Host we get to talk about the Supreme Court history for an hour. I want to start by understanding the court today. The way our court is structured and evolved, how does the chief justice in this area will ield authority . What tools do they have . Elizabeth the question is, in this era, as always, the chief justice, first and foremost, is the head and steward of one of our three branches of government. I think there are some unique aspects about that job in the sense that the court is not a political branch. It was deliberately designed not to be. The chief has a difficult job, because, im sure you heard this expression. The chief is chief among equals. They cannot control the other justices. They have the power to cajole, but not control. And there are some Great Stories throughout history that illustrate that very well. Host specifically, does the chief have a role in what cases are heard, and who writes the opinions . Elizabeth those are probably too of the principal distinctions of the chief justice. Provides overice the conference, which decides which cases to take, and it is a small number of cases the court actually takes and hears out of the numbers that are petitioned. Its under 10 . They have a list that is called the discuss list. Other justices can add to it. That. E chief circulates if it doesnt make that list, it is practically denied. He also presides over conferences. Certainly a role in managing the docket and what gets taken. And that is the same process in the vote. Then you mention the opinion assignments, which is an extremely important job. Its when the chief has when he is in the majority. If the majority of the court if he is not in the majority, it is the most senior justice. We can talk about stories when a chief might join a majority and have a hand in trying to keep consensus. Host what number of justice is chief Justice John Roberts . Elizabeth im not sure. There have been 102 justices. Chief, im tented to say between 1015. Very few. Host we have a few clips to show during this hour. The first one is him describing his job, using a metaphor he uses often. The job does not give you a prominent role or historical significance just because you hold the job. You look at novel fuller and you understand his job and how the court functions. In the next room, Charles Evans hughes, as you recall his role to turn back the Court Packing plan. You think about the independence of the judiciary. Things like that. Host he talks a lot about how one makes history. He often refers to himself as calling balls and strikes. How has this chief justice approached his tenure on the court . Elizabeth i think he is the consummate steward he was describing. It goes back to chief justice John Marshall, who had this incredibly Important Role in establishing where the courts place is in our democracy. Its hard to have a proper conversation about chief justices without spending a moment on John Marshall. You probably know the story but it is a great story. This was in 1800. Thead a situation where federalists were in the white house and congress but lost the election. John adams is president and has two months before he cedes control of the white house and congress to the antifederalists. He decides one thing he could do is put a number of judges on the bench before he leaves. He chooses, as chief justice, John Marshall, secretary of state at the time. John marshall was at the Constitutional Convention in virginia and he spoke about what chief Justice Roberts just said, the independence of the judiciary. He said, to what quarter of society do we look for protection of rights and overreach in the political branches if not the judiciary . Adams appoints John Marshall as chief justice and tries to put judges on the bench before he leaves and he runs out of time. That leads to one of the most consequential cases in Supreme Court history. Host which one . Elizabeth marbury versus madison. Its so much what chief Justice Roberts is talking about today. He talks about how he approaches his job and the role of the court. It was in that case the court established its role in our constitutional democracy and we have seen it across the administrations, all the way through history into the present moment. The court has this role where it has to be independent of the political branches, so it can serve as a check. But it cant be seen as unaccountable or unresponsive to the people. Chief Justice Roberts understand that. The way it was handled in marbury versus madison was wonderful. He was on the Supreme Court, where one of the judges that president adams had appointed and confirmed did not get his commission from the new administration. The judge said, as the Supreme Court, you should order the administration to give them my commission. There is a statute that allows them to do that. What John Marshall knew was that if he issued the order, he had no way to compel jefferson and the administration to follow it. If he issued the order but it wasnt followed, it would weaken the court as an institution. That theid instead is commission should have issued and marbury was right to bring a lawsuit and come to a Supreme Court the Supreme Court. The provision in the law that he wanted the Supreme Court to enforce, and the executive branch to do something, is beyond our power as a constitution, so we cant do it. What he did was that we, as the Supreme Court, are here to interpret the constitution, even if it is against legislation as an act of congress and were the ones who say what the law is. They did it in a moment where he was taking away the courts own power. So there was no backlash. That is the case any chief justice looks to to say that was the principle that was not established at the time, but the foundation of the courts role in society. Host lets return to clips and hear what he has to say about marbury versus madison. Many countries that have constitutions, they are just political documents. If you have a dispute, it will be resolved however disputes will be resolved. In an election if you are lucky. Force of arms if you are not. However political disputes are resolved is how they resolve constitutional questions. John marshall said this is different. The constitution is a political document. It sets up political structures. Its also a law. If it is law, we have the right to tell others what it means. That important insight into how the constitution works has been the secret to success. Host its funny that John Marshall was our fourth chief justice. People would think of him as the first because of this ruling. Wasnt immediately known how significant it was or did it play out over time . Elizabeth the significance played out over time. Chief justice John Marshall certainly knew the import of what he was doing. But the deafness of it was the debt this but the deftneess of it was doing it in a way where he wouldnt cause rancor or be seen. Thats one of their jobs, to preserve the courts role, but do it deftly in a way that supports the structure and doesnt provoke. He mentioned chief Justice Hughes and fdrs Court Packing scheme. This was the point when we saw the import of marbury versus madison coming into play. Its another great story in history. Host let me work my way through history a bit more. One thing before we leave this case. I understand the court under marshall established the tradition of speaking with one voice on opinions. Before then, they had many many opinions. What is the importance of speaking with one voice . Elizabeth it adds to the credibility of the institution and the notion that weve been talking about with chief Justice Roberts, that the court is nonpolitical. You see this in the parlance of the court. They say they serve the constitution, not constituents. We conference, we do not caucus. There is no aisle. We are here to do the work of the court. It was my impression that chief Justice Roberts said publicly, the court is misperceived when people talk in partisan terms. Host before we go into history, you are a trustee of the u. S. Supreme court historical society. What is that organization . Elizabeth its a fantastic organization that has done a lot of great work preserving a lot of the history we talked about today. Also, increasing public understanding as institution. Its not an institution you are with as a president or even congress. Its a terrific organization. Some of the historical materials, if you visit the website, you can see videos, audio clips, papers, understanding the role of the court and some of the most consequential decisions of our time that people talk about every year. Just a terrific organization. Host you are a lawyer. What kind of law do you practice . Elizabeth i do constitutional work. I have the privilege of serving in the executive branch of the justice department. I have never worked on capitol hill that i was able to work with members and staff when i was at the justice department. I have testified there several times. Its a testament to our great country that i am sitting here with you. I am a first generation american. I have been lucky enough to live about things i was reading about in school. Host where did you go to law school . Elizabeth harvard. Host how did you first get interested in law . Elizabeth ive always loved history. Theres such an intersection between law and history. I cant say i am one of those who woke up and new at 10 years old that i wanted to be a lawyer. In college, part of it was, i was looking for a good job. I was thinking about going to medical school. Law school was shorter. And i could get out into the work world sooner. A lot of it was just relationships. You meet Extraordinary People on the way. Justice thomas, he was one of those. Many people in my career have encouraged me as a lawyer, but because what we contribute to society has moved me. Host what does it mean to be a clerk at the Supreme Court . What do you do . Elizabeth a lot of it is work on opinions and petitions that come to the court. Both as a justice and the court as a whole. Its a tremendous privilege. One of the privileges that we dont talk too much about what happens in the court process. There are rules around that. Its really about the support of the court. The amount of work is tremendous. The volume of petitions that come in are than the thousands. Are in the thousands. For each case, managing the research, opinion drafting, making sure that the conference and vote is reflected in the opinions and getting them out of the public in a timely way is a tournament of work. Is a tremendous amount of work. The justices do their work obviously in the vote in their writing. Law clerks are there to do the work of getting the opinions out. Host what year did you clerk for Justice Thomas . Elizabeth i clerked for Justice Thomas in 2009. Host how many clerks does a justice have . Elizabeth there are typically for four. Host we have a clip from 2016. Apparently he has a tradition of taking his clerks to gettysburg area. This is his explanation. In these jobs, a lot of negativity comes in. Thats the lesson i learned, that somehow, you keep it together and you say, look, i know i am experienced. Ive seen how the sausage has is made. All we have left is the ideal of what the perfectibility of this great profile look great republic. Thats basically the reason. Plus, it is kind of fun. You can contemplate how our country could have gone in a different way. Is lee had one, that would have been a problem. [laughter] probably more of a problem for me than you. Host we see his sense of humor. He is talking about how people watching the sausage being made can be jaded about it and how its important to the about the ideals. What did you learn about being inside the court that you did not realize before by studying . Elizabeth its an extraordinary institution. The cases are difficult and they can be controversial. There is no way to report on them without taking a topline in some respects. I do think what you experience and certainly what i experienced, was what he was talking about. Regardless of votes or views on a case, all the justices, every law clerk is there to further the work of the court. And going to places like gettysburg or walking the halls of the building, you see and feel the history. You realize you are a small part in a moment of a Great Institution that has survived tremendous things. Some Great Stories and great drama we can talk about. It has always survived and protected our country. What i remember seeing is everybody working hard to further the courts role. There was a civility and collegiality where you could have the most ardent disagreements intellectually, but everyone knew we were there to do the work of the court. To this day, i was at a dinner recently, and there was a hundred years worth of Supreme Court law clerks. There were people going back to the 1950s at the dinner. There is a sense of, youre part of something bigger and you had these friends for your life. Host we will return to history. You talked about the court and years of particular strife, and one of those was during the roosevelt administration. A frustrated roosevelt decided he was going to expand the size of the court. What are the interesting stories from the area of attempted Court Packing . Elizabeth i will focus on the role of the chief justice. The country in the great depression, a lot of people were suffering. Fdr, in his first term, but a brought a lot of relief with the new deal program. Elected in a landslide for his second term. The court, some of those programs came up for judicial review and most of them passed muster. A few did not. The few that did not were ones where the administration was trying to regulate the domestic economy in a way that infringed on the rules of the state, because in our democracy, there is a vertical component there is a horizontal court for the executive branch of the president. There are the states that are sovereign. There were two big cases that frustrated fdr. The court had declared that the things the administration wanted to do were unconstitutional, and that frustrated the president because he had such a popular majority behind it. One of the functions of the chief justice is to inaugurate the new president. It was funny, the marbury versus madison case, it was chief Justice Marshall inaugurating Thomas Jefferson before this court case came that pitted them against one another. The same thing with fdr. He wins the second term, and he is being sworn in by chief Justice Hughes, who presided over the Court Decisions that obstructed some of the new deal programs. The swearing in, historical account is funny. A windy day, chief Justice Hughes had whiskers flapping in the wind. Chief Justice Hughes had the idea that maybe they were going a little bit far with the programs. Chief Justice Hughes read the oath very seriously and solemnly. Fdr responded after, i understand that you say my oath is to uphold the constitution, but the constitution as i see it is a flexible one to adopt to the challenges of democracy. This will set up a contrast between the court and executive branch. What fdr did after that was open unbeknownst to most members of the court, he invited them to his house. Everything goes swimmingly. Three days later, this is february of 1937, he announced a Court Packing plan and his plan is, for every justice on the court who is 70 or older, the president can appoint, if that justice does not retire, the president can appoint any a new justice up to six. That would have allowed fdr to put up to 15 justices on the court. That will ensure his new deal legislation would not get struck. Chief Justice Hughes handled this in a way that is extraordinary and may explain chief Justice Roberts reference. He was lobbied by people to speak out against this plan. He refused to do so. He ended up writing a letter that was widely understood to say, i do not agree that there is any need to change the number of justices on the court and the president s reason, which was purportedly that the older justices could not keep up with the caseload was pretext and unjustified. I have to laugh a little bit. If fdr had met justice ginsburg, he may not have been able to put the narrative out there. He issued this letter saying, this is pretext, it is not right. There are different historical explanations of why the Court Packing plan did not exceed the chief justices approach, but it theplifies the point that Supreme Court embroiled in politics and you have to have a deft hand in managing them. Host he wanted to be a candidate for president , but he had his very own these of president ial power and how it should be wielded that he brought to this conversation. Elizabeth you have probably heard the expression a switch in time saves nine. Chief Justice Hughes was deft at not being drawn into the fray on the Court Packing plan, but also after congress voted on the voted down the legislation, he managed the conference and started putting more hospitable toward fdrs legislation. Another justice retired, and that opened a sp