The answer is in this era, as always, we have a chief justice first and foremost the head of and a steward 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, but deliberately designed not to be an the chief has in some because a unique job the chief justice is the first. She has had administrative responsibilities but she cannot control the other justices. The chief justice has the power to control but not control. There are some great areas in history that explain that. Role and whove a writes the opinions . Twof course, those were the distinctions as the chief justice. They reside over the conference which is leading on both which cases to take. I think as you know, a very small number of cases that the court actually takes and hears out of the number that are petitioned every year. It is under 10 . Chief has as role in the discuss list. That and itrculates is presumptively denied. The chief resides over the conferences. Certainly, a role in managing the docket and what gets taken in the same process, you mentioned the opinions which are extraordinarily important and it is one that the chief has when the chief is in the majority. Court, buty of the we can talk about some stories aout when a chief might join majority and try to keep consensus on the court. What number is chief roberts. I am not sure. Between 10 and 15 , very few clarion the first clip we have of him, we have a couple to show is him describing his job and is a metaphor he uses often. [video clip] if you understand his role in making sure the Court Function and you go in the next room and you see Charles Evans hughes and you think about the importance of the independence of the judiciary. And things like that. He talks 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 . Justice roberts steward yout would see and he says this publicly and it goes back to chief justice John Marshall, who had this incredibly Important Role in establishing where the courts place is and our democracy. It is very hard to have a proper conversation about chief justices without spending a moment on John Marshall. You probably know this story, where weback in 1800 had a situation where the federalists were in the white house and congress but lost the election. He is present and he has two months before he has to cede control of the white house and to Thomas Jefferson and the antifederalists. He decides one thing he could do is put a number of judges on the bench before he leaves. He ends up choosing as chief justice of the United States, John Marshall, who is his secretary of state at the time. I dont now how many people know this about John Marshall but he was at the Constitutional Convention in virginia and he spoke about what chief Justice Roberts just said, the independence of the judiciary. He said at that time, 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. I am sure you know a little bit about that. Host which one . Elizabeth marbury versus madison. Its so much what chief Justice Roberts is talking about today. You asked the question 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 independent branches, so it can serve as a check, but it cant be seen as unaccountable or unresponsive to the people. Chief Justice Robert understands that. The way it was handled in marbury versus madison was extraordinary. He ended up on a 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, if you them to give them the commission. There was a provision in the statute that allows the Supreme Court 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, if it wasnt followed, it would weaken the court as an institution. What he did instead was say, yes indeed, the commission should have commissioned in marbury was right to file a lawsuit and bring it to the Supreme Court. The provision in the law that he wanted the Supreme Court to enforce, the underwriting the executive branch to do something, is beyond our power as a court under the constitution, so we cant do it. What he did was that we, as the Supreme Court, are here to interpret the constitution, even as against legislation as an act of congress and were the ones who say what the law is. He did it in a moment where he was taking away the courts own 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 but is now the foundation of the courts role in society. Host lets return to clips and hear what he has to say about marbury versus madison. [video clip] many countries that have constitutions, their political documents. If you have a dispute under the constitution it will be resolved , however disputes will be resolved. Any election if you are lucky. Force of arms if you are not. However political disputes are resolved, that is how they would dispute constitutional questions. John marshall said this is different. The constitution is a political document. It sets up the political structures but it is also a law. If the law, we have the right to tell others what it means. It is binding on the other branches that important insight. Into how the constitution works has been the secret to success. Host do you have more to say about that . Its funny that John Marshall was our fourth chief justice. People would think of him as the first because of this ruling. Was it immediately known how significant it was or did it play out over time . Elizabeth the significance played out over time. The chief justice, John Marshall certainly knew the import of , what he was doing. Again, whos doing it in a way where he wouldnt cause rancor and we can talk about how one of the key roles of a chief justice is exactly that, to preserve the courts role but do it in a way definitely deftly preserves 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 that the court under marshall also established the tradition of speaking with one voice on opinions. Before that there had been many chief justices with many opinions. What is the importance of speaking with one voice with the court . Elizabeth it goes to the credibility of the institution and the notion that weve been talking about with chief Justice Roberts, that the court is nonpolitical. You hear this in the parlance of the court. Constitution. Not constituents. Caucus. Rence, we do not we are all here to do the work of the court. I had the privilege of spending a year there as a law clerk. , chiefmy impression itssaid publicly where it is different in time. Susan lets spend more on you. The u. S. A trustee of Supreme Court historical society. What is that organization . Elizabeth i fantastic organization that does a lot of great work preserving a lot of the history we are talking about and also increasing public understanding of the Supreme Court as an institution. It is not institution you might be as familiar with as president or the congress. It a terrific organization and some of the historical material, if you visit the website, you can see its audio clips, its papers, understanding the role of the court and some of the most consequential decisions of our time. Its a terrific organization. Susan susan what kind of law do you practice . Elizabeth mostly civil law but i have done constitutional work. I have the privilege of serving of theexecutive Branch Justice Department as well as a law clerk in the court. I was able to work with members and staff when i was at the justice department. Ive testified there several times. American. Generation i have lived and been lucky enough to live some of the things i read about in school growing up. Susan where did you go to law school . Elizabeth i went to law school at harvard. ve always loved history theres such an intersection between law and history. Natural if a cant say im one of these people who woke up in the middle when i was 10 years old part of it was i was looking for a good job and i had studied some science and thought maybe thats going to maybe going to medical school but law school was shorter and i could get out into the work world sooner. A lot of it is relationships. You meet Extraordinary People along the way. 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. Susan 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 thousands. For each case, managing the research, the opinion drafting, the justices do their work in the writing. The law clerks are there to pick in 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 four. Host we have a clip from 2016. Apparently he has a tradition of taking his clerks to gettysburg every year. Lets watch. [video clip] 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 is made. All we have left is the ideal of what the perfectibility of this great republic. Thats basically the reason. Plus, it is kind of fun. You can contemplate how our country could have gone in a different direction. If 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 that i experienced as a law clerk is what the chief justice and Justice Thomas were 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. Susan 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, 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 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 exemplifies the point that the Supreme Court embroiled in politics and you have to have a deft hand in managing them. Susan 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 down the legislation, he managed the conference and started putting more hospitable toward fdrs legislation. Another justice retired, and that opened a spot for fdr to appoint a new justice, who he could hope would be consistent with his program. That was hugo black. That was another era of the court. Susan there is no constitutional mandate for the size of the court. Elizabeth correct. The deftness i was referencing, its hard to convey, but there is a structural component to the courtss place in our democracy. It is on coequal footing with the other branches, but it does a different job. There is no constitutional restriction or prescription on the