Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  October 5, 2015 2:00pm-4:01pm EDT

2:00 pm
pro forma session at the conclusion of this session we will go back to our discussion on the supreme court. just be a couple of moments. live coverage on this monday here on c-span. [captioning made possible by the national captioning institute, inc., in cooperation with the united states house of representatives. any use of the closed-captioned coverage of the house proceedings for political or commercial purposes is expressly prohibited by the u.s. house of representatives.] the speaker: the house will be in order. the chair lays before the house a communication from the speaker. the clerk: the speaker's rooms, washington, d.c., october 5, 2015. i hereby appoint the honorable luke messer to act as speaker pro temporerary on this day. signed, john a. boehner, speaker of the house of representatives. the speaker pro tempore: the prayer will be offered by our chaplain, father conroy. chaplain conroy: let us pray. loving god, we give you thanks
2:01 pm
for giving us another day. while members come to the end of a long weekend of constituent visits, bless them and those with whom they consult, among those they represent, with wisdom, patience and generosity as they seek law and policy that benefits not only local interests but, where possible, the greater common good of our country. we again ask you to impel those who possess power here in the capitol to be mindful of those whom they represent, who possess little or no power. finally, bless those men and a women who work faithfully here at the capitol from staffers to maintenance, to security, all who serve to enable the engines of legislation to proceed without distraction of day to day concerns.
2:02 pm
may all that is done today be for your greater honor and glory, amen. the speaker pro tempore: the chair has examined the journal of the last day's proceedings and announces to the house his approval thereof. pursuant to clause 1 of rule 1 the journal stands approved. the chair will now lead the house in the pledge of allegiance. i invite others to join me. i pledge allegiance to the flag of the united states of america and to the republic for which it stands, one nation, under god, indivisible, with liberty and justice for all. the chair announces the speaker's appointment, pursuant to section 313 of the legislative branch appropriations act, 2001, 2 u.s.c. 1151 as amended by
2:03 pm
section 1601 of public law 111-68, and the order of the house of january 6, 2015, of the following member on the part of the house to the board of the trustees of the open world leadership center. the clerk: mr. price of north carolina. the speaker pro tempore: without objection, the house stands adjourned until noon tomorrow f is on his second trip to the supreme court. there is some reason to think that affirmative action will emerge from this
2:04 pm
damaged. maybe not destroyed but cut back on. host: what happened the first time? guest: the court kind of punted. it says there is a hybrid plan partly raised in neutral and partly raised conscious. they felt like they did a good enough job to look at whether or not it was constitutional. the court decides to hear it again, and that is an ominous sign for supporters of affirmative action. i do not think with the appeals court had done if it was adequate would return. host: good morning, rick. caller: the subject is like any there are fiveou states that control all of our media.
2:05 pm
there are two states on the east and that is where your five media outlets are headquartered. when you look at the daily activity today, you see this o t that the last five words have been started by texans. host: stick to the supreme court. caller: i am if you would let me finish because the supreme court is nothing but a slave to the south. a slaveslave for war, for the manipulation of oil, a slave for illegal immigration. when you get to new york and connecticut and this is where you always hang up on me to protect the billionaires in the juice from new york and connecticut. host: i want to ask you about the candidate backgrounds or i'm .orry the justice background
2:06 pm
in there been any movement the circles that what the supreme court to try to get that to extend beyond just the three institutions? guest: i think the justices themselves are a little weary of what a narrowband of american legal culture they represent. in the last go-round, it seemed one of the candidates who have ,ot to the university of texas and that seemed to be in her favor. the next time around, presidents will look broadly and not just -- go to you in the the few elite schools. it sends the wrong message. host: what is a school that has a chance the next time around? guest: there are lots of good law schools. columbia by the way barely
2:07 pm
squeaks in because every single one of the justices went to harvard or yell justice ginsburg followed her husband to new york city and ended up graduating columbia, but she has a serious also.re components there are a great public universities. berkeley, virginia, michigan. i am sure i am leaving things out and i do not want to offend anybody. there are many good law schools in the united states. host: andy is up next from maryland on the line for democrats. good morning. caller: good morning. i wanted to make two comments. i find it very funny that people complain about the supreme court often fall right with the definition of the supreme court that they are not elected, that they are interpreting the constitution, which is exactly what the cost to ship --what the constitution says they should do. the number of justices on the
2:08 pm
supreme court is not set on the constitution and that can change. i was wondering if you could talk about the process for that anything would be likely at all future. guest: that is a good question and it has bounced around a bit but ever since the are trying to pack the court, it seems to have fallen off the political agenda. i find a horribly to believe we will have anything but nine justices for a long time to come. host: how does the process work in a president or congress in the future wanted to do that? guest: it is set by congress. the president can proposing congress can pass a law grazing or decreasing the number of justices. it has been done quite a few times in our history. host: when you mentioned the pack the court effort by fdr, can you briefly touch on the history? guest: he was unhappy with some of the decisions the court was making on the new deal. he said controversial he that
2:09 pm
.he court was going to help out every time a justice reached a certain age, he would an additional justice on the court. therefore, we would have a cord of 13 or something like that. host: we are talking with adam liptak of the "new york times." taking your questions on the opening day of the new term of the supreme court.it is officially the 2016 term that starts today, right? guest: they call it the october term. host: arlington, virginia. ruth on the line for democrats, good morning. caller: thank you c-span. you have a wonderful program i do know how you sit and listen to some of the callers. i am glad you are discussing this and i am glad mr. liptak is giving some of the history of the supreme court because i do nothing people understand why it is not elected and the danger if
2:10 pm
it were elected by the people. the federalists call popular elections which they were concerned about allowing. i think you can see in the congress what you get sometimes when you have a popular election. even know it might disagree with some of the things that the supreme court has that, i think if the people would look at it with a narrow focus of the decisions, they can see with a result in the way they do. i appreciate your comments on that. guest: that is an excellent question. many state supreme court are elected. when political scientists look at those courts, they find that they are more politically accountable, but i am not sure you want little accountability. you see justices running for reelection more likely to impose that sentences. you see them more likely to vote along with their political
2:11 pm
point of view. you have more politically accountable dust with that is a good question about whether that is a good idea. host: going back to some of the cases going before the court this term. case about union fees for nonunion members. guest: it is a big case that could deal a blow to organized labor. the question in the case is whether people who our members of the public unions whether they can opt out a participating in the union. if the court says yes you can opt out and you don't have to be a member of the teachers union but you have to pay the equivalent of dues for collective bargaining. the court has said that is true. collective bargaining you have to pay for. but if the same union is engaged in political activities like
2:12 pm
putting up as to somds for that to support a candidate, then you don't have to pay for that. this challenge is that. it violates amendment rights to be paid to force for collective bargaining because it itself is political. collective bargaining involves things like seniority and class-size and public spending on education. those are political issues. do not make me pay for that. that is an interesting first amendment argument. should the court agree with it, it will mean a lot of people might stop paying the union due equivalents. it might spend with the economic power of unions and change the landscape organized labor. -- for organized labor.
2:13 pm
the court has twice indicated that it is very unhappy with this old arrangement they came up with in 1977. there are four or maybe five votes to overturn the arrangement. unions have some good reason to be nervous. host: if you have questions about this case or any cases that may come before the court this term, adam liptak is a great man to ask the questions to. we will go to our lines for republicans, where francis is waiting in tennessee. good morning. caller: good morning. the people clearly lead the constitution and wholesome power. article one says all legislative powers should be rested in congress. article six says the constitution laws and treaty, not court rulings or decisions, are the supreme law of the land.
2:14 pm
particular part of the constitution did marshall give himself and the court judicial review? guest: that is a smart question. the question of judicial review is now widely accepted throughout american society legal culture, but it was a creation of the marshall court. judicial review is not in the constitution in so many words. it is not very hard to find it implied that if the court does have the job of protecting the rights of americans, particularly in the bill of rights, it has to do that by striking down laws that it finds unconstitutional. the caller is right. no particular provision of the constitution calls for judicial review. host: marbury versus madison case, a key case in the concept. guest: i understand c-span will be focusing on that tonight. host: i appreciate that. will be focusing on that in our new series, a 12 part series focusing on the historic supreme
2:15 pm
decisions starting tonight at 9:00 p.m. on c-span. let us go to leanne in beverly hills, florida, on the line for democrats. caller: good morning. i call all of the district attorney and u.s. senate and u.s. congress. nobody has an answer. how do we remove the statute of limitations on rape and insist in this country and making a national? catch somebody and seven years later you catch them again, the other one is moved and we cannot secure them for it.it is hard to prosecute on these things. it would make it feel better having been raped myself and letting the guy go to court and not let him rape somebody else. guest: i am very sorry to hear about your experience. statute of limitations can be changed. it is controversial about whether they can revive a case that has already gone under the statute of limitations. host: covington, georgia, the
2:16 pm
line for democrats. good morning. caller: morning. i want to thank you for taking my call, c-span. i want to thank the person is speaking today. my comment is on the supreme court. the supreme court is the highest court in the land. i love their values. values are the interpretation of the constitution, but what i is the supreme court is they do not have extremists. in the country today, congress is doing an excellent job. but the congress has gone from republicans and democrats to now tea parties and other parties and the liberals and the conservatives. that will make an opportunity for there to be so much explanation that you are not getting your job done. the supreme court has stayed
2:17 pm
pure. i think it is good they have nine people that basically are doing what they are supposed to be doing, interpreting the constitution, which is a good thing. i believe anything that they say and i think it is great that they are taking selected cases. i have no problem with the supreme court. i know that they will evaluate it and see whether you or whoever is posing the question is disputing the laws of the land because the laws of the land is what will keep things at a normal pace and be for the good of the law. i thank you very much for taking my question. if you could give some comments on that, i would appreciate it. host: we show the martin quinn scores again of the various justices on the supreme court. that is the voting patterns from more conservative at the top to more liberal at the bottom.
2:18 pm
guest: first of all, it is nice to hear from a satisfied customer of these in court. --of the supreme court. of ideology one the court. the most conservative justice, justice clarence thomas is one of the most if not the most conservative justices to serve on the court since the 1930's. there is a good array of ideological and judicial philosophy on the court. host: back to some of the cases that may come up. a case about legislative redistricting. andt: back in the 1960's, the constitution said one person one vote meeting districts have to be the same size. you cannot have one with many people and another with 10 people and give them the same power.
2:19 pm
the court ever decided who we count in those districts. the recount every single person including children and unauthorized immigrants and people who cannot vote because of felony convictions or do we only count eligible voters? this makes a big difference in some border states with lots of immigrants. the court will decide whether we count every single person or only those people eligible to vote. the consequences of this are very important mostly for republicans. if the court were to say will only cap eligible voters, it would shift political power from areas mostly blue to rural areas mostly red. this is a case that has an interesting constitutional conceptual puzzle of who do you count and real consequences. concept, states or districts that have prisons in them become a key voting block if it is decided one way. currently, everybody
2:20 pm
counts everybody in the district, which means there are areas of upstate new york thinly populated but with a big prison that get all of a sudden a lot of voting power. that would change that. that might be an area where it would help democrats. all the other categories would help republicans. host: on the line for republicans, all good morning -- paul, good morning. caller: good morning and a pleasant day to you. i was calling you about the upcoming supreme court that is supposed to be taking hold. my question is, the law of the against been standing agesexuality for many since the start of this country,
2:21 pm
although it has always existed. it has been on the qt. all of a sudden, we have it completely legalized for marriage in all of the states and the unions. i just don't think that if you were to ask 10 people on any given street in any given state, i do not think you would find the six of them that are going to agree with what the supreme court voted. wonder if this new supreme because there is a lot of ramifications in that overturning, military and over wife. courts new supreme overturns the marriage law. guest: constitutional rights are not a popularity contest. we do not decide them by polling people on the street.
2:22 pm
when the court decided the bands bans on interracial marriage were unconstitutional, most of those a good idea. that is the same thing it said in june in deciding that is a nationwide constitutional right to same-sex marriage. i do not see that ruling being overturned. host: in terms of revisiting a doesg, generally how soon that happen when a court does decide to do so. -- so? guest: there are examples of a --term or twohere where a court decided they have done something wrong but this is not one of those cases. host: john, good morning. caller: good morning. i was wondering if the supreme court will eventually help kathleen came in pennsylvania.
2:23 pm
she was put in office with over 3 million votes to get to the bottom of the penn state situation. it seems like in pennsylvania they took the incident and made it a culture and we had an archdiocese trial run the same three weeks if you look it up with over 1500 charges. they took the incident and reversed in. joined forcesed with red to get her out. she has gotten into the old boy network in pennsylvania. will just wondering if it end up here eventually because she needs support out of our state. i will hang up and listen to your comments. host: the legal issue on the supreme court's radar? guest: i am not an expert on the ins and outs of the case.
2:24 pm
they only decide issues of federal law so it is conceivable that this case will turn entirely on issues of state law and therefore there would be no route to the supreme court. host: a comment on twitter. perhaps if congress could write laws more clearly, there would be less for judicial interpretation. guest: that is a nice point. host: and a follow-up. guest: that is one way to put it. the cases that reaches the supreme court are the hard cases. they are the cases were good judges in the court below them disagreed. the reason you have divided decisions is not only because there is a political component but because they are authentically hard legal questions. host: 10 or 15 minutes left with adam liptak. if you want to join in on the conversation and have a question about one of the cases before democrats,his term, 748-8002.ndependent
2:25 pm
noel in florida. caller: good morning. in a recent decision on same-sex marriage, two of the judges officiated at same-sex marriages. i understand they should recuse themselves if they have shown any indication of any bias in a decision that might be coming before the court. i wish you would comment on that please. thank you. guest: sure. i think that if a justice officiated in a jurisdiction where those perfectly lawful, that is no different from doing all kinds of things that are lawful in one part of the nation and unlawful in a different the nation. host: back to our preview of cases. a case the supreme court justice center last week to take up. guest: this is a case that
2:26 pm
arises out of terrible terror attacks, including one on the marine barracks in thlebanon in 1983. families of those victims sue and get an enormous judgment against iran. now they have a court judgment that they want to enforce. they take that judgment, and they are trying to get money held by iran's central bank to pay up. congress, thinking this is a great idea, passes a law making it easier for them to collect. the bank says wait a second. congress can pass general laws. it cannot pass a law that specifically is made to determine the outcome of a particular pending case. the question for the supreme court here is can congress pass it? is this such a law and can congress pass one or does not violate separation of hours when there is a pending case in
2:27 pm
congress passes a law that seems to be directed at the disposition of the particular case? host: how much is this case expected to be watched by the international community, perhaps more so than a generally watch the cases? international community watches a lot. it is funny because one justice just wrote a book about how the to become more involved in the world. there is a case about the with a company conspiracy in europe and asia. the very first case of the term arises from a train accident in austria this morning. you have a looking at events that take place abroad. host: how can they get involved in a train accident in austria? guest: a california woman bought a pass on the internet from a
2:28 pm
company in massachusetts. goese austria, gets hurt -- to austria and gets hurt. the question is is that enough to sue the austrian state railway company in the u.s.? host: steve is waiting on our line for republicans. good morning. caller: good morning. i am kind of tired of people comparing the mixed marriage situation with the gay marriage situation when it comes to supreme court rulings. then, thell, back mixed marriage ruling did not change the law that marriage is between a man and a woman.the latest ruling did change it . the other thing is, they are not supposed to make law. all they are supposed to do is rule that something is not right, which redirected to the
2:29 pm
legislature. there were laws, state laws, that stated what it was, marriage between a man and a woman. it reaffirmed a natural law that has been in existence for thousands of years. it was a huge mistake and justice roberts and others pointed out the problems they will have resulted from it. our verdict there will be tons of problems that will result from this ruling simply because i think they created law. they should have just said you will take a look at this instead of the way they did it. host: how much did that ruling on interracial marriage factor into the court arguments around the gay marriage case? figure strongly but so did other cases the court has decided about gay rights. it is hardly the first case to establish gay-rights. i am not sure i have a lot more to say except back when the interracial marriage case was being argued and decided, you heard many similar arguments
2:30 pm
that the very nature of marriage require people of the same race to get married to each other. this argument that there is something intrinsic to the nature of marriage was argued in both cases. host: let's go to another steve. this one on the line for democrats. good morning. caller: good morning. i have a question. one of the problems it seems that is not really on the surface is that there are only one or two law firms or lawyers that argues before the supreme court to bring a case to the court. doesn't this make it difficult for an average person or someone other than a vested interest with lots of money to pay these high-end lawyers to get their case heard by the court? guest: that is an excellent
2:31 pm
question. reuters did a study couple of months ago that looked at how the established supreme court really captured on the business. in business cases, that seems to give business groups a leg up because they get very good lawyers to bring cases to the court. at the same time, there are logical clinics at places like stanford and yale that balance this out a bit. in any case where the lower courts have divided on a significant legal issue, every good lawyers volunteer -- very good lawyers volunteer those thes for free because chance to argue before a supreme court is a prestigious thing for any lawyer. host: i want to ask you about several cases that can come before the court issue of the death penalty. guest: on the very last day of the term in a case about lethal injections, two members of the
2:32 pm
more or less announced they want to get out of the business of deciding death cases. they think it is almost certainly unconstitutional and they would like to hear in big major challenge. that has not arrived yet although i think people are afraid of something like that. prosecutorse about in a capital case that excludes all that jurors from a case or whether that amounts to is discrimination. on the death penalty case, who else might join them in allowing a case to be heard? you mentioned the two justices. who oppose the death penalty are hopefully might also pick up the votes of the other two liberals. then the question mark is justice anthony kennedy, who was in the middle.
2:33 pm
i do not know he is ready to go that far. host: marie is waiting in oregon on the line for independents. good morning. caller: hi. my question is, why don't we have a common court for the supreme court like the other caller said about being 9-0. if there is a common core and you never hear about it, we are all able to cannot take my life just like i cannot take your life. like't understand how anyone is talking about the constitution when the cost efficient did not say women had a right to vote. host: what is your question? is what isquestion the common core? the educational issue? caller: common core rights of
2:34 pm
everyone. guest: the constitution does try to set out those rights we all enjoy and it is the supreme court's job to try and enforce those. host: adam liptak is supreme court correspondent with the new york times. where will you be? guest: i will be in the courtroom. host: how many hours is that going to be? guest: they hear two hours of argument today and the same next week. some of those will be very interesting and others >> as the supreme court starts the new term, c-span givdebuts its new series. look at theer, we marbury versus madison case, delving into the heated political battles between outgoing president john
2:35 pm
patterns, the president thomas jefferson, and the newly appointed chief justice john marshall. roberts: marshall established the court as the arbiter of the constitution and that famous faces marbury versus madison. ginsburg: probably the most famous case this court has ever decided. >> during the discussion, yale reedchool professor akhil amar and author cliff sloan. reviewing the lives and times of the people who were the plaintiffs, lawyers, and justices in these cases. premieres tonight at nine a car p.m. eastern on c-span, c-span3, and c-span radio. for background, order your copy of "landmark cases" companion book. /landmarkcases. as a special addition to the
2:36 pm
series, we spoke with bob goodlatte about the court's major decisions and its relationship with congress. host: bob goodlatte, i want to start in our conversation in understanding the role of your committee and the supreme court. what is your responsibility? rep. goodlatte: the judiciary committee was established in 1813. just a couple years ago, we celebrated the 200th anniversary. it deals with a wide array of issues, but one of the things i love most is it deals with the u.s. constitution, the amendments to the constitution. any new amendments that are introduced are referred to the judiciary committee. in other areas, we are constantly trying to refer back to the constitution for guidance
2:37 pm
on what is appropriate legislation and what is not. when i became chairman of the committee, we had a rule in the house of representatives that required you introduced a bill, you had to cite constitutional authority for legislation. that continues an existing congress. -- that continues in the existing congress. when a member introduces a bill, they have to point to a section of the constitution that justifies that. of course, every member gets to look at it. the committee suggested to -- i suggested to leadership it would be good to read the constitution. we did that for the very first time in the beginning of the congress in 2011. we have done it twice more since then. very strong bipartisan support. dozens, over 100 members usually
2:38 pm
come down and read pieces of the constitution. i asked my staff when we started doing it to check and see when the last time the united states constitution was read on the floor of the house of representatives in its entirety by anybody. just by anyone. it turns out that it was 1800 and never. it had never been read before. we are trying to promote interest in the constitution. and we welcome c-span's effort to do that as well. host: in regard to how the constitution lays out responsibilities of the court, what is your understanding of what the framers had in mind for the judicial system, specifically the supreme court? rep. goodlatte: the framers had in mind that the supreme court would resolve specific disputes that the congress designated to them and the constitution designated
2:39 pm
to them. the original jurisdiction is set forth in article three. then anything else that congress might add or take away. one of the earliest decisions was marbury versus madison, which involved john marshall deciding a rather small case that involved a maryland federalist appointed in the closing days of the adams administration to a justice of the peace position. a lot of them were done just as adams was leaving office. and thomas jefferson was coming in. and the responsibility of getting the actual appointments delivered to the people so it was official they were a justice of the peace was running behind time. they did not get them all done. and so the outgoing secretary of state, who interestingly also happened to be john marshall,
2:40 pm
he said the new secretary of state will have to finish delivering them. the jefferson administration did not like these people getting these justice of the peace decisions and did not deliberate anymore after they took office. marbury sued james madison for compelling of the delivery of that appointment. that is what came to the supreme court. with the new chief justice to appointed by the previous administration to decide. he decided it in an interesting way that has had ramifications all through the last 200-plus years. they determined he was entitled to the appointment. that madison had an obligation to deliver it. but then he decided that the supreme court did not have
2:41 pm
jurisdiction over the case because the congress had -- the suit was based upon original jurisdiction, and congress had given them no authority to decide. so it is an interesting decision. it actually, in the small perspective, limited the court's power. they essentially said, you are entitled to this, but we are the -- not the ones to get it to you. he wound up not getting his justice of the peace appointment. many people have taken that as a key case for the u.s. supreme court being able to decide the ultimate constitutionality of any issue that comes before the court. i would argue that is not the case. i think that decision was based upon the supreme court determining what the powers were
2:42 pm
that congress had under the constitution and what the court had under the constitution in that narrow decision. it caused a furor at the time. jefferson was hugely critical of this. one of the issues was, should the chief justice have recused himself? he was a party to the underlying action that decided the case. he was secretary of state responsible for delivering these. today, the modern supreme court might well have that justice recuse himself from the case. but he decided the case, and it has stood for different things to different people down through the last 200 years. host: marbury is taught in virtually every high school civics book as a pivotal case for the court establishing judicial review. some of the historians we have been talking to suggest that further the next 50 years or so,
2:43 pm
the court did very little but began to assert itself more. what do you think of his role today in terms of judicial review? rep. goodlatte: i think the court has been mistakenly relying on marbury for something that goes beyond the actual decision made and gone too far in a number of decisions in regard to getting involved in constitutional decisions or other decisions that are not to be found in the constitution and yet they found something there, or not finding something that most people looking back suggest should have been there. -- would have found that it should have been there. one of the worst decisions the supreme court ever ruled upon was the well-known dred scott decision, where a slave in
2:44 pm
missouri moved to illinois. established his freedom in illinois and went back to missouri to sue for declaration that he was a united states citizen. the court found he was not a united states citizen. most people would truly scratch their head. it necessitated after the civil war having the 13th amendment to the constitution, making it clear that having been born in the united states, he was a united states citizen. the other issue was that they took a compromise legislation passed by the congress and signed into law by the president, the missouri compromise, and ruled it unconstitutional. how that changed the course of history is an interesting historic discussion. but the underlying decision about that was, in my opinion, very wrongheaded.
2:45 pm
that is an example of where the court, i think, stepped in where it should not have. and exceeded its authority under the law. host: can you take a line from that to some of the review of legislation that the court has taken upon itself today? that?e the antecedents of rep. goodlatte: i think you can look at several decisions. certainly, the marbury decision, and look at recent decisions that would, i think, not be found to be the correct position. i personally believe that the decision in roe versus wade is not founded in constitutional language. the court stepped in and interfered with the laws of 46 states in that case. that has caused a tremendous amount of difficulty and anguish over that period of time.
2:46 pm
i hope that someday, as people saw with dred scott, that the rights of unborn children are deserving of constitutional protection that can be found in the document. host: roe v. wade is the final of 12 cases we have selected. that 1973 decision. congress right now is tied up in knots over abortion and funding for planned parenthood. so it seems as though that 1973 decision settled nothing with regard to this. rep. goodlatte: it did. it certainly established, overturned the laws of a number of states. those states have been very busy over the years trying to figure out what the law means and passing new legislation, which has come back to the supreme court many times over 40 years. -- over the last, now, 30 -- over 40 years ago.
2:47 pm
that, i think, would be better left to the states determining in the first place. but that is the decision we are faced with now. and we legislate in the congress. if we pass a law, it can be challenged and taken to see if it meets the supreme court's standards or not. i frankly think this is an area where the supreme court has found something in the constitution that does not exist in the constitution and usurped the legislative powers of the state and congress. host: the supreme court generally has the last word in cases like this. when society continues to roil over topics like abortion, what redress is there to a supreme court decision? is it congressional legislation would be the only arbiter to
2:48 pm
change the law? rep. goodlatte: the supreme court renders a decision. and it is very interesting because technology has changed dramatically in 42 years. i think that has played a role in people's attitude about the issue changing. mothers and fathers have much more information about the baby, what stage of growth it is in the womb. the ability to keep children alive after they are born prematurely has changed dramatically since that time. the ability to know more about everything about a pregnancy has changed significantly. if you look at some of the technology people use in that time and look at what we use in other aspects of our life today, you would understand it has changed dramatically. that increased information has
2:49 pm
given more understanding of the life that more and more people want to see protected. we are faced with an old supreme court decision that inhibits that. but states have passed laws, and the congress has, too, and when we do that, they can be challenged. the other thing that can happen is simply overturning the law -- simply saying, saying, you know what, that is just an old perspective of what life means. so you can compare them to the plessy versus ferguson case. not one on your list, but one that very dramatically changed later on. plessy versus ferguson was a decision in the 1890's that said it was ok with the 14th
2:50 pm
amendment to the constitution to offer african-americans and other people of races other than the white race separate but equal facilities. in that case, it was, i think, accommodations on railroads. but it was applied to virtually every aspect of life, from schools to drinking fountains. it met the equal protection of the law as provided in the 14th amendment to the constitution, that it could be separate as long as it was equal. they were not equal, number one, and in and of itself, the "separate" part was not in the spirit of the 14th amendment. it took until brown versus board earlycation in the 1950's, and 9-0 decision, that
2:51 pm
said that is not what the 14th amendment said. that does not happen often. some people believe that when times change, it should happen more often. there is a doctrine, a principal, called stare decisis, that causes the court to base all of its decisions on prior precedent. if the precedent is built on a weak foundation, in my opinion, it should not stand. and so that is what the court struggles with when they have to deal with the fact that people's minds change, technology changes. what we know becomes more perfected and refined. host: plessy did not make the lists, painfully, because we could only do 12, but brown v. board did. i'm wondering, with the michael brown shooting, charleston shootings, the black lives
2:52 pm
matter movement, what do you think about how that has established race relations in society? rep. goodlatte: this is a long transition from the horrific start we got. the great people who wrote the constitution, many of them owned slaves at the time. they struggled with it, if you look at the debates and discussions. they struggled with it but they didn't resolve it. it has taken a number of different important events in our history to move forward on that, including the civil war, which involved this issue of slavery. there were other issues involved in the civil war, but there was no doubt slavery was a part as well. after the civil war, constitutional amendments were adopted to ensure certain
2:53 pm
rights. but you had a bad case like plessy versus ferguson, which said we do have the 14th you can dout everything separately over here, keep them segregated from other people over here. as long as it is equal. that is a very bad decision. we were making progress, but i view the case as a setback. then you move forward to brown versus board of education, which is a hugely important step in the right direction in finding that the 14th amendment does not mean separate but equal. but it largely leaves to the state and federal government to work through making sure that laws are enacted that respect the 14th amendment. you have the civil rights act of 1964. the voting rights act. this is where i think these issues need to be addressed by the people's elected representatives. the more that is done rather
2:54 pm
than relying on court cases, the more you will have a growing respect for the rule of law. the court should step in, as as they properly did in brown versus board, but they should step in only when there is a clear in pinch ngment on the constitution by federal government or state legislature that does not comply with the constitution. host: in the post-9/11 world, an area of particular interest for you is the war against terrorism. i want to get the case or two here that has antecedents in that. we are going to be looking at the japanese internment case in world war ii. kuromatsu, who is eventually
2:55 pm
medal of honor by the president and the conviction was overturned, he stayed an activist on this issue all the way until the end of his life at 86. he filed friend of the court briefs in the guantanamo bay cases. jose padilla case. i wonder what you think about the court's review of policy with regard to the war on terror and some of the antecedents to that. rep. goodlatte: this is an issue that is very important to respect the rights, again, under the bill of rights and the 14th amendment to the constitution. and we need to make sure that our laws are respectful of that. but this is also a place where there has been an evolution in thinking. the idea of interning people of one race because they may be
2:56 pm
somehow a threat to the security of the united states when we also had german-americans and italian americans and we do not intern them, was really an example more of racism than it was of a coherent military policy. either way, that policy was very flawed. when you look at some of the issues today with regard to foreign nationals who have committed terrorist acts or are a member of terrorist organizations, i think that gets a different treatment. i view, for example, the prisoners at guantanamo as being enemy combatants. we do not have a declaration of war like world war ii or a country to declare war against when you are talking about al qaeda, as we were in that case.
2:57 pm
and you could be with regard to other terrorist organizations today, like isis. these people are engaged in war against the united states. detaining them while there is an ongoing, coordinated effort to threaten the united states is, i think, a legitimate thing that the administration needed to -- did to detain them in guantanamo. there are questions to be resolved. basically, the way they are being resolved is one prisoner at a time. the population has been reduced by other countries' agreement to take some of them. some people being released for a variety of different reasons. but when you have an undeclared war on terrorism, what is -- when does the justification for holding somebody end? one way would be if people were
2:58 pm
of the opinion that there is no longer a threat from the organization where it was essentially military actors for. another way would be if the process had simply exhausted itself over a period of time. i believe there are certain actions taken by people who are a threat to the united states that simply cannot be handled as a normal criminal prosecution. a threat to the united states as a quasi-military terrorist organization, not a specific crime. -- not because they had committed a specific crime. you detain them like prisoners of war. the prisoners of war have not violated any american law. they have simply been engaged as enemy combatants for their
2:59 pm
country. these people were enemy combatants for a terrorist organization. that is the parallel. it is not like the case of taking law-abiding american citizens who are not involved in anything and saying you collectively could potentially be a threat to our security during the war with japan. therefore, we will take you from your homes and put you in a separate facility as a result of that. there is not, in my opinion, any comparison between guantanamo detainees and the japanese internments of world war ii. host: one of the things we are looking at in our series was world war i, the first amendment case. court historians look at that as a turning point for the evaluation of the first amendment and how broad our rights are. again, kind of thinking about
3:00 pm
the war on terror, the incitement for people to join terror organizations, do you see the first amendment right as appropriately guarded in society today? are they being threatened by people's concerns about the kinds of messages that might be expressed? rep. goodlatte: i think it is so amendment rights. -- so important we defend first amendment rights. our constitution and our freedoms do not guarantee people that they will not be insulted by somebody else. and i think that there are lots of things that people talk about in a free society that somebody else may be offended by. so there are limited areas for free speech. you cannot shout "fire" in a crowded theater. you cannot threaten someone verbally. verbal assault, if you will.
3:01 pm
there are other types of cases like that where freedom of speech is limited. child pornography would be another example of that. but i think, overall, our society is served. just recently, i wrote to 162 public universities around the country who had speech codes that simply say here is what you say, here is what you cannot say. there is an organization called fire that basically looks at every public university, private ones, too, and rates them based on whether they are promoting free speech. there has been too much effort to try to control people's attitudes and feelings and so on by telling them what they can and cannot say. that is very concerning with
3:02 pm
regard to promoting free speech under the first amendment of the constitution. and we have gotten some positive responses back from schools who have said -- and school systems around the country, that have said we are concerned about making sure free speech is to be protected and we are looking at our policies today to see if we can make changes to them. host: we only have five minutes left with you, and so many issues to talk about. i wanted to get one of the cases, youngstown, on the record. this congress has had some trouble with executive power. that case and the korean war was about truman's seizure of steel mills. the supreme court said, you have gone too far. what is the status of the separation of powers and the limits on executive power? representative goodlatte: the
3:03 pm
youngstown case was important because it narrowly ruled that the president says he's going to seize steel mills and have the government operate them. the steel mills challenged that and said, where in the laws of our country does the president have this authority? it is not to be found in the constitution and not to be found in any law passed by congress giving the president that authority. the president had taken the authority under what he claimed was executive powers and was simply turned back by the court in a very decisive and important decision. i would love to see the court step up more and make decisions like that when the congress or private sector challenges the power of the executive branch. we have a president today who came to the congress with a long list of things. every president does that. that they would like the congress to enact.
3:04 pm
but he did something different that i had never seen before. at the end, he said, and if you do not do it, i will. i was so disappointed when members of his own party gave him a standing ovation for saying "if you do not exercise your constitutional authority, i will exercise it for you." he does not have the authority to do that. so when we recently got a district court decision giving the congress standing when we challenge the president taking money to spend on an aspect of the affordable care act that the congress had not appropriated for that purpose, and the judge found the house of representatives had voted to take this up, she found we had standing to make the challenge. that is a very important decision. it will be going through the appeals process here in the coming months and perhaps years.
3:05 pm
but making that clear, that the congress has the article one power to write the laws also has the authority to challenge the executive branch in court when the president usurps that power, is an absolutely important one. that is what youngstown stood for with the private sector challenge. but i think the people of the country and our constitution is harmed when the congress passes a law, the president does something different, and congress says, the president has usurped powers under the constitution. the court should take those those cases and decide them.
3:06 pm
host: on dred scott, if you had to choose as an example of the court functioning well, what would you choose? representative goodlatte: something going on in the 1950's, but youngstown was very important in terms of determining that the president cannot exceed his powers under the constitution. just a short time thereafter, brown vs. board of education, which said that separate but equal was repugnant to the constitution. host: happily, they made it on to our short list of 12 landmark cases. thank you for your time in talking about the supreme court and its history. representative goodlatte: thank you.
3:07 pm
debuts its newan cases."landmark >> john marshall established that the court, as the interpreter of the constitution in the famous decision he wrote, madison -- announcer: joining the yale law professor. premierescases" tonight at 9:00 p.m. eastern on
3:08 pm
c-span, c-span3, and c-span radio. order your copy of the companion book at www.c-span.org /landmarkcases. >> this week, tony mauro. discusses cases featured in the series and also talks about the supreme court's new term.
3:09 pm
brian: tony mauro, when did you start covering the supreme court? tony: in 1979, which is actually longer ago than any of the court justices have set on the court. so i have -- sat on the court. so i have been there awhile. brian: why did you start? tony: i went to law school for a brilliant four week career and then i went into journalism and i was transferred to washington and my editor said if i could cover the new jersey supreme court, i could handle the u.s. supreme court. i have had it ever since, the best beat in town. brian: why? tony: because there is such for friday that we have to cover. it coule be a death penalty case one day, same-sex marriage, you know, some of the biggest issues facing the country. it is never boring.
3:10 pm
the other thing is, unlike the white house beat and the congressional beat, we are not really dealing with politicians in the same sense that they are politicians. the justices are not elected. they actually have very little interest, generally, in talking to the press. but they are trying to solve these problems and these disputes, and it is just an interesting, fascinating process. having to interview someone from -- and i like that better than having to interview someone from congress or covering the white house where there are 200 people writing the same story. so it has been challenging in that way. brian: so the court has been out since june or july? tony: end of june. brian: are you going to be back in the court? tony: i will. brian: what is the first thing that you are going to look for?
3:11 pm
tony: since we have not seen the justices all together in a long time, since the end of june, i will look over, sort of a health check, as you might call it, which sounds ghoulish, that it just checks on how they seem and if there are any bad feelings that you can see between them. the justices always say that they are collegial and friendly, even though some of the language gets very strong. so i will be looking out to see if there are any, you know, cold shoulders or tensions that you can see in the interactions between the justices. brian: any of them do anything this summer that caught your attention? tony: some of them travel overseas, which is not unusual. some of them gave talks to, you know, a range of audiences, law
3:12 pm
schools, and local civic events. i can't say there was anything really striking. justice ginsburg, i should say, attended an opera that has her as one of the characters. she didn't participate in it, but it is the scalia-ginsberg opera -- that is actually the title of it. it is an opera that looks at the odd friendship between scalia and ginsburg. they are opposites ideologically, but they are very good friends. brian: last week, the pope was in town and spoke to the congress. we have some video that shows out of the nine justices of the supreme court, four came. where were the other five? tony: several, we tracked them
3:13 pm
down, but several had out-of-town engagements that they could not break. scalia and thomas were pretty much unaccounted for, and you can only speculate. they are both catholics, but they are conservatives, and they might not have really enjoyed the pope's message or some of his message about immigration and other things. so maybe that's why they didn't come. many of the justices don't particularly enjoy those joint sessions of congress, especially when a state of the union address comes, because they feel like they are supposed to be neutral parties, so they might feel awkward clapping for whoever is speaking.
3:14 pm
scalia has said that, and alito said that you feel like a potted plant up there when you are sitting while everybody else is standing and clapping. the justices sit and they keep their hands quiet. so it is not their favorite venue, i would say. but i think, in particular, this pope's messages might have been something that some of the justices did want to talk about. brian: to talk about two things, there are things i want to talk about. one of the things is age. we have a list of the nine justices and how old they are right now. you can see on the screen that we start at the top with ginsburg, and we go down, alito is 65, sotomayor is 61, john roberts 60, and elena kagan is 55. what does that say to you in the history of covering the court? tony: well, the median age is
3:15 pm
younger than some of the justices' courts that i have covered before. you know, until 2010, justice stevens was on the court and he was 92. brian: and he is still alive? tony: he is still alive and i think he regrets having retired because he is still very, very active mentally and keeps opining about what the current court is doing even though he has left the court. but it does also tell me that -- and this is something i have been writing ever since i started covering the supreme court -- that the supreme court really should be a big issue in the presidential campaign. because now you have four justices in their upper 70's or 80's going into the next term of the president. for actuarial reasons, it seems possible, likely, perhaps, that
3:16 pm
at least one two justices will depart one way or another. the public really should be thinking about that when they decide who to vote for. brian: we have about 16 months or so until the next congress comes in and after we go through a presidential election and all that. if somebody were to leave the court today, what is your guess? would congress approve a supreme court justice before the election? tony: i suppose president obama would be able to get someone through. it might not be his first choice because i think it would have to be a very moderate or a middle of the road justice in order to get the votes he would need from the senate to confirm that person.
3:17 pm
but i think the later it gets, the more likely the senate republicans would just sit on the nomination and just ignore it until the next president comes in. but i think if it was now, it is still such a long time before the next president takes office, that i think that the public wouldn't much like to have an eight-justice court for more than one year. brian: the other category we talked about is religion, and you mentioned that some of the justices are catholic. this is an unusual looking court from a perspective in the fact that three on the screen are jewish and there are six catholics. what does that say? tony: it really is remarkable. it is so different. it used to be protestants and protestants and protestants. so generally speaking, there
3:18 pm
would be one jewish justice out of the nine, but that is just completely transformed. there are no protestants on the court anymore. and then there are three jewish justices. so, you know, i think the justices only say that they won't let their religious views interfere with their decision-making, and i think that is generally true. justice scalia once said that if he felt the death penalty -- that his religion would allow the death penalty to be legal, he would -- he would resign from the court. now, the pope, in fact, did speak out against the death penalty when he spoke to the congress and said that the death penalty should end, but that
3:19 pm
doesn't mean that justice scalia would believe that the pope is correct. so just don't know how he feels. but in general, i think the justices set their religious views aside in terms of constitutional right and wrong. brian: as you know, we started a series here -- start a series here called "landmark cases" tomorrow night. you have to tell a story about how they commissioned you to basically write about this stuff. we've got a book that folks can get that is on the screen right there called "landmark cases" by tony mauro. how did this come about? tony: i got a call a few months ago and i was told you were about to do a series of shows on
3:20 pm
landmark cases, and she said we have been using the book that i wrote years ago as the foundation or the informational source of a lot of the material we are going through now. i was told that they would pull out some chapters from my book and turn it into a new book, this book. so that's how it came about. we had to get rights from the original publisher, and then i updated each of the 12 cases that i had written about. the original book was called "illustrated great decisions of the supreme court." brian: how long was that? tony: i wrote about 85 cases throughout history, and the most recent edition was in 2005, so didn't include things like, you
3:21 pm
the same-sex marriage case. so it was a little dated. but the cases c-span picked with the constitutional law center. brian: let me show you a poll that we took. the question was, the percentage of the mass of american adults who are familiar with supreme court decisions. 67% of people were familiar with roe vs. wade, aranda versus vs. arizona, 27%,
3:22 pm
dred scott vs. sanford, 12%, and then it gets into king vs. burwell, 6%, and the same-sex marriage case, which was 5%, lautner vs. new york at 4%, and baker vs. carr, 3% know what that is. i will just start with the bottom one. what was baker vs. carr? tony: it is a little bit abstract but it basically has to do with districting and how the states carve their counties and areas for the purposes of election districts so that, you know, you have two districts with 100,000 voters lacking a
3:23 pm
state representative and the next district with roughly the same population and you would have to guarantee the same voting power, in essence. and what happened in the middle of the last century is there was a lot of migration, people moved from rural areas to urban areas and that resulted in a great disparity in populations between the districts. there was one los angeles district where a million people lived and they were electing one state senator, and there was a rural district in california that had about 40,000 people in it and they were also electing one state senator. and that has consequences because it meant that urban interests were not addressed, particularly well in state legislatures and rural interests prevailed a lot.
3:24 pm
so this turned out as a sort of simmering problem in the political system, and this case dealt with that. there was a case out of tennessee were a lot of this disparity was occurring, and the supreme court decided that, in fact, there should be a one person one vote concept. they didn't use that phrase, a later case used it, but people would have roughly the same voting power no matter where they lived. and earl warren, the chief justice then, said it was the most important decision he presided over. that is saying something since he was also wrote brown vs. board of education. brian: there are 12 different cases and the book and 12 different cases every week and of course it will be available in our archive. which justice since 1979 have
3:25 pm
you known the best? just by being there and being in the hallways and being at different events? tony: well, that is a tough one because, like i said, the justices don't really have much use -- we don't really want you to get close to the justices. some reporters have good relationships with justices, but i like to think that i shouldn't be making friends with people i cover. it is a little harder to be skeptical if you, you know, have dined with the justices or their friends. but every reporter does it differently. but anyway, i would say that the ones i've known the best are chief justice roberts because he argued before the supreme court for years, long before he became a chief justice, so we all knew
3:26 pm
him as john. he was a very accessible, friendly person, a brilliant advocate, probably the best oral advocate i have ever seen in my time. but then as soon as he became chief justice, we couldn't call him john anymore. we call him chief. we do get to break bread with him once in a while. he has lunch with the supreme court press corps every year in june. we always benefit from that even though it is off the record. brian: has he changed, though? tony: i think he has. for one thing, he is much less accessible to the press. he has become much more of a private individual and very guarded in the statements he makes and in the appearances he makes off the bench.
3:27 pm
i think he has a real feeling that he is the leader of this institution and he must not be seen as a public figure in any personal or celebrity kind of way. brian: let me show you a list of the justices and how many years they have been on the court. it starts with scalia who has been there 29 years and kennedy who has been there 20, and clarence thomas, 23, stephen breyer, 21, john roberts, 10, alito, nine, sonia sotomayor, five, etc. you have covered all of these folks and which one on the list do you know the least from a personal standpoint? tony: from a personal
3:28 pm
standpoint, i would say probably clarence thomas because he never gives interviews to the press. at least as far as i know. he, i mean literally, i could write a story saying he robbed a bank yesterday and i would ask for his comment and he would probably not comment. he just has no interest in responding or participating in news stories. so i really don't have any personal connection to him. although he is great as a public speaker when he does get out and talk to the law school audience or something like that. he really speaks from the heart and he bares his soul quite a bit. so we have learned a lot about him from those kinds of appearances, but nothing, nothing --
3:29 pm
brian: what happened to the media coverage, you write, who reads your stuff? tony: i write for the "national journal" and also for a subversion newsletter called "supreme court brief" that goes out to people who subscribe. so it goes out to an audience of lawyers, people who are -- lawyers seem to really be interested in the supreme court for obvious reasons. brian: you mean lawyers who don't even practice in front of the court? tony: lawyers are fascinated with the court and they want to know about the opinions that they write. they are very interesting people, and like i said, a lot of them just want to be above the fray and to want to be seen as public figures, but certainly that isn't the case with some of them.
3:30 pm
justice sotomayor is very popular on the lecture circuit and justice ginsburg has turned into a sort of celebrity herself, you know, the notorious rbg. people like her feistiness and still at it and not about to quit by any means. brian: the program on the series "landmark cases" is marbury vs. madison. i want to show you a video where they are talking about a letter from thomas jefferson. i want to get your quick -- tell us quickly about marbury vs. madison. >> a family tragedy brought together thomas jefferson and abigail adams in june 1804. abigail wrote to express her
3:31 pm
condolences on the death of jefferson's daughter. she wanted to remind jefferson that's -- that he had a good friendship with madison. he also spoke for the first time about the midnight appointments that had divided the pair. i can say that one act ever gave me personal displeasure. my most ardent political enemies and they laid me under the embarrassment of men whose views were to defeat mine. brian: first of all, what was the importance of that in history? tony: well, those judicial appointments that he was talking about were made by president adams just the day before president jefferson was going to
3:32 pm
come into office, and the commissions never got delivered properly. justice marshall, who was also the secretary of state at the time, oddly enough, somehow there was some mixup and they didn't get there. but anyway, one of the justices who didn't get his position sued and it was called marbury vs. madison. marbury was one of those judges. and the court said basically that he probably deserved some remedy, but the remedy that congress has provided for this goes beyond the power of congress, the authority of congress, so that the supreme court was going to strike down that law.
3:33 pm
this is something the court had never done before. you know, declaring an act of congress unconstitutional. chief justice marshall said very strenuously that the exclusive province of the judiciary to say what the law is, and that is basically the foundation of how the supreme court operates today and why it is so important and it is still in some ways very controversial. former governor of arkansas huckabee has said, who says the supreme court have the final word on things like same-sex marriage?
3:34 pm
where is is written? brian: if you go to the supreme court website, they are only going to meet in open fashion session for 39 days starting tomorrow, 39 out of 365. they're only going to hear three or four, not very many cases. why so few days? tony: because as they will tell you, the oral arguments and what goes on when they sit in open session is really a very small part of what they do. they spend a lot of their time, even in the summertime, reading briefs, and once the arguments occur, behind the scenes, somebody will be assigned to write the opinion and they will be back-and-forth. there will be to sense, there will be concurrences, and that is really the substance of what they do.
3:35 pm
they don't need to be on the bench to do that. now, as you and i have gone back along ways on this on the issue of cameras in the court, i think we would agree that even though the oral argument is a small part of what they do, it would be a window on to how the court operates, how the justices are thinking about these issues, and it would just be a tremendous educational benefit. you know, also something that i think is that the justices shouldn't be able to deny, they should be able to say no cameras. brian: the interesting thing, that was on the "stephen colbert show." i want to be careful because i don't have the exact quote but he was saying oral arguments are really only 5% in what goes on what the final decision will be. if it is only 5%, why are they so worried about cameras? tony: that is the flipside of
3:36 pm
the point is made. they are worried about several things, one is as i said before, they don't want to be viewed as celebrities, they don't want to be on the nightly news. brian: but they will go on "the stephen colbert show"? tony: yes, especially when they have a book to sell. but part of that is personal privacy. they don't want to be recognized in a grocery store. again, this is not something that they are entitled to, i think, they are not entitled to be that shy. they are in public office. they are working for the public, so they should be able to take some public, you know, notoriety. but also, justice breyer said this to colbert also, he said "we wear black robes for a reason." part of that is to show that
3:37 pm
they are neutral people, they are not personalities and they want to convey that message, and he thinks cameras would prevent that. brian: i want to show you the black robe of john marshall. the justice who has served the longest that is currently on the court is justice scalia, but i want to put on the screen the top of the list of the 15 a -- 15 longest serving justices in history. and william douglas still holds it at 36 years, john paul stevens could have stayed another two years and he would have been number one. hugo black at 34, john marshall harlan is down the list, william rehnquist at 33.7.
3:38 pm
we have of the rest on there, and john mclean is at 31 years, byron white, 30, and antonin scalia who is still on the court at 29 years. we did a poll and more than a majority say that they should not have an appointment for life. what do you think? tony: well, i agree that life tenure is awfully long. when the founders established life tenure, people didn't live as long, so life tenure might have have been 20 years, but now justices could be on there for 40 or more years. you sort of lose touch with a
3:39 pm
society if you are up there that long. so i think there is some merit to it. the problem, though, is the benefit of it is that the justices don't have to worry about politics. they also don't have to worry about their next job, so they don't have to please certain factions one way or another. they can decide things independently, and if they lose life tenure, that might be lost. brian: john marshall, who served 34 years, the second longest-serving justice, at his home in richmond, there is the black robe that you referred to earlier. let's watch a little bit of this explanation. >> he would have worn this early in his tenure as a supreme court chief justice. it is during that time period
3:40 pm
where he makes the sanction, the uniform, so to speak for the supreme court justices to wear black robes rather than the red robes that the english court would wear. prior, it was pretty much up to each individual justice what they wanted to wear. many members of the supreme court were wearing pretty much modified english court robes, many of which were red, and many were wearing modified english court wigs. justice marshall made it mandatory that the judges would all be wearing black robes. this is mainly to say that we are responsible for interpreting the constitution, this is not a show of power. brian: what do you think the black robes do to the people who sit in court like you will be doing tomorrow? tony: it is pretty imposing, i would say. there is something to say about
3:41 pm
wearing black robes. it is sober, it is neutral, and it kind of gives you the idea that these people are not in it just for their political -- for their own preferences. it does remind me of one of the funniest moments since i have been covering the court. one day the session was about to begin and chief justice rehnquist came out with the other justices, and he had a robe on, a black robe, but it had a four gold stripes on each sleeve. and we were all aghast, no one had ever seen a justice wear something other than a strictly black robe. and it was just kind of hilarious, it seemed a little
3:42 pm
bit showy, and we learned later that he -- chief justice rehnquist, he had been to a gilbert and sullivan play and he got the idea for the stripes from that. and he wore those until he died. but it was very much apart from the tradition of the court. brian: another case that the landmark series will cover is matt v. ohio, and i'm going to go to the last paragraph on this because there is plenty of time to go into the details on it, but you had this in your book. does she pronounce her name "dahlery"? tony: i think so. brian: she moved to new york where she was convicted in 1974 on charges of selling narcotics. she was sentenced to 20 years in prison, but her sentence was commuted.
3:43 pm
mapp died at the age of 91. who was she and what was the case? tony: she lived in cleveland, and she was just minding her own business in her apartment, apparently, and all of a sudden the police arrived and they wanted to search her apartment. they claimed that she had been involved in some kind of illegal gambling operation. then they kind of waved a search warrant at her. nobody knows if it was valid, the search was kind of extensive. they found some pornographic material, and so it turned out that she was convicted on obscenity charges and was sentenced to jail. but she claimed that this search
3:44 pm
violated the fourth amendment, which guarantees unreasonable searches and seizures by the government. the lower court, i believe, actually found that it was an illegal search, but they allowed this evidence to be used against her anyway. the supreme court said that is not the way to go because if the police, you know, violate the fourth amendment in a search of a private person's belongings, the police should be punished in a way. they should not be allowed to use the evidence that they find in an illegal search in prosecuting that person. so the evidence should be excluded from trial. that is why we call it the exclusionary rule. it has been a powerful tool for professionalizing police. it requires police to establish
3:45 pm
procedures for how they conduct searches. they have to get search warrants in order to not violate the fourth amendment. so she is viewed as the rosa parks of the fourth amendment. brian: and in your book, this was a 5-4 decision, and the supreme court chief justice wrote the deciding -- and in miranda versus arizona, you write about this. miranda himself was tried and convicted again, this time without using the confession against him. he was imprisoned until 1972 and went back to prison in 1975 after another run-in with the law.
3:46 pm
after released, he was murdered in a fight in phoenix at a bar and according to some report, he had several miranda cards that his police case had inspired when they found him dead. who is miranda and what is this case about? tony: ernesto miranda -- and this series looks at the people behind these cases and these grand pronouncements from the supreme court are based on real people who have a dispute with the government, often, and ernesto miranda was one of those people. he lived in phoenix, and he, too, was raided -- his apartment was raided by police and he was suspected in a rape and kidnapping, i think. he was taken to the police
3:47 pm
station, and he was grilled for two hours, and after that he confessed. he confessed to the crime. but nobody ever told him that under the constitution, under the fifth amendment, he didn't have to speak to the police. certainly not without having a lawyer by his side. and the supreme court, again, similar to the mapp case, they decided that this was really something that police should be required to do. they should be required to warn people that they have a right to remain silent, they have a right to a lawyer, and anything they say can be used against them. also, if they can't afford a lawyer, the government will provide them a lawyer. it was a very clear statement by
3:48 pm
the supreme court, and that is what was put on miranda cards. police would have to recite those precise words when they arrest someone and before they ask them questions. brian: 10:00 on monday morning, the court comes back for the first time since, you said, june? you are going to be in the court, and we asked in our poll what people think where the justices come from, what schools they go to, and whether or not it is too concentrated. in order to show how concentrated it is, on the screen are the law school that each of the nine justices went to. ginsburg, columbia, although she started at harvard. chief justice roberts, antonin scalia, stephen breyer, and elena kagan all harvard law school graduates and in clarence
3:49 pm
thomas, samuel alito, and sonia sotomayor are yale. even though ginsburg graduated from columbia, it is three schools, but really only two. what does it say, if anything? tony: it does speak to a certain -- that this is an elite group of justices and that their education, at least, is not very diverse or varied. it used to be justices had a varied background, some of them were cabinet officials, and some of them came from other law schools.
3:50 pm
we have a uniformity now that we haven't seen before. all of them except elena kagan had been judges before. brian: circuit court judges? tony: yes, circuit court judges before they came to the supreme court. a lot of people believe there should be a greater diversity in law schools and in backgrounds. we never had someone who was a criminal defense lawyer, well, not on the current court. even from different legal backgrounds. brian: here is another chart from the court as the nine justices come in tomorrow. this is somewhat diverse and shows you who appointed them. on the screen, antonin scalia and anthony kennedy, ronald reagan. clarence thomas, george herbert walker bush. ginsburg and breyer, bill clinton. as you know in history, the one who has got the most appointments is george
3:51 pm
washington and fdr, but what do you think of that spread? tony: when you look at it, it actually looks like a fairly diverse array, almost of what you could achieve if you had term limits on a staggered basis. each president would get to appoint two justices. that's pretty much what you have here. but it doesn't always work that way. jimmy carter had one term in office and he got no supreme court appointments. it is one of his biggest regrets because presidents know that appointing a supreme court justice casts their shadow ahead for decades. gerald ford, when he appointed justice stevens, that was probably his proudest achievement, and he even said so and he said that justice stevens
3:52 pm
carried on his legacy for decades. not that the justices will always vote in the way that the president who appointed him wishes that they would. but you know, they are still but, you know, they are still always identified as a clinton appointee or a reagan appointee, so it really means something to the president. brian: as we look at the "landmark cases" book that you wrote, it has in it another 12 cases that goes on for 12 weeks. here's another little vignette. famous case, dred scott. this is from the minnesota historical society. >> another thing that is pretty significant about this place
3:53 pm
here is that dred and harriet existed as enslaved people on land where slavery wasn't legally recognized. that was actually one of the pieces of information that they used as a basis for the court case when they sued for their freedom in st. louis. this is the space that we speak minimum wage was struck down
3:54 pm
3:55 pm
3:56 pm
because of the right that was given to his misses in the case. shank was one of those. there were three cases in the book. this was -- charles shank was a socialist and he was distributing pamphlets to urge people to write to congress to end the draft.
3:57 pm
i have forgotten the name of the law. it was prohibited communications . the supreme court upheld that law. >> in a 9-0 decision. >> on the wrong side of history. a roman philosopher says that in times of war, the laws fall silent. the idea that because of the needs for security and preparedness, constitutional rules filed by the wayside. >> corimatzo's daughter was on the program. who was he? >> a u.s. citizen born in
3:58 pm
oakland, california. because he was a japanese descent, he was included in this internment policy that was established at the beginning of world war ii. after pearl harbor, people were worried that japanese americans on the west coast would conspire with japanese forces to attack the united states. , most of of people them american citizens, were corralled into places away from the west coast. the next ordinary thing you cannot even imagine happening today. court upheld it. challenges to the policy and the supreme court upheld it and said because of the warm time exit -- wartime
3:59 pm
exit, -- opinion wasity of written by hugo black, a former member of the clue clucks -- clue clucks clan. wade,r one is roe versus which is the most recognized of all the cases. of the mant a minute who wrote roe versus wade. however, inery day, 1973, lyndon b. johnson died. and the abortion cases -- a few days later, the roof fell in. the record had been held.
4:00 pm
i want to recall officers in the court standing at their post, sorting mail and denying receptacles. i suspect the data i received about roe. lewis paul feels i should not subject myself to that stress. letters on the subject still come in. >> we have seen more of harry blackmun then we have ever before because he did all of those interviews. roe versus wade. , jane roe, she is still alive. >> her real name was normal

12 Views

info Stream Only

Uploaded by TV Archive on