tv The Presidency FDR the Supreme Court CSPAN November 7, 2021 7:00am-8:01am EST
c-span.org/history. >> hello. welcome to another edition of at home with roosevelts. i'm paul sparrow, the director of the franklin roosevelt presidential library in hyde park, new york, and we're recording this story on september 17th which is constitution day. what better way to celebrate constitution day than to talk about the supreme court with two outstanding experts on the subject. no president had a more significant impact on the supreme court than the, the dr -- fdr. he appointed eight9 justices during his administration. he helped change american
democracy. he got to appoint no justices during his first term. the role of the supreme court has changed over the years and certainly plays a central role in our political process. but headache no mistakes -- make no mistakes, the court has always been political. joining he today is john -- at st. johns university and fellow at the robert h. jackson center. he's the biographer of justice -- [inaudible] and editor of jackson's acclaimed 2003 posthumous book, quote, that >> the last new memoir ralph blumenthal, ldistinguished member and colleague in new york, a new york times reporter and continues to be a contributor to the times. he's the author of five books including the believer about
the harbor psychologist john boehner but he actually has a direct connection to the administration and we will talk about that. it will start with professor barrett. give us a bit of your background because you quoted specifically yourwork on justice robert jackson . >> thank you for this opportunity and the privilege to be at the roosevelt library and homestead in every sense except actual. the path that led me to all of this was really being a lawyer in washington at first . i work in the department of justice in federal investigations for about several years andbecame along professor . among my areas, public life, public figures, legal issues and constitutional law. sort of converging on the supreme court and the people on the court and robert jackson in particular,
someone who was in roosevelt's cabinet as attorney general , confirmed for the senate to five several separate jobs in a number of years became my project and for our topic it matters that jackson was an assistant attorney general in 1937, a principal witness defending the president's court packing plan and solicitor general over the next two years argued in defense of new deal laws and constitutionality before the supreme court so it's the jackson past that brought me into this roosevelt world and court packing and court reform as the topic. >> jacqueline jackson was a course part of the nuremberg trials which we can talk about separately but first of all give us a bit about your background both as a reporter and author of the book. one of the key members of fdr's administration. >> we appreciate being on with you and paul, i am a
distinguished lecturer and in that capacity supervised our archives collection in the library among which we have a collection of papers of lindsay hawley you let the third who really reorganized theexecutive branch for fdr . that came up in the middle of the court packing fight so that's interesting . i also was under the new york times for five years and one of my stories was being up at the roosevelt library to do a story on top cottagein 2001 when it was renovated . also i've written the times a lot about holocaust and robert jackson's role as a very sterling episode in the prosecution of the nazi criminals so anyway, i should say i came into this subject
through a book called 160 eight days which is a virtual diary of the packing controversy by code written by jonah h who was managing editor of the new york times . that's a book cowritten with joseph outside and it's a event not completely unbiased . it's day-to-day struggles back and forth over the court packing controversy so it's a privilege to be here . >> bob, i'm glad to have you here at top cottage is a home fdr built in hyde park here in the 1930s that he plans to move into and live in after he left the presidency. it's one of the first houses designed to accommodate a handicapped person with a wheelchair so all the
windows, handles, the doors have certain kinds of levers. oit really was an architectural model but it's part of the national parks service with the roosevelt home and eleanor's home with the man did not mention so a quick plug if anybody's coming up to hudson make sure you stop here and visited. back to the subject matter. let's talk about fdr's court packing scheme.t set the scene, what were the circumstances that made fdr so frustrated with the court and talk about what did he try to do to change it? >> i think he has to go back a little bit before his presidency and remember we're in the great depression. the stock market crashed in 1929 and coincidentally during that term president herbert hoover at three supreme court appointment opportunities .
he made great appointments, no denying that and it's the luck of the draw whether a president gets vacancies and presidents of three, truman got three. franklin roosevelt inaugurated in 43, during that first four-yearterm got zero . he had a super majority in both the house and senate and there was an attack of legislation on theproblems of the depression . the tort bid, volunteerism of the hoover arrow was replaced by the new deal and the new deal ran into a supreme court roadblock. in the course of that four year term not only did roosevelt have no chance to appoint justices but the nine s who were there down major reforms really lost. the national industrial recovery act, railroad retirement , section 3 of the
financialrecovery act . that tax component of the agricultural adjustment act. the cold conservation act. amendments to the bankruptcy law and a state new york minimum wage law that was kind of state-level counterpart progressioneffort . roosevelt was the popular powerful and democratically eresponsive president and the supreme court was a tremendous obstacle. reelected overwhelmingly in 1936 he decided to use his political capital on his supreme court problem. >> what was his strategy ? what was he trying to accomplish? >> he took it personally. hehad this dream the supreme court would cooperate with him in getting his programs through . maybe john can help me understand and our listeners
whether roosevelt was being disingenuous or he believed that separation of powers didn't apply to him because the idea that as he came up with the idea to appoint six new justices and cooperate with them or they would ticooperate with him in getting his program through is insane to our way of thinking today. it's a mystery to me how much hebelieved that he could really merge these two branches of government . but what happened is he got n... he was smarting under these rejections although the court overturning of the nra probably helped him because it was so unpopular. but anyway, he was resolved. this is unlike him with his perfect temperament and great sense of timing and wonderful way of reading the country. he lost it and he decided to put all his chips on this plan to change the court.
their work for actual proposals given to him by overcoming's, is attorney general. one was a constitutional amendment which would be very difficult . one was sent to change infection of the court and there were various ways of tinkering and the last one was to add a provision that whenever justice reached 70 he or she, hewould have to step down roosevelt what somebody to take his place. that was his plan and he somehow got convinced thiswas dual . and then as john said, he had this wonderful super majority. yet posted in with the 20,000 votes, i majority in 1936 so he had every reason to think the country was just waiting and liberals were on his side
that this would be and of course it was not . >> a little context. the 1936 presidential election as you mentioned was the largest electoral landslide in american icpolitical history . and i always think that fdr had just an extraordinary political instinct that had gotten him to where he was the fact that he was elected and reelected in a wheelchair is simply incredible. on every level l. one of the darkest times in american history i like to point out the need the three biggest mistakes of his entire political career during that time after a landslide victory. he decided to try to pack the court, decided he was going to primary conservative southern democrats and he cut the budget leading to the roosevelt recession of 1937 so as you said he lost it.
i think he was so enthralled with his own success and popularity that he tried to do things that were way off the path of what the american public wanted. and john, talk about what the reaction was when he put this forward, even his own party had trouble supporting him in this court packing scheme. >> the constitution does not prescribe a size for the supreme court . it's a creature of statute and originally the court was six, went down to five and oscillated but since the 1870s we've had a nine-member court. so it's now about 60 years of the country being used 29 as if it's etched in marble and i think that a visceral source of the reaction. to try and somehow in 1000 potentially grow the court to 50 and fill it with like-minded new dealers was somehow un-american even though it's not unconstitutional.
and it's opened up some of the faultlines in the democraticparty . there were old barons who were the committee chairman and southern segregationists who were part of this coalition president roosevelt was trying to hold together and the court as a target was not such a publicly notoriously evil institution especially the way roosevelt sweated it out. he claimed the justices were so farbehind on their work . there was a pile of unaddressed tertiary petitions which is of course jargon and wasn't true. he also is aged justices no longer have their fastball. that was a hard thing to claim about louis brandeis, one of the oldest of the bunch. so that's been hit a wall of hostility. it immediately became controversial.
roosevelt did try to recalculate caand robert jackson was one ofthe people who told him you need to start telling the truth about this . it's not about age. it's not about backlog. it's about interpretations that particularly the foremost conservative justices have poured into the constitution. they write congress's power to regulate interstate congress to narrowly and they read states powers to protect social welfare and use their powers much too restrictively . this is about the court putting itself and its political preferences in the place of the proper understanding of the constitution so democracy should respond by pointing more straight shooters. i would say even more conservative justices in terms of constitutional interpretation in these four horsemen radicals who worked roosevelt problems. >> what i found interesting is it wasn't dead in the water from the beginning.
it might have seemed it would be because vice president garner came out of the meeting holding his nose going like this but i think he had a shot, a goodshot at getting this through . it's his popularity, his election landslide but there were a series of almost biblical leaks, whatever you want tocall them, missteps . he succeeded in sabotaging himself . it could have been done it seems to me if it hadn't been handled . >> there are external events, there are several things that happened in that first 30, 40 uadays. announcement of the plan in february and my earlymother march the senate hearings are starting . the justices send a letter to
the chairman that says we are current on our work so they blow off the cover story. then the supreme court in mid-march darts to hand down decisions upholding new deal laws so all of a sudden the supreme court problem is receding. a state minimum wage is upheld, the labor relations act is upheld. social security is argued by charles rosinski and inmates constitutionality is upheld. that confluence evreally made it much less necessary to do somethingdramatic . >> then of course that change led to our great catchphrases of the supreme court history which is a switch in time saves nine you want to explain that ? >> roosevelt as i made notes in my notes wouldn't take yes yfor an answer. the court went out of its way to i don't know whether they designed their decisions in
order to placate him . that's a good question. or whether it was by design or whether they saw the light and realized they had to uphold these programs for whatever reason the court started to give him what he wanted and i don't know if you want to use this image but don't his gravy in and jumpedin but he didn't have to . he just i mean, it really is amazing how he missed all these signals and just plowed ahead. he was determined to remake that court should put on the six justices or up to six carried through these programs but it's just astounding. i think there's still a political mystery because the book that i referenced, he and all stock interviewed everybody but the president on this so i don't know how much, maybe john knows in roosevelt's on writing and
what has come out in his papers about what histhinking was . why he wouldn't take yes for an answer. >> he was too careful toleave a paper trail on anything . we have a question from the audience. i hope i got past thatright . she asked how do we know court packing was unpopular outside of the conservative voices of the court? did average americans have a strong opinion on the court? >> the two strong constituencies of roosevelt, the farmers and labor and the liberals all turned against it very quickly. so he lost hisnatural constituency . it was not popular from the beginning. it's interesting, roosevelt thought obviously it might be which is why he embarked on it but he started losing his natural allies from the beginning. am iright on that ? >> i think that's correct and look at the mailbag's some of which is archived.
you can measure page by page the public reaction and a lot of it is very critical. you can look at the congressional committee votes and ultimately the congressional committee report rejects the first version of the proposed bill but the urgency is receding in the springtime. the president does hold back and there's a second version that would have expanded the court by two seats that i think he well would have one if that had been pushed through a vote. the kind of had a deal with the senate majority leader, joseph robinson from arkansas who was going to get that over the finish line and roosevelt frankly promised him a supreme court appointment . one of the two seats and roosevelt was making nice. jefferson picked it with every member of the congress early that summer. and robinson dropped dead after the fourth of july. at that point one more development, the justice had
announced he was resigning so roosevelt finally had a vacancy to fill. at that point none of it is worth any more trouble. we can live with nine and you see the dominoes. hugo black is appointed in august, felix frankfurter and william o douglas the next year. frankmurphy the next year . those eight roosevelt appointees are just one after another in the wings starting in the summer of 37. >> there were so many opportunities for him to compromise and they came to him . not so much cummings who was a true believer but others came to him repeatedly with offers. with offers to compromise and he just wouldn't have it. he was dead set on moving ahead and he wouldn't even recognize the reality of what was happening. his own allies were coming to him with stories of what were
going on out there and how he was losing support and constituencies but he was very bullheaded in that. it is extraordinary. again, the sense of timing we credit him with and his exquisite sensitivity to politicalwhims , he just was dead set on this. >> there's a colonel in this i think is maybe an explanation of that. homer cummings the attorney general was really the draftsman and proponent of this n. part of the problem on the supreme court was justice james mcreynolds r. he was one of the four horsemen. he was a wilson appointee and is in the wilson administration with fdr. as the attorney general nick reynolds had drafted in effect a court packing plan. when cummings found that and told it to roosevelt they both thought it was such an incredibly wonderful karmic thing to take on the credits
with and a mcreynolds proposal that they got to attached to the idea. that's kind of enthusiasm in february and march and into the springtime before finally recalibrated starts. >> we have another question here from marist. she wants to know what determines how many justices can be on the court? does congress have the power to change that number and can they change it down? they said earlier it's been five, it's been seven . >> it's entirely a statutory matter. it's a next judiciary act if you will. it could come create a seat or if one became vacant it could abolish one. i don't think a lot could abolish a sitting justice. the constitution protects against that. also in older history and recent history seen the
senate has the power to sit on the nomination. that happened under president andrew johnson and under president obama for a stretch in 2016 . >> congress has the power to limit the jurisdiction of the court . they could say the court would need a super majority to overrule any decisions or mandate the court in so many different ways which is interesting. we think that's protected but it's not so congress could have not only changed the number of justices but reorganize their responsibilities. >> i want to go back to something john was talking about witches this string turning in the second administration, think in terms of the administration going forward but this appointment of a justices. i'm going to ask you a difficult question like who's your favorite child. who do you think was the most
significant appointment he made in terms of bothchanging the guard and changing america ? >> point to you first. >> i've got a bite in but i think it's well-founded in nkfavor of robert jackson who was aspecial , and incredible talent. a beautiful pen, probably best writer in the courts history and a case-by-case jurist. he didn't pigeonholeeasily . it turned out to be quite a fractious court, this roosevelt court that began in the late 30s and lived on through the 50s. jackson was kind of more on the conservative side but in the middle if you will and much more case of the time person so he's a dissenter in the japaneseamerican exclusion case .as i think as talent, jackson is the person. in terms of significance i think maybe you go black because he broke the ice.
that really started the flow and of course black served until 1971 a long and distinguished career. perhaps to overcome the stigma of having been a ku klux klan member and then coming up just after he's appointed to the court undeniably. he charted in a gallant area path through our constitutional atlaw and by the late 1940s really was becoming the leading civil liberties justice and was that for most of the rest of his career. i think he's also very important. but i have two children, i don't pick favorite children. i look at these justices and think it is an all-star team. it's quite a talented roster with almost no exceptions. >> who would you put your money on rough ? >> i would say black also. it's true he was blindsided. he didn't really do his homework on black and his clad membership although it
ended up prettyirrelevant based on the direction he took on the court . but it was also interesting there was this deal to appoint joe robinson to the vacancy and robinson of course was carrying the presidents water all the way through the court packing case. he was a senate majority leader who worked himself to death and died before he could be appointed and but roosevelt turned on him and was afraid as a southerner he wouldn't carry through with his liberal agenda so he left robinson hanging. it was a sad episode in history. robinson i think his best friend was in our group. i didn't know that. >> there's a college named after him. >> that's where i work. and of course being a famous financial advisor to fdr. but it is strange that just
the way things turned, the whole thing could have been settled long before it went down to defeat . if the plan had been carried through roosevelt was going to appoint robinson. compromise, maybe a point to justices, not go for the full six but as i keep coming back to, he was adamant that he was going to have it his way or the highway. >> i have two more quick comments about the appointees . i want to flag alex frankfurter because he was of course brilliant. and sort of in his career stood i think most closely to the judicial restraint model that the court packing proposal is about. that our policy and our country should by and large be made by elected representatives and it's the supreme court's job to get
out of the way of a government that the national government and state governments have ample powers in our system. so frankfurter is a kind of othrough line and also just a charming and fascinating character. the other person that i think we all forget is roosevelt elevated harland fiske stone to be chief justice. stone was already and i chief justice. he was a coolidge appointee in the 1920s and roosevelt did that in the summer of 1941 as a bipartisan nonpolitical move. and that's a long start but that was a great thing. >> he was a member of the liberal minority. >> he was not one of the four horsemen. >> and interesting, frankfurter opposed the court packing plan . >> in his private heart. he helped counter and did not do anything publicly.
>> roosevelt became frustrated. bwith that i go back intime and we're going to come out to present day . i want to talk about why the supreme court had this power to determine what's the constitutional law and what's not. and it goes back to the very founding days, the early 1800s with the rather extraordinary legal case of marbury versus madison and we will start with you and talk a little bit about this and why they laid this foundation that said the supreme court gets the final say. >> was that to be? >> marbury versus madison established the supreme court t to roll on all legal matters in the government and it's not inthe constitution . they took on that power and later on it was deemed worthwhile in terms ofbalance of powers . without that the court would have been a weak sister to
the other twobranches . so it's an interesting example how the founding fathers hadn't thought of that but they said the court should have that power so it became ingrained in our system and we can't think what it would be like without it. it really is a great example of how the constitution actually is a living document . it just added this element that it had never had in the beginning and everybody said that's a good idea . >> there is in marbury a sort of logic that gets them to the assertion of power to eengage in additional review. the court had to decidecases, it decides cases that arise under the constitution . times a provision of the constitution might be in conflict with the statute. deciding the case decides which of those carry the day so the answer is the constitution defeats the statute.
the court strikes down an unconstitutional statute in the context of the case . that power of judicial review is different in that answer becoming the authoritative last word. in other words judicial review becoming judicial supremacy . and i think that process is something that we all sort of wrestle with because the court packing plan was pushing back on was judicial supremacy being asserted over new deal laws by the 1930s. robert jackson wrote a whole book on this call the struggle for judicial supremacy published as he became attorney general in hi1940 just about historically the supreme court as an institution inflates itself as big as it can get away with, as we will let it get away with and marbury was the start and we have kind of admire the craft and let that grow too big and other times we pushed back. 1937 in court packing is one.
judicial self-restraint by individual justices is another and proposals for court reform today obviously would be in that vein . >> we've got good questions coming in now. if you have a question putit in the chat . from joann morris, she wants to know what the argument was ixgiven or increasing the court from 6 to 9 in the first place and when and who did this and did a face similar opposition? >> it wasn't in one fell swoop but generally it relates to this structure of the lower federal courts so as the number of circuit courts through a corresponding supreme court justice because of the circuit writing responsibilities largely sways the early growth and oscillation because those circuit panels were a justice visiting and writing and joining in the circuit court activity . and then i think it's workload.
as there's more and more cases coming within the jurisdiction of the courts i'm sure the supreme court was communicating to the congress we could use another guy up here so laws grow the size of the court. and that's largely what got us 29. >> so it was less political and more workload. >> i think doctoral for the judiciary and workload. the political moment is more in the post-civil war non-filling of vacancies when the legal tender case was pending before the supreme court and basically the congress let the courts shrink rather than let andrew johnson grow the court in the wrongdirection. that would have threatened reconstruction . >> one of the original proposals for reforming the court along with the packing was to designate different districts for each of the justices. that they would come from nine different parts of the
country and all that . that's actually limited to those at one point we were trying to think of two people . it wasn't robinson from one of the other places? somebody came from the same place as another justice so he had to be ruled out but that was one of the ideas is to get the justices picked from different parts of the country. >> we have a question from princess michelle your highness . do you have any questions about how they celebrated thanksgiving. or a mom during the holiday of thanksgiving the same year so i can answer a little bit of this which is for many years fdr would celebrate thanksgivingin warm springs georgia . at the center for polio that he created down there. he bought this run down spot and turn it into the world premiere rehabilitation center and he would go down there and spend time the base .
he bought in the 1920s so he went there for a while before he became president but even as president he would go down there and could drop his act and let people know that he was crippled and handicapped and would swim in the pool with him and they called him .roosevelt. it was a tradition thatmeant a great deal to him . >> that image from photographs is the first thing that came to mind. the other thing i know but not in detail is that the date of thanksgiving. that particular thursday was standardized under roosevelt. it made it more of a national holiday and a fixed date. >> it was standardized because he created a controversy. the industry asked him to move it up earlier so they had a longer period between thanksgiving and christmas. there was such an outcry he had to move it back and codify that date forever.
>> you mentioned polio. >> you dropped out for a second. technical wizardry. we lost you. are you back? okay. >> this is the hundred anniversary of fdr's polio in 1921. and that of course made him the great leader he was. it gave him the empathy. it gave him the strength, the power to overcomeadversity . and the skills that kind of the abandoned or that abandoned him during the court packing thing. the empathy, his wisdom. he was left with his strength which of course he had in excess, maybe too much in this case but it is interesting that this is an important anniversary out history would have been
different. he may have never developed into the leader he was behind had the adversity to battle atagainst. >> in question has come in from christopher. he says was james f bird appointment roosevelt way to pay him back for not taking him on as vice president? a little political history here as well. certainly an interesting character. he was running against roosevelt as well, any comment on that ? >> i'm not sure how explicit that was. it's 1941 so it's after 1940 has occurred. i'm not sure what senator burns would have gone to a third term president . they obviously had a fine relationship and roosevelt had a high regard for his talent not only because he put him on the court but a year later when burns hated the job anyway roosevelt brought him into the white house basicallymanage the economy during the war .. i think of her mentally burns
was just an executive branch manager or a legislator way ahead of being a judge. >> you agree with that ralph? >> i'll defer to john. it's interesting that people who ended up being with the president on this court packing thing and the ones who were against them, it was a very select groupthat gathered around . really who stood with him at the time when so many people were abandoning him . connelly and others. and garner of course. so it is interesting that he had this small circle of people. jackson, jackson was one of the people who stood by the president. >> jackson in that man, his
memoir that was never published in his lifetime but i have a lot to find the manuscript and the families support in publishing it. he in about four pages tells his experience with court packing and he recounts going over to the white house for a meeting that energy in february when this has been an ounce and it's also a bumpy start and jackson's telling the president before you go fishing , before you head out washington you need to have another crack at explaining this because a pile of address tertiary is not carrying the day and roosevelt according to jackson park and said that really is s a pretty terrible explanation, isn't it? then he went into a fireside chat and started to tell the truth and it was more of a political process that had a chance thereafter. >> we've had a lot of questions coming in but iwant to jump up . there is a question from dan about the connection between justices and political perspectives usand the question
is in the 1930s justices have similar controversies or more of a modern development in terms of overt political connections outside of the court system? we will start with you ralph. >> i would say that the house up under 68 days opened my eyes to the poisonous atmospheres in washington then. i have this house eon vision of the new deal is a program that everybody subscribed to. it'll save the country and you look back and we think our time is full of strength and political poison. what went on then back and forth, it's amazing. the court, i don't know how much the court itself supported that because we don't know and we don't know
what went on behind closed doors at the court, we still don't. but certainly all around the court the atmosphere in washington in those days was murderous . in that sense nothing has changed . >> if i'm understanding the question she's asking about supremecourt appointments and werethere poisonous fights in that context ? generally no . roosevelt had a big majority in the senate and he could get his appointees confirmed. that's a fundamental difference from his time to our time. the one who had not card sailing if you will only whispering campaign around it from the bad side was the nomination of frankfurt in january 1939 and the anti-semitic reaction to that . frankly the whole nomination was roosevelt not giving a damn about anti-semitism and in fact maybe flicking his chin at adolf hitler i putting america's leading
lawyer and prominent american jew on the supreme court. >> also the senatorial courtesy in those days was really strong so when if and when roosevelt nominated a senator like hugo black, that immediately sailed through because of senatorial courtesy which i don't know if we still have that today. >> it seems highly unlikely but there is a stereotyping many people have, particularly people who aren't history buffs that this contentious nature of the supreme court is new. this is a new phenomenon and that it used to be they would just sit in their black robes and handout things and everything was fine and i like to point out and you heard of brown versus board of education which i think is an interesting thing to look
at because of the connection has on roosevelt and the court.ry there were scraps notices in american history that had more maybe roe versus wade more significant consequences on the way to millions of americans. talk about brown versus board and how that came about and why it was such a revolutionary decision because it really did take them out of their traditional role. we will start with you, john. >> that's such a huge question. the starting point is obviously the creation of this country as a slave country with our constitution ducking that fundamental moral question. as the price of ratifying the unity of slave states and free states. and raced through the 19th century and civil war and the amendments after the war is our fundamentalhistorical reality . our permanent challenge. our deepest sin.
and we won world war ii with a segregated army fighting against racial supremacy, fearing opponents. that allcame home and had to get sorted out . the dissidents of nokia's and imperial japan and coming home and being a racially segregated country is what the naacp attacks what a court filled with roosevelt appointees you and frankfurter, jackson, black, douglas are the heart ofthat court begins to deal with in the late 1940s . there are the leading edge . for them this is not atall onhard? or personally . in various ways it's a challenging legal question because the guys who wrote the 14th amendment were segregationists. a,and frankly jimmy bird we were talking about earlier by this point is governor of south carolina and he's a segregationist and a lot of the country is still ugly in racial terms .
the supreme court was under oral warren's leadership and with truman appointees completing the roster. in a series of decisions worked its way to getting meaning to the equal protection clause. i think it is our finest moment in constitutional history. >> you couldn't draw a clearer division between the congress and the courts at that time . progress was controlled by southerners the seniority system and moral segregationists, powerful committee chairman. people who roosevelt of course and dealt with all through his administrations. and yet here we have a supreme court that stating a radically different approach to equality and the new shape of american society. so if it had been up to congress we never would have desegregated the schools.es >> i find it an interesting book and to the car about suitcase and other japanese
incarceration case during the roosevelt administration where thisidea of protection to american citizenship was essentially thrown out the window . i have to wonder what those conversations were like. you point out the dissenting voice and a nonjudicial sense of the korematsu case stretched the case in a way that forced it to make a decision because you're in the midst of this war and you have this fear ripping the country. how did that position come down and why did they knowledge the constitutional rights of american citizens happened tohave japanese ancestors ? >> 80 and they didn't. thecourt decides cases in a slow walk . so the curfew case doesn't get decided until 43 and the
exclusion and internment cases don't get decided until 44 but at which point the war in the pacific is far far offshore and approaching japan through theisland hopping carnage that we were winning . so the imperative of national security is gone by that time. the majority fictional lies is that we're still at the time when the president and army decided that we had a security concern and the court majority defers to that . national security is a real thing and other vital thing but it's also something that can be used as a cultural and the supreme court was beaten down by the claim of national security. >> we only have to look at the climate in this country after 9/11 to see how inflamed the new society can be by pearl harbor attack then and the 9/11 attacks
then, no more recently. the statute passed without militarizing the police and prinvasion of privacy and during the muslim community, all of the patriot act so we don't have to look back that far to understand the mentality of the country after pearl harbor. just look at what happened after 9/11. >> it's interesting that the supreme court played a key role there determining whether these muslim bands, travel bands were constitutional. and again it found itself in the middle of this political firestorm as it has with so many cases.so when president biden was arrested after the three supreme court justices appointed by trump there was this movement that he should pack the court and sort of walk us through ,
will start with you. walk us through how could that even happen in today's political environment and what that process would actually look like today. >> that's the key qualifier. and there's not a political priority to do that. the means would be exactly what roosevelt proposed in 1937 . there would be a new law that throws the court. there is a fair basis to think that the ordinary process was manipulated both in 2016 and 2020 after the death of justice scalia and president from not getting to fill that seat and after ginsberg from getting to fill that seat and those to the inconsequential appointments that distorted some things that naturally should have been the other way . president biden i think terry properly wants to spend no political capital on this anytime soon. he has created a commission
that's filled with over 30. brilliant largely legal academics who have been talking and studying and writing e'and there's a range of proposals ranging from statutes to constitutional amendments to retirement schemes and rotations that would try and depoliticize the court. i think that could be done cewithout a constitutional amendment . in other words of justice serves for good behavior under article 3 which is interpreted to mean for life but that doesn't necessarily mean a right to sit on supreme court cases until one expires. so after a period of time it could be structured that justices rotate into service on circuit courts or become a senior bench waiting in reserve in the event of a recusal for something so these people would continue to be justices but in the meantime it would be a vacancy that would be created and let's say every president in a four-year term 2
appointments and that became a much more regular thing. that might take some of the political that i'm out of this process but it would take a statute and it might be challenged. it's ironic to think about how the supreme court would be asked to participate in deciding that and after we got past that it would take some number of years before we were in the new regime of quarterly and less politicized supreme court appointments. it's a very hard question. >> when roosevelt came up with this court plan it was immediately seized upon that one of the justices, i'm trying to think. it was brandeis who was 80.ou he would have been knockedout . i think it was verypopular . so now of course people that age doesn't seem sold anymore. secondly, look at the differences between biden and fdr. biden is much more careful,
not as surefooted a political animal as roosevelt. and by the had to overcome a 27 million vote landslide like fdr did in 36. they're very different people and roosevelt was headstrong. biden is not committed to this issue from what i can see and yet the latest refusal of the court to delve into the texas abortion law really i think flung a new element into the debate. for a long time people were thinking by is not going to rest his prestige on this issue and yet this of all issues is veryvolatile . and of course there's a lot of furor around the country so ithink that's irrelevant . a few more decisions like that by the court and it may
move this panel, this 32 ermember panel by 22 to come up with something quite got a couple of questions that have come in that are related to the court. i'll try to answer a couple of them. michelle asks who was franklin roosevelt's friends with from the monarchy government ricourse very famously he invited the king and queen of england to come to america in 1939 america, americans back then didn't like the british monarchy. they had low popularity ratings. the previous king had to abdicate because he married an american so there was a sense that the english monarchy wasn't much to do and --roosevelt knew he had to solidify a relationship with great britain because he knew the war was coming. he invited the king and queen and they had the fancy
dinners and they come up to hyde park and fdr famously had a hot dog ptaken up to the cottage in which he serves hot dogs to the king and queen. they serve other things too. you talked about that in your article. >> i think they tried toserve some kind of a fruity cocktail to winston churchill who spat out . but no, absolutely. that was a famous episode and roosevelt saw the need to cultivate closer relations with england which was and battled and at that point could have lost the war once and for all for the west. he had this wonderful relationship with churchill of course where i think roosevelt addressed him as i forgot. by a navy title. >> he was a former naval person . originally he had correspondence before he minister in this
case he would approach them as the naval person but the president of course is not supposed to be talking to england here so fdr is referred to as formal neighbor person. >> we searched through volumes of that history and it's the only good thing that came out of the pandemic. >> we have a couple questions from andrew smith. i appreciate the importance of the supreme court and i wonder if you're having another live conversation about fdr subjects in the future . we've been doingthis for a year and a half .oi every week or two we do a different program. they're all available on our youtube page and our facebook videos. we've done everything from fdr's relationship with different presidents like eisenhower and johnson to the yalta conference. there's lots of material there but since we had to stop during live protests
where up to 75 of these conversations with authors and historians so please, where going to continue todo this and hopefully somedayas the pandemic eases we willgo back to doing live programs at which point we will continue to live stream them and put them on our youtube so we have a collection of this content . >> this is going to be a last question and it's a good one . it's joann marin . as a lifetime appointment supposed to be a way to avoid politicization and justices feeling beholden to a particular viewpoint. lifetime appointment. i'll start with you, giveyour last word . >> it was the idea and reversed federal judges below the supreme court as well as the court . and it's a wonderful mechanism for insulating them from the day-to-day political pressures.
used to be the fbi director had somethingsimilar that insulated him . iso i think it's worked well historically. it could be difficult to take that away. >> i agree completely. it is valuable insulation but atthey question is how much do you need lifetimes today can be long things so if there's a way to submit a justice to serve out beyond the politics of his or her appointment, that is desirable and insulates them but i don't think that needs to be 30, 40 or 50 years although due to heart disease robert jackson died at age 62 after serving 14 years on the court . and one of those he was a wall being a prosecutor at nuremberg. one can make his or her remark and do great service without needing many decades.
also if we're not trying to play forever, we might not prioritize appointing every younger people and perhaps we would get more ofthe career wisdom and experience of more senior people . 60 and 70-year-old people including people who held high public offices are not viable supreme court candidates. i think that's a terrible loss. >> ralph, john. great conversation. i think we all know that as the u.s. constitution says there are three branches of government and they did a survey and 80 percent of americans can name all three branches. there's the executive branch, legislative branch and there's the judicial branch which is the supreme court. there was to be three equal branches although none of them feel the others liveup to their potential . iq for coming. thank you all for watching. >> you been watching american
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