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Detailed text transcripts for TV channel - CNN - 20101231:09:51:00

did they change that fundamental principle? >> completely. in the beginning of fdr's presidency was a conservative court that invented constitutional rights for big corporations and the direct result of that was that all of the new deal programs that he and the public wanted were struck down by the supreme court. and roosevelt hated that, as you can imagine. >> and what did he do as a consequence? he basically tried to do a hostile takeover of the supreme court. >> he did. he threatened the supreme court with adding new members and he went to congress and he said i control congress. there's nothing in the constitution -- >> by adding new members, expanding the size from nine to what? >> exactly. he was going to add four people, take it up to 13. and the reason is if the constitution says you have to have a supreme court and people have life tenure but doesn't say anything about how many, the number nine was invented by congress. >> that didn't happen but among the justices he appointed were the four that the write about. who were they? >> the first was hugo black who was a fascinating guy. a cue clux klansman who had become a clan member he knew they would have to confirm him.

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Detailed text transcripts for TV channel - CNN - 20101231:01:52:00

he knew they would have to confirm him. >> and the other three had similar stories of being self-made individualists with a sense of the power the supreme court needed? >> they did. and they were very controversial in many ways. he attacked big government where he attacked big corporations again and again. frankford. these were controversial people. >> the consequence of this was that fdr appointed by the end of his term all nine members of the supreme court. >> he got nine appointments including a new chief justice which is a record that is very unlikely ever to be matched again. >> and the supreme court then, which began, as you said, with a very conservative constrained view of federal power gave him enormous latitude and the federal government became what it is today. >> he got the main thing he wanted, a court that believed the federal government could pass laws. they could regulate the economy. they could regulate wages and hours of workers and regulate

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Detailed text transcripts for TV channel - CNN - 20101231:01:56:00

especially an appellate judge, is a job someone tells you what to do and you listen. not having that experience means you're less differential. i think that's a plus to start with. i think that on today's court in order to be a powerful voice on the court, you can't be a predictable vote and that's justice o'connor and constituents kennedy. >> talk about being persuasive. she's up against justices from the conservative wing of the current court who are very precise and confirmed views. i can't imagine as persuasive as elena can be, i have a hard time thinking she will persuade justice thomas. >> it's all about the vote, which is 4-4, in which justice kennedy is the person who is going to make the determining decision and justice stevens and kennedy had a good relationship and sometimes it looked as though they were influencing each other. can justice kagan with her very

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Detailed text transcripts for TV channel - CNN - 20101231:01:55:00

each other. >> venomous. the name scorpions describes their personal relationship. >> it does. someone who observed the court said there were nine scorpions in a bottle all locked in and all wanting to outdo the others. and through that they achieved their constitutional greatness. >> what we're facing is the potential for what they created to be reversed by the conservatives who are trying to bring us back to a different era of small government? >> i doubt it would go that far but there is a reality that many people who on the conservative side and don't like big government think what went wrong in our country was the supreme court stood by and allowed that to happen and would like to turn it around. >> the issue then is take today's nominees and full disclosure you and i are good friends of elena kagan. where does she fit in this paragon? >> she was never a judge before. none of these four people were judges. eight of the other justices today were judges before. so justice kagan does have that distinctive feature. >> does that help or hurt? >> i think it's a huge plus. i think being a judge,

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Detailed text transcripts for TV channel - CNN - 20101231:01:51:00

presidency was a conservative court that invented constitutional rights for big corporations and the direct result of that was that all of the new deal programs that he and the public wanted were struck down by the supreme court. and roosevelt hated that, as you can imagine. >> and what did he do as a consequence? he basically tried to do a hostile takeover of the supreme court. >> he did. he threatened the supreme court with adding new members and he went to congress and he said i control congress. there's nothing in the constitution -- >> by adding new members, expanding the size from nine to what? >> exactly. he was going to add four people, take it up to 13. and the reason is if the constitution says you have to have a supreme court and people have life tenure but doesn't say anything about how many, the number nine was invented by congress. >> that didn't happen but among the justices he appointed were the four that the write about. who were they? >> the first was hugo black who was a fascinating guy. a cue clux klansman who had become a clklam memben member.

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Detailed text transcripts for TV channel - CNN - 20101231:09:56:00

so justice kagan does have that distinctive feature. >> does that help or hurt? >> i think it's a huge plus. i think being a judge, especially an appellate judge, is a job someone tells you what to do and you listen. not having that experience means you're less differential. i think that's a plus to start with. i think that on today's court in order to be a powerful voice on the court, you can't be a predictable vote and that's justice o'connor and constituents kennedy. >> talk about being persuasive. she's up against justices from the conservative wing of the current court who are very precise and confirmed views. i can't imagine as persuasive as elena can be, i have a hard time thinking she will persuade justice thomas. >> it's all about the vote, which is 4-4, in which justice kennedy is the person who is going to make the determining decision and justice stevens and kennedy had a good relationship

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Detailed text transcripts for TV channel - CNN - 20101231:09:55:00

time, these guys who starred as liberal allies changed their views and they start to hate each other. >> venomous. the name scorpions describes their personal relationship. >> it does. someone who observed the court said there were nine scorpions in a bottle all locked in and all wanting to outdo the others. and through that they achieved their constitutional greatness. >> what we're facing is the potential for what they created to be reversed by the conservatives who are trying to bring us back to a different era of small government? >> i doubt it would go that far but there is a reality that many people who on the conservative side and don't like big government think what went wrong in our country was the supreme court stood by and allowed that to happen and would like to turn it around. >> the issue then is take today's nominees and full disclosure you and i are good friends of elena kagan. where does she fit in this paragon? >> she was never a judge before. none of these four people were judges. eight of the other justices today were judges before.

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Detailed text transcripts for TV channel - CNN - 20101231:09:52:00

>> and the other three had similar stories of being self-made individualists with a sense of the power the supreme court needed? >> they did. and they were very controversial in many ways. he attacked big government where he attacked big corporations again and again. frankford. these were controversial people. >> the consequence of this was that fdr appointed by the end of his term all nine members of the supreme court. >> he got nine appointments including a new chief justice which is a record that is very unlikely ever to be matched again. >> and the supreme court then, which began, as you said, with a very conservative constrained view of federal power gave him enormous latitude and the federal government became what it is today. >> he got the main thing he wanted, a court that believed the federal government could pass laws.

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Detailed text transcripts for TV channel - CNN - 20101231:01:53:00

wall street. >> and safety and the environment and all of the other things that we've seen between world war ii and the new deal and the present moment? >> they're all against the backdrop of the supreme court allowing those kinds of things. it is really possible because of the vision that these four justices brought to the supreme court of the constitution. >> that's right. >> we are about to see this potentially be flipped on its head. we have a very conservative court right now. we have chief justice roberts. alito, scalia, thomas, maybe kennedy hanging out there as a pivot point with cases somewhat like the new deal cases on their way up there and what will happen when the health care legislation gets before the supreme court? >> we have seen some really similar moves recently in which the four conservative justices and kennedy who can go either way, depends on the case, have

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Detailed text transcripts for TV channel - CNN - 20101231:09:53:00

they could regulate the economy. they could regulate wages and hours of workers and regulate wall street. >> and safety and the environment and all of the other things that we've seen between world war ii and the new deal and the present moment? >> they're all against the backdrop of the supreme court allowing those kinds of things. it is really possible because of the vision that these four justices brought to the supreme court of the constitution. >> that's right. >> we are about to see this potentially be flipped on its head. we have a very conservative court right now. we have chief justice roberts. alito, scalia, thomas, maybe kennedy hanging out there as a pivot point with cases somewhat like the new deal cases on their way up there and what will happen when the health care legislation gets before the supreme court? >> we have seen some really similar moves recently in which the four conservative justices

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