Skip to main content

tv   Chief Justices and Presidents  CSPAN  June 4, 2016 9:00am-10:01am EDT

9:00 am
>> next on american history tv, yale university professor akhil reed amar discusses the complex relationship between supreme court justices and american presidents. he looks back at the first appointed chief justice, john jay. he argues that historically judges were geographically balanced and there has been a more recent orientation toward representation based on demographics and political affiliation. >> we are thrilled to welcome akhil reed amar, professor of law and political science at yale university. before joining your lawsuit -- yale law school, dr. amar clerked for then judge stephen breyer. he is also a recipient of yale's highest award for teaching excellence and is the author of several books including "the law of the land: a grand tour of our
9:01 am
constitutional republic." i think that akhil was voted the most popular professor at yale. at least he is my most popular professor. and you are all here because he is your most popular professor. before we invite our popular professor upon the stage, please turn off cell phones or electronic devices and join me in welcoming akhil reed amar. thank you. [applause] dr. amar: good evening. welcome. thank you so much for coming. this is the new york historical society. we're going to be talking about the supreme court and we will be talking about these supreme
9:02 am
court history, but also talking about the new york angle on all of this, because this is the new york historical society. and, yes, why is this night different from all others? well, here is one thought. it is really only this week -- it has become, i think, pretty apparent that the upcoming presidential election will be a subway series between -- [laughter] dr. amar: not just two new yorkers, but two people headquartered in men. -- headquartered in manhattan. shades of burr and hamilton. why am i mentioning a presidential election, given that this is a conversation about the supreme court?
9:03 am
well, there lies my first of five points. it's going to be about that -- the interesting relationship between presidents and justices. and not only -- and i will work my way up to the present moment -- not only an election between two new yorkers for the presidency, but the supreme court really is on the ballot and new york plays a role, because the nominee for the vacant spot is a man who learned his law, learned how to be a judge right here in new york city, a clerk of henry friendly. i will say more about that. the chief justice. we are going to be talking about the roberts court that will be going in one direction if mr. trump wins and another direction if mrs. clinton wins. chief justice john roberts, he, too, learned to be a judge in new york city.
9:04 am
he, too, was a clerk to henry friendly. the justice whose demise created , he vacancy, antonin scalia was a new yorker. elena kagan, sonia sotomayor, justice ginsburg. justice alito is not from that far away -- newark. i know it's on the other side of the bridge. it's very much a new york story we will be exploring together this evening. i want to begin with the relationship between presidents and justices and offer you an account of the structure of that relationship and in particular, there are two big points.
9:05 am
there is a tidal pattern to the american presidency. the ebbing and flowing of a tide. and this tidal pattern creates face-offs at moments in american history between presidents and justices. so, here is the structure, the situation of the constitution. our justices are chosen politically. justices do not pick their successors quite. it's not a self-perpetuating meritocracy the way that yale law school will pick it s successors. the way the cardinals pick the pope and the pope names cardinals and the cardinals pick the pope and this self-perpetuating way -- no, our constitution provides for political choice to be made
9:06 am
whenever there is to be a replenishment of the judiciary. both supreme court and the lower federal court. so, the process of selection is by design political. it is on the ballot when you vote or the presidency and the senate. that is not a bug. that is a feature of our system. so, it is the political selection and then judicial independence kicks in and then there is life tenure -- tenure for good behavior. that creates an interesting dynamic. justices in the modern era stay on much longer than presidents, and presidents now our term limited in a way they weren't at the founding -- actually, some of the justicerotated off very quickly. i'm going to tell you a little
9:07 am
bit about john jay and how he could not wait to get off the court. the tenure of justices was very short and presidents could, in theory, be reelected in perpetuity. the way governors were reelected. at the time the constitution was adopted, the governor left only to become vice president, which he thought was "a respectable retirement." and he died in office. the presidency could last a long time. the judges rotated off for reasons we won't get into. but over the course of history, chief justices tended to stay a good long time. presidents have come and gone. we have basically 44 presidents in american history. you can say 43 because we are counting grover cleveland twice.
9:08 am
17 chief justices. way fewer chief justices then u.s. presidents. here is the tidal pattern and the face-off. the way america's presidency has tended to operate, if a coalition emerges, manages to capture the presidency wants, very often it comes up with a formula that enables that party, that vision to capture the presidency again and again and again until some exogenous shock, some big change occurs and the tide shifts. there are only a few tide turning presidents in american history. by tide turning, here is what i mean. someone who, when they are rising to power are really
9:09 am
the other -- a different point of view prevails. they manage against the tide to win, to win again, reelection, handoff power to their hand-picked wing man -- their apostolic successor -- and in the next period, even when they were rising to power, it was the other faction, another vision of america that was ascendant, for the next period that wins for more than it loses until the tide turns again. that is the definition of a tide turning president. here they are. they are in effect what a political scientist would say are the rushmore presidents. i'm giving -- i wish it were my own theory. it's not quite. steve, my great political science colleague at yale , developed this idea.
9:10 am
i have a few small variations, but this is his model. george washington, of course. when he is growing up, there's a very different regime in place. george iii. washington manages obviously to he wins reelection and he hands off power in effect to his political ally john adams. that dynasty, the washington federalist dynasty, does not last very long because john adams signs his name to extremely repressive laws. the alien sedition acts. that generates a massive backlash and thomas jefferson is the next tide turning president. very early on. he is running against a federalist regime. a very different sort of platform and political formula for success.
9:11 am
he is getting votes for other folks and he manages to win. to win reelection and to handoff power to his wing man, his secretary of state -- wing man or wing women -- just remember that, and matheson is going to win and win reelection and his secretary is going to win and win reelection and that party will become -- jefferson's party, basically the jacksonian party, the dominant political party in antebellum america -- they do not win every time, but they win way, way, way more than they lose. because people remember the alien and sedition acts, but the federalists never appear again, at least not on the federal stage. washington, jefferson. what happens to that party? they basically commit political suicide when the next president, when this unknown fella named abraham lincoln rises to power. instead of saying basically the political wind is still at our back, the tide is still with us,
9:12 am
we can outlast this guy, we are going to wait him out. we will say no to everything he proposes and he will be a failed reformist president, this talk, -- this tall, skinny constitutional lawyer from illinois. they are not smart enough to do that. they do not pull a mitch mcconnell. they walk away from a game they are winning. this was not a smart strategy. this unilateral secession was unconstitutional. it will mean lincoln achieves a certain greatness in resisting this and he wins and he wins reelection and it was a very close thing and in effect hands off power to his wing man, ulysses s. grant to rid we skip -- grants. we sort of skip over andrew johnson. that party is the dominant political party for a long time because the democrats committed political suicide with slavery, secession, and not trying to
9:13 am
accept the verdict of the civil war. they prevail all the way until another cataclysmic event, the great depression. their party gets the blame for it, herbert hoover. the next tide turning president is franklin roosevelt. no democrat wins the majority. woodrow wilson, grover cleveland. franklin, the great depression, franklin roosevelt, the next tide turning president. he wins again and again and again, hands off power to his wing man harry truman. and that was the dominant coalition until vietnam and just the chaos of the 1960's sort of tears apart that coalition.
9:14 am
it becomes the great society, late 1960's, and really ronald reagan eventually is the next genuinely tide turning president. won reelection, won a third term called h.w. he can't run for a third term. he is term limited. until now we have been living basically in the era of reagan. those are the tide turning presidents. washington, jefferson, lincoln, fdr and reagan. and if -- the choice that is before us, my fellow citizens -- in 2016, if barack obama's secretary of state, his wing woman were to win, we would say the tide has again turns.
9:15 am
he won, won reelection, handed off power. if the democrats -- if they become basically the dominant presidential party at least, then -- ok, now. the structure, the rhythm of the presidency, and if you are a democrat, i am going to bum you out. since -- just remember the democrats are overwhelmingly the dominant political party and the civil war looms so large in our memory that since lincoln there are only two democrats that have won 2 popular votes for the presidency. franklin roosevelt and barack obama. that's it. wow, ooh. not jack kennedy, not harry truman, not bill clinton, none of them. ok?
9:16 am
obama is not as bad as we thought. that's actually pretty impressive. but the democrats have won popular votes -- not always majorities -- at least five of the last six presidential elections. if they prevail again and go forward, and the republicans do not rethink their formula, then they are going to be the minority for a while. ok? that is the present. -- that is the presidency. how does that interact with the court, whose justices that are picked politically but have life tenure? do not have to leave if they do not want to. well, there are special moments when new, rising presidents confront the ghost of administrations past in the form of these hold over justices that have been appointed by the other
9:17 am
party, the party you ran against, you know? presidents are change agents. they are promising a new thing. the few that succeed -- the jeffersons, the lincolns, the fdr's, the obamas are going to confront a judiciary that is largely in the hands of the regime they ran against. that is the drama of these great moments. that is the tidal pattern and face-off. that is thomas jefferson facing john marshall, a federalist, who is basically in the washington-adams camp and there is a confrontation and we basically call that marbury versus madison. the real drama is not marshal invalidating -- let me -- i should have started with washington, of course. my apologies. at there is not so much of a confrontation here. washington picks john jay. he is washington's guy.
9:18 am
he does not inherit british judges. they were tossed out in the american revolution but just so you know, in 11 of 13 colonies, the judge of the colonies sided with george iii against george washington. article iii is the third for a -- is third out of for a reason. threeseveral reasons. there is the least text associated with it. it is third out of 3 -- politicians are supposed to pick judges. judges are not supposed to pick presidents. that is why bush versus gore is a disgrace. and the reason that judges were third out of three, they are not the champions. there is not this face-off initially with washington because he is picking john jay. with jefferson against john marshall, there is this confrontation and it is heightened because they are
9:19 am
second cousins, they do not like each other. and note that john marshall has to swear in jefferson just as roger tawney is going to be swearing in abraham lincoln, and you remember the slightly flubbed swearing in when obama was sworn in by john roberts? it was a slightly tense moment. i'm getting ahead of the story a little bit. john marshall invalidating an act of congress -- the real drama is whether it is john marshall versus thomas jefferson. john marshall's opinion -- he goes on and on about law in the jefferson administration in the same way that today's court is being invited to say, well, the obama administration is lawless on immigration, lawless on obamacare, not just the law, but the implementation of the law, and the obama administration is lawless on carbon rules and the
9:20 am
epa. this is nothing new. this is a feature of the distinct structural power of a presidency that is a four-year term with this tidal feature and justices who have life tenure. marbury is a drama. fast-forward -- roger tawney. abraham lincoln becomes president by running against roger tawney, by telling everyone who will listen how preposterous dread scott is. the young lawyer from illinois says -- i love this phrase -- i am an astonisher in political history. the tension when lincoln confronts tawney, who wants to invalidate everything lincoln is doing and to declare everything the obama administration -- i'm sorry, the lincoln administration does as unconstitutional.
9:21 am
he wants a draft. an individual mandate, if you will. that is what it is. it's a conscription law. does this as a tax so you can buy your way out of it, just like the individual mandate. he is afraid tawney will invalidate this whole thing. when tawney dies, they find in his desk -- the case never materializes -- they find in his desk a complete draft opinion. a draft draft opinion, if you will, holding conscription unconstitutional. the case had not reached the supreme court, but tawney is ready. he has it in his top drawer. lincoln's emancipation proclamation, if you read it, it has all of the poetry of a bill of lading. [laughter] dr. amar: it doesn't soar like the gettysburg address. and it does not free everyone. only some people in some jurisdictions.
9:22 am
why? he is a lawyer. he tries to bulletproof it. he knows that if you give tawney that much, he will hold unconstitutional. people appointed by franklin pierce, may he rot in hell -- this is a c-span event, so i paused a little bit, but i think i can get away with that one. and james buchanan. and that is the court that lincoln confronts because justices are ghosts of the past, and lincoln is running against all of these presidents, against the tide. ok? and that's -- some of you may from your history books. i will not say you remember it from your childhood. i will not insult to this way. the new deal? the new deal against the old court. franklin roosevelt confronts all of these republican justices, and in his first term he does not have a single appointment. so nine appointed by an earlier , regime, threatening to invalidate every part of his program, the national industrial recovery, after the agricultural
9:23 am
administration act and obamacare -- i mean -- and his social security structure -- these face-offs are built into the structure of a presidency that is four years and tidal and these justices that have life tenure. now -- reagan did not really have this confrontation. here is why. because earl warren, who was basically a supporter of lyndon johnson mistimed his exit and ended up doing things in a way so that richard nixon, even before getting elected, had two open seats to fill. by the time reagan became president, previous republican justices had begin to start the
9:24 am
-- stock the judiciary in ways that were sympathetic to reagan. republicans have controlled -- i will say this again later -- republican appointees have controlled the supreme court since 1970. that is now no longer the case because the court is 4-4. the reason that this night is so different from all others is we are facing an election in which the house, the senate, the presidency, and the judiciary are all in play. in january, they can all be controlled by the republicans or they can all be controlled by the democrats or something in between. that has not happened in the longest time. the senate has gone back-and-forth the 22 parties -- the two parties, the house, the presidency. but the court has not swung since 1970. that is part of the reason why
9:25 am
this is particularly frothy. but yes, when obama confronts the roberts court, whose majority was appointed by the party against which he ran, that is the drama of the obamacare case. it is not so different from the old court and the new deal or roger tawney trying to invalidate everything lincoln is up to -- his habeas corpus policies, his draft policies, his slavery emancipation policies. it's very similar to the confrontation between john marshall and thomas jefferson. there is a pattern to all of this. i promise you since this is the new york historical society, we are not just going to do history. we are going to do new york. let me remind you of the new york angle. in that first one, george washington, he is picking a new
9:26 am
yorker, john jay, educated just down the road here, to be his supreme court justice. an obvious new york angle in that one. what makes thomas jefferson president in 1800? you could say the sedition act. or you could say new york. ehrenberg. burr.on swing state. adams and jefferson running against each other and jefferson comes second in that one and they do the rematch in 1800 and jefferson prevails. new york is the swing state in that election. it is looming very, very large. against hamilton on this island. whoever wins the island will win the state, whoever wins the state wins the presidency, setting up the confrontation. i admit the third face-off does not have so much a compelling new york angle. lincoln, tawney, neither has a big new york reference. but he does have the cooper
9:27 am
address. it is key to lincoln's success. the fourth one is one of the most new york stories of all. charles evan hughes, the hughes court against -- the chief justice -- against franklin roosevelt. both new yorkers, both former governors of new york, both studied at columbia. they are friendly actually, although one is a democrat and a republican. when they refer to each other -- "governor." "governor." you know? is not the most extreme republican on that court. for to hisre some right that are called the four horsemen of the apocalypse who made life very difficult for franklin roosevelt and it's a very new york story. of course, the current court headed by a new yorker, born in buffalo, learned law in new york city from henry friendly.
9:28 am
the other members of the court -- ruth bader ginsburg, finished her law degree at columbia and was a brooklyn person, sonia sotomayor is a bronx person. elena kagan is manhattan all the way. was queens.ia no staten island, i guess. i mentioned sam alito. but also remember merrick garland, who learned his law in this city. he is the guy on the hot seat right now. it's very much a new york story. and what is going to decide? what is going to decide elections? who feels that slot on the -- who fills that slot on the supreme court? is going to decided is which manhattanite becomes president of the united states? whether it is donald j. trump or hillary clinton.
9:29 am
new york state is very much on the ballot. and when you have judges -- the supreme court is very much on the ballot, and when you have judges, richard nixon or george w. bush -- judges that can tell us who can vote and who cannot with id laws and all the rest, the court is influencing with important ways in close elections who is going to win and who is not. these things interact. it is a very interesting interaction between the presidency and the court. that is my first thinking. the others are shorter. now here is another -- this is a long-term trend. the rise of judicial power. so, i'm going to say a little bit more about this. john jay -- it's a hassle. he is offer the position a few
9:30 am
years later. let me tell you what he says . he turns it down. becomeson john marshall the classice, winding down happens. they have to pick someone. john marshall is the only guy in town. the mail is slow. he says, it's got to be you because i know you will accept. john jay sat on the offer for a while. but the time he actually said no, there were not many days left. what precipitated marbury versus madison? the so-called midnight judges when john adams, after losing, tries to pack the judiciary with even more federalist judges to make life difficult for thomas jefferson, to protect his side. again -- political appointments. and they have life tenure thereafter. that is the backdrop of marbury versus madison.
9:31 am
this race against the clock created by life tenure for justices versus the very different tenure for presidents. when jay is offered chief justice again, he declines it because the judiciary lacked the energy, weight, and dignity that is essential to its support of the national government. basically, i don't know how to make this thing work. it is broken. john marshall began to see the possibilities of it. but you have heard of marbury versus madison. name me, among other things, the proposition that courts can invalidate acts of congress. first, what was the great issue of liberty involved in marbury versus madison? correct. there was no great issue of liberty. it was original versus appellate jurisdictions and who cares? you can see how unimportant the
9:32 am
court is initially. do you know how many justices there were on the original supreme court? six. an even number. how odd. how can a court ever operate with an even number? right now, you see we have eight. at we are not imagining that the supreme court will be the be-all and end-all for things. by the way, the supreme court building, when was that built? beautiful building. the 1930's. where did they meet before that? the basement of the senate. in the plans for d.c., they created from the beginning and executive mansion and a congress building, but nothing for the judiciary. it is third out of three. it is least and last. after marbury, 1803, when is the next time the supreme court invalidates an act of congress? the answer is not until 1857, dred scott. and they made it all up in that case.
9:33 am
unconstitutional freeze , the missouri compromise, which prohibits slavery north of a certain line. which is an astonish her -- astonisher in legal history. the very first congress prohibits slavery in the northwest territories. there is no problem -- congress has the power to brevet slavery in the territories. the framers said that congress could do it. everyone knew when the constitution went into effect, they left all of that. in 1820 -- when the missouri compromise is passed saying no slavery north of a certain line, every single cabinet officer signs off on it. every single cabinet officer. that includes john c. calhoun from south carolina. and yale -- just a newsflash -- is going to keep calhoun as the
9:34 am
name of one of the colleges. i was ready for harriet tubman college. so, judicial review is not that important of phenomenon early on. constitutional issues are really important. presidents are vetoing bills all the time. half of the presidential vetoes are constitutionally based. and they are vetoing bills that courts have upheld or would uphold, like the constitution of the bank, but andy jackson says, i'm vetoing it. judicial review is almost none of the important issues in the early republic. can presidents negotiate secret treaties? can they send secret envoys? how should they use rounding errors in the apportionment of
9:35 am
the house of representatives? can presidents fire cabinet officers at will? is the assumption of state debts by the federal government constitutional? lots and lots of early issues constitutionally arise, and the supreme court does not play a role in the resolution. they are resolved in the other branches. and today -- wow. the supreme court is the 1800-pound gorilla. it ousts presidents and picks them -- richard nixon and george w. bush -- but twice a year it is invalidating an act of congress. and not original versus appellate jurisdictions. who cares about that? they are invalidating or threatening to invalidate laws like obamacare, laws like affirmative action and religion in public life and immigration and so, huge constitutional questions that are being decided.
9:36 am
campaign finance. really big one. twice a year. how is it that we have this rise of judicial power over time, that the least dangerous branch of the founders becoming today's 800-pound gorilla? there are two factors i would it -- identified. we could talk about -- just for example -- there are many more judges today. friends come and go, but enemies accumulate. judges accumulate. you need more of them. you can't keep adding legislators. as dysfunctional as congress might be with 500, it would be
9:37 am
probably worse with 5000. so at the time of the founding there are seven members of the house of representatives -- about 105 members of the house of representatives and ask justices. seven justices, seven representatives for every judge. today there are about 1000 federal judges, two federal judges for every congressperson. that's a 15 for change in the ratio. all of my students -- and some of them are here today -- almost all of them want to be judicial law clerks, to work in the judiciary rather than congressional clerks. the judiciary has a lot more influence. there are more of them. the supreme court gets to decide which cases it gets to pick, andh it could not do in john marshall's day, which gives it a certain power in agenda. there are many factors. we the people have occasionally -- increasingly punted issues to the court to decide. there are constitutional issues that presuppose judicious enforcement. the bill of rights, the 14th amendment, 15th amendment, and others.
9:38 am
here are two, one of which is particularly a new york story -- one divided government -- in a world of divided government, no matter what the court does, either the legislature is going to like it or the president is going to like it and the court cannot be overturned until basically the legislature and the president are on the same page two invalidate it. in a world of divided government, every single president since lyndon johnson -- accept jimmy carter -- has
9:39 am
faced in opposition house of representatives for at least part of the time in office, which gives the judiciary more flexibility to do what it wants. john marshall had less running room because the jeffersonians controlled not just the presidency, but the house and senate. if he starts misbehaving, he will get smacked down. and indeed, just to go back one last moment, the point about the face-off, a huge way of thinking about the drama, if we pick, we, the people pick hillary rodham clinton, how will new yorker john roberts play that? he will be in the minority faction of the court since merrick garland will be confirmed? we have not had very many chief justices in the minority before, but one we did was john marshall and he managed to make it work. but remember, he is the last of the mohicans, the last of the federalists. they have a good base. they have all of the state
9:40 am
s locks. jefferson wins and wins again and madison wins and wins and wins again. john marshall is on the court for 34 years. these are jeffersonian appointees and he's got to work with them. he manages to do that but , sometimes he is leading from behind because he has to create a coalition. he dissents, john marshall does, in only one important constitutional case in 34 years on the bench. wow. interesting fact, yeah. 1827. is roberts going to be able to do that if he finds himself in the minority? william rehnquist was not in the minority in general. wither was war in berger -- arren berger and neither was earl warren -- yes, a republican appointee, but a liberal republican appointee. tawney was supported by all of these jackson democrats and pierce democrats and buchanan democrats on the court.
9:41 am
contrariwise, if donald j. trump is picked, and you have to understand that is a real possibility, my friends -- how are sonia sotomayor and elena kagan and ruth bader ginsburg going to react? that's a new york story, too. ok. so, one thing that makes the judiciary powerful is a divided government because it enables the judiciary to be right-wing or left-wing and at least one of the two parties in the divided government is going to be happy with that. so, is hillary clinton in just to win and when the senate and actually when the house -- which
9:42 am
could be in play because donald trump could lose the house of representatives for his party? that's going to be a very different world for the likes of the republicans on the court. contrariwise, it could be the case -- both are actually possibilities -- that trump wins and carries the senate and the house and of course he will have the judiciary then, too. he will be able to replenish with his choice. it won't be merrick garland. and the republicans will be controlling all the branches. that could happen, too, in this election. that's what makes this election so interesting. maybe one other fact and i will give you the new york angle. after watergate and vietnam, you lost a lot of confidence in the other branches of government. they lied to you. after watergate and vietnam. you think the court is the savior. the next in case, the pentagon papers. they were not the problem. they were part of the solution. i think they lost to some of that -- bush versus gore -- they lost some of that credibility. here is what is unique about today's supreme court. there have been moments in
9:43 am
american history when the left hated the court. that would be the 1930's. the old court. there are moments in american history when the right hated the court -- impeach earl warren, 1960. we are living in a moment when the supreme court is being simultaneously attacked the tube vituperatively by the left and right. they are teed off, for my friends on c-span. that's a new phenomena. watergate, vietnam have made the court -- less, still held in higher regard than the congress. and divided governments have given the court more power and there are more justices and lawyers get their first start in the judiciary. here is one other thing that is interesting. this will lead into my next point.
9:44 am
which is the rise of claims of judicial expertise. we are smart people. we have special expertise because we went to loss -- to law school and this constitutional stuff is really complicated. just to remind you --john jay was very well educated. but not all of the other justices over the course of american history have gone to fancy schools and had fancy degrees. most of them were not even judges before they were justices. john marshall was not a judge before he was justice. his replacement, roger tawney, was not a judge before he was a justice. his replacements, weight and fuller, were not judges before they were justices. that takes us into the 20th century.
9:45 am
earl warren was not a judge before he was a justice. neither was william rehnquist before he was an associate justice. and yet, it actually is true that william howard taft was a judge before was chief justice, but he had other early important jobs also. you are thinking president of the united states. i'm thinking professor at yale law school. whereas today, except for elena kagan, none of them -- except one, was a federal judge. one of you -- one you will not remember. not earl warren. not william douglas. mint.an anyone remember sherman mint? he was also a senator. today except for elena kagan, all of the justices were sitting federal appellate judges at the time of their appointment. the judicial as a nation -- the thecialization of
9:46 am
judiciary. you rise within the judiciary itself. and here is how it begins. by going to a fancy law school, often a college in new york or adjoining state, doing a clerkship, becoming a judge, working your way through the system and i told you -- john roberts learned his law studying at the feet of the great henry friendly. merrick garland studied at the feet of the same great new york city judge. this is -- so, it is the rise of new york in some ways. the great universities. here is one way to put it and then i am going to -- we are going to move to questions and answers. just -- if you think about the rise of claims of expertise -- and there is suspicion of expertise. all of these experts on wall street did things to their own advantage, and experts in the accounting industry and legal academics are into their own power trip. new york plays a huge role here.
9:47 am
the commuting distance of this lecture hall -- three of the six greatest law schools on the continent. just a cab or a commute right away, yale and nyu and columbia. these claims of expertise actually mean, for example, that can no longery geographically balance. it used to be when the justices wrote the circuit, there is a geographic balance. now you focus more on a demographic -- how many women, how many jews, how many catholics, how many blacks, how many asians, and the like. that creates the possibility of
9:48 am
a very new york-dominant court. i think i said enough to keep the conversation going. one thing we have not talked about -- we talked about how you get onto the court. we have not talked about merrick garland. i'm happy to do that. we can also talk about off ramps from the court, how people leave the court and whether they leave the court in politicized ways or not. there's lots of stuff to talk about. i think it is now time to move q&a. please come to the microphones. these are actually -- ask one question and indeed ask a question. thank you. [applause] >> professor, could you comment on why chief justice roberts
9:49 am
seemingly abandoned his republican brethren on obamacare? dr. amar: that is the perfect question. the question is about john roberts and obamacare. that is his john marshall moment in which he rises above partisan politics -- you might be wrong. he might be right. i think he is right. but even if you don't, here is what you can't say. but even if you think he was wrong, he was not partisan about it. he does not like this law, truth be told. his party does not like this law. yet he sided with democratic appointees. good for him. in washington, almost no one crosses party lines. he did. good for him. he did it not once, but twice , because it was the sebelius upheld which he obamacare against the constitutional challenge and the king versus burwell challenge is one where he read the statute purposefully, sensibly,
9:50 am
generously, and did not try to undermine it with clever technical lawyering that was not faithful to the larger purposes of the law. and again, you might disagree with him. i think he was right. but even if you disagree with him, note he was not a partisan. and by the way, this gives me a chance to say something -- we talk about getting on the court. how do people get off the court? there's a political appointment process. there is life tenure after that. true enough, but for much of american history, you have once and future politicians who did not give up a political life when they donned the robes. why did john jay leave the court? to become governor of new york. with coley pushing, would he would have left the court had he been governor of massachusetts, but he lost.
9:51 am
i can give you some new york angles on this. charles evan hughes, former governor of new york, associate justice -- he leaves the court. a cushy gig. why does he leave it? to run for president of the united states. he only loses california by 40,000 votes. if he had one california, he would have been president of the united states. he becomes secretary of state. there is a connection between secretaries of state and presidents. in american history, many of your early presidents, half of the secretaries of state became presidents and others came very close like henry clay and daniel webster. there's in new york angle with hughes. william o. douglas who learned his law at columbia wants desperately to be vice president of the united states and comes this close to being fdr's running mate in '44. he is fdr's poker buddy. he had a more political personality than a judicial one. it was more suited to his temperament.
9:52 am
critics would say he was a trump -like figure in many ways. he thought about running for the presidency in his own right area -- in his own right. that's another new york angle. in an earlier world -- in our world, it is preposterous what i'm about to say, but in an earlier world -- justices did not give up politics or political ambitions. chase wants to be the president desperately and his angling for even as he is presiding over johnson's impeachment trial. he is angling to replace johnson as the democratic nominee. so -- and almost all of the people lincoln put on the court are angling for the presidency. that is not as true today. from an analytic point of view, who is actually the republican'' sanest choice? paul ryan is a good looking,
9:53 am
young guy, heartland of america, but he says no, so -- who is a centrist, really smart republican, heartland of america, former high school quarterback, right out of central casting? his name is john roberts. you know? and he is a smarter and younger and better looking version of john kasich, you see? [laughter] dr. amar: just saying. but of course, what i just said is preposterous because actually he is not a pol. and good for him. i do not always agree with him, but justice roberts, if you see this on c-span, you have a big fan in yours truly. and you have learned your law
9:54 am
from the great henry friendly, who taught merrick garland and many others, and henry friendly believed that the law was different from politics. and so do you and so do i and we are lucky. >> i have a question. dr. amar: yes? >> have any justices been impeached and how would you do it if you could? i have a couple in mind. dr. amar: yes, we do have -- remember in the 1960's, i told you that the court was reviled by the right. the john birch society and others. major bumper stickers -- >> i remember. dr. amar: you shouldn't admit this. you were an infant. "impeach earl warren." john marshall is afraid if he actually orders thomas jefferson to appoint this guy, william
9:55 am
marbury to this position -- that is what marbury is all about. he says, i want you to order james madison, jefferson's wing man, secretary of state, i want you to order madison, to give him this piece of paper saying he is a judge. remember, adams was trying to pack the judiciary on with all of these federalist types. marshall is afraid if he does that, he's going to be impeached and maybe convicted. that is actually only the second worst scenario. the best scenario is he would be ignored and made a fool of. second best he will be impeached. i will tell you why he thinks that. the other possible scenario -- remember, we have an advantage. we know how history turns out. he doesn't. thomas jefferson is in france. he says things about the french
9:56 am
revolution. the tree of liberty must be watered by the blood of tyrants. he does not know that this guy is not going to be a hugo chavez type. jefferson does a lot of, you know, bat crazy stuff -- c-span is here. why is he thinking he might be? he doesn't. he says jefferson is all of these horrible things, but too bad we do not have jurisdiction. >> what is the process? dr. amar: i will tell you who was impeached. a justice who sat on the marbury versus madison court. a man named chase. not solman p. chase, but samuel chase. it is the same process as any other impeachment. a majority of the house and two thirds vote of the senate. impeachments are different in that the chief justice presides, but otherwise who would preside? the vice president.
9:57 am
that would be wrong because he would win the presidency upon conviction, so he would have a conflict of interest. for every other impeachment, the chief justice does not preside. house two of the , thirds of the senate -- i myself have been involved in the impeachment, as advisor, of a lower court justice he was -- who was basically a crook. convicted and ousted. here is what chase did. he was a federalist and way partisan. he threw the book at jeffersonians who spoke out against john adams. he threw the book at them in prosecutions under the alien and sedition act. he was a little too vigorous in
9:58 am
forcing these additional act. he would not let juries hear the constitutional defenses of the defendant. he was a little too vigorous and all of that. he gave political speeches. so, he is impeached, and there was an earlier federal judge who was impeached and removed. critics say he was abusive of power. defenders said maybe he was just drunk. he was an old guy. we would say today maybe he was suffering from dementia and alzheimer's. is that a high crime or misdemeanor? no? would you want your case decided by a judge with dementia? chase is impeached. he is almost convicted. a majority votes to convict, but not i have to tell you the story two thirds. and i know i am about to get the hook. dale told me you guys like stories. here is the greatest story. at the same time that chase is being impeached for his partisan misconduct, burr has killed
9:59 am
alexander hamilton in a duel. burr is the vice president of the united states. he presides over the senate and therefore the impeachment trial of chase. leading rags in the newspapers say " in most countries the murderer is arraigned before the judge. but in our country, we have the judge of being arraigned before the murderer." thank you very much. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2016] >> you're watching american history tv. all weekend, every weekend on c-span 3. to join the conversation, like us on facebook. @cspanhistory. >> madam secretary, we proudly give 72 of our delegate votes to the next president of the united
10:00 am
states. ♪ [applause] [cheers and applause] >> between american artifacts , takes viewers into historic sites around the country. next we tour some of the oldest rooms in the u.s. capitol with senator mitch mcconnell. we hear about the historic events that have occurred in the republican leader's suite, the early rooms in the 19th century hosted the u.s. house of representatives, u.s. senate, and the library of congress. senator mcconnell takes us behind the scenes into the republican leader's conference

14 Views

info Stream Only

Uploaded by TV Archive on