tv Chief Justices and Presidents CSPAN August 15, 2016 9:00pm-10:01pm EDT
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>> next on american history tv yale university professor akhil reid amar discusses the relationship between u.s. supreme court justices and american presidents. he looks back at the first appointed chief justice john jay. he argues historically the justices were geographically balanced and that there's been a more recent shift in representation based on demographics and political affiliation. >> we are thrilled to welcome akil. back to new york historical society before joining yale law school, professor ahmar clerked on the first circuit for judge steven -- then judge steven briar. he is also a recipient of the
duvane medal. he was the author of several books, including the law of the land, a grand tour of our constitutional republic. i think akhil was voted the most popular professor at yale. at least he is my most popular professor and you're all here. i think if you all are here because you know him, he is your most popular professor. before we begin and invite our popular professor up on the stage, please turn off any cell phones, electronic devices, and join me in welcoming akhil reid amar. thank you. [ applause ] >> thank you for coming. this is the new york historical society. we're going to be talking about the supreme court. we'll be talking about the
history of the supreme court because this is the new york historical society, but we're also going to be talking about the new york angle on all of this because this is the new york historical society and, yes, why is this night different from all others? well, here's one thought. it's only really this week that has become i think pretty apparent that the upcoming presidential election will be a subway series between -- not just two new yorkers, but basically two people head quartered in manhattan. shades of burr and hamilton. why am i mentioning a new -- a presidential election given, professor, that this is a conversation about the supreme
court? well, therein lies my first of five points. it's going to be about the interesting relationship between presidents and justices. not only -- i'll work my way up to the present moment, but not only is this going to be an election between two new yorkers for the presidency, but the supreme court really is on the ballot and new york plays a big role in that because the person who is right now the nominee for the vacant spot is a man who learned his law, learned how to be a judge, basically, right here in new york city. the clerk of henry friendly. i'm going to say more about that. the chief justice, because we're going to be talking about the roberts court that's going to be going in one direction if mr. trump wins and a different direction. if secretary clinton wins, the chief justice, john roberts, who
he was born in new york, but he, too, learned how to be a judge in this city. he, too, was a clerk of the great henry friendly, chief judge of the second circuit here in the city. the person whose untimely demise created this vacancy is a new yorker. a antonin scalia. as are several off the other justices. tod justice alito isn't from that far away. newark. you know, i know it's on the other side of the bridge. it's very much a new york story that we're going to be exploring together this evening, but i want to begin with the relationship between presidents and justices and offer you an account of the structure of that relationship, and in particular
here are two big points. that there's a tidal pattern to the american presidency ebb and flowing of a tide, and this tidal pattern creates certain very interesting and special face-offs athe certain particular moments in american history between presidents and justices. so here's the structure of the situation of the constitution. our justices are chosen politically. justices don't pick their successors quite. it's not a self-perpetuating meritocracy the way the yale law school faculty picks their successors. the way the cardinals pick the pope and then the pope names cardinals and then the cardinals pick the pope and in this
self-perpetuating way. no. our constitution provides for a political choice to be made whenever there is to be a replenishment of the judiciary. both the supreme court and the lower federal court. the process of selection is by design political. the constitution is on the ballot this year. in effect, when you vote for the presidency and the senate, that is not a bug. that is a feature of our system. it's political selection. then judicial independence kicks in, and there's live tenure. tenure for good behavior. that creates an interesting dynamic that the justices in the modern era stay on much longer than do presidents and indeed presidents now are term limited in a way that they weren't at the founding -- actually some of the justices rotated off very quickly.
i'm going to tell you about john jay and how he couldn't wait to get off the court, and the tenure of the justices early on was very short. then you had presidents who in theory could have been perpetually re-elected as governors of new york, for example, who are allowed to be re-elected and stayed on forever. george clinton, the governor of this state at the time the constitution was adopted, i think, it was a three-year term, and he won seven of them. he left only to become vice president, which he thought was a respectable retirement. he died in office. the presidency could last for a long time, and the judges rotated off in reasons -- for reasons that we'll get into. chief justices have tended to stay a good long time. presidents have come and gone. we have basically 44 presidents in american history.
someone who when they're rising to power really the other different point of view prevails, but they manage against the tide to win, to win again, win re-election, hand off enough power to their hand-picked wingman, their apastolic successor, and in the next period even though when they were rising to power really it was the other faction, another vision of america that was ascendant for the next period it's really their vision that generally wins far more than it loses. until something else happens and the tide turns again. that's by definition a tide-turning presence. it's what political scientists say is a rushmore. i'm giving you -- i wish it were my own theory. it's not quite. my great colleague, political science colleague at yale has developed this idea. i have a few small variations,
but this is his model. >> it hands off power to his political ally, john adams. now, that dynasty, the washington federalist dynasty doesn't last very long because john adams signs his name to extremely repressive laws. the alienist acts that generate a massive backlash, says and thomas jefferson is now the next tide turning president. very early on he is running against the federalist regime. he has a very different sort of platform and political formula for success. he is -- he manages to win against adams. to win re-election.
in effect, he hands off power to his wing man, his secretary of state. secretaries of state can be wingman or wingwomen. just remember that. madison is going to win and win re-election and then his secretary of state, monroe, says is going to win and win re-election and that party will become jefferson's party. basically the jacksonian party, which is the largely dom nabt party in the antebellum time. they win way more than they lose because people remember that act and you basically never hear from the federalists again. at least on the presidential stage. we have washington. now jefferson. then they basically commit a political suicide when the next president -- when this unknown fellow named abraham lincoln rises to power and manages to
win, and instead of just saying basically the political wind is still at our backs, the tide is still with us, we can outlast this guy, we're just going to wait him out. we're just going to say no to everybody he proposes and he will be a failed, you know, reformist president. this tall skinny constitutional lawyer from illinois.
>> slavery, succession, and trying to accept the civil war and its amendments. >> they prevail all the way until another event. the great depression and their party gets the blame for it. herbert hoover. your next tided-turning president is franklin roosevelt. in this whole period no democrat wins the majority. woodrow wilson doesn't win the majority. grover cleveland doesn't win a majority. the republicans are winning landslides, many of them, in this era. the great depression, and now we have franklin roosevelt as the next tide-turning president. wins. wins again. wins again. hands off power to his wing man, harry truman. then -- that's really it. the dominant coalition until vietnam and just the chaos of
the 1960s sort of tears apart that coalition. it's become the great society. 19 -- late 1960s. and really ronald reagan eventually is the next really genuinely tide-turning president who won, won re-election, won a third term called h.w. you know, his handing off power. now he can't run for a third term. he is term-limited. until now we've been living basically in the era of reagan. those are the tide-turning presidents. washington and jefferson and lincoln and f.d.r. and reagan and if if -- this is the choice that's before us, my fellow citizens. in 2016 if barack obama's secretary of -- former secretary of state, his wing woman, says hillary clinton, were to win, we would say about obama or historians, you might say, the tide has now once again turned.
president one won re-election. handed off power. if the democrats -- we only know this if the next two or three elections. if they become basically the dominant presidential party at least, then you would -- okay. that's a structure, the rhythm of the presidency. if you are a democrat, i'm going to bum you out, just telling you, how powerful -- actually we still -- lincoln's gravitational pull is because, remember, the democrats are overwhelmingly the dominant political party until lincoln. since lincoln, there are only two democrats who have won two popular votes for the presidency. franklin roosevelt, barack obama, that's it. wow. yeah. oh. you know, not jack kennedy, not harry truman, not bill clinton. none of them.
that's pretty impressive. the democrats have won popular votes. not always majorities, but at least pluralities. if they prevail again and going forward and republicans don't sort of rethink their formulas, then they're going to be in the minority for a while. okay. that's the presidency. now, how does that interact with the court whose justices have -- are picked politically, but have life tenure, don't have to leave if they don't want to. well, there are these special moments when the new rising president confronts the ghosts of administrations past in the form of these hold-over justices that have been appointed by the other party, the party you ran against. you know, change. presidents are change agents. they always are promising sort of a new thing. most of them fail.
most presidents actually fail. it's an impossible job. the few who succeed, the jeffersons, the lincolns, the f.d.r.'s, the obamas are going to confront a judiciary that largely is in the hands of regime they ran against. that's the drama of these great moments. there's a tidal pattern and face-offs. that's thomas jefferson facing john marshall who is a federalist who is basically in the washington john adams camp and now actually they're at this confrontation, and we actually call that marbury versus madison. the real drama there isn't marshall invalidating -- oh, i'm sorry. before -- i should have started with washington, of course. my apologies. there's not so much of a confrontation here because washington picks john jay, okay? he is washington's guy.
he doesn't inherit all these british judges. they have been tossed out in the american revolution. just so you know, in 11 of the 13 colonies, the chief judge of the colony sided with george iii against george washington in the american revolution. article 3, which is the judicial article, is third out of three for a reason. for several reasons. it's the least and last -- it's the least text associated with it. it's third out of three. politicians are supposed to pick judges. judges are not supposed to pick presidents. that's why bush versus gore is a disgrace. you see, there's -- the reason that judges were third out of three is they're not the leaders of the american revolution. they are not the champions. there's not this face-off initially with washington because he is picking john jay.
it's heightened because they're second cousins and they don't even like each other, and note that the new -- that john marshall has to swear in jefferson just as roger tawny is going to be swearing in abraham lincoln, and you'll remember the absolutely flubbed swearing in when obama was sworn in by john roberts. these are slightly tense moments, but i'm getting ahead of the story a bit, so just marbury versus madison is thought of john marshall invalidating an act of congress, but the real drama is whether is john marshall against thomas jefferson because marshall -- marshall's opinion goes on and on about how lawless the jefferson administration has been. in the same way that today's court is being invited to say, well, the obama administration is lawless on the immigration, and obama administration was lawless on obama care and not just in the law, but the
implementation of the law. obama administration is lawless on some of their carbon rules and the e.p.a. this is nothing new. it's a feature of the distinct structural pattern of a presidency that's a four-year term with this tidal feature, and justices who have lifetime. marbury is a drama. now flash forward. roger tawny and abraham lincoln. lincoln becomes president by running against him. by telling everyone who will listen just how preposterous dread scott is. this young lawyer from illinois calls it -- i love had this phrase -- an astonisher in legal history. now the tension when lincoln confronts tawny who wants to invalidate everything lincoln is doing and everything the obama administration -- the lincoln administration is doing
unconstitutional. he wants to declare lincoln they have a draft, an individual man take, if you will. that's what it is. it's a constriction law. the lincoln theory attacks because you can buy your way out of it. joous like the individual mandate. tawny is afraid -- he is afraid that tawny will invalidate. when he dies, they find in his desk -- the case never materializes, and they find in his tawny's desk a completely -- a complete draft opinion, a draft draft, if you will, holding constriction unconstitutional. it hasn't even reached the supreme court, but tawny is ready. he has it in his top drawer. lincoln's emancipation proclamation, it has all the poetry of a bill of lading. it's very -- it doesn't soar like the getitysburg address. it doesn't free everyone. he is a lawyer and he has tried to bulletproof is because he
knows if he give tawny just this much, and he will hold that unconstitutional. the court that he confronts is a court filled with jacksonians and people appointed by franklin pierce, may he rot in hell. i think he can get away with that one, and james buchanan, that's the court that lincoln confronts because justices are ghosts of presidents past, and lincoln is running against all these presidents, against the tide. that's -- some of you may remember this from your history books. i won't say you remember it from your childhood. the new deal, remember, it's, you know, the new deal against the old court. franklin roosevelt confronts all of these republican justices. from the first term, he has not a single appointment. nine who were appointed by earlier regimes that are
threatening to envalidate every part of his program. the national industrial recovery after the agricultural administration act and obama care. i mean, i'm -- and his social security structure. that's this face-offs are built if to the structure of a presidency that is four years and tidal and these justices who have life tenure. reagan didn't have this confrontation, and here's why. because basically a supporter of lyndon johnson mistimed his exit and he ended up -- richard nixon even before getting elected had two open seats to fill and then there were two other seats. by the time reagan became
president previous republican justices had already begun to stock the judiciary in ways that were sympathetic to reagan. republicans have control. i'll say this again later. the supreme court. republican appointees have have controlled the supreme court since 1970s. that's now no longer the case because it's 4-4. the reason this night is so different from all others is we're facing an election in which the house, the senate, the presidency and the judiciary all in play. in january they could all be controlled by the republicans. they could all be controlled by the democrats or something in between. that hasn't happened because the senate has gone back and forth between the two parties, and the house of representatives and the presidency. the court has not swung since 1970s. that's partly why this is
particularly frought. yes, of course, when obama confronts these republican appoint -- court -- the roberts court whose majority is appointed by the folks of the party against which he ran, that's the drama of the obama care case, you see, and it's not so different than the old court and the new deal or roger tawny trying to invalidate everything that lincoln is up to, his habeus corpus policies, his draft policies, his slavery emancipation policies. it's very similar to the confrontation between john marshall and thomas jefferson. see? there's a pattern to all this. now, i projsed you since this is the new york historical society that we're not just going to do history. we're going to do new york. in each of these let me remind you of the new york angle. the first one george washington he is picking a new yorker john
jay educated just right down the road here at columbia. auto what makes two words thomas jefferson president and in 1800. you could say this act or you could say new york, aaron bird. that's the swing state. jefferson are running against each other in 1796. jefferson comes in second. that's because he gets burr to help him win new york. new york is a swing state. it's looming very, very large. that was burr against hamilton. here on this island whoever won the island would win the state, whoever won the state, would win the presidency. setting up this confrontation. now, i admit that the third face-off doesn't have as much of a compelling new york angle. lincoln and tawny and neither of them is quite a new yorker, but lincoln does rise to prominence and manages to win a convention.
not on the first ballot, of course. because he impresses people in this city. the great cooper union address is actually the key to lincoln's success now. the fourth one is one of the most new york stories of all. >> chief justice against franklin roosevelt. both new yorkers. both former governors of new york. both studied at columbia. you know, they're friendly, actually. one is a democrat. someone a republican where they refer to each other, governor. governor. they have some -- roberts is not the most extreme republican on that court, but there are some folks to his right nicknamed the four horsemen of the apocalypse who make life very difficult for franklin roosevelt, and it's a very new york story. now, of course, the current court, it's headed by a new yorker. born in new york state.
buffalo. learned his law here in this city, new york city. from henry friendly. the other members of the court, well, we've got ruth baiter ginsberg who is a brooklyn person, and todantonin scalia w queens. no staten island, i guess. um, i mentioned sam -- remember, also, mayor who learned his law in this city, and he is the guy on the hot seat right now. it's very much a new york story. what's going to decide? what's going to decide? who fills that slot on the supreme court? what's going to decide it is which manhattanite becomes president of the united states? whether it's donald j. trump or basically hillary clinton? it's very much a new york story.
the supreme court is very much on the ballot, and when you have judges, for example who oust a president of the united states, in effect, richard nixon, or pick a president of the united states, george w. bush, or basically tell us who can vote and who can't with id laws and all the rest, the court is influencing in important ways in close elections who is going to win and who is not. these things interact. very interesting interaction between the presidency and the court. that was my first big thing. my others are shorter. so now, here's another -- this is a long-term trend that we're witnessing. the rise of judicial power. i'm going to say more about this.
john jay quits the court. it's just a hassle. he is a first chief justice. he is actually offered the position. let me tell you what he says. he turns it down. the clock is winding down. adams has to pick someone because his term is about to end, and john marshall is the only guy in town, and the -- he says it has to be you because i know you'll accept. you know? because jay sat on the offer for a while, and by the time he said no, there weren't very many days left in the -- what precipitated mark rivers versus madison? the so-called midnight judges when john adams after losing tries to pack the juicery with even more federalist judges to make life difficult for thomas jefferson or to protect his side. again, political appointment and then they have live tenure thereafter. that was the back drop of
marbury versus madison. this race against the clock created by live tenure for the justices versus, you know, a very different tenure for president. here's -- when jay is offered the presidency -- the chief justiceship again, he declines it because the judiciary looks "the energy, weight, and dignity which are essential to its affording due support of the national government." basically i don't know how to make this thing work. it's broken. well, john marshall begins to see the possibilities of it, but you've heard of marbury versus madison. name me -- which among other things stands for the proposition that courts can invalidate acts of congress that they deem unconstitutional. okay. first, what was the great issue of liberty involved in marbury versus madison? correct. there was no great issue of liberties. its original versus appellate jurisdiction and who cares? you can see the different ways
how unimportant the court is initially. you know how many justices there were on the original supreme court? six. an even number. how odd. had you can a court ever operate with an even number? right now you see we have eight. well, they're not imaging a supreme court is going to be the be all and end all for things. by the way, have you been to the supreme court building? when was it built? it's a beautiful building. 1930s. where did they meet before that? in the basement of the senate. the great plan tore washington d.c., they didn't even -- the judiciary was an after thought. they created an executive mansion and a house of -- and acongress building, but nothing for the judiciary. it is third out of three. it's least and last. after marbury 1803, when is the next time the supreme court invalidates an act of congress? the answer is not until 1857.
dread scott. they made it all up in that case. holding unconstitutional the free -- in effect the missouri compromise which prohibits slavery north of a certain line. that was an astonisher in legal history. the very first congress prohibits slafry in the northwest territory. there's no problem. congress has tower positive prohibit slavery in the territory. the framers said congress would do it. the northwest ordinance was passed even before the constitution was ratified, and everyone knew that when the constitution went into effect, they -- in 1820 when they strike down -- when the missouri compromise is passed saying no slavery north of a certain line, every sickle cabinet officer signs off on it. no one says it's unconstitutional. by every single cabinet officer, that includes john c. calhoun from south carolina and yale, by the way, is apparently -- this is just a news flash -- going to keep calhoun as the name of one of our residential colleges. i was rooting for harriet tubman
college. no, just -- so judicial review is not that important early on. constitutional issues are really important. presidents are vetoing bills all the time on constitutional grounds. half of the presidential vetoes are constitutionally based. presidents are -- about 50 vetoes. half of them are constitutional vetoes, and they're vetoing bills that have upheld or would uphold like the constitutionality of the bank, which the court says is perfectly okay. andy jackson says, no, not good enough for me. i'm vetoing it. judicial review is not actually -- almost none of the important issues, constitutional issues in the early republic ever get to court or are resolved by court. can presidents -- how should they -- rounding errors in the
house of representatives. cabin officers at will. is the assumption of state debts by the federal government constitutional. lots and lots of early issues constitutionally arise, and the supreme court doesn't play a role in their resolution. they're resolved in the other branches. today, wow, the supreme court is the 800 pound gorilla. it not only ousts presidents and picks them, nixon and george w. bush, but twice in an average year it's invalidating an act of congress. not original versus appellate jurisdiction because who cares really about that? they're validating or threatening to invalidate big laws like obama care, laws about affirmative action, and religion and public life and immigration and so huge constitutional
questions that are being decided by campaign finance. really big ones. twice a year. what is up with that? how is it that we have this rise of judicial power over time the least dangerous branch of the founders becoming today's 800 pound gorilla. here are two factors that i would identify. there are many. we can talk about how the cou s courts -- there are many more judges today. they say friends come and go, but enemies accumulate. see, judges accumulate. you need more of them. you can't keep adding legislators. as dysfunctional as congress might be with 500, it would be probably worse with 5,000. okay? congress can't -- at the time of the founding, there are seven members of the house of representatives. about 105 members of the house
of representatives, and there are six justices. seven justices -- seven representatives for every judge. today there are 1,000 federal judges. 400 congress i mean. there are two federal judges for every congress person. that's a 15 fold change in the ratio. all my students, some of them are here today, they almost all of them want to be judicial law clerks to work with the judiciary rather than congress kbral clerks or something. the judiciary has a lot more because there are a lot more of them. the supreme court gets to decide which cases it's going to pick, which it wasn't able to do in john marshall's day. that gives it a certain power, agenda. there are many factors. we, the people, have increasingly punted issues to the court for resolution. we have adopted ai whole bunch of constitutional amendments over the years that presuppose enforcement, the bill of rights, the shth amendment, 15th amendment and others.
here are two -- one of which is -- has particularly a new york story. one divided government. in a world of divided government no matter what the court does, either the legislature is going to like it or the president is going to like it, and the court can't be overturned unless basically the legislature and the president all are on the same page to invalidate. the court has more running room. every single president since lyndon johnson except jimmy carter has faced an opposition house of representatives for at least part of their time in office has faced divided government which gives judiciary more ability to do what it wants. john marshall had less -- to
control not just the presidency but the house and senate, and he starts misbehaving, and he is going to get smakd down, and indeed, just google back one last moment to that first point about the faceoff. here's another way of thinking about the drama. if we pick we the people, the democrat new yorker hillary rodham clinton how will new yorker john roberts play that? now he is going to be basically a minority faction of the court. we haven't had very many examples of chief justices in the minority before, but one that we did was john marshall, and he managed to make it work. he is the last of the mohekans. the last of the federalists. they have a good base because
the unanimous -- they have all the seats lost. jefferson wins and wins again. these are basically jeffersonian appointees, and he has to work with them and make them work, and he manages to do that. sometimes he is kind of leading from behind. he has to create a coalition. he ascends, john marshall does, and one important constitutional case. 34 years on the bench. interesting fact. yeah. is roberts going to be able to do that if he finds himself in the minority because william rehnquist wasn't in the minority in general, and neither was warren burger and neither was -- a large democrat or liberal appointee. it will be a distinctive challenge.
pierce democrats and buchanan democrats on the court. contrary-wise, if donald j. trump becomes -- you have to understand that that is a real possibility. how were these new yorkers like ruth baiter ginsberg and the others going to react to that? that's a new york story here. what makes it nor commented is divided government because it enables the judiciary to be right-wing or left-wing and at least one of these two parties and one of the two branches in the divided government is going to be happy with that. if hillary clinton manages to win and win the senate and actually win the house, which could be in play, because donald trump could lose the house of representatives for his party, well, that's going to be a very different world for the likes of the republicans on the court.
that could happen. contrary-wise, it could be the case. -- are actually possibilities republicans controlling all the branches. that happened too in this election. that's what makes this election so interesting. one is rise of divided government has led to much more judicial power. maybe one or factor, and then i'll give you the new york angle. in after watergate and vietnam, you lost a lot of confidence in the other branches of government. they lied to you after watergate and vietnam, and you think courts are the saviors. the nixon -- they weren't part of the problem. they were part of the solution. now, i think they've lost some of that bush versus gore. i think lost them a lot of credibility. here's what's unique about
today's supreme court. there have been moments in the american history when the left hated the court. that would be 1930s. the old court and there have been moments in american history when the right hated the court. impeach early warren. we're living in a moment when the supreme court is being simultaneously attacked and by both left and right. that's a new. people are just pissed off with everything. t-ed off for my friends on c-span. that's -- there's just a lot of anger in general. that's a new phenomenon, okay? watergate and vietnam, though, have made the court less -- still held in higher regard than, say, the congress and divided government has given the court more power, and there are a lot more judges that they can order around and all these -- and lawyers become lawyers basically with the first start in the judiciary. here's one other thing that's
interesting, and this is going to lead into my next point, which is the rise of claims of judicial expertise. the judicialization. we're smart people. we actually have special expertise because we went to law school. this constitutional stuff is really complicated, so just to remind you -- john jay was very well-indicate well-educated, but want anot al other justices have gone to fancy schools and had fancy degrees. most of them weren't even judges before they were justices. john marshall wasn't a judge, and his replacement robert tawny wasn't a judge. his replacement, wade and fuller, weren't judges before they were justices. that takes us into the 20nd century. earl warren wasn't a judge before he was a justice. before him charles evans hughes, before he was an associate
justice, wasn't -- later became chief, wasn't a judge. neither was william rehnquist before he was an associate justice. yes, it actually is true that william howard taft was a judge before he was chief justice. he had some other really important jobs also. you are thinking president of the united states. i'm thinking professor at yale law school. whereas today except for the court of broub versus board of education, none of them, except one, was a federal judge, and the one none of you will even remember. not earl warren. not william douglas. not felix frankfurt or hugo black. sherman minton. anyone remember sherman minton? that was a court that had a lot of political experience. they were all sitting appellate judges. the judicialization of the -- they rise within the judiciary
itself. by going to a fancy law school often -- or college in new york or an ajoining state doing a clerkship becoming a baby judge and working your way up to the system and i told you that's john roberts who learned his law, learned how to be a judge by studying at the feet of the great henry friendly. gar and studied at the feet of the same great new york city judge. this is -- the rise of new york in some ways of the great universities. here's just one way to put it, and then i'm going to move to questions. if you think about the rise of claims and expertise and there's suspicion of that expertise all these experts on wall street did things to their own advantage and experts in the accounting industry and legal academics are just into their own power trip,
but new york plays a huge role here because within three of the six greatest law schools on the continent. just a cab or a commute ride away, yale and nyu and columbia. so these claims of expertise actually mean, for example, that the court today is no longer geographically balanced. it used to be when justices rode circuit there was the geographic balance. now you focus more on a demographic balance, how many women, how many jews, human catholics, how many blacks, how many asians and the like.
and that creates the possibility of a new new york-dominant court, for example, which you couldn't have had in the era of circuit writing. i think i've said enough just to get the conversation going. one thing that we haven't talked about. we've talked about how you get onto the court. we haven't talked about merit garland a lot. i'm happy to do that. we can also talk about off-ramps from the court, how the people leave the court and whether they're leaving the court in politicized ways or not. so there's lots of stuff to talk about, and i think it's now time to move to q and a. please come up to the microphones. i ask you to please actually ask one question and indeed ask a question. thank you.
[ applause ] >> professor, could you please comment on your opinion as to why chief justice roberts seemingly abandoned his republican brethren on obamacare? >> that's the perfect question. the question is about john roberts and obamacare. and that is his john marshall moment in which he rises above partisan politics. he might be right. he might be wrong. i think he's right. but even if you don't, here's what you can't say. even if you think he's wrong. he was not a partisan about it. he doesn't like this law, truth be told. his party doesn't like this law. and yet he sided with democrat appointees. good for him because washington, d.c. almost no one ever crosses party lines, and he did. good for him. and he did it not once but twice because there was the sibelius case in which he upheld obamacare against a constitutional challenge and then the king versus burwell decision in one in which he read the statute purposefully,
sensibly, generously, and didn't sort of try to undermine it with clever technical lawyering that was not faithful to the larger purposes of the law. and again, you might disagree with him. i think he was right. but even if you disagree with him, note he was not a partisan. by the way, i'm going to use this as a chance to say one of the things -- we talked about getting on the court. how did people get off the court? i said it's a political appointment process but there's life tenure after that. true enough. but for much of american history you had pols on the court, once and future politicians who didn't give up a political life when they donned the robes. why did john jay leave the court? to become governor of new york. his colleague cushing would have left the court had he been elected governor of
massachusetts. but he lost. i can give you some new york angles on all of this. charles evans hughes is a normer governor of new york. he's an associate justice. he leaves the court. it's a cushy gig. why does he leave it? to run for president of the united states. and he only loses california by 40,000 votes. and if he'd won california he'd have been president of the united states. and then secretary of state. because there's this connection you see between secretaries of state and presidents. and in american history many of your early presidents, half of the secretaries of state who served four-year terms become president and others came very close like henry clay and daniel webster. there's a new york angle with hughes, who then becomes chief justice later on. william o. douglas, who learned his law over there at columbia, wants to desperately be vice president of the united states. and he comes this close to being fdr's running mate in '44. he's fdr's poker buddy. and he had a more political
personality, frankly, than a judicial one. it would have been more suited to his temperament. critics would say he was a trump-like figure in various ways. and maybe perhaps not suited for that. he thought even after that about running for the presidency in his own right. that's another new york angle. in an earlier world. in our world it's preposterous what i'm about to say. but if an earlier world, because justices didn't give up political ambition when's they were on the court. solomon p. chase desperately wants to be president of the united states. he's linked as appointee and he's angling for it even as he's presiding over andrew johnson's impeachment trial. he's angling to basically replace johnson as the democratic nominee for the presidency in 1868. and almost all the people lincoln put on the court are angling for the presidency. and that's not true today. from an analytic point of view
if i'm saying who's the republicans' sanest choice? because paul ryan is a good-looking young guy, heartland of america. he says no. who's a good-looking sensible, really smart republican, heartland of america, former high school quarterback and, you know, out of central casting. his name is john roberts. you know? and he's a smarter and younger and better-looking version of john kasich. you see? you know, just saying. and of course, what i just said is preposterous because actually, he's not a pol. and good for him that he's not. i don't always agree with him, but chief justice roberts if you see this on c-span you have a big fan in yours truly. and you learned your law from the great henry friendly who
taught merrick garland and many others. and henry friendly believed the law is different than politics. so do you and so do i and we're lucky that you actually have that view. yes? >> i have a question. have any justices been impeached and how would we do it if we could? >> yes. >> i have a couple in mind. >> we do have -- well, remember in the 1960s, i told you the court was reviewed by the right, the john birch society and others. major bumper stickers, highways especially in the southland. >> i remember. >> impeach chief warren. you shouldn't admit this. >> i was in the south. >> you were an infant. so impeach earl warren. so yes, remember impeachment isn't limited to presidents or vice presidents or cabinet officers. john marshall is afraid that if
he actually orders thomas jefferson to appoint this guy named william marbury to this position, that's what marbury's all about. marbury comes to court saying i want you, the judges, to order james madison, who's jefferson's wing man, his secretary of state, i want you, john marshall, to order madison to give this guy a piece of paper saying he's a judge. because remember at the end of the administration, adams tried to pack the judiciary with all of these federalist types. marshall is afraid if he does that, he's going to be impeached and maybe convicted. that's actually only the second worst option -- scenario. the best scenario is he'll just be ignored and made a fool of. second best is he's going to be impeached. and i'll tell you why he thinks that. other at least possible scenario. remember, we know how history turned out.
he doesn't. jefferson was there in france. he says lots of things about the french revolution, the tree of liberty must be watered by the blood of tyrants. so maybe the guillotine. he doesn't know this guy's not going to be a hugo chavez type or castro type. jefferson says a lot of, you know, bat crazy stuff. c-span is here. so -- and why is he thinking that he might be -- and so he doesn't. he says jefferson did all those horrible things but too bad we don't have jurisdiction. >> what is the process -- >> the process is the same and i'll tell you who was impeached. a justice who sat on marbury versus madison court. man named chase. not solomon p. chase but samuel chase. it's the same as any other impeachment basically. a majority vote of the house and two-thirds of the senate. presidential impeachments are
different in that the chief justice presides. because otherwise who would preside? the vice president. and that's wrong because he would win the presidency upon conviction. sew has a conflict of interest. but for every other impeachment, it's just -- chief justice doesn't preside. the majority of the house, two-thirds of the senate. i myself have been involved in the impeachment as an adviser of a lower federal court judge. impeachment proceedings named porteus, who was basically a crook and convicted and ousted. but here's what chase did. chase was a justice who was a federalist and he was way partisan. and he threw the book at jeffersonians who spoke out against john adams. he threw the book at them in