Skip to main content

tv   QA Joan Buskupic  CSPAN  March 31, 2019 7:59pm-9:03pm EDT

7:59 pm
get to know the freshmen members of the wondered 16th congress, monday on washington journal. learn more but the most diverse of group of lawmakers in history. >> rock, i'm real, authentic. i will be a polished politician. >> on a small-town lawyer from lexington. >> i served in afghanistan. >> and mcdonald franchisee for 22 years. a fascination with this idea of finding answers to questions no one else could find. >> it's a new event for me. i've been a petition for my entire life. >> my dad is a lifelong republican who is never voted for democrat. >> watch "c-span's, washington journal," each monday morning. >> here is what is coming up tonight on c-span. at 8:00 p.m., supreme court reporter joan buskupic is the q&a yes.
8:00 pm
she is the author of a book about chief justice john roberts. by's questions is at 9:00 with theresa may from the british house of commons. it portion of today's washington journal, marking the 70th anniversary of nato. ♪ brian: joan buskupic, author of "the chief." with chief0 hours john roberts. seven different times and interviews, but off the record? joan: he let me put some things on the record to use in the book . most of it he kept off the record. brian, totructive,
8:01 pm
sit facing him as we are facing each other, over a long period of time. brian: what is the first thing you learned sitting across from him? joan: it reinforced the control i could feel. we both had things we wanted to know from each other. i was aware how much he was treating this process as, lawyers referred to it as the discovery process. he wanted to know who i would talk to and where i was going with this. i wanted to run everything by him. i wanted to let him know the topics i was taking on. i did not want to let him know exactly who i had spoken to. especially if those people were on background. myself write a note to at the top of my notebook that said, "remember, you want information from him, you don't want to give him information." sincealso aware, brian,
8:02 pm
you read my earlier bios, especially on justice antonin scalia, who had given me 12 on the record interviews. i used to think that if i sat across from the chief, if we had thought doubles over our head, he would say, i wish she would stop asking me these questions and mine would say, i wish he was justice scalia. justice scalia saw me for 12 on the record interviews. with the chief justice there was a negotiation over what i could and could not use. brian: what did you take away from your biography, your autobiography of sandra day o'connor? joan: she was fascinating. you are -- you might remember that the link came out in 2005 castor not so much as the first woman on the supreme court, but as a politician on the supreme court. during her tenure she was the only one elected as a legislator before she came to the bench. i felt like she learned to
8:03 pm
maneuver among the justices to coordinate to get those critical five votes. that is how i saw her. that was how i viewed sandra day o'connor. brian: we have read that she is not well? do you know anything new about her situation? joan: no. the family put out a letter in 2018 where she was acknowledging alzheimer's. that was going on for a while, unfortunately. brian: you did a book on antonin scalia a. what was your number one take away from him? joan: he completely owned who he was. he was proud of some of his outrageous statements. he felt that he was always right, never in doubt, as they say. toould sit with him for two three hours and i would be exhausted. i would usually be the one who said, we are done. he was so interactive. he loved talking about his
8:04 pm
childhood. that was a real contrast. loved to talk about where he came from, his people. the current chief justice was much more reluctant. brian: what would you take away from your sotomayor biography? that was more of a political history of how she got there. it was a tale of how someone came from the bronx, the projects makes it onto the short list for a supreme court position and beats out the others. point go from point a to b and all the things that could interfere along the way. in her case, it did not. i want to show you videotape of chief justice at cardigan mountain school on june 6, 2017 and get your reaction. [video clip] >> from time to time, in the years to come, i hope you will be treated unfairly so that you
8:05 pm
would come to know the value of justice. i hope that you would suffer betrayal, that will teach you the importance of loyalty. sorry to say, but i hope that you will be lonely from time to time so that you do not take friends for granted. , a get in,bad book from time so you would be conscious of the role of chance in life, and understand that your success is not completely deserved, and that the failure of others is not completely deserved others -- either. [end of video clip] joan: when his son was graduating from ninth grade. that was a very moving speech by the chief. he worked on it with his wife. it struck a lot of things that i that i thinkes resonate with parents and viewers. people were impressed. brian: how often did you interview jane?
8:06 pm
joan: jane spoke on the record. for all of those who spoke on the record i brought to tape recorders. she was very valuable to me tw c ice. twice, extensive interviews and washington, d.c. brian: what did you learn from her that you did not learn from him? joan: a lot more. she is the opposite in terms of personality. she has an out their sense of herself. she literature conversation with things like, that is who i am, that is who we are. justice john roberts does not want to tell you who he is. i have learned a lot about what she thought had gone on in his family when he was young. i would talk to cousins to try to verify things. she told me something really interesting about his time at harvard undergrad. he went to harvard undergrad and law school. he was very -- in his life.
8:07 pm
i had known that from talking to people in his life. i had known that he stuck to his studies and did not do many extracurricular things. jane said that maybe once or twice he went to boston. i thought that was revealing of his liking of small worlds. as you probably noticed, the indiana native that you are, he had gone to a boarding school in native indiana. it was a tightknit community. i felt like he continued to re-create the tightknit, loyal world. it was not unlike the school that he is speaking at for his son in the clip you just showed. got my attention. i want to read it to you and get your reaction. "an early promotional brochure described long beach, indiana as
8:08 pm
america's finest country and home community and playground. offering 20 reasons why better people live in long beach. thebrochure refer to glistening blue waters, the safe beaches, and a fashionable golf course. it also touted the good moral character of the residents. noting that long beach is a highly restrict did home community, all residents are caucasian gentiles." why is that in your book? joan: to give it history of the place he was from. that section goes on to say, even under motter census records, it -- modern census records, it is an overwhelmingly white area. i wanted to describe the beauty of this place. it was a vacation area. to play on your own knowledge of northern indiana, i remember the first time i went out to see his home. inlew into midway, which is
8:09 pm
chicago, but the southernmost airport. i drove towards his home. i went through gary, indiana and the still mill areas -- steel mill areas. this was a tough area to grow up and what the smells and industrial. when you get to long beach it is like an oasis. you want to pull out a picnic. in terms of the visual description from the passage you just read, it is lovely. explains longhat beach to visitors, it talks about the restrictions. by the time the roberts moved into that area, the supreme court already said that you cannot even enforce any restrictions. that was created as a special place. not just for communities, but for a certain kind of person. brian: how wealthy were his parents? joan: his father was an
8:10 pm
executive in the steel industry. they were well off enough to send him to a nice private school. to do well by the children, they were not millionaires of their era, like we have billionaires of our era, but they were comfortable. you know. they lived on the water. their house was back a little bit from the water, but they had a boat and they could vacation nicely. it is not like they travel to europe, the things you see children doing today. brian: one word i saw several times in your book was anger. are we not seeing the anger that has existed behind-the-scenes of the court? is that what you brought out in this book? joan: anger and distrust among the justices. it is a subtle theme. some people picked up on it, some have not. i had to figure out how much i wanted to stress that. they want to put on a very
8:11 pm
collegial front. i understand that. there,s a lot of tension not only between the right and the left, but within the right where john roberts is. on hiss a whole chapter flip to vote in the affordable care act case of 2012. that left a lot of distrust. through the years ahead -- through the years there have been other incidents. i think the chief wants to present a certain image. that is what made him reluctant to be a subject to this book. is the image he projects part of who he is? there are other parts and it is layered. there is anger behind-the-scenes in certain cases. not all the time. there are tensions. i believe that watching the court today that those continue. brian: he worked as a clerk for
8:12 pm
chief justice rehnquist. joan: william rehnquist was an associate justice. brian: i wanted to read, roberts said that clerks gave rehnquist a lone ranger dog because he staked out so many conservative positions by himself. what impact did working for rehnquist have on chief justice roberts? i think he learned from the soon-to-be chief, william rehnquist became chief in 1986 and liam roberts left in 1981 when he worked for ronald reagan. he worked with a smart man. william rehnquist was highly intelligent. he also knew how to plant the seeds for future rulings. and john roberts is constantly looking at how one ruling can lead to another, can lead to another, can lead to another. william wayne crist -- william
8:13 pm
innquist was excellent putting in legal theories that he could pick up on later, or maybe would entice a different court as a got more conservative. when john roberts took over the helm of the supreme court he had just a majority. that five justice majority has been further cemented on the right wing. was the last time a democrat was chief justice of the supreme court? joan: gosh, we would have to go back far. as a liberal we would think of earl warren. he was appointed by president eisenhower who was a republican. brian: and earl warren was a republican in california. joan: and he became so effective as a liberal icon. in that era, in that era, you could say there are no
8:14 pm
eisenhower judges. there are no truman judges. there are no roosevelt judges. you could say that in terms of trying to deny the politics. i don't think you could say that today. a president basically knows what he is getting. president eisenhower appointed william brennan who was also a liberal. chief justice earl warren as well. those two defied the politics of the president who appointed them. just as justice john paul stevens did for president gerald ford who appointed him. or more recently, david sluder who george h.w. bush put on. that was the way. a president of one party could end up with an appointee who did not adopt all his ideology or policies. now, you really don't have that. brian: these are the ages of all the justices. justice ginsburg, 86.
8:15 pm
justice roberts, 64. justice sotomayor, 64. clarence thomas, 70. its 51.uch brett kavanaugh is 54. brian: -- joan: you got it exactly right. it says the younger ones are the conservatives the two in their 80's are the liberals. depending on what happens to any 9 and president trump gets another appointee, the court could move further to the right. nation and for the for the supreme court of will becomes president in 2020 because of these ages. brian: how many years have you covered the court? since 1989.ime, when i started at the washington post as a supreme court reporter
8:16 pm
it was 1992. brian: your first appearance on this network. 1990. we are going to show a little bit of it right now. joan: this is my punishment for coming on. brian: no punishment. joan: all right. [video clip] >> the headline with justice scalia. what is he like? joan: very argumentative. very engaging. he will go after with -- a lawyer with real vigor. seems to be one of the more vocal ones. sometimes certain hypotheticals just to see. [end of video clip] brian: that was 29 years ago. my question to you is -- joan: the hair. brian: you are a lawyer.
8:17 pm
changed in your mind about the court in 29 years? joan: it has become so much more political. our times have become so much more obviously political. it is not just our current president, donald trump, who likes to talk about the as he can own his republican appointees and that someone should be criticized for being a democratic appointee. it is not just the fallout from the 2016 election that everyone feels one way or another. there has been a progression. 1990, thee, that is hair is ok, i thought it would be worse. ok. that is 1990. you know what else happened in 1990? right after that interview was when david sluder was nominated. i referred to him earlier in our conversation as someone who did not fulfill the hopes of conservatives affiliated with
8:18 pm
george h.w. bush. not gave the rallying cry, more sluder's on the part of conservatives. now presidents go through this extensive vetting process to make sure their appointees are going to approve their appointees of what they want in the court. definitely since clarence thomas in 1991, that has happened. while the rest of the country -- iecome more transparent am not convinced, despite the protests of the justices, that they are transparent about the work that they do. they can act in very political ways. brian: justice rehnquist is one of the few members of the court who approaches a dock it from a clearly conceived ideological perspective. is from linda greenhouse at
8:19 pm
the new york times, who we know now after she is no longer a reporter. why was she calling justice rehnquist ideological and not referring to this court on both sides is being ideological ? joan: -- ideological? joan: that quote, she was characterizing william rehnquist in the 1980's and what he had done. that reinforces what i said about how he came with an agenda. i would say, for better or for worse, samuel alito came with an agenda. i think he approaches a law with clear-cut ideas about how to read a statute, how to read a constitution, and he bases it on precedents to be sure. opposed to retired justice anthony kennedy, has a very consistent outlook that is
8:20 pm
ideological. for better or for worse. i am not using the word ideological as negative. if you were republican and had been either eisenhower, or name your president, and you had william brennan, then you had john paul stevens, than you had david souter, when you tighten things up if you were republicans and he saw what they did on the court? strains to are many republicanism. i would say that is what happened. rich h dubya bush pushed it back, george w. bush did that and certainly donald trump. george h w bush did that, george w. bush did that and certainly donald trump. they have very strong outside advisement will handle a lot of vetting. brett kavanaugh and neil gorsuch
8:21 pm
were heavily vetted. more so than john roberts. john roberts was vetted by the federalist society. and samuel alito. theand i both remember nomination of harriet miers. remember how that one went? brian: withdrawn. joan: she was one person who had not been vetted by the federalist society. robert bork, who also was a nominee at one point in his life, he went on the air after she was nominated and said something like she is a nightmare in every way. he meant it from the point of view, not that she was a woman, not that she had not had an extensive background in constitutional law, but they cannot trust her ideology. that is what is at stake. we know from the polls from 2016 that many people who voted for 2016 did it because scalia's seat was vacant and they put a
8:22 pm
lot of stock for a republican to name the individual. brian: how much anger was there behind-the-scenes over obamacare? -- over the obamacare decision? joan: a lot. brian: can you explain that. joan: i knew half the story at the time. i did not know the whole story. i knew how angry justice scalia was. i knew how angry some of the were.conservatives chief justice john roberts switched his vote twice and gave mixed signals. they felt betrayed. then he felt betrayed because some things were leaking out. the liberals were baffled. two of the liberal justices switch their votes on the medicaid part. so much of the reporting focused on the individual mandate in the affordable care act. it's that everybody had to buy insurance to keep the system afloat. there was another major provision in the law.
8:23 pm
a really important provision that expanded medicaid. coverage for poor people, so that more people would be covered. by all theen upheld lower courts that have booked at the affordable care act. got to the supreme court, chief justice john roberts voted to uphold it and then voted to strike it down. associate justices stephen breyer and elena kagan switched their votes to go with him on that. brian: explain what happened behind the scenes. an unusual three days of oral arguments in late march of 2012. they meet for the first time in their conference at friday.and vote it is 5-4 to strike down the individual mandate. chief justice roberts was leaving the way. they also vote on medicaid. that, which uphold is what they had done. they don't vote at all on congresses taxing power.
8:24 pm
i mention that because, in the end, the whole decision hinged on congresses taxing power. in 2012 they don't vote on that at all. it does not seem to matter. behind the scenes, chief justice roberts has a change of heart. he does not want to strike down the individual mandate and have the whole thing fall. brian: for those who have not paid close attention to when you say individual mandate. joan: that is a requirement where everybody has health insurance either through their employer on the marketplace exchanges. the way you cover everyone in america is to make sure people who were healthy were part of the system so that you do not have what was known then as the -- viral. people would get coverage or medical help only when they desperately needed it. the system was not being funded in an ongoing basis.
8:25 pm
to keep the system funded, everybody had to have insurance. the law was passed in 2010. by 2014, everybody had to have some sort of insurance. there were marketplaces set up to accommodate that. 2012 is when it came to the supreme court. brian: in your book i kept thinking, what in an incredible and political institution the court is. why is the court, after the congress voted, to extend , why are-- medicaid they going to change the decision of the congress? joan: they changed the decision -- brian: why? joan: the challengers said that, on the individual mandate requiring people to purchase insurance, they said that that violated the constitution's congress cause -- clause, which regulates business.
8:26 pm
congress could regulate activities that were already in place, but they could not regulate a non-activity. that is the failure to buy insurance. that was the argument on that. on medicaid, it was a core version -- coersion argument. the federal government funds most of this throughout the state. they already had restrictions on how states spend their medicaid dollars. congress in the a formal care act added a new one. the states were saying that violates congress is spending policy because it is two courses -- coersive. it says if you do not provide medicaid coverage, you lose all medicaid funding. that is trying to commandeer the states and that violates the call to titian. -- violates the constitution. brian: let me show you some video of the conference room. the fact, in your
8:27 pm
book, the chief justice with seven meetings -- joan: it was eight meetings. you are reading the earlier version. brian: he only took you through the conference room once. tell us why you think he took you through on that occasion. joan: ok. brian: and how important is that room? joan: it is a great room. this is really the room where it happens. can people hear me still? no clerks or secretary assistance of any kind are allowed in that room while the conference is going on. if any justice has forgotten his or her eyeglasses, you have to call for them and a little knock on the door comes and a junior justice opens the door. i love the look of that room. brian: is at his office at the end? it does not matter. looking at this room, do they
8:28 pm
ever sit around -- have you gotten a clear picture that they argue in that room? joan: yes. yes. some of the justices say, i have never heard a voice raised in anger. hen i talked to scalia, certainly pretrade tray to me plenty of angry conversations. angerfrom his end and that he felt he received on a couple of incidents. judges. they are basically mild-mannered people. the real anger plays out in the writing. the unwillingness, maybe the compromise on things. i definitely do not hear of repeated shouting matches of any kind. reporter, do you feel any reason that you cannot talk about off the record stuff if somebody has died, like
8:29 pm
justice scalia? there are so many negotiations that go on with the nine members of the supreme an ideal is really not situation. to tell you the truth, i am really wary when people want to go off the record or on background because i worry that they are aligned without owning something. i have to worry about that a lot. i am worried about casting -- people casting thing from their point of view. if i cannot test it out in the real world, because i cannot attach somebody's name to it, it becomes tricky. i have to take pieces. it is like a puzzle. i went back and read through all my on the record interviews with scalia. interviews i had done when i was doing the justice sotomayor your book. it was all during the period in question.
8:30 pm
that did not make a difference for me in those respective books suddenly made a difference from me here. there is a wonderful line where he is comparing william rehnquist to john roberts. and john roberts is new at the time. there was no reason for me to include it in my bio of scalia. it did not matter. but it mattered for this book. aboute scalia is talking john roberts personality, the way he works, and some of his concern about what others think. rehnquist me, bill had enough years in to toughen his hide before he became chief. that reminded me of the fact that, william rehnquist had been an associate justice for 14 years. i had not thought about the consequences for how easy it was, using the term easy
8:31 pm
relatively speaking compared to the current chief, for him to step into the leadership role. when john roberts became chief astice, he had only been justice on the lower court for two years. he was younger than all of them. he was only 50. the youngest chief justice and more than 200 years. so many people discounted that and did not pay attention to it because he exuded such confidence and such authority. that did not make things easy across the board in the beginning. so i threw it out. they have all been around. brian: i am going to read her background quickly so we can get to the questions. georgetown law. university of oklahoma. master's degree. he worked at the tulsa tribune. milwaukee journal. the washington post, 1992 to 2000. usa today. visiting professor of university
8:32 pm
of irvine. and currently at cnn. why are you in television instead of print? joan: that part you showed in 1990, maybe that launched me. brian: your debut. but i doork for tv, not consider myself in television. all those jobs, i have always covered the supreme court. it has been exciting to cover the supreme court for all these different news entities and media. at cnn my role is to offer analysis, and to try to go beyond the daily story, and to bring in a lot of the context of what we are talking about here. i love it. it is fun. i wanted to be like you. brian: the oldest of nine children? joan: yeah. brian: are they all still alive? joan: yes. two others are lawyers. two younger brothers. page 95, back to
8:33 pm
chief justice roberts. the involvement in the whitewater and monica lewinsky investigation in the clinton presidency in the 1990's would change his reputation? joan: he was known so differently for those of us who had covered him. starr, just so your viewers know, he plays a major role in john roberts wife. he is a person who hires and when he goes to work for ronald reagan. hiredarr is the one who ronald reagan on a recommendation from william rehnquist. ken starr is solicitor general when roberts is a deputy general. they lost interaction throughout. he was on the u.s. court of appeals for the d.c. circuit judge same way john roberts was. he had a reputation for being a
8:34 pm
conservative, a moderate conservative. as solicitor general, he did not have a far right reputation. he had urged the overturning of roe v. wade. he followed through with a conservative republican agenda. have a firebrand reputation. he easily could have been positioned for the supreme court. wade didnts on roe v. not help him. in her department rivalries also hurt him. when you see the monica linsky thing, and how that unfolded in the name -- in the late 1990's, it is different than the ken starr we had in the late 1990's. wouldn't you think? brian: let's go back to john roberts. this is from an interview, and 2016,oted, february 3,
8:35 pm
react to this when you see it. [video clip] >> do you remember your first oral argument? >> absolutely. a case called united states against halpert. i was very nervous. i was very nervous when i did my last oral argument as well. i think if you are a lawyer appearing before the supreme court and you are not nervous, you don't understand what is going on. [end of video clip] brian: you use the word nervous a lot in the book. joan: it is fascinating how well he was able to control his nerves. he said he gets physically sick when he had to appear in public and give speeches. i was shocked when i started learning what colleagues said about how his hands would shake before he would get up to do a lecture. when you just showed the speech and his son's prep school
8:36 pm
when susan interviewed him there, he is the picture of calm. he has such a measured tone. he exudes such authority and reasonableness. it is fair, but he had to work very hard at that. just to tiegument, into when you were talking about how wanda have been covering it, i have been covering it full-time when he made that first oral argument in 1989. i went back to listen to the transcript. even though there were times he had to answer i don't know, his voice did not pitch rate him. his voice never betrays him -- betray him. his voice never betrays him. wasn: 24 times he representing someone before the court. joan: he was in the solicitor 1989,l's office from late let me make sure i have my time right.
8:37 pm
he argues his first case in january of 1989. that is the one he was asked about in the c-span interview. ken starr become solicitor general under george h w bush in 1989. he comes on late 1989 as his deputy. brian: mr. chief justice and it pleases the court. you say he wrote that down. joan: the opening phrase that lawyers have to give is, mr. chief justice and may it please the court. i would write a at the top of my legal pad, remember you are there for information. he would write at the top of his this statement in case he froze. he never froze, but his preparation was so extensive and so paid off. he said that when he had trouble pronouncing someone's name,
8:38 pm
which many of us do, you don't, but the rest of us do, he would figure out a way to refer to the individual may be by his or her occupation rather than say the name and stumble over it. one method that he had that is different from the way other oral advocates prepare is, he would have these no cards he p and figure out his transitions. say a justice asked him about a due process question in the s.gument about excessive fine he would figure out how to pivot off of the due process question into another constitutional rationale. no matter what was asked, he wanted to get back to his main point, no matter what order. he was always working on sequences, but prepared for
8:39 pm
everything. brian: did you let him read the galleys? joan: no. brian: explain what it is. joan: it is an uncorrected version. especially if you are working on a book in the middle of a supreme court nomination. i was under a tough deadline in the middle of anthony kennedy's retirement and brett kavanaugh's nomination. both of which went so smoothly. the originalit manuscript in april of 2018. that was before anthony kennedy retired. i was constantly updating. i got in went chief justice roberts said there are no obama judges, there are no trump judges.
8:40 pm
i got that in but my editor said, this is not a newspaper. you cannot keep putting things in, this is a book, you have to cut it off. brian: do you believe that? that chief justice roberts comment about no obama judges, no whatever judges? joan: there is a version of that that is true and the version that is not true. the version that is true is the one that counters the notion that there is an automatic vote with the president. i believe that most judges are not there to promise a vote in way to president obama, president trump, whoever nominated it. -- nominated the individual. there is no way a president does not want his nominees to reflect what he stands for, as opposed to what his predecessor stood for. brian: you say chief justice roberts has had two attacks.
8:41 pm
an of them in maine, like epileptic fit. joan: i think seizure is the word. brian: what is an update on his condition? what was the first one? joan: the first one was in 1993 when he was on a golf course playing golf. that is the first one they no know hadned -- happened. brian: any impact on him? joan: people close to him say there have been no subsequent incidents since 2007. that was the one where he was in maine and fell on the pier. that is the one your viewers will remember. is 1993 video of chief justice roberts testifying before the congress. [video clip] the leadingrpus is
8:42 pm
area of what began as the protection of civil rights that has been stretched so far that in peds one enforcement without serving a valid purpose. this problem is not new. justice jackson recognize that the for the list habeas corpus petitions that were flooding the courts acted to overwhelm the occasional meritorious one, which became like the proverbial needle in the haystack. thatudge decried the fact conviction and sentencing in our system was not the end of a case, not even the beginning of the end, but simply the end of the beginning. paraphrasing winston churchill. [end of video clip] brian: he was deputy soliciting -- solicitor at the time. what are you seeing? --n: he was a farmer in 1983 former in 1993. someone who is very
8:43 pm
interested in tougher restrictions on crime. brian: august 23, 1993. joan: clinton would be in by then. brian: what did you see in him? joan: a very strong commitment to stricter enforcement of criminal laws. in that appearance he talks about stricter enforcement of miranda, as well as habeas corpus. he is a little bit of a take no prisoners approach. brian: given his background and how he got to be chief justice, and worked for republicans all his life, if you are on the court and you were on that side would you be irritated with him and what he did on the obamacare decision? what did you think of that? joan: what did i think of it? brian: yeah.
8:44 pm
what did you think of him coming up with this tax idea? joan: i approach it as a journalist. i think about, what his motivations and what was he trying to do and what were the consequences? what does it tell me about what he will be like now, going forward when there is so much tension between both sides and so many eyes are on the supreme court as they were in 2012? that is part of it. 2012,f what happened in so much of writing -- so much was writing on what happened in 2002. he would not pull the trigger to strike down something congress passed and a democratic president had chimed into law. i think he had many motivations there. onlynk they crystallized as he had to face it. because, clearly, when he first voted on this at the end of the
8:45 pm
oral argument week, he was ready to strike it down. he was not ready to strike down the whole thing, may be part, but as it emerged that he would not get the backing from other justices to do things he wanted to approach it, that is when he went to the taxing power. i should say, not to defend or reject anybody in the scenario, but the obama administration had argued vigorously for congress taxing power in this. justice scalia said that was not part of it. he characterized it as a flyby. he meant that that was part of the obama administration's argument on why the affordable care act should be upheld. the justices themselves never even voted on it in conference. that is what chief justice roberts clung to in the end. brian: page 276. the justices were accustomed to
8:46 pm
start differences among them, but sotomayor's writing was so personal that it put some of them on the defensive. i was able to find out a lot about what was going on between chief justice john roberts and justice sotomayor behind-the-scenes for the sotomayor book. i replay much of a here. there is a justice who really is the opposite in so many ways. her background is foreground. his background he wants to keep back there. she is so proud of her latina heritage. she wants to speak out. the section you are reading from is a 2014 dissent that she writes in an a formative action case where she talked about the need for affirmative action program needed in higher education. she refers to the putdowns that
8:47 pm
people of color still feel. she writes this very passionate dissent. that notput off by it only does he signed the majority by anthony kennedy ruling against this affirmative action policy in michigan, but he write separately, a separate concurrence to admonish just a essence, for, in airing the dirty laundry that went on behind the scenes. he strikes back at her for suggesting that maybe he does not get it, so to speak. brian: it seems to be essential to your book, this whole subject. out,justices always spoken have they always given
8:48 pm
interviews, and have a always done what ruth bader ginsburg did and take a very strong anti-trump position during the campaign? joan: no. brian: why are they doing it now? joan: i would say there is a variety of reasons. those who write books want attention for their books and their views. justice sotomayor is still promoting her book. during 2013 when her book came out, she gave lots of interviews. she spoke a lot. lot.she was on your air a that was part of her message of her identity and where she came from. she wanted to communicate that. that is one thing. justice stephen breyer wrote out when he was promoting his book. his books are more not about him as an individual as somebody who as with the story with just the sotomayor, it is about his approach with the constitution.
8:49 pm
his book is a counter to the idea of originalism that justice scalia so embodied. it is part of them trying to get their message out. ginsburgtake justice who i think was calling it as she saw it. but then you remember on the donald trump thing, she did walk it back. brian: did it matter at that time? joan: i don't know. i interviewed her when she said she thinks he is a figure. -- faker. brian: what was your reaction when she said that? joan: i went in there after two other reporters talked to her and she said she would move to new zealand if donald trump was elected. she made light of it. she is already getting criticism in the media. i went in to talk to her about john roberts.
8:50 pm
after we talked about john roberts for the book, i did it with my two taper quarters because she spoke on the record, i said, do you regret saying what you said about donald trump? she said, no. that is when she double down -- doubled down. good.ght, well, this is but then she did two days later. she realized she should not have gone that far and she made her regret public. brian: you said that they want to get their message out. it sounds self-serving, but i want to know what you think. the simplehey do thing of allowing us to see their oral arguments on television? joan: i know exactly what you are talking about. you know how many members of the regular public were able to get in that room to hear the
8:51 pm
affordable care act case? so few. we are talking a couple dozen because the seats were taken up. you can hardly get in there to see cases because the room only seats a couple hundred and there are reserved seats that people have to rotate in and out of. the lines are so long that we don't get to see the nation at work. as you know from the testimony we heard from justices elena they are samuel alito, not being as explicit as david souter said when he said over my dead body, but the message is the same. again marriage case. brian: in his written opinion, roberts went further comparing the ruling to the dred scott decision of 1857. later on you say, he was trying to be like stride in the instability of who includes
8:52 pm
homosexuality between bestie alley and provoked outrage. roberts did not want to be seen as critical when it came to gay people. the use of dred scott not to celebrate the constitution, it had nothing to do with it bring harsh. critics said that in resisting, roberts was setting himself up to be the roger tawney of his time. joan: here is what i think. this was an important moment for judge roberts. he used his only dissent from the bench ever to speak out against this. he wanted to make clear to everyone that he did not believe the constitution covered it. he felt that the five justices majority had very seriously crossed the line. he compares it to dred scott. brian: why is dred scott significant? joan: that is when then chief justice roger tawney said they
8:53 pm
could not be's -- slaves cannot be citizens or sue for their freedom. it is a decision that justice is invoked when they want to say this is the worst. that is what the chief justice did. i thought it was surprising that he invoked dred scott. maybe he went too far. critics compare him to roger tawney who went to far. there it was, as harsh as it comes. . -- the reason i make so much attention to it is because he made so much attention to it. richard, iquote guess he is retired now, he was a republican and a conservative. -- you said he called roberts you about the gay marriage issue heartless. have a cousin of his who
8:54 pm
happens to be gay. brian: john roberts has a cousin? joan: yes. she was great on this because she said, look, i can easily look past it because he was in the dissent. poserpros there -- judge wanted to call him heartless. not just struck at him having heart, or no heart, but on the it -- but on the intellectual underpinnings of it. he got a lot of criticism for that dissent. then: what do you think relationship is on the court between justice sotomayor and the chief justice now? it seems they have problems. joan: i think it is cordial enough. they come from completely different places. you can hear tension during oral arguments because she tends to be one of the ones who will sit
8:55 pm
back and wait her turn all the time. what she says is, i have questions to ask. sometimes she says she cannot quite here if someone else is speaking. the chief wants things to run really orderly. he was once an advocate. he does not like it when the lawyer is cut off as much as been happening these days. i don't think it is a terrible relationship. i think everyone up there recognizes that they are appointed for life. i think that there are more tensions among the conservatives these days them between the liberals and conservatives. the conservatives control -- howevererts controls -- john roberts of now that anthony kennedy is gone, he will determine the law of the land. the liberals want him to come over, inch over a little bit,
8:56 pm
but the conservatives are trying to hold him back where he always was. meanwhile you have this chief justice declaring, there is no judge, ag as an obama trump judge, a bush judge, he wants to project a bench that is not political when they all have various agendas. brian: let's go back to the 20 hours in his office of you talking with him. how did you change your opinion of him after 20 hours of personal -- and were you the only one in the room with him? joan: yes, yes, yes. it was reinforcing many things. it was interesting how much he -- i could still feel his very strong need to control. may beneed to counter what i was hearing from others, challenge and understanding i had after i talked to other judges.
8:57 pm
very much aware of the difficulty of trying to get beneath the surface. time helped. brian: have these -- has he seen the hardback version? joan: i sent the copy to one of his closest friends. it does not roll off the presses for another week. brian: no reaction from him? joan: no. brian: do you have another justice in mind to write another book on? joan: i am thinking of stepping back and looking more broadly at the court. i am kind of running out of one's who -- do you have one you want to know more about? brian: they are all interesting. are you running out of people who will let you in the door? joan: you know what they always start out saying, "you cannot come in the door." they all inevitably let me in.
8:58 pm
can i tell you my scalia story quickly. he would not let me in, iran into him at a wedding and he was like, you can talk to my friends but not me. i told him what i learned about his family. i said, you know the first time your father was mentioned in the new york times was when he got this great fellowship to study romance languages in florence and rome, i thought i was telling him something really interesting. he said, sure. but did you know that is where i was conceived, on that fellowship. i told him more about his family at the social event. he called me the next day and said, come see me. eventually, you go in with information and they want to tell you information. brian: the name of the book is "the chief." our guest, joan buskupic. thank you for joining us. brian: thank you, brian.
8:59 pm
>> all q&a programs are available on our website, or as a podcast that [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> next sunday on q&a, historian and authored douglas brinkley talks about his book, "american nor its shot." at 8:00 p.m. eastern and specific time on c-span. get to know the freshmen members of the 116th congress monday on washington journal. learn more about the worst -- on
9:00 pm
the diverse group of history. >> i will not be a polished politician. >> i am a small-town lawyer from lexington. >> i served in afghanistan. >> i had such a fascination with this idea of finding the answers to questions that nobody else could find. >> it is new for me. i have been a physician for my professional life. >> my dad is a lifelong republican who never voted for a republican but voted for me. watch c-span's washington journal live at 7:00 a.m. eastern on c-span. join the discussion. dem actioncalled new fund holds discussions about climate change and digital privacy. coverage begins monday at 1:00 p.m. eastern on c-span3. online at, and on the free c-span radio app. simply threeas
9:01 pm
giant networks. network 1979, a small with an unusual name rolled out a big idea. that viewers decide on their own what was important to them. the doors to washington policymaking for all to see. bringing you unfiltered shows from congress and beyond. this was true people power. in the 40 years since, the landscape has changed. there is no monolithic media. broadcast has given away. youtube stars are a thing. c-span's big idea is more relevant today than ever. it's nonpartisan coverage of washington is funded by your cable or satellite provider. on television and online, c-span is your unfiltered view of government. so you can make up your own mind. british prime minister
9:02 pm
theresa may takes questions from members of the house of commons. the 70tht, on anniversary of nato, a discussion on the future of that organization. at 11:00, q&a with author joan buskupic talking about her biography of chief justice john roberts. >> amid several calls for her resignation over her handling of brexit, british prime minister theresa may fielded questions from members on domestic and international issues touring her weekly question time session. she discussed the state of brexit, climate change in skin cancer awareness. this is about 45 minutes. 32 million people throughout the uk. >> order. i hope colleagues across the house will want to join me and extending a warm welcome today to the united states


info Stream Only

Uploaded by TV Archive on