the first time thought was just the word torture and then the judge was annoyed by that. and it was disclosed that it's not just a security officer in the courtroom but the cia off base that also can be part of
this. and whatever they have said has been able to come out. when we get further into this for the defense wants to bring up the treatment of the defendants and the government hands and they have indicated that they are not at all excited about getting into that. and we will see what happens along with transparency. at the other point, in the sense that it is scripted and we know how it will end. so far, no. that is something that i think is an important part of the story. in this project was conceived in the bush administration there was an expectation by the political officials. many of them well carry out our expectations that these people be convicted and dispatched in a relatively short order. and that is not what happened.
not only did they explain us, they raise real objections, but once cases did go to the trial to the extent that they have, the military officers did not act purely as rubber stamps of the government's objectives and the best example is this individual whose case led to the supreme court once and was possibly set to be discussed again. you had a guy with the driver of terrorism. he was osama bin laden's driver. because the people like this man and the other people who are suspected of more serious crimes, they preferred to keep
them away and they charged him with these offenses and the prosecutor who argued the case, he was going for a life term they acquitted him of conspiracy , which is a more serious charge and they convicted him of material support for terrorism. he convicted him of that and the prosecutor said, do not let him support terrorism ever again. send a message to anyone who might think that they may give him 30 years, not one day less than 30 years. possibly more come he might deserve more. that is what the prosecutor said. the jury deliberated for an hour and they asked if he would be
credited for his time in custody and they came back with five months plus served. and that is not what the government expected and one of the surprises that i think is worth noting that the military courts do not behave the way one might expect in some ways and you can compare similar charges and just look at the track record and you would be way better off be prosecuted than in a federal court where they don't have any existential crisis about the legitimacy.
>> one of the astonishing things that i learned was the assumptions about the way that this work was upside down. and basically that is true. but over the years it has been the military officers who have been the rock that have protected the basic boundaries and the civilians. that are trying to push them into avoiding making waves. i saw them all the way through until now. so the point about this importance of these officers is terribly important. and it's turned into a kind of
attack on a military officials and not a structural question that we are trying to raise about the courts themselves and i'm so glad that you made that point. and i have two basic questions. and what is going to happen and what's your impression about what is going to happen to the effect to prosecute and include conspiracy in and the military commissions. one of the ways that we should ourselves in the foot is that we may lose the ability to prosecute conspiracy because it may not be a crime like a law of war. and that is now going to be litigated all the way up. but it would be a useful mechanism and we had a choice. but we have been better off building this? that would have been tailor-made to do this job? staffed by judges and who could
have built a system that would've gone nuts. we are 12 years into the process and we've been to the supreme court for times and nothing like the actual prosecution with significant numbers of people. >> those are great questions. when he first addressed the conspiracy point. early on after the u.s. started taking prisoners and getting them from various means, getting them turned over by allies or what have you. the question arose about how would you prosecute them and committing specific acts was a problem. and it was discussed to make membership in al qaeda or the
taliban itself a crime. and that was rejected because they thought the idea was seen as it had very bad optics. and it would be a problem. but they did decide to port this against military law and this is a crime because it's very easy to prove as opposed to the things that individuals have decided to do or have done. and the number of tribunal rejected conspiracy conditions for the most part. i think the nature of the conflict is doing things in a group. and so that is part of this
coordinated violence, making one participant guilty of the acts of all the other participants, it is just too broad and i think that is the rationale. but what happened with this 21st century military commission project was several civilian crimes such as conspiracy were imported into this military code and it raised problems from the get-go because these military officers kneeled that that is not a war crime you know, or the other things that traditionally have been war crimes. but what has happened more recently is this man has been back home in yemen and his conviction was appealed because he was officially a war criminal and the dc circuit court throughout his conviction
founded a material support for terrorism and it was not a war crime at the time that he did that. congress has since declared it and they probably can do that. the one they did that, it wasn't. so let that be a fact of this. the same issue applies to conspiracy in the u.s. government conceded that another detainee who was convicted of conspiracy, that the same rationale would mean that his conviction would have to be vacated and it was. the justice department now reportedly is planning to appeal that over the objection of general martin's, the chief prosecutor who doesn't believe in conspiracy theory, believing that the supreme court can be inferred in the public position
they would end up with a decision that would undermine their flexibility and the department of justice still has time, so a conspiracy is not a legitimate crime. but the government could seek further review. the other question that you had was what? >> oh, yes. okay. [inaudible question] >> i guess one question is what is the problem that military commissions were designed to solve and what is it that they could do that could not be done through other mechanisms that the united states already had at its disposal. by late september, for instance, the department of justice had drafted a memo they thought had
been committed in the 9/11 attacks and once they figured out that they all were especially. there were no complaints from other departments, the department of defense and the cia or anyone all said that plan was problematic. and in fact, what the cia people told me was they were perfectly happy with that because they were very experienced working with the department of justice and they have confidence in the prosecutors and the security clearance. so there wasn't any -- there wasn't anyone in the operational end of the government but said that our justice system has constituted this and cannot handle this problem and we need to create a new justice system that can handle this problem.
including the demonstration that the executive believe that they had in responding to an attack -- the 9/11 attack. it was not like we have a problem. let's get some people together and figure out the best way to solve it. it's like this means we need to have such a gigantic earth of discretion without any outside review just to show that we can do it and once they had made that claim and set up the marker, and kind of forgot about it. because as you say, they were holding people accountable and in wartime detention powers and other things. and so they kind of let it go and it kind of left it to these military guys to set this up without support or help or
interest. so my question is what would the article be and i guess it would be a statutory court that is not a ten-year court. and what would it do that the existing courts don't do. >> to the extent i am trying to think what the administration was thinking. they believe that the courts would make it impossible to get a conviction because of confrontation clause rules that would not have admitted hearsay and lawyers would come in and tell them not to talk in the interrogations would have to stop and you could have a whole set of traditional criminal norms dropped upon to the process. to the extent the one a make those norms.
and we had due process, but not by every john to what was going on the we insisted upon. and my sense is that you could have built this that was tailor-made to do this. and this includes senator stevens and it was a culmination about how you can't trust the military. so it seems that we went down and unnecessarily difficult path. and never thought about the option in the middle. >> there is another option raised as well.
>> i think that some advocates, what appealed about them is that they are military and these are guys who are tough and salute individuals and they wear uniforms and other things like fatigues. and they can also try the enemy prisoners and they have occasionally. and it looks like a military trial already using the rulebook. and there are so many questions that have come up and creating a system is a huge enterprise and
that means lots of additional litigation and delays. so had they decided to go this route, they would've had the precedents to follow. but yes, there are lots of ways that they could have done and you have to balance what are you getting in exchange for the complexity of setting up something brand-new. >> if you had to predict, do you believe that any of these issues, and if so, what kind of issues would be the most likely want to go to the court in the future? >> it's interesting. they have not taken any since
2008. but i think that the odds are high that the government appeals the decision of the dc circuit, they will have to take that in the way that this is issued with this case is that a reporter, the justices said that conspiracy is not a war crime. and the fifth member of the case left that issue open and that is justice kennedy and now that issue is presented quite squarely and i think that they have, they have to resolve that clearly. and i think another question is one that they have jagged an anticipated right away. and this includes u.s. citizens and noncitizens. due process problems as well,
so general martins tried to dismiss the solicitor general wanted to keep the issue alive. general martins having control of the military commissions wants to dismiss the conspiracy charges and i wonder if he could say something, and because he wants a clean prosecution. the holder justice department announced that they would prosecute in criminal court and not use tainted evidence then when they were forced to bring in the military commission they said and we are not going to use any evidence that would not be admissible in a civilian court. and so martins is trying to dismiss the problematic charges. the convening authority refuses to dismiss the charges. can you say something about what you think is going on and
attention of why all these various people within the administration seem to be pulling in different directions? >> yes. first, to start with the question of you know an appeal from the d.c. circuit and should the supreme court taketh? it's true the supreme court has turned down all the deals of the habeas cases from the d.c. circuit. those appeals were filed by the prisoners and against the government seeking to get released over the adverse ruling from the d.c. circuit. when the government appeals particularly when they appeal on an issue involving the constitutionality of the military commissions statute, i think the supreme court is going to find it much more difficult to ignore. i think the government says something these lower court judges have thrown a part of our statutes, we disagree and we wanted definitive ruling. you expressed barely left open in 2006. i think the higher they will
take it. secondly, the fascinating drama involved here is this. once it was clear from the d.c. circuit that conspiracy in their view was not a legitimate crime as we say general martins slots to, wanted to concede that point and throughout all the conspiracy charges in his case and let that one go and focus on the case on the charges he thought he could prove substantive crimes. he filed paperwork with an entity called the convening authority which is sort of a unique official for military commissions, sort of the quasi-administrator or quasi-grand jury entity. the current occupant of that office is a retired vice admiral named ruse mcdonald. clearly general martins expected that would be rubberstamped and the dismiss the charges. instead, the convening authority
admiral mcdonald refused to dismiss those charges and issueo were kept secret. they did not actually released a document explaining that he did send out a press release announcing that he had did the prosecutor's request to dismiss the charges. basically his rationale was the government thinks they are right and they have indicated they may appeal so i don't think it's prudent to dismiss these charges yet. that's what he said in the press release. however that may not be the end of the story because the defense lawyers for these defendants have themselves moved to dismiss the conspiracy charges citing the d.c. circuit opinion so they have made that motion before the military judge. the prosecutor, general martins has joined or if he hasn't yet formally has indicated he will join the defense and asking the
judges presiding over the actual trial to dismiss the charges. so here you have a lot of conflicts between these different parts of this apparatus. now i wrote, when i wrote a story about that event i referred to it as an indication of continuing disarray in the military commissions whenever and martins took exception to that. he said it's not disarray. that's implying that a military organization everyone has to be lined up together. i said okay that's fair to say it in a traditional kind of case, a traditional normal sort of case but here come the here you are talking about this fundamental legal point. you're not talking about the kinds of things that are rise in ordinary cases. here we are seeing a complete disagreement within different arms of the administration about what the law actually is, which
body of law applies, whether it even the crime exists. things like that which are the kinds of things that normally are not up for debate even in very serious criminal trials. and why? it's because there is in the governing law. there is in some place to turn to have the answers so you could possibly come up with many different answers to these questions. >> so what's the, what's the import of this? do the prosecutors feel they need conspiracy to get the sense that they are looking for for most of these people or is it a classic example of we are going to charge them with everything we can or alternatively i don't know how the evidence rules conspiracy there so you can introduce testimony of a
co-conspirator. >> well, at present, everyone who is charged with conspiracy was also charged the something else so therefore the prosecution believes they can lose that charge and not have any real problem. interestingly enough there are however about 10 or 11 detainees who are only charged with material support which the government is not appealing. cycle that. the d.c. circuit throughout the material support crimes and is not a war crime or was it when it was committed by mr. hamdan and all the people in guantánamo for 10 years. that's not a valid charge. there are some people who are only charged with that. those charges all disappeared because the government declined to appeal that ruling by the d.c. circuit. the prosecution can try to find something else to charge them with but the odds are if that is
what they were charge was so far that's probably the best that they had. but yeah i mean if you look at the charging documents for military commissions, not a typically they tend to really pile on throwing in everything they possibly can and one of several surreal moments of the perceived and khalid sheikh mohammed. this happened last year. it was this long day of her seedings at the arraignment and then the judge said wave the reading of charges which normally happens at these proceedings where the defendant generally doesn't want to hear the prosecutor recite all the evil deeds that he committed without having a chance to rebut them or whatever. so they are the defendants refused to waive their right at arraignment to have the charges read in the prosecutors who have
written this war and peace type lengthy thing naming every single victim of 9/11 and going into enormous detail had to read the whole thing in court and it went on for three hours. it was like performance art. no one prosecutor could do it. they took turns going up there and reading, so-and-so and so, it's clearly one of many moments done with the defendants have tried to irritate the government and try to sort of make clear what goes on in the courtroom. >> i think we have come to the end of our time. thank you very much and i would like to suggest that we give a round of applause to our guests
for a very stimulating presentation. thank you. [applause] >> thanks again and just to show you one thing in the military culture is that military organizations always have coins. maybe some of you know that the different units of the military will have these commemorative coins made up in when they meet each other they will tend to exchange them. if you want to see what the military commissions klein looks like, this is it right here. each event has a motto. does anyone know that one in latin? that is latin is still required here, isn't it? it's made by a general martins, that motto justice at the breech is what he tells me it means. in fact the english translation says that. and then finally i wish i had thought of it but our friend
roberts court: the struggle for the constitution. >> thank you for coming. this feels like >> thank you all for coming. this feels like old home week for me not being here but a chance to chat with marcia. we did that for over 20 years and this dream court press room. >> boy, are real. >> we discuss discussed things of interest in substance much as i hope we will do tonight. maybe i will start by asking you to state on the subtitle the struggle for the constitution. it's not whose constitution is it but who understands the real meaning of the constitution? and you frame this for those of you who haven't had a chance to look at the book, marcia made an interesting choice to frame her story of the roberts court through the lens of four major
roberts court cases, one about guns, one about race, one about money and one about health care so it doesn't get much more fundamental than that. and there can be lots of struggles for the constitutional education of those subjects so i would ask you to elaborate on that. >> the struggle is within the court over the meaning and the scope of certain provisions in the constitution but it's also a struggle outside of the court as i tell the back stories of the four cases that i picked to draw the reader through about seven years of the roberts court. so this is a story about the roberts court in general and then a story specifically about these four cases. it's also a struggle within our country. you see it playing out almost every day over the meaning of
certain provisions of the constitution. but i'd like to tell you a little bit about why i chose the four cases that i did. as linda said they cover four areas, race, guns, money and elections and health care. and initially i was looking to do something that i think most supreme court books don't always do. the supreme court looks either focus on the nomination confirmation process or what is happening or happened in the supreme court itself. i've really wanted to tell stories of how cases get to the supreme court and they don't land at the courthouse door fully bloomed, fully grown. it takes a lot of commitment by people involved, a lot of strategizing by lawyers. it's a hard slog often through the lower courts although some cases can get very complete
depending on what happened in the lower courts. >> people may not realize the court takes only about one or 2% of all the cases we see. >> that's amazing when you consider they get on average about 8000 petitions every year from people who want the court to review their cases. as i was looking for the four cases, i wanted 5-4 decisions. i wanted those not to show that the court is always divided 5-4. it's not. in fact is you will find out in the book and as many of us who covered the court, more than 50% of the decisions issued by the supreme court are either unanimous 8-1 or 7-2. >> i had three unanimous cases yesterday. >> yes, so there's really a lot of consensus of across the court even those often divided, ideologically divided. i wanted 5-4 decisions because
that is where i think we learned the most about individual justices in how they view certain provisions in the constitution as well as how they approach their jobs. i also wanted obviously what i would call signature decisions of the roberts court, the court under john roberts junior and these four cases i think will always be associated with the roberts court. then obviously it i wanted good back stories. people who want to know. you will read about a seattle mother kathleen grows who called herself a mama bear before sarah palin coined the term and her effort which initially was unsuccessful to get her daughter into an oversubscribed top high school in seattle. when she found that the school districts were using race as one
of a number of tiebreakers, she filed a lawsuit and challenged it and it went all the way to the supreme court. i also found along the way, and i didn't start with this in mind, that these four cases also had something else in common. they had very smart, conservative or libertarian lawyers behind them. in some cases, you would call them agenda cases. these were issues that the lawyers or the organizations backing them wanted to get to the supreme court for a final decision. they had their eye on an increasingly conservative, hopefully sympathetic supreme court. that is why i chose the four cases that i did. i wanted it to behave book that is a good read, not just a heavily legal book and that is not what i wanted to write.
>> john roberts has been chief justice for eight years and his predecessor william rehnquist i think was chief for 17 years i think it was? so we are early in what we anticipate to be a tenure of maybe 25 years. john roberts was the youngest chief justice ever named to the court since the great john marshall at age 50. so did you ever have the feeling that it was too soon to judge or to offer to take on the roberts court? >> i did actually and i point out in the book and i tried to make it very clear that i do consider this still a young court, even though the oldest justice is 80 and you really only have i think now three justices that are still in their 50's. but i did wonder about that. i guess i should tell you how the book really came about first. i was covering the elena kagan's
confirmation hearings in the summer of 2010 when i received really two extraordinary e-mails the one e-mail was from an editor at shimek -- simon & schuster simon & schuster who was very interested in the book about the supreme court and the other e-mail was from a very faithful pbs fan, a young man who attached a photo who asked me to marry him. [laughter] >> marcia is already taken by the way. >> i was but i did show it to my husband. by the way it was such a beautiful proposal i showed it to my husband who who proposed to me and a parking not in downtown baltimore. [laughter] but there is no future in that proposal so i did respond to the one from the editor of simon & schuster. she really convinced me that it was a good time to look at the
supreme court. even though it was young, and this was five years into john roberts tenure as chief, it had shown a willingness to really take on some very controversial issues, and part of the reason i picked the four cases i did was because i wanted issues that i thought they some those five years would have some shelf lifm coming back and we have. this term in particular there are two cases involving race. next term there is another big campaign finance -- finance case brought by the way by the same lawyer who brought citizens united to the supreme court. i am sure we are going to see another health care challenge, not the kind we saw last term but as you have probably read there aren't number of lawsuits out in the country. they are moving fairly quick lee
raising religious questions about the new health care law. and guns. gosh, there is litigation around the country trying to fill out the meaning of what the court did in the district of columbia gun law. so she made a pretty good case that, let's take a look at this young court with new members and see what's going on. that is why i decided to give it a shot. but i do make the point that it's early and linda and i have talked a little bit about what that means in terms of john roberts himself. >> right, so these four cases d.c. against heller, the gun case, the integration case, citizens united of course needs no further introduction and health care cases, you said they all come to the court supported
by quite the activist players and the key players from the right and ask the supreme court to take these cases, take these issues up for decision and leaning on an open door. so is there a roberts court's project or is there an agenda in the constitution in your view? >> i think he has certain definite views of certain areas of the law. as i explained in the book when i deal with this seattle and louisville a school district case involving race, i think he has very clear picture in mind as to how he views the use of race, reso -- racial classifications in the signal that in his very worst race related case. a redistricting case when he did
not join with justice kennedy and finding that a certain district had been redrawn to discriminate against this -- hispanic voters. he had this famous line in his opinion. it's a sordid business divvied up by race. i thought why, that's a flag as to what's coming. and then he surprised us a little bit in 2009 when he took up the voting rights -- the court took up a voting rights case. everyone thought that section 5 of the voting rights act which is really a key provision that requires certain jurisdictions with a history of voting discrimination to get any changes in their voting policies precleared by either the justice department or federal court in washington d.c.. he wrote an opinion in that case. the court did not strike down section 5 but he shot an arrow
across the bow of congress saying there is a real problem here with section 5. you have used old data. the country has changed and now we are going to see what happens with the voting rights act again this term. i wouldn't be surprised if he writes that case. i think race is one area where you have a clear idea. i don't think that there is an agenda. an agenda is where you think somebody is looking for particular cases to bring in. i think race is a concern. the first amendment, he has strong feelings about the first amendment and i believe he thinks that the court is developing a coherent view of free speech, especially speech that we don't particularly like it should be did. entirely different from campaign finance. we have to put that in a different box.
so i don't know that he has an agenda. i think he has some very strong feelings about certain areas of the law. one justice told me that he thought william brennan was the most influential justice of the 20th century because he did look for cases that came up through the pipeline, got to the supreme court and then wanted to take them because he had a definite view that he wanted to get into the case law. >> of course because the time he was doing this he thought he could win. >> yes, exactly. that was his famous line. he told all his clerks that it was all about counting to five. >> so you mentioned the justice told you something. talk a bit about reporting this book out. you are a working journalist who
shows up every day. there are some interesting issues there. >> i'm very worried about the cheat -- the lunch the chief justice holds every spring for reporters and how is he going to look if he knows anything about the book lacks i requested interviews with the justices and i was surprised that at the amount of access that i did get. i hope i got that access because i have always tried really hard. you can tell me if i don't succeed, it in on the news hour into my work with the national law journal to really play the court straight down the middle and just try to give everyone enough information to make their own decisions about whether you think the court did the right thing. so i think they viewed me as fair. but they are very nervous about talking to the press. it surprised me how many of them
don't really understand the ground rules. one justice said okay i will talk to you but it's all off the record. and i said you know i'm an old fashion journalist and off the record means i can't use anything you say to me unless i can find some other party to say the same thing or confirmed at. i said, what about background? this justice said well, what's the difference? i said background means i can use it but i don't say that you said it. i don't name you. the justice said oh that's fine. you would think after all the years they have been on the court and they have had interviews with the press that they would understand the ground rules. some of them would only talk off the record but were gracious enough to let me come back and go over things that i would like to either put on the record or on background. justice scalia was one of the
great ones who allowed me to put portions of the interview on the record and so did another justice. it's tricky and it was the first time i ever spent a lot of time with them. i was fortunate to get an hour or more when i did sit down. when i think back on that, i wish there were a lot of other things they had asked that i didn't ask. i guess i don't see it as a conflict by doing the book because i tried again in the book to do what i do every day in my job and that is to present the court as fairly as i can and let you decide for yourself very at what do you think the court has made the right choices that it has. i'm quoting my introduction to justice souter who has retired
from the bench and he spoke from a public conversation in new hampshire at the new hampshire historical society. he talked about how the court does its job. he was asked, how do you know if the court is doing law or is it doing politics? how does the average person tell? he said well you really have to read the decisions. i wonder is that too much to ask and i think he's right. you really have to get as much information as possible to see if they made the right choice. the constitution doesn't always give clear answers to every question that comes to the court >> back to john roberts. is he the leader of the court? if you look at the health care case and of course he did write controlling opinion, much of
which he wrote only for himself and the four justices to his left of course joined him in the holding of the penalty on the mandate sustainable as a tax. the justices to his right of course not only defended him bud dissed him pretty openly. he's chief justice in name of course but is he chief justice in fact? .. the court. there is no leader of the block. another justice said there is no leader but there is not nine stove pipes. they say what you have to do is you have to go into conference meetings after they hear a case and you have to listen really
hard to what is going said by each justice. and then you have to find the play in the joints. if it looks like it is going to be 5- 4 or 4-4 who might be the one that has to go one way or the other. we often called the court the steven court because of john paul stevens' success. but he wasn't the leader they said. he didn't believe in going dawn down the hall to chat and persuade. he did everything through writing. he felt strongly each justice should make up his or her own
mind. i don't know when you have nine truly independent, strong minded very experienced judges how a chief justice really leads the court except perhaps in very special circumstances as we saw earl roberts did. >> he came in in an unusual circumstances. when justice o'connor shocked everybody by retiring and a chief died and there was no change in 11 years in the membership. >> 11 years, right. >> the seven of them having been together 11 years and john robert is the new kid on the block coming in and being chief justice u
seniority. and he had never actually run anything. >> he had only been on the lower appellate court for two years. >> and then he is not only the chief justice of the united states but he is the head of the jud judicial branch with thousands of employees and budget matters and all kinds of stuff. so you have a sense that -- talk about the job of being chief justice >> well that is exactly what you said. there is an administrative part of the job that is very important. he also appoints the judges who serve on the foreign intelligence court which is a secret court dealing with sensitive matters dealing with
national security. and the head of the judicial branch. he is trying hard and has been to be sure the judges are paid the way he thinks they should be. >> that has been a failure >> that has been a failure and i don't think it is really his fault. trying to get anything through congress is very, very difficult these days. i remember chief justice rank saying the phrase that when you are chief justice within the court your first among equals. and i think i remember probably you remember this, we used to have lunch with chief justice rank and one of the comments about the court was that there are so many justice that are writing separate opinions and can't you do anything about this?
having the court speak with one voice. and he sat back and laughed and i think he used the word it is like herding cats. i have not heard complaints about the administration site but i am not sure he enjoys it. we have to wait and see what kind of chief justice he is going to be >> we have the phenomenon of o'connor expressing to some degree regret about bush against gore. did you sense any of the four cases, citizens united comes to mind, having watched what unfolded since it came down, are having second thoughts about it?
i am asked that all of the time but i will save my answer because i am interested in yours >> the five judges who voted no, i don't think they have regrets. the ones i talked to felt this was an obvious way to go. last term the court had a petition come up involving the state of montana. they had a hundred year old law that banned corporate elections. and they said citizens united doesn't play. we have a history of how corporations owned the montana government and we don't want to go back. it was challenged again by the
lawyer who brought sit citizens united. at the supreme court, they said sorry, citizens united applied even though two justice said it might be good to look at the law perhaps the premise which citizen united is based on is weak if you look at what is happening with money in election but the court didn't have a signed decision. it just said we are not going to hear the case. citizens united applied. >> they overturned the montana's supreme court's ruling? >> yes. i call this a bold conservative
majority and this is a good example. there are no regrets. i am not sure what might happen if guns comes up again. but i would be surprised if they backtrack on the district of columbia gun decision. they will probably not backtrack on the individual holding rights. but i think it will be interesting to see what they say on questions that are coming about gun regulations and what kind of scrutiny the court should give to gun regulation. no, i think this court doesn't have many regrets yet. >> what surprised you the most that you uncovered? you have a few interesting tidbits in here. >> tell me what they are? >> some back stories.
citizens united. the case was reargued and wasn't on the list of major cases. so what happened there? >> the concenus was the deputy being questioned by the chief justice and presing him on how far the argument would go in terms of regulation of corporate spending. and he made a concession that the government could ban books. he meant you could regulate the money that was used to publish
the books. but it was an ah-ha moment where they thought it was astounding. and then after that we get the announcement that the court is going to rehear citizens united and it is going to consider it. it said specifically and this was the court's own question on whether it should overrule the 1992 ruling that did ban the use of corporate funds in the federal elections. ...
wasn't the story if you believe the individual justices, they all said no, no, that isn't why we ordered reargument. behind the scenes maneuvering was that initially after the first argument, the chief justice was going to write a fairly narrow decision. this casef involved a movie. a movie that was highly criticay of hillary clinton, and one of s even applied to the movie, we've come to unction, was going and >> that wouldn't have meant very much. >> to, it wouldn't have. justice kennedy, and justice
far long time knead clear they felt that the 1992 decisionecion banning corporate independence expenditures was wrong. and they had said that inn several decisions after wards, t and this was defining moment for them. justice kennedy wrote a concurring opinion that was much broader than what the chief justice was going to write ces my swung to justice kennedy. and the chief justice had to decide, you know, what was he going do? because he had just in, i think it was 2007 in another case brought by him citizen united supreme court had a affirmed the 1992 decision and the key provision in the mccain law. >> exactly.
he wrote a concurring opinion that was focused really solely on the concept of standing by prior decision. this it opinion, why he should not standby those prior decisions. what was going on at the same time the justice. he had been assigned the decent by justice stevens. and he wrote a blistering dissent about the fact that the court was going to release an opinion. it was before second argument, and rule on issues that really were not before the court. the citizens united organization had abandoned a big challenge to the law in the lower courts. there had no briefing on those issues before the u.s. supreme court. and he basically said this is not the way we do things around
here. it will be nidis sent that is not the way we should be doing things. that's why i was told there have an constitutional button than if, you know, the court is about to do something, that might look bad for the court in terms of its constitutional representation. >> not to use the word activist. >> right. okay. they -- they pressed it hard with the chief justice. it's really why -- the justice said to me and a number of them said to me they don't remember if they took a vote on reargument citizens united or whether of it just consensus that it should be reargued. but that is why they said they
reargued it in order to give the lawyers in the case more time, an opportunity to brief the two questions that the court presented. it was sort of a little disingenuous of justice kennedy ultimately in the citizen united decision when he opened by saying something to the effect that the case raised these issues, and yet as was pointed out in the dissent the court raced the issue not the case not the lawyers initially anyway. so that's really how to came about. justice stephens ended up writing the dissent because justice retired from the bench. and so -- >> they at any time have him to kick around anymore? >> no. >> we're going to keep talk for another minute. you see the two standing mic here.
if people have questions you can start lining up. >> there's a look in the book too about how the justice do their job. they did talk about what it means to have new justice coming in. and how it affects them. in effects in some cay the injuries prudence, as one said. the old alliances are suddenly gone. you can fend on them to vote a certain way because they agree with you. suddenly t no longer true. another justice talking about how being on the court is really like being in a marriage. you're there for a long time. you have to learn you know what sort of things pick off another justice when to, you know, got bat and when not to with interpersonal relationships. some justices like a close personal relationship. others, you know, prefer a
little more distant. it's really interesting how the changeover affected them. >> number justice stephen's lovely memoir by the chief, he said that the he thinks the most important thing that happened during the renner qis court was the retirement of the thurgood marshall and his replacement by clairn thomas. i think one you can say the most important thing to happen was sandra day o'connor's retirement and replacement by justice alito. >> absolutely. you can't underestimate that. they were both conservatives. different kinds of conservatives. justice alito is much more conservative than justice o'connor was. he has tipped the balance in certain areas of the law. he has tipped the balance in abortion. his very first term. he tipped the balance in
campaign finance, and. >> and on race, yes. one of the key decisions on affirmative action is very much in play in the cases out of the university of texas that the court will decide probably before june. so he's been very important change. and she was the center -- what we call the swing vote and once she left and justice alito came on. justice kennedy really moved in to that swing vote category. i had does not swing to the left as justice o'connor was willing to do. that's all sort of solidified the conservative majority on the court. >> i think it's probably time to start questions. i'll alternate but start over
here. give your name. >> [inaudible] supreme court justices put a lot of energy in the dissending opinions. does it bear flute a positive way? >> absolutely. i think justice ginsburg said dissending justices write for the future. and perhaps the best example of that was chief just is renner qis. he was known as loan ranger in his early years on the court because he wrote dissents and often wrote them for himself. but once the court began to shift to the right, he started to see some of what he believed in become majority opinion. so yes, i'll tell you a funny story once. i was having christmas lunch in d.c. and justice scheeg -- klieg ya was having lunch at the
nearby table. why wouldn't we send over, you know, it was an italian restaurant, obviously. why don't we send over an after dinner drink to him as, you know, spirit of christmas. well, he didn't accept it. he came over though to explain. he said he would have accepted it, if he was writing a majority opinion but had to write a dissent. he needed a clear mind for that. [laughter] >> what do you sympathy going happen when about a dozen people aciewnted for about 80% of the super pac money. where do you think the country is going go if we can are going to continue on this route, which is clear the conservative majority is going continue on this route. so you're going have just a very handful of people controlling
the vast majority of money that is spent on political elections. the supreme court will say go to your congressman. there are attempt being made not scefltly to change a federal election loss in order to want to at least provide more public disclosure who is behind the funding of campaign. they haven't been to be get that through congress. so again, -- it's not 1900% clear. disclosure laws would be upheld. >> that's right. exactly. the court did it in citizens united on eight justices who did endorse the disclosure current requirements. only justice thomas dissented in
that decision. i know it doesn't look very hopeful i think that congress is the way they're on a deeing regulation trend until the supreme court. >> what can change normal terms of obama or anyone else couldn't even get through nominations for regular courts though supreme court. >> the presidential elections do matter. >> hi, i'm jim. my question deals with roberts vote on the health care issue. do you think he was motivated by the fear that the court began to look like a political entity rather than a jurisprudence entity? >> you're welcome to speak to this too.
it's probably one of the most common questions we get, isn't it? >> yeah. do i think so? no. i take him at the word. i take him as sincerely trying to grapple with the issues presented in that case. i think he was first inclined to vote with the four conservatives and strike the law down as violating the commerce clause. when they came back and staid means entire law goes, not just the mandate, and not just the provisions of the law that are economically tied to the mandate guaranteed issue and community rating. but we're going take down the entire statute. i think -- my sub decision. i haven't been able to do any reporting on it. my position was it was too much for him. he's more of a minimalist than
the folks to his right. and more of an institutionalist. i feel like he must have said to himself there got to be another way of the mess. the tax question had been presented and argued both by the solicitor general and others who -- in the case and that was there for him to rely on. i don't think it was a, you know, cynical or strategic move. i think it was a rather desperate move to extract something from what would been something much too far for him. i agree with that whole heartedly. i think the media really did focus on the commerce clause issue in the case. to the exclusion of the tax issue almost. it was always in the case and when the case got to the supreme court, the solicitor general
really beefed up the argument. and there is this doctrine that if the court can find a way to interpret a law in a constitutional fashion versus an un-- striking it down that it should take the pac that uphold it. i think he found that pac power was the right. >>? for people interested in the health care case. i'll plug a book thatcom out this week. published by oxford university press called "health care case" it consistencies of 20 essays and different aspects of it. i wrote one of them on my what my view of the chief justice. it's a nice little book. >> it's a as fascinating case will there was so much going on outside the court too at the time. you talk about special interests so many organizations.
so many law professors and others who wanted the court to go one way or the other were writing constantly. there are speeches on the floor of congress about it. i can't remember a time when there was a strong effort to get justices recused from the case as we saw with the effort against justices kagan and thomas. so it's really a fascinating case. it's worth reading what linda just suggested. and my chapter in the book. [laughter] >> sure. >> hi jack mac ken city. >> i can't see you with the lights. yes, you are jack mackenzie. >> it's nice to have you come this way. i would like both of you, if you could, to comment in some substance about what justice o'connor has said. i'll say one thing about it. i would love to hear anything
you would have to say about it. her participation in the bush against gore was not a slip of find. during the oral argument she ridiculed the -- she was really heavily engaged in the case. what is your view of -- what do you think about now that she's made this comment? >> well, i think she -- first of all, it's not unusual for some justice to have regrets or second thoughts about decisions they have made. i think with justice o'connor, she has seen a good part of her legacy endangered by the fallout of bush v gore and the more conservative justices that have seated her on the bench.
i don't know that i can say anything more. she didn't really elaborate a lot. she said maybe we shouldn't take the case. what can you do with with the case? so -- >> it wasn't a full recantation. it wasn't, you know, after justice luis pol who cast a deciding vote in 1987 which projected the gay rights claim, in that case, and after he left the bench he said he felt he had voted the wrong way. >> she didn't say that? >> it's hard, you know, i don't want to attribute to her a kind of a global regret that she
doesn't steam feel. >> sir? >> my name is tom. this is a question out of shared ignorance. i left law school about 50 years ago. i guess i can reveal the law school by saying another first-year student that year was justice scalia. i'm curious about the history -- you're talking about the roberts court. and roberts the is newest justice when he became the supreme court chief just is what the history of having the newest justice be the chief justice when in a academic university head of the history of the english department of someone with senatety. the head of the committees have senatety that is how they got head.
the implication being there longer. therefore no wiser. when you talk about the roberts court and yet he was -- he became a supreme court justice -- what does that say if it's the roberts court. b. with what is the history we oob i'm sure, he's not the first chief justice who arrived in court as -- >> there have been a few just ises promoted. william was one of them. typically they have been just picked out of a hat and all of a sudden it's chief justice. it's interesting it's a pattern that george washington established by naming john jay as chief justice -- first chief justice of the united states. the constitution article iii of the constitution actually doesn't say that.
it says there shall be one supreme court. and article iii of the judicial article doesn't even mention the chief justice. it doesn't ascribe any functions to the chief justice. we only learn that there is a post chief justice because elsewhere the constitution it says that the chief justice preside over the trial of the presidential impeachment. so, you know, it scrolled been otherwise. there was six justices on the court. but, you know, on what it is. we kind of from the very beginning got elected to that. and you can do it. and, you know, on the federal court of appeal. the chief just judge in fact is the senior among those who have not yet reached the age of 55.
that person becomes chief judge for seven years, i guess it is. yeah. >> what you think? >> suggest that the office of the role is not as important and why could we not develop a system where the chief justice is in fact the senior justice and fellow with the most experience? >> there would be nothing unconstitutional about that. if you're a -- originalist. there would be -- well if you're an originalist who goes by the intent of the framers. those who frame the constitution seem to assume that somebody would be nominated and confirmed to a position of chief justice and hold that position for life. that's the original understanding. it's an interesting question. >> i agree. i couldn't add to that. but whether it means that it really is the roberts court or the renner renne qis court. i think it's part just tradition
we call it that. i will say that during one of the interviews i had there was a justice who said he didn't understand why supreme courts call after the chief justice's names. he said why should chief justice be blamed for what that court did? and suggested instead that the court be named after the president who named the last justice to the supreme court. which would make this court the obama court. which i think could woman as -- would become as a big surprise to president obama. [laughter] >> okay time for one last question. >> i share your thoughts, please, on the testimony of the roberts case during the conformation proceedings and specifically whether you feel he was perfectly candid? >> whether he was candid during the conformation hearing? >> i think he -- yes.
who excoriated him for, you know, foe -- faux judicialist -- it was in a short time we saw different john roberts emerging. and we saw a different dynamic on the court. i think in response to what was going on, you know, behind the -- well, but also in the areas that he had very -- the second term, 2006 -- '07 term they took up the seattle louisville school district case. >> very did different term. >> very different. very devicive and many 5-4 rulings. they were issues i think he had rather firm views on.
waiving around the decoration of independence and the institution. many of you ten years ago never gave it a second thought. i bet it's at the front of your minds. it is with tens of millions of us. the fact of the smaifort, tens of millions of us love this country. we don't want it fundamentally transformed. we have to get to as many public people as we can. wake them up, educate them. that's the purpose the book. that's the purpose of liberty and tyranny. i considered part of the purpose of the radio program. sunday best selling author, lawyer, reagan official, and radio personality take your calls and questions in-depth. live for three hours starting at noon eastern. booktv's in-depth the first sunday of every month on c-span2
. this is about an hour. [inaudible conversations] >> congratulations. big event publishing the book, and what a wonderful and lovely and informative -- [inaudible] thank you very much. >> so i enjoyed reading it and engage in conversation. i thought we would talk a little bit about what drew you to the project. and then a little bit about hoasms and the people he interacted with and the little bit about some of the implications of the work for on first amendment issues today
which there are always continuity new issues. and we'll throw it out for questions. but i was hoping that to begin with, you would read one page from the book. page four. and i will --ith you woread thomas explain. it's actually not thomas' four writing. it's somebody else's.previe justice holmes. i think it helps us capture vero well the issues that he was struggling with and what is so s pture -- great about the book. >> thank you inspect is from holmes' dissending copy. >> thank you, thank you. this was some -- ingm opinion at this point holmes shifts
and very brilliantly in my mind. but when men have realized that time has upset many fighting faiths they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free. and ideas, that the best test of truth is the power to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out. bad at any rate is the theory of our constitution. it is an experiment as all life is an experiment. every every year it's not everyday we have to wager our salvation upon some prophecy based upon imperfect knowledge. while that experiment is part of our system i think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law
have an immediate check is required to save a company. >> thank you. we will talk a little bit about the first amendment that of course that parrot wrath is more then the first amendment. the way of thinking about our democracy. before we get to that i would love to hear a little bit about yourself. you are former journalist so i understand why you would the interest in the first amendment as a journalist but what street to this topic? >> it's not just self-interest that i would want to write about the first amendment. as i said this dissent i holmes represents a turning point in our nation's understanding of the first amendment. it marks a turning point in holmes's life as a justice and a thinker but it marks the beginning of a larger transformation in the way we think about free speech. prior to 1919, free speech in this country was pretty much an empty slogan.
it wasn't until filled from us. and so the history of the protection of free speech in this country begins in 1919. it begins with a series of cases dealing with the espionage and sedition acts that were passed during world war i under which many socialists and pacifists were convicted. the court hears a number of cases in 1919 and then in those early cases the court upholds the convictions of people who were prosecuted and holmes himself writes the opinions upholding these convictions. and then he turns around eight months later in writes this dissent. when the first amendment professors teach the first amendment they begin with these cases and they begin with holmes initially upholding these convictions and then suddenly eight months later the writing is a very powerful dissent. so when i was a student this is how i learned the first
amendment and it's how i teach my students but there has always been this nagging question for me, why is it different for holmes eight months later? we tend to gloss over it as though oh well the facts of the cases were different or an easy explanation. that didn't sit well with me and i thought there must be something more to it. i was hoping to write a story. i wanted to write it look that was more than just a kind of academic analysis of law that had you know some richness to it. i started thinking about how important it was to the history of free speech and when i began to dig into it became clear to me that it was an incredibly moving and effective story that
involves more than abstract ideas and involves human relationships so that is how i got thrown into it. >> tell us a little bit about the process of research and writing. how did you actually enter this question. was the sources you thought were particularly revealing some ou talk to the new holmes? there might be a few or were there questions you wanted to answer? how did you engage the topping to get into this wonderful book? >> i started doing preliminary research reading all the biographies of holmes and reading his published letters. he was a very prolific correspondent and although he instructed most of the people he corresponded with to burn his letters thankfully most of them did not so most of them survived. so i started reading the letters in the published ones became published once all of which are at harvard.
i started making a timeline of holmes's life during this period of time from roughly the middle of 1919 until sometime in 1920 and i made it day by day timeline of everything going on in his life. the case is court was decided the letters he was writing and the books he read. he kept a list of every vote he read in his life from his 30s on any red etan. just the titles of the books that he read and he would read in the summer sometimes 40, 50 or 60 bucks during his summer recess. i started reading some of the books that he read trying to find little clues and scoured newspapers to figure out what was going on. i looked into what was going on in the lives of the people he was friends with so i created this timeline. we know it's a two-year timeline
and i just kept looking at it. and thinking about what's going on in his life and how all of these pieces fit together. for me, that's when i really began to understand why he changed his mind. there is in some smoking gun. there is not one moment you can point to and say are hot that's why he changed and when he changed it. it's a kind of gradual process but in order to really understand that process you have to see it in order in chronological order and i think that's what i had been missing prior to this vote. there were some scholars that delved into this a little bit and pointing out that some pieces of the story but at least to my mind it was never clear how it knits together. so when i saw that in the timeline, for me that was where the real sort of revelation came >> that's wonderful. before you and i were talking about historians and as a
historian i will tell you it's a wonderful book. what's interesting is what you just described it on thick most historians would have approached it that way so that's why it's wonderful we have lots of people doing history. this might be pushing it a little bit of the kind of approach it as a journalist. >> right, i did and as a storyteller really. the advice that i tried to get myself was the advice that novelists usually get which is to show and don't tell. i didn't want to tell the reader why holmes changed his mind. i wanted to show holmes changing his mind. there were a few times in the narrative where i is the narrator interject commentary or analysis. there are some times when i have to but for the most part i try to let the events speak for themselves and i hope that they do, and i hope in the reader finishes, the reader understands everything that i would have told the reader that i sat down and said here is why holmes
changed his mind, bullet .1, bullet point to in bullet .3. that is what academics are used to but you know a i don't think that doing it that way gives you as rich a sense of what's going on. i think you missed something and it's just not as fun for the writer or the reader to do it that way. >> in our second talk about the people that influence and versus talk about holmes a little bit. as you acknowledge for a jurist holmes has gotten a fair amount of attention here there are several books about them but he still a fascinating purpose. give us a sense from your perspective as someone who immersed himself in this important person. how would you describe the flaws and strengths would you describe as him having? >> first a couple of basic biographical details. holmes is born in 41 so he fights in the civil war and the
union side of course. he comes from an old austin family. his father is more famous than the sun were longtime well-known as a writer and medical professor and coined the term boston brahmin. holmes goes to harvard law school and fights in the civil war and is wounded three times, twice nearly dies. he throws himself into law after the war and becomes a judge in massachusetts and is appointed to the supreme court. my book takes place when he is at the latter stage of his career. he is around 77 years old when the book starts and he has an odd reputation at this time. he's not the looming figure that he has for us today. he is generally regarded now as the greatest judge in american history and we could quibble about that but you know you can
say that and back it up reasonably. when the book starts that's not the case. he was a very philosophical cerebral person. a lot of people were sort of skeptical of the way he approached the law. he seemed to cerebral and too smart for his own good. one critic described him as a literary fellow. he cared too much about the way he phrased things and not a soul is as -- solid he should be as sort of obscure in the way he writes but to a growing group of young progressives and intellectuals he's a really inspiring romantic figure because he does have this philosophical poetic quality to him. he is given these very moving speeches about having fought in the war and he has coined all of these terrific phrases and his
opinions are so much livelier and more interesting to read than any of the other justices on the supreme court. and so, for the young men in the book that influence him he is the sort of philosopher poet. he is a breath of fresh air in a musty world of government and law. so i think that's his real strength is that he sort of breaks out of the law. he is more than just a judge. he is really the only judge in american history is that as a folk hero and i think his great contribution is partly his opinions but more so just the persona that he created so i think that is the real strength. a weakness is that he didn't always think through his ideas
as fully as he might have. he becomes a little sloppy in the later parts of his career. he just relies upon things that he said earlier and his life becomes in a way almost a closed loop. so when you read things that holmes writes sometimes they don't always add up. it's not always internally coherent or consistent. that being said i think that's one of the fun things about holmes is that there are all these contradictions and tensions in a very rich complex character which if you want a character in a book, that's what you want, in a contrast to fellow justice louis brandeis who writes in the eloquent -- of free speech. it's pretty clear for brandeis why he believes in free speech and therefore it's less interesting because i think that
he doesn't give us a way to explore our own mixed feelings about the issues. >> lets talk about the people that influence him. as you mentioned there were a lot of young people who look up to him and also try to influence him. there are so many i don't think you can cover them all in the next 10 or 15 minutes but i will allow you to pick a couple that you think are particularly interesting in relative. >> mostly these are young men ,-com,-com ma intellectuals, lawyers, academics, mostly regressive if not radical and quite a few are jewish which is interesting because holmes comes from this old boston family and they are young. so what one of the most influential is a man named harold lietzke. most people don't remember although some may of heard of him he at the time was 24 years old. he isn't struck her at harvard, and incredibly liberal just to
the right of marks and he later goes on to become a leader of the labour party during wolf or two. holmes views him almost as the a son. holmes had no children and the two of them just hit it off, even though they were so diametrically opposed in so many ways in terms of age and religion and political beliefs. holmes admired black ski. he's an incredible brain young man with his irrepressible personality and so black ski has an incredible influence on holmes. felix frankfurter is another individual. this time he's a young law professor and he later sits on the supreme court in holmes' seat. he has an important influence on holmes. the editors in public magazine which at that time was new and founded in 1914 so was the new
republic, not the old new republic that we know now. they were close to holmes and holmes didn't generally read the newspapers but he read the new republic areas these men and more gathered and congregated around the house in washington d.c. and did not circle. they called at the house of truth. they called it that the causes served as kind of a literary salon where these young thinkers would gather and talk about current events of that day but also larger questions of philosophy. holmes would stop in after a hearing at the court and have a drink or play solitaire or cards with the men and these men ,-com,-com ma they really were shipped to holmes. in fact if his he gave them his attention was remarkable. for him what he got out of that was they were starting to give
him the recognition he felt he deserved and helps him recapture the excitement of his youth. when he was younger he had been a part of the metaphysical club with william james and charles sanders peirce and all these young thinkers in boston and this is sort of a way for him to recapture that at a later stage in his life. >> i am terrible at quotes but i'm sure you'll remember one of his famous quotes was the path of law has not been -- >> the life of the law has not been logic, it's been experienced. >> the life of the law has been logic, it's been experienced. it's influencing how they are interacting and you talk about the summer of 1919 in particular and what's going on and how it shaped it.
>> the summer of 1919 the beginning of the first red scare there has been a lot of suppression of speech during the war. new early 2000 diamonds were brought on the espionage and sedition acts against people who criticize the war and a lot of these are mainstream people. eugene debs for leader of the socialist party received 6% of the popular note when he ran for president 1912. 6% of the popular vote for a third-party candidate is a lot. these are not french people. you could be sent to jail for 10 years for being critical of the war so he had just come out of attics aryans. and now we enter this period of hysteria. the russian revolution has taken place. commonism is spreading and there's a fear that it's going to spread in the united states, so all of this sort of persecution of german
sympathizers and pacifists is now transferred to anyone who might have any kind of communistic sympathies. what is really interesting about this is that two of holmes' friends, two of his closest friends get caught up in this witchhunt. they are radical views and one of the theses of the book is that it's the experience of watching his own friends come under attack for their views that helps to leave homes to this conversion. these abstract ideas are free speech become for him very real and personal and concrete. so this famous line from holmes the life of the law logic has not been experienced he wrote that years before but in a way i think his story is an illustration of that. he starts off in that passage i read talking about the logic of
persecution. he doesn't decide it's not logical. he just decides that as a result of experience we have learned better, you now and we have realized that time has upset many timing plates. why has holmes realized it? because of his experience watching everything that's going on in the country and in particular how it becomes personal for him. >> we queued up a lot of questions. i want to take a couple of minutes to talk about present-day implications for just a couple of questions. what about the operations of the supreme court. one of the things i love about the book is to capture how they interacted and one of the things i found fascinating that in fact the supreme court justices didn't even have offices. they worked from home. so there were lots of things that are different of them the way the supreme court operates today. do you want to highlight a
couple that are particularly interested? >> that was one of the fun aspects of working on the book was just seeing how different things were. they did not have offices. the supreme court did not have a building. that was constructed in the 30s. they met in the old senate chamber in the capital and they had a conference room downstairs that was just down the hall from the senate barbershop, the sort of musty cigars smoke filled room where they would meet to discuss cases. they did all the work at home. they didn't have four law clerks like they do now. they each had a secretary but they didn't even hire a secretary in the secretary, usually a young law graduate doing relatively menial tasks. they did in a right to the opinions. the justices wrote their opinions. the opinions were much shorter which at is nice. you can read holmes' and five or 10 minutes and comprehended as
opposed to the 200 page opinions that are written now. one of the other things that was interesting was just how much more casual the action was between the justices and the other people. i guess another way of letting this is how willing the justices seemed to be to talk with friends and acquaintances about the issues that were before them in holmes's letters were told was discussions about the cases before the court. i don't think he ever gives anything away ahead of the decision but he's always talking about decisions and personalities on the court and people are engaging him with this discussion. there's a scene in the book where in the summer of 1919 herald latski arranges a meeting between homes and a first young amendment scholar chaffee who has written an article criticizing the courts decisions
on on free speech issue. harold latski gets the two together for tea during the summer to talk about free speech and to try to change the holmes' mine. this makes antonin scalia going duck hunting with dick cheney painless, to actually set up a meeting to try to change the mind of a supreme court justice outside of the formal argument process is really quite striking. >> the last question before we turn it over to the audience as the formal journalist who thinks about the first amendment all the time i have to ask about your thoughts in the connection between these issues and things we struggle with today, internet privacy and the debates over the nsa, counterterrorism and the debates over things like wikileaks. there are so many issues and in two minutes give me your thoughts about some aspects of these. what would homes think of these?
what you have learned. the issues are very specific. the larger question is very similar. people are very scared and concerned. they are giving government a relatively free hand to do whatever it wants and then government sometimes oversteps and then there is concern about the implications of that. i don't think you can draw lessons about specific issues today but i think there to broader questions you could draw. one, when we look back at this time period we realize how easy it is to overstate the dangers
that we face and how frequently we do that. it's very common for the court to say about an earlier time while they were hysterical and panicky but now the threat is real. even though they might have been overreactive and our reaction is reasonable. that's one thing that is help a lot and the other thing is just to realize that when these issues become personal, when we are not talking about people on the fringes of society but when people you know are affected or people you can imagine being affected then i think free speech becomes much more salient for all of us. >> we have all kinds of questions. robin has the mic and she's going to walk around. please give your name and then ask your question. >> rick sachs. thank you so much for that talk, very intellectual and very smart
you talk, i like that. so my question then would he part of what you are talking about oliver wendell holmes was sort of mentally above it all in a sense of like that. is that a major area to freedom of speech across the world like you know this dictator, we don't like this that a good thing because they seem to be above it all and we can bring it down to our level by physical force as we can talk like oliver wendell holmes. we can ring it down to our level by physical force so was that a great narrative to freedom of speech back then and now? >> the detachment and the difficulty breaking through to people. i suppose it could be. on the one hand it seems like your question gets at, should we be engaged in more aggressive diplomacy is supposed to force as a country clacks on the other hand, the question might be
taken to ask you now is what it takes to advance free speech or for free speech to become personal to people? to the extent that that is what you're asking i think that is kind of the case. i think that's the case with lots of -- lots of legal issues. the justices of the supreme court are people i suppose but they are relatively removed from the concerns of most of us and i think that any time they can understand the sort of her small consequences of legal questions you know their decisions are going to be more formed and hopefully more accurate. so yeah i do think that kind of detachment or having your head in the clouds is certainly a barrier to a deeper understanding of free speech. >> you mentioned in the book and you mentioned today in the book that thomas healy served three
times in the civil war and you mentioned frequently how his experience affected the way he looked at the world and the paragraph that you read to us is a fairly harsh view of the world it's things that we are going to fight a lot but his position is that's part of the democracy. we have to scream at each other and it's better to scream at each other because of better result will come out. >> absolutely. >> that's hard to accept. >> not only is it okay to scream at one another but it's okay to kill one another at the other fellow disagrees. he ultimately realizes if we are going to have any kind of confidence in the decisions we take we have to hear all viewpoints. that's the only way in which we can feel assured going forward in our decisions but yes it starts off with this harsh view of the world that's informed by his experience. fighting his fellow countrymen. what is that the disagreeing and
killing the other fellow when he disagrees. >> holmes was about 78 when he wrote that opinion. i wonder if you would comment. do you think there is anything to factor in on the basis of advanced age? 78 in 1918 is two days 90 and i wonder if you would comment about this? i think it's a little bit different from time on the court for time as a judge and so on. >> while i don't think if what you are asking is whether holmes was becoming soft in the head or anything like that, holmes is very sharp at this point and he continues to be sharp for a number of years on the court. if what you are asking is whether sort of approaching
mortality makes holmes more sensitive to his legacy or his personal relationships, i think that's certainly possible. i think that these young friends certainly gave him a new lease on life and he was certainly very susceptible to their influence in a way that he might not have been at an earlier point in his life. he later reminisced about this. making his life as being the happiest or the stretch of five or 10 years when is going to the house of truth is aiming one of the happiest periods of his life does that have something to do with his age? i suppose. maybe at this point he is no longer busy trying to get somewhere or accomplish something. maybe he is more in the moment and that's a good possibility.
>> my name is eric gross and i want to thank you both for this presentation. to what extent was holmes and/or his contemporaries and predecessors on the court influence by the technical framers of the constitution? >> a very good question. in general holmes was not what one would call today and originalist. holmes could be in an involving constitution and the people who wrote the constitution could not have imagined that being that they had brought forth and so i don't think in general he was driven by a kind of obsession with what the founding generation would have thought. remember too that holmes is not as far away from the generation
as we are being born in 1841 and you know potentially having known members of the founding generation or met members of the founding generation, they might then less of a sense of oh there's this distant past that we have to get in touch with. holmes might've thought he was very well in touch with that past because it wasn't too far past. that said, there is an aspect of this decision in which he does rely a little bit on early developments in our history. when holmes writes that this is the theory of our constitution, the idea that that test of truth is the ability to get accepted in the competition of the market. he has to contend with the fact that in 1798 the country passed the sedition act of 1798 under which people were prosecuted for
criticizing the government. what holmes does in this opinion was this opinion was the refudiated at jefferson when he took office and by congress when congress repaid the fines have been levied on the sedition act of 1798. he does at least in that way rely on some earlier history to support his assertion that it's the theory of our constitution that we should let ideas find out the competition of the market. >> i think you mentioned briefly mrs. holmes had an interesting view on rights in general and on the role of the judiciary in protecting individual rights. you mentioned it briefly but it's just so important. >> it's one of the things that makes this decision so surprising.
holmes is one of the early advocates of judicial restraint. the idea that judges should not stand in the way of what the majority wants to do. they shouldn't use individual rights as the racist to strike down what the elected officials in the white house and the state legislatures and the congress had decided. there is this line that he liked to repeat that said my fellow countrymen, i will help them. it's my job. he didn't think it was the role of the courts to stand in the way of with the majority wanted to do. that's one of the reasons he was a hero to young progresses. in the early 20th century constitutional rights were often used to strike down progressive legislation, progressive labor laws in particular. holmes had dissented from those decisions not because he supported progressive labor registration, he didn't care but does the thought that courts had
no business tracking down with the majority wanted to do. that's the perspective that it starts with and why it's so surprising that he then turns around in this context and says well now we should strike down with the majority did. the majority struck down the alien sedition act and the rossa kidding judge thought as a court we should step in. this is the beginning of what becomes too known as the double standard constitutional law where courts scrutinized very closely regulations of private activity, speech, reproductive rights and that sort of thing. but don't scrutinize closely economic legislation. all that has its roots in this opinion. >> good afternoon professor. listening to you and with the
rest of my knowledge just a holmes, he was right there at the beginning of the generation. he was reviewing that idea like pragmatism so the speech was having an educated opinion about those inspirational things that he believed in. so fast-forward to the baby boomer generation who one way or another rushes into extent to lytham and there is the next-generation.
so for existential philosophy you don't have to have that -- you don't have to do your work. you just have a shortcut and if you're not happy about it --. >> yes it's a very interesting question. basically it sounds to me like you are comparing on the one hand pragmatism and on the other hand ideology. pragmatism is in some ways presented as an absence of ideology. an idea is good if it works just the way the fork is good because it helps you eat food. palms is very much a part of the development of this notion of adventism. there's an excellent book called the metaphysical problem which counts the development of pragmatism in this country
during the stories of homes and liam james and other individuals in the mid-to late 19th century america. holmes does reject ideology. he saw what ideology is. he saw the horrors that ideology produced so he is very skeptical of the notion that there were some objective truth out there and you can see that theme very prominently in its opinion. it's because of skepticism about objective truth that we have to allow people to speak. but we think is the truth today we may discover tomorrow is not the truth and the only way we will find out is if we keep the debate and the discussion going. i think that people who are more ideological and think no, i've got the truth ,-com,-com ma they are less patient with that. their view is well, this is the truth and i don't need to hear
what the other side says. i can shut down the debate because i have already arrived at the truth. i do think that there is a sort of tension there for a conflict between pragmatism and ideology and i think holmes' of opinion rep resents the more pragmatic view of things. yes, he certainly believed that your opinions had to be informed and more importantly your actions have to be informed. that is why it's okay to act in the face of uncertainty. he wasn't saying well just because we can't know the truth means we don't interact. just the opposite. he thought yeah we had to act and even if we are not sure of the truth we still have to act but the one way in which we cannot act is to suppress speech because it only having heard all the ideas that are out there can we be confident that the action
we are taking is the best we can make it this given point. >> i think most progressives feel education was crucial to that debate and we are having debates about the level of understanding that we have in our debates today. i don't know if you want to comment on that as a journalist. what you are trying to do often is educate us about some of these things but i think it's a relative question that the context was different then in some ways what we are struggling with today. >> i don't know if people are less interested in gathering information today. it seems to me that we have very lively debate and discussion in this society. i guess maybe there is you know a little bit more, a lot more partisanship and people sort of segmenting off. you have got the people who
listen to "msnbc" and maybe they are not talking to each other in the way they should and maybe that is a concern. i think that was -- there was less of that than although it's hard to know. >> you right. >> hello. i was wondering, in this day and age there are so many different ways to push her opinion like via social media and things like that. i was wondering would you say there is still at all any kind of punishment for hoisting an opinion that's unpopular, maybe not as extreme in 1919 but would you say there is? >> well we have come a long way. we don't have an stored married protection for speech in this country and for the most part i think it's fair to say when you can be punished merely for the ideas you have expressed, the supreme court has done an admiral job in protecting
unpopular speakers. the debate we are having now is more about how can we get the information we need to have an educated debate? is edward snowden being prosecuted or has he been indicted because of his ideas or because the government needs to be able to enforce the laws against leaking classified documents to maintain national security. you know there may be a little bit of the former but i think it's mostly the latter. bradley manning i think is in the same situation. now, going after them as aggressively as the government did and seeking the kind of punishment that the government sought might suggest that they are selectively targeting people who are challenging what they have done and that is certainly
worrying. you know the social media is an interesting part of the equation now. that's very interesting in the context of schools and student speech and that is raised all sorts of questions. to what extent can students be disciplined in school for things that they put on facebook at home when the students are accessing facebook at school so it's having a disrupt that effect. the social media i do think has greatly expanded our ability to speak and in some ways democratized our ability to get our message out and raised at the same time lots of tricky questions. >> jeffrey abelson. what was the general reaction to his opinion from his fellow justices and also general opinion of academic and population?
>> holmes writes this dissenting opinion and he always writes his dissents before the majority opinion has circulated because he wants to have it ready to go. as soon as he gets the majority he can distribute it to his colleagues. everything was sent out by messenger said the gets the majority opinion and he senses to center out. we know this because he writes a letter to a friend that he had just sent around the descent and the next day three of his colleagues show up at his home. they are led up into his study and in the presence of his wife they ask holmes -- the court has not issued the opinion yet. it's going to be issued the next week and these three members ask him for the sake of national security not to publish the descent. they are worried that coming
from that figure is venerable as holmes is several war veteran and his whole family that this will give aid to the enemy and lead to the country's resolve in the fight against the red menace. holmes listened very patiently to their requests to a very civil discussion and sometimes even affectionate but ultimately he says no. we know about this because when they are led up into his study, he tells his secretary to stay in the adjoining room. that is where the secretaries were. as terry hears everything that is said in the secretary is close friends with dean acheson who is that your secretary to justice brandeis and years later dean acheson writes a memoir of his early years in washington recounts the story. that was the reaction on the court. brandeis joined the opinion and
supported holmes. and the public the reaction was mixed. progressives were ecstatic, praise this. the editors of the republic published a tribute to holmes. they published his dissent in full. all of holmes' friends right in these incredibly poignant emotional letters of gratitude to holmes. in academia it's received less well. one of holmes' sort of long friends john widmar repressor of low rates this just scathing critique of holmes' dissent and allow review article and basically accuses holmes at being naïve and unaware of the threat that the country faced and a number of other people say things along those lines.
so it's mixed. it's a dissenting opinion so even though people, some people were upset, it didn't have an impact right away. their concern was that it ultimately would have an impact. they could see he was very powerful and that is what whitmore is worried about and of course he was right to be worried. although it is a dissenting opinion it ultimately carries the day. it takes a little time but ultimately the court invokes holmes dissent as a foundational statement about commitment to free speech and he sort of takes this place in our culture that it has today. >> what's the justification for suppressing any speech since the first amendment makes no such distinction? the first amendment says the government shall make no law abridging the freedom of speech. it doesn't talk about good speech or bad speech or dangerous speech or anything
like that. so where'd you get all of these theories exist the court goes through dozens of theories on what speech is not protected. >> it's a great question and i once asked my students the exact same question. so you are a close reader of the first amendment that says make no law and justice hugo lack used a site that all the time. make no law. it doesn't say make not too many laws are made of bad laws. it says make no law. an absolutist of the first interpretation is not possible. they're too many many ways that speech is used that most of us think should not be it. throughout a few examples read perjury. perjury is using speech. is it protected by solicitation
to murder? these are always that we use words and suggest that the mere fact that you do these things through words means to protect it would be problematic quick holmes deals with this problem himself. not in the abrams dissent at eight months earlier in an earlier decision. he provides us an example and he says that free speech would not protect a man who falsely shouts fire and it crowded theater as an example of why we can't adopt an absolutist interpretation. why is that a good example lacks for one because harm will result you have a crowded theater and someone shouts fire there'll be a a rush to the door but more importantly it's a good example because the harm that will result will result immediately before we have any chance to avert the harm. so that forms the basis for
holmes's he ultimately adopts which is the clear and present danger standard. you know it from tom clancy before tom clancy made it famous it was a line in the holmes opinion and the idea is that speech is protected unless it poses a clear and present danger meaning unless the danger is one that we can divert in any other way. and you can't avert the stampede in the theater in any other way other than to say about it time it's against the law to do it. so you now i think it's very hard to adopt an absolutist interpretation of the first amendment. the problem becomes then how do you figure out what's protected and let's not protected and that is what gives people like me a job, to come up with theories and explanations. >> talking about a different