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 how it has evolved, how does the chief justice in this era wield authority . What tools do they have . Elizabeth the answer to that question is, in this era, as always, the chief justice, first and foremost, is the head and steward of one of our three ranches of government. I think there are some unique spects 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 two of the principal distinctions of the chief justice. The chief justice provides over 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 . And so the chief has a role in circulating the discuss list. Other justices can add to it. But the chief circulates that. If it doesnt make that list, it is presumptively denied. He also presides over conferences. There are some Great Stories of this as well. Certainly a role in managing the docket and what gets taken. And in the same process on the vote. Then you mentioned the opinion assignments, which is an extremely important job. It is one 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. Then again, we can talk about stories when a chief might join a majority and have a hand in signing an opinion and keeping consensus on the court. Host what number of justice is chief Justice John Roberts . Elizabeth im not sure. I know that there have been about 102 justices. Chiefs, i am tempted to say between 1015. Certainly 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. Lets watch. The job does not give you a prominent role or historical significance just because you hold the job. You look at Melville Fuller and you understand his role in making sure the court functioned continually. 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. That is how he sees his role. How has this chief justice approached his tenure on the court . Elizabeth i think he is the consummate steward he was describing. And i think he said this publicly, it goes all the way back to chief justice John Marshall, who had this incredibly Important Role in establishing where the courts place is in our constitutional 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. We had a situation where the 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 Thomas Jefferson and the antifederalists. He decides one thing he could do before he leaves the white house is put a number of judges on the bench. Ends up choosing 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 . So adams appoints John Marshall as chief justice and tries to put judges on the bench before he leaves and he runs out of time. And that leads to one of the most consequential cases in Supreme Court history. I am sure you know a little bit about that story. Host which one . Elizabeth marbury versus madison. The reason i raise it is because it is so very much what chief Justice Roberts is talking about today. You asked a question about how he approaches his job. 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 very well. The way that marshall handled that 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, marbury said, 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. So if he issued the order and it was not followed, it would weaken the court as an institution. What he did instead is that the commission should have issued and marbury was right to bring a lawsuit and come to a supreme the Supreme Court. The provision in the law that he wanted the Supreme Court to enforce the one directing the executive branch to do something, is beyond our power under the constitution, so we cant do it. What he did was stay 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. And he 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 is now the foundation of the courts role in society. Host the current chief justice does point to that. 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. Maybe 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 and marbury versus madison said this is different. The constitution is a political document. It sets up political structures. But it is also a law. If it is law, we have the right of the courts to tell others what it means. That important insight into how the constitution works has been i think the secret to its success. Host its funny that John Marshall was our fourth chief justice. But people always think of him as the first because of this ruling. Did people know immediately 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 deftness of it was doing it in a way where he wouldnt cause rancor or be seen. That is the role of the chief justice, to preserve the courts role, but do it deftly in a way that supports the structure and doesnt provoke. The first clip, 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. Again, it is another great story in history. Host let me work my way through history a bit more. One other thing before we leave this case. I understand the court under marshall established the tradition of speaking with one voice on opinions. Before that there had been as many opinions as chief justices. What is the significance of speaking with one voice . Elizabeth it adds to the credibility of the institution and in 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. The court will say we serve the constitution, not constituents. We conference, we do not caucus. There is no aisle. We are all here to do the work of the court. And i had the privilege of spending a year there as a law clerk. It was my impression, and chief Justice Roberts said publicly, the court is misperceived when people talk in partisan terms. Its work is different in kind. Host before we go into history, lets find out more about you. First of all, 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. And also just increasing public understanding of the Supreme Court as institution. Its not an institution you are as familiar with as a president or even congress. So it is a terrific organization. Some of the historical materials, if you visit the website, you can see videos, audio clips, papers, you know, understanding the role of the court and some of the most consequential decisions of our time that people talk about every year. Especially in election years. Just a terrific organization. Host you are a lawyer. What kind of law do you practice . Elizabeth mostly civil law, but 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, but 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 lived and 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 think it was just a natural thing because i cannot say i am one of those who woke up and knew 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 edical school. But 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. But many people in the course of my career have encouraged me as a lawyer, not to be a lawyer just because 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. Because there are rules around that. But really it is about being a support to the court, because the amount of work is tremendous. The volume of petitions that come in are in the thousands. For each case, managing the research, opinion drafting, making sure that the conference and of the vote is reflecting the opinions and getting them out of the public in a timely way is a tremendous amount of work. The justices do their work obviously in the votes and 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 four. Host we have a clip from 2016. Apparently he has a tradition of taking his clerks to gettysburg every year. He was asked why he did that. Here is a little bit of the explanation. In these jobs, a lot of negativity comes in. That is a lesson i learned, that somehow you keep it together and you say, look, i know i am experienced. I have 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 way. If we have lost. And if lee had won, that would have been a problem. 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 so closely 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. And i think that there is no way to report on them without taking a topline in some respects. But i do think what you experience and certainly what i experienced as a law clerk, is what the justices were talking about. Regardless of votes or views on 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 that 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. There are some Great Stories and great drama we can talk about. It has always survived and protected our country. And what i remember seeing is everybody working hard to further the courts role. And 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. And to this day, i was at a dinner recently, and there was a hundred years worth of Supreme Court law clerks. We had people going back to may be 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 very frustrated roosevelt decided he was going to expand the size of the court. What are the interesting stories from that era of attempted Court Packing . Elizabeth i will focus on the role of the chief justice. Obviously, 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 programs. Elected in a landslide for his second term. The court, to the point we have been talking about, 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, obviously because in our democracy there is a vertical component, there is a orizontal 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. Behind him. So the swearing in, one of the functions of the chief justice is to inaugurate the new president. This happened it was funding, 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. So the swearing in, the historical account is very funny. It was 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. So he read the oath, chief justices read the of the very seriously and solemnly. It was not lost on the president. Fdr responded after, i understand that you say my oath is to uphold the constitution, but the constitution as i see it, and a flexible one, to adopt to the challenges of democracy. So this set up a contrast between the court and executive branch. What fdr did after that was unbeknownst to most members of the court, he invited them to his house. Everything goes swimmingly. Unbeknownst to those at the dinner party, three days later, this is february of 1937, he announces a Court Packing plan and his plan is, for every justice on the court who is 70 or older, the president can anoint 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 asked by members of congress, 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 you think back on this time, you know, if fdr had met justice ginsburg, he may not have been able to put the narrative out there. He issued this letter saying, i am not going to be political. This is pretext, it is not right. Congress did not pass the law. There are different historical explanations of why the Court Packing plan did not exceed the chief justices approach, but it sort of exemplified the point that we do not want the Supreme Court embroiled in politics and you have to have a deft hand in managing them. Host hughes had been a candidate for president , but he had his very own views 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. Achief 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. And another justice retired, and that opened up a spot for fdr to appoint a new justice, who he could hope would be consistent with his program. That was hugo black. And that was a whole other era at the court. Host there is no constitutional mandate for the size of the court. Elizabeth correct. So this is truly, i will say that the deftness i was referencing, its hard to convey, but there is a structural component to the courts 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 number of justices. Looking back, and certainly the chief justice saw the Court Packing plan as a way of the executive overstepping its bounds. And unseating the constitutional balance by allowing the president to pack the court. At the time, if you are an fdr fan, you might have had no problem. But if that is allowed, what happens when the president does that to someone who is not so excited about. We want this to be for the democracy. Host the next chief justice was appointed by harry truman. Chief justice fred vinson. We have got some video of him, ome newsreel of the era that shows when he was sworn in. Lets watch. Before the south portico of the white house, the large crowd witnesses Justice Grover swearing in fred vinson as chief justice of the Supreme Court. The former secretary of the treasury is congratulated by members of his proud family. On his shoulders rests the task immediate task of bringing harmony to the nations highest tribunal. Host so, really interesting to see the kinds of crowds that were attracted to a swearing in of a chief justice. What was america like in the postwar era that this court was going to be part of . Elizabeth it is interesting you ask that heard the quote in the. You heard the quote in the clip that part of the idea behind this appointment was to bring unity to the court. To understand that, you have to understand what immediately preceded vinson, which was chief justice stone, and this was a funny segue, because we talked a little bit about the Court Packing of fdr in the new deal and chief Justice Hughes. Fdr gets aired and new court pick, it is hugo black. He had a notorious feuds with several members of the court that chief Justice Vinson and the clip we just was appointed saw was appointed to try to unify. Very tough job. He is the chief justice who merely preceded vinson. Hugo black, robert jackson, significant jurisprudence. V. Board,in brown which we can talk about. They had a notorious feud. Hugo black had been in the senate. There were cases leading up to his appointment. One was about fair labor standards act issues. Hugo black,ou g before he was on the court had , taken a position on the u. S. Senate and jackson felt like he was conflicted and some of the rulings. They had the centauri is feud. Chief justice stone was unable to make peace and control what was a public airing of divisions on the court. Chief Justice Vinson and he was frustrated with the inability to manage the court, particularly manage black. He had gone out to do the nuremberg trial. Very strange thing because he was still an active member of the Supreme Court, but not sitting. Had an eightmember court. No tiebreaker. The chief was frustrated by that but unable to do anything. Trumans idea was, appoint vinson and see if he can bring some unity do this. Sadly, he was unable to do so. He inherited this fractured court. All of the historical accounts got demonstrably worse. I dont know if we can talk about that and some of the cases. Host sure. Did he have a judicial philosophy brought . Elizabeth i dont know if he did, the way some people think of chief justices today. He was close to the president. It was difficult for him because some regard him as a crony,. Felix frankfurter was on the court was a harvard professor. , chief Justice Vinson felt like he had some disdain for him. I will tell you vinson was the presiding chief justice when brown versus the board of education came up for the first argument for the Supreme Court. The historical accounts you can see on the website are that the court at that time had open contempt for the chief. He cannot control what they do, so it is cajole, not control. That has consequences for the first round of brown. The case was argued, vinson, and this is an record, he was in conference. He had one justice who would have upheld segregation issued in brown. He could not get a clear majority and was basically paralyzed. His inability to handle that people talk about vinson pushing sort of pushing out the timeline and having the case for reargument and buying the court sometime to figure out what it was going to do, it was Felix Frankfurter who came up with the idea that they should have five questions to be reargued. Buy some time for the court to sort out its position. What happened after that was is actually chief Justice Vinson died before the reargument. The historical accounts are this , is a rather unflattering thing. Its reported that he said his first sign ever was that there is a god. That there was a guard was chief Justice Vinson past. Earl warren was appointed and it was a very different approach. Host there is a notes project going on where the notes that these justices take are beginning to be digitized and made available. I saw and a story that in december of 1952, when this case, called briggs versus elliott, was being heard, the conference notes show that split, that four justices were ready to find segregation unconstitutional, and one, stanley reed, voted to uphold it. Chief Justice Vinsons notes from that day say im not sure , what we should do today. He could not find a way out of that. Ultimately, it was important for brown, heard by the next court, to be unanimous. What is the strength . It seems obvious, but why could they not let it go as a split decision . Browns it important for to be a unanimous decision . Elizabeth i will comment on that in a moment because i think it is a significant one, but the unanimity was the idea to chief the chief justice appointed. I will comment on the digitization project in a moment because i think that is a significant one. But to the point the unanimity was the idea. Chief Justice Earl Warren, who was appointed to replace vinson, the idea was really try to bring unanimity to the court on decisions like brown. He was governor of california. He was very deft at looking at the conference and the country and saying, if we do this, it has got to be unanimous. There were two reasons for that. One, it was a fairly divisive issue even at the time. Secondly, they were overruling a major precedent. As you have probably know and have heard, the Supreme Court is not a political body, so it cannot just change its mind or overrule its own decisions on a whim or because of Political Sentiment in the country. There has to be a reason. Chief Justice Earl Warren was i think extremely sensitized to the fact that if they overruled the segregation before the court in brown, they would be overruling the courts 60yearold decision in plessy v. Ferguson that said under the reconstruction civil rights amendments, equality is fulfilled by having separate but equal facilities. So chief Justice Earl Warren understood that you had to get to a unanimous opinion and more than that, and we can talk about how he did that, which again i think is an Important Role in the chief justice in getting consensus on a court that was still split, getting it short enough so the papers could publish it. So that people could see the work of the court as one. Everyone could read it. And then there came how to administer that, which we know from the Civil Rights Era was very difficult but that was a follow on chapter. Chief Justice Warren knew how. Host which chief Justice Vinson couldnt get done. Elizabeth could not get done. Host one of the other big cases we dealt with in our landmark cases series during the vinson years was Youngstown Sheet Tube Company versus sawyer. Why is this a landmark case . What was significant about it . How did chief Justice Vinson approach this case . Elizabeth this was the steel seizure case. The chief justice i think again it was a function of maybe not fully understanding the views of the other justices in his conference. In fact, in that case it was one where obviously the executive branch wanted to seize Steel Production factories in the country, wartime justification. The question was, does the executive branch have the power to do that . It infringes on commerce and states rights and the like. And vinson thought and assured the president the court would approve it and he did not know his own conference well enough to know they in fact would not. They reversed there and it was significant because one of the courts major roles, and it is a delicate one as you can imagine, starting back with marbury, is acting as the final word on when the constitution draws a line on another branch of government. So the steel seizure case, like some others we have seen and can talk about, are about the court saying when another branch has gone too far. In that case, it was the executive branch. Host one part of the story caught my ear, the chief justice assured the president this would not be overturned. How much do we know from history about conversations between chiefs, especially when they are the same party, actually signaling to a president which direction a major case might go . Is it rare or common . Elizabeth my sense is that it is rare, but it is hard to know. This is where, frankly, some of the projects like the digitization project you mentioned can be illuminating. Because you can get contemporaneous notes from the other justices. By the way, i should say the notes of the justices typically the conferences are not public. Theyre closed. But the notes are the personal property of the justice, so they can obviously decide to leave their public papers with the library of congress or an institute. It is illuminating. My sense is it is not common. That was one of the reasons that i think undermined chief Justice Vinsons credibility with the court. I mentioned the cronyism point. There was some criticism he was too close to the president , and that is not the job of the court. That is not the job of the chief justice. You are not partisan. You are not a crony. You are there to do a particular job. There was criticism i think that damaged his credibility with the conference. Host we segued into earl warren, who was successful in the unanimous decision on brown v. Board of education, another landmark case. But lets talk more broadly about the warren court. It was a long one, 1953 through 1969. Eisenhower appointed him. Did president eisenhower get what he expected philosophically from earl warren . He was a law and order governor. So when he appointed him, what was he hoping his view might be on some of the big issues in society at the time . Elizabeth i think it is hard to say what the president had in mind or if he had a view in mind. Particular view in mind. President said publicly in appointing chief Justice Warren that he certainly got was someone who could bring unanimity and some consensus to the court. Host but the court is thought of now as a much more liberal court. We had a republican president appointing him. Philosophically, were republicans surprised at how the warren court turned out . Elizabeth perhaps in some respects. The Party Alignments on a partisan level are different than they are today. In some respects, the republican party, the party of lincoln, it was not a great surprise that the chief Justice Earl Warren and the warren court would be as active and supportive of civil as it was of civil rights as a was, which was inline with the party of lincoln and the idea that there should be equality. So i think in that respect, maybe not so much of a surprise. Again, the issue is the question highlights an important point about the relationship between the appointing president and the court. Which is that once the justices get on the court, this is the balls and strikes. You get these cases and you have to call them as you see them. Justice thomas has said that, you heard the chief say that. That is why whatever a president s expectations on some level, if you see some diversions, that is probably a good thing because it means the justices are doing their job. Host during the warren years, besides brown there are number of landmark cases and categories. Voting and redistricting, baker versus carr, reynolds versus sims. We dealt with a number of the criminal procedure landmark cases, matt versus ohio, miranda, which gave us miranda rights, gideon versus wainwright, and katz versus the United States. Why dont we we talk about criminal procedure since he was attorney general, and a law and order governor . Those landmark cases in the area of criminal procedure, how does that change the country . What did they do . Changeth i think they the country probably in innumerable ways. Going back to the foundation of what the constitution talks about, it goes back to the notion of due process. A law and order governor, not surprising to say, look, the only way that law and order maintains its credibility and even as a prosecutor, if your prosecutions hold, is if they are done fairly. And if the criminal defendant has rights that our constitution contemplates. So i think what we saw during the warren court was basic fundamental constitutional concept of due process. That was not as surprising. I will tell you, it is a great example and im glad you raised it of how the court is sometimes misperceived as having jurisprudence thats on a partisan basis. When you look at for example, Justice Thomas Fourth Amendment jurisprudence, a number of his decisions are prodefendant in the way the warren Court Decisions are. In the sense that they ensure the defendant has certain rights against the government or against law enforcement. Look at someone like Justice Thomas, who i think is perceived if you look at media counts as a conservative justice on the socalled right of the court, who has many cases that are procriminal defendant, because they derive from the same constitutional principles as some of the warren court jurisprudence. Host free speech, the famous New York Times versus sullivan, student free speech, tinker versus the Des Moines School district. In the area of free speech, what is the warren court known for . Elizabeth very significant in terms of galvanizing freespeech rights. I think particularly in the school context. The no School Prayer case was also during the warren court. I think very much a proponent of the First Amendment. But i think again that was not necessarily as surprising. When you look past warren for that next chief justice, who nixon campaigned on the idea as someone who would reign in the Earl Warren Court you still have significant opinions like the case, i cannot remember the name at the moment, but i think the burger court upheld say you cannot compel the media or newspaper to print the response of a political candidate whose position the paper attacked, because that is compelled speech. The burger court also held that the right of the free speech of the First Amendment can a recompass the right not to speak. Some of the decisions from there warren court werent extraordinary or aligned with one plug of philosophy or another, then it was with constitutional first prince pulse. Host another case that we hear about so much today is griswold. Elizabeth griswold versus was one of i think the cases that is a foundation or widely regarded as the foundation of privacy rights, in the 14th, constitutional due process. It has led to a lot of cases, roe v. Wade, planned parenthood versus casey, the tal that talka right of privacy that it hears in the constitution that the court has built out. That is one of the areas that is a controversial part of the Earl Warren Courts jurisprudence, and certainly now in the burger court, and the current court. I think people are looking and the court is looking carefully at those precedents. When you look at that light of cases and some of the examination that is going on now, as a matter of process, it is not fundamentally different from the kind of reexamination and thoughtfulness the court engaged when it was considering brown against years of precedent under plessy. I think people sometimes focus more on results than process. What strikes me about those both those instances is the cous doing its job of not overstepping its role but also reexamining where necessary some of the jurisprudence as time proceeds. Host we have another clip to show. This is from a 1969 interview that earl warren gave before just before retiring, talking about one of the most important cases he saw during his term. I want people to hear what he looked and sounded like. Lets watch. We held that the legislatures must give equal representation to everyone. That was where the expression one man, one vote came into it, into being. Of course it is not just state legislatures. But it has been expanded to the congress and expanded also to local government. If it is right on one level of government, of course, it is right on all levels of government. In that sense, i think that that case, from which all the other reapportionment cases followed, is perhaps the most important case that we have had since i have been on the court. Host the case he is talking about is baker vs. Carr. Elizabeth one person, one vote. Host we just listed a lot of important cases. Why would he see this at the most significant during his term . Elizabeth it is hard to say. I cannot speak for the chief justice. It is significant in terms of the point he was making about this is a fundamental notion of equality, what does that mean , and how is it enforced or safeguarded in a political democracy if you do not have that sort of representation . It raises questions about the respective roles of government. I think the courts role is the very much the safeguard. That individual right can be exercised in electing members in the political branches. I think that is a fundamental part of our jurisprudence. If the court were not to protect that, the foundation of democracy starts to erode. Host you told us that Warren Burger was appointed by Richard Nixon when chief Justice Earl Warren retired. You have referenced other chief justices from history and their administrative skills. What is the view of the way that Warren Burger administered the court during his term . Elizabeth it is interesting. He was probably at least initially in the historical accounts aligned a little bit more with the stone vinson era. Chief Justice Earl Warren was a superb chief. When burger came on, he had some difficulty. He was not wellliked or respected by some of the justices, i think notoriously Justice Douglas, who was concerned that to the point we discussed earlier, chief Justice Burger would be there to carry out the president s mandate of walking back some of the Warren Court Era jurisprudence in a way that was sort more political or agenda driven than should be the role of a chief justice. How much of that perspective was driven by those dissenting or objecting justices own agendas is hard to say. One could make the argument both ways. But chief Justice Burger had a harder time. You saw this in some of the cases. I think it was roe, on the first argument round. That case was reargued just as brown was. There are some cases where the court reargues to buy some time. When chief Justice Burger did that, i think it was Justice Douglas who leaked a dissent and tried to publicize a little bit some of the divisions on the court and make the chiefs job harder. The answer to your question is he faced a more uphill environment than perhaps warren did. And if he didnt, perhaps warren was better at organizing. I will tell you on brown versus board you know the story. Justice jackson was a big proponent of judicial restraint and was very concerned about the court overruling precedent, and how to get to the result in brown that Justice Jackson agreed with but was worried about who should do it and what the courts role was. Chief Justice Warren, Justice Jackson had a heart attack, and he went to his bedside with a draft opinion to get the unanimity we were talking about, and tried to get buyin, including also from the dissenting justice you mentioned he was going to vote for segregation. He got the Unanimous Court in the room to announce that opinion. Burger had a harder time getting that consensus. Host had some big cases during this term. Elizabeth huge. Host you mentioned New York Times versus United States, roe v. Wade, greg v georgia, which is the Death Penalty case, regents of the university of california, which is affirmative action which we continue to see cases refer to that decision. And then United States versus nixon. Here is another one which pits the branches of government against each other. Why was that case so important . Elizabeth well, i mean, you know, that was obviously the executive privilege case in the nixon administration. The whole question before the court was, is there a Constitutional Foundation for the executive, or the president s, assertion of privilege over president ial papers and communications . This was going back to marbury or the new deal era. The courts consequential role in saying what the law is, and then mediating this structural separation of powers game where it is like who gets to do what in our government . What was significant about that case was the court said we are going to uphold the privilege. The privilege, whether you like how it is being exercised in this instance or not, exists to protect the role of the executive branch. Lets go through the deliberative thing. There is a deliberative process. We want our elected representatives to have debate and have deliberations in government. There is a president ial prerogative as an executive to make certain decisions and not have them secondguessed during monday morning quarterback. The court saw that and said this privilege has a constitutional underpinning so we will uphold it. It was a very significant decision. Appointee of Richard Nixon was William Rehnquist appointed to the court in 1972. When Ronald Reagan was president , he elevated William Rehnquist to chief justice in 1986. Can you talk about William Rehnquists judicial philosophy . What with his view of the role of the constitution, for example . The great tension is the originalist versus the living document. Where would he have been on that . Elizabeth if you are to categorize him and im not sure it is possible to do so, probably more on the originalist side. When i think of that court jurisprudence, what stands out to me in contrast to some of the justices we have been talking the nixonmentioned case. That was the horizontal component, rehnquists jurisprudence focused on the very much on the vertical component, which is the relationship between the federal government and the states. Host which was very much Ronald Reagans issues. Elizabeth exactly. The federalism. The Rehnquist Court reembraced the idea that, and this harkens back and has echoes of chief Justice Hughes reacting to the new deal legislation. There are certain prerogatives that the federal government and political branches have, but it is for the court to say when they go too far, whether an infringing court in a branch of the federal government or the states and individual rights. What we saw during chief Justice Rehnquists tenure is a refocusing of a courts attention on the relationship between the federal government and the states. Host that being said, will he not always you for two decisions that really were the balance of powers . That is of course the impeachment trial of president clinton in 1999, and then bush v. Gore in 2000. Elizabeth sure. It is funny. He said about presiding over the impeachment trial, which was one of the significant duties of a chief justice that other chief justices dont share, he was a big gilbert and sullivan fan. When asked what he did or how he perceived his role presiding at the senate trial, he said you know i did nothing in particular and i did it very well. So i think he did not relish the role. I will say to the point we have been talking about all morning, which is the issue of where is the courts role of the government, chief Justice Rehnquist did, and coming out of the impeachment proceedings on what he termed sort of tongueincheek, the relative order of the Supreme Court as against the three freeform environment in the senate. And he was happy go back to the court. Host let me stay with that for a minute because it is all the this town is thinking about now. I found a usa today story from october of this year. Just a little historical note that the late chief justice William Rehnquist busy man on january 20, 1999. The impeachment trial of bill clinton was in its second week. William rehnquist had to stop presiding over or arguments and moves the senate to reside of the trial. It goes on to note, one of the lawyers are going be for the high court that it was john roberts. Here we are as history moves forward, john roberts made third chief justice in American History to preside over and an impeachment trial. Mitch mcconnell has already led to Senate Caucus through a process orientation about what their role might be if the in fact the Current Situation leads to an impeachment trial in the senate. Has anything come out on the Supreme Court about preparations for what the chief justice or role might be . Elizabeth not that i know of, which is not surprise me. Chief Justice Rehnquist coming out of the 1999 proceedings made a point of saying he actually consulted or had with him a congressional parliamentarian. He saw his role it is an article one, a constitutionally prescribed role of the chief justice of united state presides over the senate in any impeachment trial. I do not know that anything about that role has changed. The question is more, is there something going on where in anticipation of such a trial and having maybe the chief justice otherwise occupied that theyve altered the schedule . Certainly not to my knowledge. That would be something that would be internal to the court. I might be surprised. Host there only two times before that this has happened. Are there records available to know how the chief justices role shapes up during this . The last one was Andrew Johnson , and that was a very Different Congress and country at the time. Elizabeth there may be. It may be something where that would be worth a visit to the historical societys website. The chief justice remains the chief justice. They vote and there are people there to do the work of the cases. So i would imagine the work of the court will carry on. Host lets bring it back to the current court. We have about five minutes left in our conversation. When one looks at we have been looking at chief justices s and the role they have been taking. With that in mind, Justice Roberts is going into the 15th year presiding over this court. What are the broad observations one might look at casting an eye to history about the Roberts Court and how he has approached it . Elizabeth this goes back to a point you raised in the beginning and is evident in the clips you showed at the start of the hour. I think one of the big points is that that chief justice has been very cognizant of and done a tremendous job of being a steward of the court as an institution, balancing the importance of maintaining Public Confidence and access to the court, with its role, meaning a nonpartisan, nonpolitical role. By that, i mean it goes to, for example, the digitization project you had mentioned. Transparency and access are very important. The court needs to maintain its integrity. There is something to be said for preserving that. You saw this last month in the wisconsin gerrymandering case. There was a bipartisan request out of congress to have Live Streaming of those oral arguments. The chief justices counsel wrote a letter to the Bipartisan Coalition and said, we cannot accommodate that request. Because the court is concerned that that may alter or adversely affect the nature and quality of the discourse on the case. But i think what chief Justice Roberts has done in counterpoint to maintaining the line on things like that is gone out of his way to make Public Access available in other ways, like the audio is now available. I think same day transcripts of oral arguments by the end of the week, publishing the opinions quickly. Chief Justice Burger had the same thing. He revolutionized the court in terms of Public Access to the building. And some things that helped people understand what the courts role is and preserve some transparency, while ensuring the courts work still has the nature and character necessary to do its job i think. I think that will be, looking back, a big part of the legacy or a notable one. Host we have one last clip of the chief justice, 2018 university of minnesota law school. He hits on the themes you discuss. Lets watch. The court has from time to time erred, and erred greatly. But when it has, it is because the court yielded to pressure. We need to know at each step we that we are in this together. There is a concrete expression of that collegiality in a tradition at the court that has prevailed for over a century. Before we go onto the bench to hear argument in a case, and before we go into the Conference Room to discuss a case, we pause for a moment and shake each others hands. It is a small thing, perhaps. But it is a repeated reminder that, as our newest colleague put it, we do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. Host hitting on the themes you have talked about throughout the hour. But the reality is that appointments to the Supreme Court are very partisan these days. The atmosphere we saw around the last two appointments, especially the Kavanaugh Kavanaugh hearings, brings a lot of partisan attention to the court. You hear all the judges about how they approach it in a nonpartisan way. But how can a 54 court not be partisan . Elizabeth because the vote and basis of the vote, if it is 54 or not, is not about partisan or political ends. It is about the jurisprudence. So i think there is a huge distinction there. This is why i mention Justice Thomas Fourth Amendment jurisprudence. Another example would be in the Commerce Clause area. If you take on a partisan level and i remember this well, as one of his law clerks, i do not know if you remember the partialbirth abortion case, congress tried to pass restrictions. The authority for that was the Commerce Clause. Justice thomas went out of his way to say, i do not think the Commerce Clause authority extends that far. It was met with a lot of anger and some surprise on what i will call the partisan right. The answer to your question is it is not about partisanship when you look under the hood of the jurisprudence. It is hard in topline reporting to do that sometimes. You see that people are voting on principles. Sometimes the outcome is one way or the other. This is calling balls and strikes. This is what differentiates the court from the political branches. I will say i agree very much with the point chief Justice Roberts makes. It goes back to you showed a clip of chief Justice Warren on reflecting on his tenure. Theres another where he reflects on a different part of his tenure, which is the karaman to case, related to japanese internment. This struggle account is that chief Justice Warren had tears in his eyes looking back on that case and saying that was one part of my tenure i very much regret. That i voted to uphold that internment and treatment. I think that is what the chief justice means, which is the court errs when it bends to political will. When you go back in history and look at the political roles of will and sentiment in the country, that was the sentiment in the country. But chief Justice Warren be the first to agree it was the wrong result. If the court had done the courts work, maybe we would not have had that result. Host and that is the last thought as this court embarks on a term with some very big and likely controversial cases. Thanks very much for spending an hour with us. Elizabeth pleasure. 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