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Next on American History tv Yale University professor Akhil Reid Amar discusses the relationship between u. S. Supreme Court Justices and american president s. He looks back at the first appointed chief justice john jay. He argues historically the justices were geographically balanced and that theres been a more recent shift in representation based on demographics and political affiliation. We are thrilled to welcome akil. Back to New York Historical society before joining Yale Law School, professor ahmar clerked on the First Circuit for judge steven then judge steven briar. He is also a recipient of the duvane medal. He was the author of several books, including the law of the land, a grand tour of our constitutional republic. I think akhil was voted the most popular professor at yale. At least he is my most popular professor and youre all here. I think if you all are here because you know him, he is your most popular professor. Before we begin and invite our popular professor up on the stage, please turn off any cell phones, electronic devices, and join me in welcoming Akhil Reid Amar. Thank you. [ applause ] thank you for coming. This is the New York Historical society. Were going to be talking about the Supreme Court. Well be talking about the history of the Supreme Court because this is the New York Historical society, but were also going to be talking about the new york angle on all of this because this is the New York Historical society and, yes, why is this night different from all others . Well, heres one thought. Its only really this week that has become i think pretty apparent that the upcoming president ial election will be a subway series between not just two new yorkers, but basically two people head quartered in manhattan. Shades of burr and hamilton. Why am i mentioning a new a president ial election given, professor, that this is a conversation about the Supreme Court . Well, therein lies my first of five points. Its going to be about the interesting relationship between president s and justices. Not only ill work my way up to the present moment, but not only is this going to be an election between two new yorkers for the presidency, but the Supreme Court really is on the ballot and new york plays a big role in that because the person who is right now the nominee for the vacant spot is a man who learned his law, learned how to be a judge, basically, right here in new york city. The clerk of Henry Friendly. Im going to say more about that. The chief justice, because were going to be talking about the Roberts Court thats going to be going in one direction if mr. Trump wins and a different direction. If secretary clinton wins, the chief justice, john roberts, who he was born in new york, but he, too, learned how to be a judge in this city. He, too, was a clerk of the great Henry Friendly, chief judge of the Second Circuit here in the city. The person whose untimely demise created this vacancy is a new yorker. A antonin scalia. As are several off the other justices. Tod Justice Alito isnt from that far away. Newark. You know, i know its on the other side of the bridge. Its very much a new york story that were going to be exploring together this evening, but i want to begin with the relationship between president s and justices and offer you an account of the structure of that relationship, and in particular here are two big points. That theres a tidal pattern to the american presidency ebb and flowing of a tide, and this tidal pattern creates certain very interesting and special faceoffs athe certain particular moments in American History between president s and justices. So heres the structure of the situation of the constitution. Our justices are chosen politically. Justices dont pick their successors quite. Its not a selfperpetuating meritocracy the way the Yale Law School faculty picks their successors. The way the cardinals pick the pope and then the pope names cardinals and then the cardinals pick the pope and in this selfperpetuating way. No. Our constitution provides for a Political Choice to be made whenever there is to be a replenishment of the judiciary. Both the Supreme Court and the lower federal court. The process of selection is by design political. The constitution is on the ballot this year. In effect, when you vote for the presidency and the senate, that is not a bug. That is a feature of our system. Its political selection. Then Judicial Independence kicks in, and theres live tenure. Tenure for good behavior. That creates an interesting dynamic that the justices in the modern era stay on much longer than do president s and indeed president s now are term limited in a way that they werent at the founding actually some of the justices rotated off very quickly. Im going to tell you about john jay and how he couldnt wait to get off the court, and the tenure of the justices early on was very short. Then you had president s who in theory could have been perpetually reelected as governors of new york, for example, who are allowed to be reelected and stayed on forever. George clinton, the governor of this state at the time the constitution was adopted, i think, it was a threeyear term, and he won seven of them. He left only to become Vice President , which he thought was a respectable retirement. He died in office. The presidency could last for a long time, and the judges rotated off in reasons for reasons that well get into. Chief justices have tended to stay a good long time. President s have come and gone. We have basically 44 president s in American History. You could say 43 because were counting Grover Cleveland twice, but, okay. And 17 chief justices. Way fewer chief justices than president s. Heres the tidal pattern and the faceoff. There are only a few tideturning president s in American History. Someone who when theyre rising to power really the other different point of view prevails, but they manage against the tide to win, to win again, win reelection, hand off enough power to their handpicked wingman, their apastolic successor, and in the next period even though when they were rising to power really it was the other faction, another vision of america that was ascendant for the next period its really their vision that generally wins far more than it loses. Until Something Else happens and the tide turns again. Thats by definition a tideturning presence. Its what political Scientists Say is a rushmore. Im giving you i wish it were my own theory. Its not quite. My great colleague, Political Science colleague at yale has developed this idea. I have a few small variations, but this is his model. It hands off power to his political ally, john adams. Now, that dynasty, the washington federalist dynasty doesnt last very long because john adams signs his name to extremely repressive laws. The alienist acts that generate a massive backlash, says and Thomas Jefferson is now the next tide turning president. Very early on he is running against the federalist regime. He has a very different sort of platform and political formula for success. He is he manages to win against adams. To win reelection. In effect, he hands off power to his wing man, his secretary of state. Secretaries of state can be wingman or wingwomen. Just remember that. Madison is going to win and win reelection and then his secretary of state, monroe, says is going to win and win reelection and that party will become jeffersons party. Basically the jacksonian party, which is the largely dom nabt party in the antebellum time. They win way more than they lose because people remember that act and you basically never hear from the federalists again. At least on the president ial stage. We have washington. Now jefferson. Then they basically commit a political suicide when the next president when this unknown fellow named Abraham Lincoln rises to power and manages to win, and instead of just saying basically the political wind is still at our backs, the tide is still with us, we can outlast this guy, were just going to wait him out. Were just going to say no to everybody he proposes and he will be a failed, you know, reformist president. This tall skinny constitutional lawyer from illinois. Slavery, succession, and trying to accept the civil war and its amendments. They prevail all the way until another event. The Great Depression and their party gets the blame for it. Herbert hoover. Your next tidedturning president is Franklin Roosevelt. In this whole period no democrat wins the majority. Woodrow wilson doesnt win the majority. Grover cleveland doesnt win a majority. The republicans are winning landslides, many of them, in this era. The Great Depression, and now we have Franklin Roosevelt as the next tideturning president. Wins. Wins again. Wins again. Hands off power to his wing man, harry truman. Then thats really it. The dominant coalition until vietnam and just the chaos of the 1960s sort of tears apart that coalition. Its become the great society. 19 late 1960s. And really Ronald Reagan eventually is the next really genuinely tideturning president who won, won reelection, won a third term called h. W. You know, his handing off power. Now he cant run for a third term. He is termlimited. Until now weve been living basically in the era of reagan. Those are the tideturning president s. Washington and jefferson and lincoln and f. D. R. And reagan and if if this is the choice thats before us, my fellow citizens. In 2016 if Barack Obamas secretary of former secretary of state, his wing woman, says Hillary Clinton, were to win, we would say about obama or historians, you might say, the tide has now once again turned. President one won reelection. Handed off power. If the democrats we only know this if the next two or three elections. If they become basically the dominant president ial party at least, then you would okay. Thats a structure, the rhythm of the presidency. If you are a democrat, im going to bum you out, just telling you, how powerful actually we still lincolns gravitational pull is because, remember, the democrats are overwhelmingly the dominant Political Party until lincoln. Since lincoln, there are only two democrats who have won two popular votes for the presidency. Franklin roosevelt, barack obama, thats it. Wow. Yeah. Oh. You know, not jack kennedy, not harry truman, not bill clinton. None of them. Thats pretty impressive. The democrats have won popular votes. Not always majorities, but at least pluralities. If they prevail again and Going Forward and republicans dont sort of rethink their formulas, then theyre going to be in the minority for a while. Okay. Thats the presidency. Now, how does that interact with the court whose justices have are picked politically, but have life tenure, dont have to leave if they dont want to. Well, there are these special moments when the new rising president confronts the ghosts of administrations past in the form of these holdover justices that have been appointed by the other party, the party you ran against. You know, change. President s are change agents. They always are promising sort of a new thing. Most of them fail. Most president s actually fail. Its an impossible job. The few who succeed, the jeffersons, the lincolns, the f. D. R. s, the obamas are going to confront a judiciary that largely is in the hands of regime they ran against. Thats the drama of these great moments. Theres a tidal pattern and faceoffs. Thats Thomas Jefferson facing John Marshall who is a federalist who is basically in the washington john adams camp and now actually theyre at this confrontation, and we actually call that marbury versus madison. The real drama there isnt marshall invalidating oh, im sorry. Before i should have started with washington, of course. My apologies. Theres not so much of a confrontation here because washington picks john jay, okay . He is washingtons guy. He doesnt inherit all these british judges. They have been tossed out in the american revolution. Just so you know, in 11 of the 13 colonies, the chief judge of the colony sided with george iii against George Washington in the american revolution. Article 3, which is the judicial article, is third out of three for a reason. For several reasons. Its the least and last its the least text associated with it. Its third out of three. Politicians are supposed to pick judges. Judges are not supposed to pick president s. Thats why bush versus gore is a disgrace. You see, theres the reason that judges were third out of three is theyre not the leaders of the american revolution. They are not the champions. Theres not this faceoff initially with washington because he is picking john jay. Its heightened because theyre second cousins and they dont even like each other, and note that the new that John Marshall has to swear in jefferson just as roger tawny is going to be swearing in Abraham Lincoln, and youll remember the absolutely flubbed swearing in when obama was sworn in by john roberts. These are slightly tense moments, but im getting ahead of the story a bit, so just marbury versus madison is thought of John Marshall invalidating an act of congress, but the real drama is whether is John Marshall against Thomas Jefferson because Marshall Marshalls opinion goes on and on about how lawless the Jefferson Administration has been. In the same way that todays court is being invited to say, well, the Obama Administration is lawless on the immigration, and Obama Administration was lawless on obama care and not just in the law, but the implementation of the law. Obama administration is lawless on some of their carbon rules and the e. P. A. This is nothing new. Its a feature of the distinct structural pattern of a presidency thats a fouryear term with this tidal feature, and justices who have lifetime. Marbury is a drama. Now flash forward. Roger tawny and Abraham Lincoln. Lincoln becomes president by running against him. By telling everyone who will listen just how preposterous dread scott is. This young lawyer from illinois calls it i love had this phrase an astonisher in legal history. Now the tension when lincoln confronts tawny who wants to invalidate everything lincoln is doing and everything the Obama Administration the Lincoln Administration is doing unconstitutional. He wants to declare lincoln they have a draft, an individual man take, if you will. Thats what