 Ladies and gentlemen, the President of the United States. Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office. I want to talk with you very simply tonight about the need for present action, the need to meet the unanswered challenge of one-third of a nation ill-nourished, ill-clad, ill-housed. The courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions. In the last four years, the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The court has been acting not as a judicial body but as a policy-making body. We have, therefore, reached the point as a nation where we must take action to save the Constitution from the court and the court from itself. What is my proposal? It is simply this. Whenever a judge or justice of any federal court has reached the age of 70 and does not avail himself of the opportunity to retire on a pension, a new member should be appointed by the President then in office with the approval as required by the Constitution of the Senate of the United States. This plan will save our national Constitution from hardening of the judicial artery. Those opposing the plan have sought to arouse prejudice and fear by crying that I am seeking to pack the Supreme Court and that a baneful precedent will be established. What do they mean by the words packing the Supreme Court? Let me answer this question with a bluntness that will end all honest misunderstanding of my purpose. If by that phrase, it is charged that I wish to place on the bench spineless pits who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer. That no president fit for his office would appoint and no Senate of honorable men fit for their office would confirm that kind of appointees to the Supreme Court of the United States. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts, we want a government of laws and not of men. In our courts, we want a government of laws and not of men. Let us take our guide today from the President as we always try to do when we gather here in Hyde Park in his library. Welcome to all of you, our distinguished speakers, our many invited guests, the wonderful people who have come from all corners of the country for the second national conference sponsored by the 12 presidential libraries that are part of the National Archives and Records Administration. I can't tell you how wonderful it is to see you all here and to have this day finally come to fruition. My name is Cynthia Cook and I am the Director of the Franklin D. Roosevelt Presidential Library here in Hyde Park. With our partners at the Franklin and Eleanor Roosevelt Institute, we are delighted to welcome you on behalf of our colleagues at all of the libraries from Hoover through Clinton. Those libraries span nearly three-quarters of the political history of the 20th century, giving us a unique opportunity in our system of presidential libraries to put forth the kinds of public discussions and kind of explorations that we will have today. And I think there can be no topic that more clearly delineates this history than the interplay of the presidency and the Supreme Court. As we gather at this, our nation's first presidential library, I ask you to join with me in remembering three important dates in the history of Franklin D. Roosevelt. The first of all is to note that this week, past on November 8th, is the 75th anniversary of his election as President of the United States in 1932. We, of course, are gathered today to explore the ramifications of the Great Court Reorganization Plan of 1937, which was 70 years ago this year, and we began this whole enterprise thinking how could we properly commemorate the birth of Franklin D. Roosevelt here in Hyde Park 125 years ago in 1882. So help us all as we think through those dates and help us remember those dates and their significance, but let us all also remember what today is. Today is Veterans Day, and may we all pause for a moment in memory of the veterans of all wars and those who are fighting overseas in our name today. Thank you. The purpose of this conference and how it proceeded it, which was on Vietnam in the presidency, held at the Kennedy Library in 2006, is to help draw public attention to the archival resources of presidential libraries. And in addition to the conference presentations, which I know will be drawn exactly from those resources and also the things that have been placed in the libraries as a result of the public policy conversations that you will be hearing, the conversations to the conversation that I hope you'll take part in enjoying while you're here. The first is that there is an exhibit of political cartoons drawn from all of the archival collections of the 12 presidential libraries, and that is in the hallway just outside this room. In your packet, you will also find a special publication with short essays written by archivists at all 12 presidential libraries, and they are a wonderful opportunity to explore the history of each individual president and his interactions with the Supreme Court. We also have on exhibit in the presidential library on loan from the state archives, which was loaned to us through the good offices of Chris Ward, the state archivist. New York state's own copy of the U.S. Constitution, an engrossed copy, which carries a signature of Isaac Roosevelt, known locally as Isaac the Patriot, the signer of the Constitution. So these all things bring together a wonderful collaboration. It is the collaboration that is led by a man who has no parallel in my memory, certainly, as the leader of the presidential libraries. He is Alan Weinstein, and he knows and finds great spirit in telling all of us to do our very best to be good civic educators. We work together under his extraordinary leadership because he has a long and distinguished resume as a scholar, a professor, and a promoter of democracy. His resume, like that of all of our presenters today, is in the biographical notes, and it's much too extensive for me to read to you in detail, but I invite you to read it with due appreciation. And then without further ado, it is my pleasure and honor to introduce my boss's boss, the Archivist of the United States, Alan Weinstein. Thank you very much. I just had to explain to Cynthia what the payoff was with that very nice introduction. Welcome, ladies and gentlemen. Welcome to an extraordinary occasion, and we're delighted to have you all here. It's a room filled with people who have participated actively in the history of our time, and if I started to acknowledge all of the people that we should acknowledge here, we would be here for quite a bit longer in that score. And so my colleagues from the other 11 libraries have to forgive me because I'm not going to mention everybody by name. I just don't have the time for that. But I do want to thank C-SPAN. Thank you, C-SPAN. That's a period for C-SPAN because... That's a general thank you for the extraordinary work that C-SPAN does. The founder of C-SPAN, Brian Lamb, received the Presidential Medal of Freedom this week, well-deserved. But also to thank them for the extraordinary programs they have been running about the Presidential Libraries that some of you may have seen. How many have seen any of those programs? How many have seen all of those programs? Shame on you. Initially, as I remember, the initial plan for this conference, we were going to have a brief appearance by President Bush at the beginning. That doesn't seem to have worked out. He was busy yesterday, any of it, at his library, which opened... What happens is that these libraries infect one another in wonderful ways. So that, for example, President Bush in a visit to the Clinton Library two years ago was fascinated by the interactive quality that he saw there. And he basically set his team of people to redesign his entire permanent exhibit at the Bush Library, and it opened yesterday. And it's quite wonderful. You must come take a look at it. Except when we went to commemorate and celebrate the President's appearance, he wasn't there because he was busy jumping again. And that's what happens when you get involved in presidential libraries. You reach the age of 84 with all the energy needed to take his, as he described it, his sixth jump, five of them voluntary. Thank you, President Bush. I'm going to introduce the real speaker here, Anna Roosevelt, who is an extraordinary person in her own right, also the granddaughter of Eleanor, whose writings are now available in the first edition of Eleanor Roosevelt's Complete Writings will be available. I think they're available now, but certainly within the next few weeks. But I want to mention one thing of the many that I could mention. And I also want to introduce one person before that. That's Sharon Fawcett. Sharon, stand up, please. Sharon is the Assistant Director for Presidential Libraries of the National Archives. And we have an agreement that she does the work and I get the credit, but at least that's what it seems like. And sometimes I feel a little bit awkward about that. We're embarked on an enterprise, Sharon and I and our other colleagues from the other libraries, that is very unique in the history of this country, which is to try to tie together in a system of presidential libraries, a system of presidential libraries, the libraries of the last 75 years that will come in future. So far it's working like it would. Some of you were at our Vietnam conference last year. This conference was the extraordinary creation initially of your chairman, Bill Vanden Heuvel, who he'll speak for himself in that regard. And it was obviously carried out by Cynthia Cook's great staff here at the Roosevelt Library. But I thought I'd mention what we're going to do next year if I can persuade my colleagues in the presidential libraries to accept my notion. Next year we're going to try to top the greatness of this year and the greatness of last year, or at least to match them, by holding a conference on civil liberties in wartime, striking a balance, which will deal with civil liberties in the 20th and 21st centuries. So we'll be working on that. You may even get a Republican library involved, not just a Democratic library. We'll see what happens. It's now my great pleasure to introduce to you the co-chair of the Franklin and Eleanor Roosevelt Institute, a remarkable person in her own right. And many of you know her. She's a good friend of all of hers. Anne Roosevelt. Thank you. Archivist Weinstein, that was way too generous. I'm just honored to be here today to greet you on behalf of the Roosevelt family and the board of directors of the Franklin and Eleanor Roosevelt Institute. I want to also acknowledge that my cousin Chris is here. He's a practicing attorney, so a member of the judicial system. And so we're very happy to have his involvement on behalf of the family. And Archivist Weinstein mentioned Ambassador William Vanden Heuvel, who is the esteemed, my esteemed co-chair and active in the Franklin and Eleanor Roosevelt Institute. And so many of our members of the board of directors are here today. I see them sprinkled throughout the audience, so I'm very happy that we're a part of this. I'd also like to point out a very special friend of our family, and thank him for coming, David Douglas, the grandson of Vice President Henry Wallace, for whom this center is named. He's with us today. Thanks for being here, David. As I thought about this conference, it just occurred to me that it couldn't be a more poignant moment for us to gather to consider the relationship of leadership and the judiciary, specifically the Supreme Court. We've been reading these last several days about events in Pakistan which shock and dismay us as well they should, but we can't even enter into that discussion with dignity. If we first don't look at ourselves. My grandmother observed that FDR felt that the primary benefit of his actions regarding the Supreme Court was an arousal of public interest in the court and its decisions. We often decry how the public seems to lack an understanding and certainly a real interest in the significance of the judiciary, in its integrity, its independence, and its effect on each of our daily lives. So while we are anticipating getting to the real meat of this conference, which the panels will provide us and the speakers, I hope that each of us will go home from here and talk to our children and our grandchildren and our neighbors and our colleagues and their children about the judiciary and its importance in a democracy so that the wisdom that will be shared here will not be lost. And now it's my honor to ask you to listen to a special welcome that we have received on video from President George Herbert Walker Bush who landed safely yesterday. Good afternoon and welcome. It's my great pleasure to help open the second national conference sponsored by our nation's 12 presidential libraries from Hoover to Clinton and the National Archives. It could not be more appropriate that this conference is held in Hyde Park and hosted by the Franklin D. Roosevelt Presidential Library and the Franklin and Eleanor Roosevelt Institute. There was FDR who started the first great presidential libraries setting the precedent for all of us who would follow. This year 2007 marked the 75th anniversary of Franklin Roosevelt's election to the presidency and the 125th anniversary of his birth. The chosen topic too could not be more appropriate. The presidency and the Supreme Court the distinguished Justice Sandra Day O'Connor as the keynote speaker is a subject that bears importantly on the lives of ordinary Americans yet so few of our fellow citizens understand the many ways in which these two great branches of government and mutually shape our lives and our history. The relationship between the presidency and the Supreme Court is not just about the appointments process which captures media attention wherever the president has the honor of making a new appointment to the Supreme Court. It's much more subtle. Over the next day and a half an outstanding group of scholars journalists and policymakers will discuss what presidents both as candidates and in office have sought to do about and with the court. What presidents have done in and to the court appointment process and what presidents have sought in litigation and had to deal with in court decisions. So I send my warmest wishes to all of you for an engaging and productive conference and I congratulate you on the fine work you are doing in advancing our citizens' understanding of our government. I have great confidence in and respect for the Supreme Court. Thank you. This is a partnership of these great presidential libraries and all of them have foundations that work very closely just as the Franklin Eleanor Roosevelt Foundation works closely with the library here. We at the National Archives have our foundation. In the audience, of course, we have a bunch of directors key directors of the National Archives Foundation foundation for the National Archives. We, of course, have the directors of the Eleanor and Franklin Roosevelt libraries. I wonder if we could ask them all to stand and we can thank them for their service to us. Foundation members. Thank you. Thank you all for coming today and I'm really pleased to be a part of this wonderful conference and especially pleased to be chairing a session with such distinguished panelists and let me introduce them to you. To my immediate left is William E. Lechtenberg, a professor emeritus from both Columbia University and the University of North Carolina and one of the most distinguished and renowned historians of our time. Bill is a pioneer was a pioneer of New Deal studies a field that he has dominated for more than 40 years and he's been an especially influential contributor to the debate over the Supreme Court in the 1930s as evidenced by one of his many books of the Supreme Court Reborn. Moving over one more to the left is G. Edward White the David and Mary Harrison Distinguished Professor of Law and University Professor at the University of Virginia. Ted is a prolific and influential historian of the Supreme Court among many other things and an important participant in the debate over the so-called constitutional crisis of the 1930s he teaches in Virginia in both the law school and in the history department. And finally, Jonathan Alter who is a senior editor and columnist at Newsweek contributing editor and political analyst at NBC News the author of The Defining Moment FDR's Hundred Days in the Triumph of Hope which was published a little over a year ago and which has just come out on paperback and is a really wonderful account of the beginning of the Roosevelt administration and just as we have two very distinguished historians today we're very fortunate to have such a distinguished journalist and writer with us as well. So this is a session that is designed to bring a sort of historian's perspective to the constitutional crisis of the 1930s or the constitutional controversies perhaps would be a more accurate description. But I think all of us are rightly interested in the parallels between some of the events of the 1930s and our own fractious political climate today. So don't be surprised if we hear not just about the 1930s but about some more recent events as well. Each of our panelists will speak for about 15 or so minutes and then we'll have a brief conversation among ourselves and then we'll open this up to questions from the audience. Let me say just a word before I introduce Bill about this topic. Bill and Ted and Laura Coleman who is here today but not on this panel she'll be on a panel later in the conference all participated in a similar panel at the American Historical Association meeting several years ago in Washington a panel that whose presentation was published in the American Historical Review in 2006. So we're all trying not to duplicate what we did in that earlier panel and we'll probably all fail to some extent. I just want to say a word about this issue and how it sort of fits into the larger history of the court. The controversies over the Supreme Court in the 1930s are perhaps at least for our time the most visible evidence of the difficulty that Americans have always had with the Supreme Court. The Supreme Court is in some respects the most respected of all of our governmental institutions and it doesn't seem to matter how badly the court performs it is always in at least in our time a very highly respected institution yet at the same time as we know from our own recent history the court is also almost always a center of controversy from its very beginnings and so the turmoil over the Supreme Court both today in the 1930s is not something unique to the 20th through 21st century this is a continuing part of the sort of political negotiation that began with the writing of the Constitution that continued through the long initial creation of the powers of the Supreme Court under John Marshall escalated during the period of the Civil War continued through the industrial era and into the 20th century continues of course into the 21st so this controversy is one that reaches backwards in history and also reaches forward in history into our own time and that's what makes this such an interesting question or set of questions for us to try to answer so let me turn first to Bill Luckdenberg who is in many ways the dean of the history of the Supreme Court and we're very fortunate to have him here today thank you I went on a late winter day in 1992 Alfonso Lopez arrived at Edison High School in San Antonio toting a 38 and 5 bullets intended for a gang war it's doubtful that his main goal was to provide a topic for discussion on a pleasant autumn afternoon in Hyde Park or that he planned to become the subject of a landmark ruling by the United States Supreme Court but in fact he did both in a hotly disputed 5 to 4 decision in 1995 the Supreme Court struck down an act of Congress the Gun Free School Zones Act in the United States against Lopez Chief Justice Rehnquist speaking for the court declared we start with first principles as James Madison wrote the powers delegated by the proposed constitution and the federal government are few and defined those which are to remain in state governments are numerous and indefinite Rehnquist's opinion elicited no fewer than three dissents the most forceful coming from Justice Souter who accused the majority of quote in 1937 it seems fair to ask whether the step taken by the court today does anything but portend a return to the untenable jurisprudence from which the court extricated itself almost 60 years ago Souter ended his protest against the decision that he maintained quote tugs the court off course why veering toward quote the old judicial pretension discredited and abandoned in 1937 with a foreboding observation today's decision may be seen only as a misstep hardly an epical case I would not argue otherwise but I would raise a caveat not every epical case has come in epical trappings Jones and Laughlin did not reject the direct indirect standard in so many words but we know what happened in a concurrence in Lopez Clarence Thomas wrote what was in effect a rejoinder to Souter Lopez Thomas insisted did not represent a wrong turn if anything the wrong turn was the court's dramatic departure in the 1930s from a century and a half of precedent claiming that commerce manufacturing Thomas cited the precedence of Schechter in 1935 and Carter in 1936 at an appropriate juncture Thomas announced he wanted the court quote to wipe the slate clean the Lopez decision sent shock waves through the legal world Brentquist was delivering his opinion the justices looking down from the bench could see one prominent attorney in the courtroom silently mouthing the word wow why the shock after all it does not seem patently unreasonable to conclude that whatever the interstate commerce clause in the constitution means it does not embrace behavior at a local school no less a figure than Lawrence tribe surely no favorite of the far right has said with respect to the paucity of legislative findings in the gun free school zones act Congress pushed the outer edge of the envelope rather carelessly why then the uproar why did the New York Times run Anthony Lewis's column on Lopez under the somber headline the court strides back to its darkest days what did he mean by darkest days what did justice mean by the painful lesson learned in 1937 what are the precedents the justices cited Shector Carter Jones and Laughlin above all why the wow to answer those questions we need to turn to the age of Franklin D. Roosevelt and to draw upon the rich resources of presidential libraries when FDR entered the White House in March 1933 at the depths of the worst depression this country has ever known one of his first acts was to summon Congress back to Washington in emergency session during the ensuing first hundred days of 1933 as Jonathan Alter has written Roosevelt with the help of Congress pushed through the most legislation in the shortest time in American history two of the measures provided the foundation stones of the New Deal the National Industrial Recovery Act administered by the NRA with the symbol of the Blue Eagle and the Agricultural Adjustment Act the AAA in the realm of Henry Wallace it was a spectacular session but when it ended Roosevelt and the New Dealers were very worried because they feared how the United States Supreme Court would respond over them over the justices over FDR and the New Dealers as Francis Perkins has said one particularly troubling precedent hammer against Dagenhart Reuben Dagenhart was a North Carolina man who insisted that he had the right to send his two teenage sons one of them only 13 into the mills in the five to four decision in 1918 the Supreme Court ruled that the Child Labor Act which forbade him to do so was unconstitutional because the power of Congress over interstate commerce does not extend to regulation of labor and because the law infringed upon the authority of states under the 10th Amendment that was still the prevailing doctrine when Roosevelt took office Roosevelt knows that four of the justices McRennals, Butler VanderVenter, Sutherland are such staunch conservative ideologues that every time one of the president's lawyers goes into the courtroom he has four votes against him if he loses even one of the remaining five he's beaten the New Deal may be dead FDR's attorney general Homer Cummings says it's like knowing that every time you play golf you're going to find yourself on the back nine four holes down with only five holes left to play the conservative justices are called the Four Horsemen a name well known in this period because it had been applied to the Notre Dame backfield but the term conveys of course the Four Horsemen of the Apocalypse agents of destruction in the spring of 1935 for Roosevelt and the New Deal the roof falls in Justice Owen Roberts joins the Four Horsemen in invalidating a pension law with the clear implication that when the Social Security Act reaches the Supreme Court it too will be struck down and for the next year and a half Roberts votes with the conservative for in every crucial case worse is to come just three weeks later in the so-called sick chicken case involving a Brooklyn kosher poultry firm the Schechter Brothers the court invalidates the NRA this is stunning news of international import the French press runs it under large headlines Le Morte d'Aigle Bleu the death of the Blue Eagle with the NRA gone only the other foundation stone of the New Deal the farm program is left and in the first week of 1936 the court kills AAA too that decision infuriates millions of farmers that night alongside a highway near the Iowa State campus in Ames police find effigies of the six justices who voted to demolish AAA strung up each is life-size each wears a black robe each bears a cardboard sign identifying the particular justice who has been hanged over the course of 1936 the court strikes down a number of other laws two decisions in particular are startling in Carter and validating a little NRA for the coal industry the court rules that not even coal mining may be regulated by the federal government its final action of the session it invalidates a New York State minimum wage law for women creating as the president said a no man's land in which neither federal nor state governments may act to protect the worker at the end of that historic session Justice Harlan Fiskstone writes his sons we finished the term of court yesterday I think in many ways one of the most disastrous in its history in February 1937 having been re-elected in a landslide Roosevelt responds by asking congress to authorize him to add six justices to the court he says he does so only to make the court more efficient but everyone assumes he did so in order to get a court more amenable to the new deal to in the phrase of the day pack the court it was an audacious proposal but most commentators think the bill will be enacted for the democrats hold a four to one advantage in the house and have so many seats in the US senate that numbers of democrats have to sit on the republican side of the aisle in March though the court begins handing down a series of decisions legitimating government action and these together with other events doom the plan the key development is the switch of justice Roberts which turns a five to four margin against the new deal to a five to four advantage for Roosevelt's program on these rulings in 1937 by far the most important is NLRB against Jones and Laughlin a steel corporation in his opinion for the court chief justice Hughes never acknowledges he's reversing Schechter and Carter but this is the pivotal case in creating a new constitutional order we're able to put together this account in no small part because of the blessings of presidential libraries especially here at the Roosevelt library where the OFPPF and PSF files are indispensable to students of the 1937 controversy you might suppose that only the FDR libraries holdings are pertinent since the conflict took place totally in Roosevelt's tenure but presidential libraries contain not just the papers of White House years but those before and after a man becomes president in the fierce fight to win votes for the court packing bill no one can be certain how some obscure back bench senators will vote and to understand the response of one of these back bench senators you have to go to the Truman presidential library in Independence, Missouri to get insights into the machinations of an important opponent of the bill you need to seek out sources in the Hoover presidential library in West Branch Iowa Hoover incidentally had one truly nutty idea to ask Justice McReynolds to persuade Justice Brandeis to resign with a blast at President Roosevelt a notion with no recognition that McReynolds notoriously was a vicious anti-Semite the worst conceivable envoy to Brandeis during the fight one large question was what do the American people think of FDR's scheme in 1937 polling is still primitive the best known poll that of the literary digest had predicted that FDR in 1936 would go down to overwhelming defeat at the hands of Alphalanden but in April 1937 comes a test of popular sentiment in a special election called after a congressman dies an ambitious young man not yet 30 jumps into the race as an out and out supporter of Roosevelt's plan other candidates in the field are much better known and he's not expected to win or even come close but to FDR's delight the young man does win and his victory is seen as proof the country favors court packing it's in this fashion as you probably already guessed that the young Texan Lyndon B. Johnson begins his congressional career and there's no way to understand that development without going to the Lyndon Johnson Presidential Library in Austin, Texas the rebuff of his court packing plan is the worst defeat Franklin Roosevelt ever suffers but in later years he claims that though the battle he had won the war from the course of the struggle he had brought about a fundamental transformation in the doctrines of the court not every scholar agrees that FDR's actions were responsible for change but there's no doubt that there was what has been called nothing less than a constitutional revolution two decisions in particular are noteworthy in 1941 in Darby the court unanimously holds that Hammer versus Dagenhart was an aberration and no longer the law of the land it's not too much to say one historian has written that United States against Darby is one of the half dozen important cases in the whole history of American constitutional law still more remarkable is Wicked against Philburn in 1942 in which the Supreme Court rules that an Ohio farmer Roscoe Philburn was an interstate commerce and hence subject to federal authority even though he was growing wholly for his own use on his own farm Wicked against Philburn implies that the court will no longer consider whether to strike down any active congress as violating the commerce clause this is why Lopez in 1995 was such a shock why the lawyer said wow the court had not invalidated any act of congress as beyond the bounds of the commerce power since Carter 49 years before after Lopez a law professor at Ohio State noting that for two generations the commerce clause had become an intellectual joke among academics and attorneys asked can farmer Philburn now begin raising marijuana on his Ohio farm but was too much being made of Lopez in his concurrence in Lopez which was joined by Justice O'Connor Justice Kennedy like Justice O'Connor as a member of the majority an alert to how the ruling could be interpreted made a point of affirming star and decisis operates with great force and counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature in 1996 Larry Kramer of New York University law school wrote what should we make of Lopez initial reactions were largely of the chicken little variety and filled with dire predictions of renewed judicial shackles imposed on a hamstrung federal government sober second thoughts have been well sober the ruling observers now say Lopez may not be such a big deal after all so which is it is Lopez a sport a judicial shot across the bow to remind Congress to take it's responsibilities seriously or have the ghosts of Sutherland, Butler Van DeVenter and McReynolds returned to haunt us after all then in the year 2000 five years after Lopez comes a decision by the Supreme Court in an especially nasty case in litigation that became known as US against Morrison a young woman named Christy Broncala alleged that shortly after enrolling as a freshman at Virginia Tech she was brutally gang raped by members of the football team one of them Antonio Morrison after the university behaved with appalling callousness to these very serious charges she filed suit under a provision of an act of Congress the Violence Against Women Act of 1994 in May 2000 once again five to four the court struck down the civil remedy provisions of the Violence Against Women Act Rehnquist citing Lopez said gender motivated crimes of violence are not economic activity and hence fall beyond the scope of the commerce power in a fierce descent joined by justices Breyer, Ginsburg and Stephen Justice Souter scoffed at the majority's claim that its ruling rested on precedent the act he said would have passed muster at any time between Wicker in 1942 and Lopez in 1995 he accused the majority of recycling a theory repudiated in Darby a large question then of our era is how far will the present court go in rolling back the constitutional revolution of 1937 legal authorities are not of one mind about the answer to that question what is clear though is that hovering over the justices contemplate the future is the dark cloud of events that took place in 1937 70 years ago this year a crisis that cannot be comprehended without research and the exceptional archives of presidential libraries pertinent for the 1930s pertinent today Thank you Bill Ted White I think Bill has ably set forth one side of the axis that we're talking about today the presidency on the one hand President Congress on the one hand and the court on the other I'm going to focus more on the judicial part of that and I want to say start by saying some court packing hypothesis itself which we were introduced to at the very outset of this conference when we heard an excerpt from the March 1937 fireside chat and I want to remind us that in that comment although claiming that he was not interested in putting justices on the court that were spineless advocates of his own views and he thought that no one in the Senate would confirm such people and he derided the term pack the court and talked about a difference between a nation of laws and a nation of men it's interesting that he alluded to that perception at all what's particularly interesting is if the perception is that the court packing plan is an effort to pack the court with justices that are sympathetic to the appointing president that this represents a comparatively new set of perceptions about how justices work in American history now I don't want to be misunderstood in saying that I don't want to be misunderstood in thinking that people in American history were not considered justices of the Supreme Court as capable of partisanship as any other human actors but what is missing until the generation of the 30s is any sort of popular or academic commentary that focuses on the individual perspectives perspectives, jurisprudential perspectives of judges as human actors implicitly suggesting that the battery of concerns ideological and other that a judge brings to bear on interpreting legal sources is capable of overwhelming those sources and so we get at the beginning of the 1930s for the first time in the history of a popular commentary on the Supreme Court the application of the labels of politics, labels like liberal and conservative, centrist and swing voter to Supreme Court justices now consider the assumptions of the court packing hypothesis with this change in perceptions about Supreme Court justices in mind the conventional view of the court packing hypothesis is that the court as Bill as account suggests that the court is aware of and reacts to political pressures placed on it by the Roosevelt administration as other sorts of political actors would react and that the switch in time that saves nine a description of the court packing plan and its purported consequences by someone in 1937 the best guess is that someone is Edward Corwin the Princeton University political scientist the interesting feature of that observation is that it assumes that judicial response to presidential pressure will be the response of an interested set of political actors who are capable of changing their views on constitutional interpretation and switching so that their accommodations to the new deal save their institutional identity now what's interesting about that hypothesis is not whether it's accurate or not it is interesting that in the 2006 discussion in the American Historical Review and at the American Historical Association there were divided views on that point divided views about whether there is a causal connection between the court's behavior and the introduction of the court packing plan divided views on whether the change in judicial attitudes toward the commerce power and the exercise of the commerce power by congress represents a response to that pressure or whether it is a more gradual development that occurs somewhat independent of that but the interesting thing from my point of view is not that not what the right answer to the court packing hypothesis is but that it is still setting the terms of discussions about the relationship between the court and the presidency or the court and the larger political culture more than 70 years later this is very unusual for a historical hypothesis an interpretation of history by scholars to have that sort of staying power indeed the common shelf life of historical interpretations as orthodox is less than a generation and that's why we have revisionist history because scholars taking another look at the interpretations of past events find them wanting and they find them wanting in part because they're coming from different places themselves not so much true with this hypothesis so the suggestion might be then that something deeper and broader is going on so I want to talk a little bit about what that might be and then I want to talk about whether in fact the assumptions that are undergirding the court packing hypothesis are an accurate or helpful way to talk about judicial decision making let's assume that one believes that judges are a set of political actors like other political actors and that the constitution is a relatively open-ended document so that when a justice is appointed to the supreme court she or she has power to literally change the meaning of the document and that of course the court is an institution that doesn't have the sort of political accountability as other branches of government and justices are humans with human political agendas so under that theory then what's called in political science capitalism best explains supreme court decision making particularly the interpretations of the constitution that justices make of open-ended clauses you could argue from this perspective that the court packing that every feature of the court packing hypothesis is a vindication of attitudinalism first because justices resist the early New Deal because there's a determined majority as Bill says a determined majority of conservatives who manage to pick up one more vote and they scuttle the New Deal because they hate Roosevelt and they hate the experimentation that the New Deal represents secondly the president wins an overwhelming mandate in 1936 and suddenly a major political constituency third after winning in 1936 he starts off early in the 1937 year and introduces the court packing plan and as you saw in the excerpt from the fireside chat defends the court packing plan the message being and the message being understood as he says it himself this is a court with hardening of the arteries what does he mean by hardening of the arteries he means that their ideological views are obsolescent and I'm going to put new people on who are more sympathetic personally to changing the constitution in a way that's consistent with the way I think in the 1930s it ought to be changed so that again lends itself to the attitudinalist hypothesis next being political actors themselves a majority of the court gets the message and decides that their own identity is threatened they're going to be confronted with the options of either having to retire or get uncongenial colleagues and so they tailor their interpretations to make a compromise if you will with the New Deal and finally because of that the sequence of events is that the decisions that Bill is talking about take place in March, April and May of 1937 the court packing plan withers in congress and dies in June ergo the switch in time that saves not now if you assume that that episode is a vindication of the fact that justices are primarily attitudinalists then you can extend it as Bill has to talk about recent cases, to talk about Lopez and Morrison to talk about Bush v. Gore the theory being all along that justices are one species of political actors and they're relatively unconstrained by elected, they're not elected officials they're relatively unconstrained and they have no direct constituencies except public opinion so one could therefore say that the real significance of the court packing hypothesis is that it initiates a new way of thinking about justices a realistic view of judicial behavior which is still with us and then that might explain why for example commentators say are so worried about let's say the shift from regular forms of judicial review to judicial supremacy or even sovereignty the idea that the court is simply taking over and becoming the final arbiter of not just the constitution but by interpreting the constitution the final arbiter of contested political issues well what I find surprising about this point of view is that it starts with the assumption that the principal concerns of justices on the court are with the outcomes that the court reaches in constitutional cases and how they vote and being political actors they have political agendas and they're figuring out the liberal or the conservative position all the time and they're simply voting their preferences what interests me about that is how you can square it with the way the court makes decisions itself the deliberative process of the institution if you go through the court's deliberative process what emerges immediately is a series of factors that are not so visible to the general public or even to commentators because those people are focused on either the results the court reached or the opinions and justifications that the court announced in opinions but there's a big step between argument and decision making and in that process constraints I would argue constraints on potential ideology are more present than the freedom to act in an ideological fashion so just consider the ordinary way in which let's take a visible constitutional case the ordinary way in which that case will be deliberated upon and decided by the court first of course the case is set for argument and then there is a conference now bear in mind that the court is a collegial institution that it doesn't decide cases one by one that justices don't issue on the whole seriatum opinions there is an opinion for the court the opinion presupposes there's a majority of justices supporting it so the first part then of the deliberation involves discussing the case and figuring out what group of justices shares a particular view not which justice but which group the next step is the assignment of an opinion and the circulation of an opinion by a justice writing on behalf of other justices circulating that opinion to other justices with for output from all of the of the remaining justices so and moreover every justice participating in the process knows that when the opinion comes down that justices name will be either visibly or implicitly assigned to it the head notes of the of the court reveal everybody's votes sometimes they don't say who joins the majority opinion but it is perfectly obvious who joins the majority opinion when there are concurrences or dissents and sometimes the majority opinion is declared unanimous. So if Rehnquist or O'Connor or Scalia write an opinion for the court it is known that other justices have joined that opinion and not just joined the result but joined the language of the opinion so in short if a justice let's say had a strong ideological agenda he or she would have to understand that that agenda needs to be tailored along the way to the views of other justices or else a majority a preliminary majority may be lost one of the justices who joined be inclined to join the majority might write separately more dissents might come out the whole configuration of the case might come out potentially differently so in short there are constraints on the ideological perspective of the court of the members of the court from the beginning but the constraints go well beyond that when you examine an opinion when Bill was referring to the opinions of Souter and Thomas in Lopez those opinions are not couched in the language of this is the wrong vote this is the wrong ideological point of view this is the wrong result for political measures but this is the wrong theory of constitutional interpretation or this is the wrong institutional posture for the court in short opinions are sunk set in the language of doctrine in the accumulated precedence interpretations prior decisions of authoritative sources and let's assume again if you're an attitudinalist that all that counts is the vote what is it that you're going to be identified with as the author of an opinion after their opinion is delivered it is the set of justifications accompanying the result not just the result and what are those sets of justifications put in but doctrine what does a case mean when it's handed down it doesn't primarily mean this is the result between the two parties there is a dimension of that but what does it stand for what it stands for is a posture in the court a doctrinal interpretation of a clause of the constitution what is its role in the accumulated legacy of the court's work its role is that of doctrine so there are not only justices not only constrained to tailor a position that his colleagues may support or her colleagues may support but to advance a set of justifications that persuades other members of the court that persuades future courts that is part of the corpus of doctrine so if that's so that is if the court is constrained at every phase of its decision making process then why should a set of interpretations that equate judicial decision making primarily with political ideology and political voting adequately explain the way the court works it is if the attitudinalist hypothesis leaves out most of what is affecting the justices in their decisions now attitudinalist might respond in one of two ways they might suggest that well that may be but the opinions really are nothing but a way of rationalizing the votes that the votes drive the opinions indeed their justices are secretly voting one way and throwing out opinions to persuade others but that's just an effort that there is a set of obfuscation as window dressing well that may be so I mean there may be justices who secretly believe one thing and write another but what's left in the US reports the secret reasons or what's out there in the opinion what other justices have joined or you might argue alternatively as as an attitudinalist that well yes but in some fashion every opinion reduces itself to an issue of politics it all has a particular consequence but if that's so the consequences are extraordinarily short run and perhaps even unintelligible because again what is sitting there for the rest of us is the opinion and whether the opinion will remain a statured or not so I would venture to say Thomas and Souter are talking about 1937 what they're talking about is the theory that perhaps beginning in 1937 the court began to shift a posture toward the role of congress which was more deferential in subjecting congressional activity to constitutional review than it previously did those postures certainly do change over time but it seems to be vastly oversimple to claim that they change over time just because of the particular political short run political orientations of members of the court so in short cycling back to the fireside chat and the role of the court and politics in the 30s the episode is extraordinarily important for us in constitutional history but I think not for the conventional reasons that it's an example of a reaction to short run political pressures by the court as a set of partisan actors but because it's the first generation in which a attitudinalist theory of judging becomes offered and becomes orthodoxy I think the concern we have today is not so much that we'll go back to the dark ages of the pre 1937 court but that we will so focus ourselves on an attitudinalist view of judging that will leave out primarily what's going on when judges actually make decisions thank you I've accomplished one of those I will try to be brief and judge sincerity I wanted to make basically three points and I feel I'm not a professor and I don't play one on TV so I'm not going to try to play in their league and understanding deeper issues but I wanted to offer three ideas as food for thought the first is that Franklin Roosevelt was in in some important ways a constitutional conservative the second is that the nine old men switched before the time alleged and therefore didn't switch in time to save nine they switched in time before the court packing scheme in one extremely important respect and then the third idea is that despite having appointed no fewer than eight political figures to the Supreme Court during his presidency FDR was in many ways a bipartisan figure when it came to the United States Supreme Court so on the first point the idea of FDR as a constitutional conservative I want to look at it more broadly than the idea of the commerce clause and his attitude toward that and the nature of his legislation to put it in context when FDR took office at the depths of the depression the country was curled up in the fetal position a lot of people believed that both capitalism and democracy were at an end and I'm not exaggerating the head of the Harvard business school thought that capitalism might be finished President of Columbia University Nicholas Murray Butler said that elections were not the most productive way for a society to select its leaders he had just won the Nobel Peace Prize the word dictator was a positive word Studebaker had a car called the dictator sold pretty well until about 1935 the New York Daily News the largest newspaper in the country the headline is Roosevelt's coming to office wanted a dictator even Eleanor thought that a mild species of dictatorship might be called for Walter Lipman who was the dominant columnist of his era at a time when columnists actually had some status he went to Roosevelt shortly before the inauguration he said Franklin you may have to assume dictatorial powers Roosevelt himself in some ways was tempted I found here just a few feet from where we are buried in an obscure file a draft of an address that FDR did not give to the American Legion on his first day in office March 5th 1933 speech as delivered was a non-newsworthy short restatement of his inaugural address but the draft of this speech to veterans now in their 30s most of them from the great war said I reserve by my right as commander in chief to command you in any phase of the crisis basically saying like Mussolini who by the way was an extremely popular figure in the United States at this point like Mussolini had taken veterans and created the black shirts and I don't think Roosevelt exactly wanted to do that but either he or some of his advisors we don't know who wrote this draft they were worried and they thought they might need to take these veterans and use them I don't know to guard banks from these disastrous bank runs that were taking place not sure what he would have done with them but he at least considered moving in an extra constitutional direction he decided not to decided to substitute his leadership abilities his strength of character his imagination and spirit of experimentation for the sword or for moving extra constitutional he passed the word on Capitol Hill forget Lippman what I'm going to do I'm going to do through you the Congress now he always held the threat that if Congress didn't bend somewhat to his will that maybe he would go extra constitutional but he didn't need to and the astonishing thing one of the astonishing things to me about what happened in the first hundred days is what did not happen no constitutional amendments can you look at Pakistan really throughout human history when leaders get in trouble in a crisis when they feel that they if they have the support of the people which you know Musharraf doesn't but Roosevelt did in spades they usually take the power that's offered they don't let the cup pass you know so he could have ran through any number of constitutional amendments in the first hundred days he chose not to he chose to be essentially a constitutional conservative in the same way that on the presidential system he he tonglashed the bankers as money changers and as inaugural but when they came to him and wanted a takeover of national takeover the banks which had betrayed the American people most were already closed before he even took office 10,000 had gone out of business he said no we're going to keep banking in private hands back up position postal banks can you imagine if the post office had run our banking system for the many ways he was quite conservative in those first hundred days and I think in and in the way he he didn't use the powers that he could have assumed he said the only thing we have to fear is fear itself he did not say as I think some politicians today the subtext of their notion is the only thing we have to use is fear itself that was not his position second point relates to social security Francis Perkins came to FDR when he was president of elect and laid out a lot of what became the new deal and she knew that there were constitutional problems and he was Roosevelt was very angry and dismissive about it we'll take care of that when the time comes he wasn't ready to introduce social security in 1933 so he said he heard a work to build political support for it and in 1935 partly through the efforts of Louis Brandeis son-in-law Paul who designed it out of Wisconsin where they had a plan social security starts to gain momentum but Perkins is terrified that social security will not make it because remember it's in early 35 that you get these bombshells from the Supreme Court and Brandeis who has in this period Felix Frankfurter goes on the court in 1939 but in this period and for many years he was paid $3300 by Supreme Court Justice Louis Brandeis to keep him posted and keep him in the mix and he was involved politically in ways that are almost unimaginable today ways much less than say Abe Fordis got involved with much more than Abe Fordis got involved with LBJ Brandeis and Frankfurter were everywhere very very politically involved Brandeis was a little bit annoyed that a lot of his ideas for the first 100 days were not picked up on by Roosevelt he particularly resented the NRA but social security he's going to be okay but do they have enough votes do they have enough votes the Supreme Court has unanimously ruled in the Schechter case these were not five to four decisions unanimously slapping down big chunks of the new deal so there was an assumption that they would do the same for social security which is in the pipeline is finally signed in August of 1935 Perkins goes to a dinner party and she runs into Harlan Fisk Stone who later becomes Chief Justice and I'll get to that and she worries about will social security pass constitutional muster and Stone says the taxing power of the federal government my dear the taxing power is sufficient for everything you want and need Stone whispers to Perkins this is before court packing so in other words the way to get around Article 1 and the commerce clause in the minds of Stone and enough other justice presumably Owen Roberts as well I'm sure that Stone was speaking very confidently is by in this case they set up a payroll tax so in other words on social security which they upheld in 1937 I don't believe they were doing that out of pressure from the court packing scheme I think even if social security come up before 37 it would have been upheld because there was this this taxing power notion that Stone and other justices favorite so speaking of of Stone you have a notion here of things getting heavily politicized but I don't agree that the invalidation of the NRA the NRA technically was knocking out the centerpiece of the new deal the creation of the national recovery administration at the end of the hundred days was a broken play it was in football terms it was a response to Senator Hugo Black's proposal for a 30 hour work week that you could work no more by federal law than 30 hours a week which was about to pass the Congress in response to that they create an idea of a national recovery act which actually was a big messy in his historically speaking and even at the time bad piece of legislation Harry Hopkins went to the head of the NRA General Johnson he said your codes stink this is a bad idea it's cartilizing the economy it's you know it Blue Eagles nice for making people feel like there's forward progress but it's really not working very well to give you an idea of some of what was wrong with the NRA they actually regulated the burlesque industry from Washington and bureaucrats determined how many times a night a stripper could take off her clothes so this is this is the and it's not just like one or two like you know anecdotes like Ronald Reagan's welfare queen anecdote this was really the substance of this thing and when it was killed by the Supreme Court a lot of people breathe the sigh of relief in the new deal they breathe the sigh of relief they had a lot of other important things going on that were certainly upheld the securities act of 33 and 34 which created the system of financial transparency that's the foundation of our economy to my mind a lot more important part of the new deal that was upheld no problem so it was not as if the struts were knocked out of the whole new deal by these decisions but things did become very politicized and the final point I want to make is that even though I think Professor White is right this whole idea of an attitudinizing court and heavily politicized court emerged in this era when it was time for a new chief justice in 1941 the assumption by a lot of people was that Justice Frankfurter would become the new chief justice and instead at the recommendation of Frankfurter but I believe he would have done it anyway President Roosevelt elevated Harlan Fisk's stone to the job and he was a Republican can you imagine a Republican being elevated to be Supreme Court Chief Justice by a Democrat or vice versa nowadays but that was of a piece of PR's attitude toward governing in a crisis the 1936 Republican candidate for vice president Frank Knox became his secretary of the Navy Henry Stimpson who had been Herbert Hoover's Secretary of State became his secretary of war when he was heavily criticizing congressional hearings by a senator from his own party challenging the Palo Burton's of the day guy named Harry Truman he went on the ticket in 1944 so there was for all of the political nature of FDR's presidency there was a sense of bipartisanship and a sense that he was president of all the people that endured so thank you thank you very much John we have a lot to talk about from these three presentations I also have a lot of questions already from the audience I just want to pause for a moment and note that the the history of the New Deal generally in the history of the New Deal in the Supreme Court didn't begin with any of us it began really with Arthur Schlesinger a great friend of this library and of all of ours and so I just want to take a moment to remember Arthur to acknowledge the presence today of Alexander Schlesinger his wife Steven Schlesinger his son and to remember a great friend and a great historian because we're a little short on time I think I'll ask the other panelists if they wish very briefly to respond to any of the other presentations today and then we'll try to get very quickly to questions any? Just a brief response I have at different times in my life been called a born again New Dealer and a consensus historian and I suppose I'm willing to accept both of those categorizations I'm less eager to think of myself as an attitudinalist because much if most if almost all that Ted said I would agree with about how decisions are reached I am doubtful that the notion that ideology and political orientation plays some part in the behavior of justices begins with the 1930s in the disputed election of 1876 there was a commission of 15 five of whom were Supreme Court justices and in every case as was widely noted the justices voted on party lines the accusation that justices voted their ideologies was common in the populist era and it was Finley Peter Dunn Mr. Dewey who said that justices followed the election returns so that's been a not notion and if one goes through the correspondence of Chief Justice Taft he talks regularly about our crowd hanging together against the Bolsheviks on the courts on one other point with respect to Francis Perkins anecdote of a stone telling her about the taxing power one has to realize that the taxing power was the very basis of AAA which the Supreme Court in a 63 decision struck down with a vigorous dissent by Holland Fiskstone who accused the majority of the court of his own Roberts of in his words a tortured construction of the Constitution I would prefer to hear questions from the audience I just want to make one comment I thought I said when I brought up this issue of 1930s being the first generation which justices were perceived as having political ideologies I didn't say that I said it's the first generation a central factor driving justices is political ideology and that there's no separation between the authority of legal sources and the authority of the interpreters so that when you appoint a justice to the court there are basically no constraints on that individual that perspective I would argue is new in the 1920s and 30s and go through the literature and look for articles writing about the individual perspectives of justices as opposed to court decisions articles on the jurisprudence of justice A or the jurisprudence of justice B there aren't any they don't exist until the 1920s so that's the one point I wanted to make well let's go to questions from the audience and of course there's still time if you have questions please go down and pass them up to us first question we receive which is a very interesting and provocative one which of the panelists would accept Franklin Roosevelt's 1937 proposal relating to the federal judiciary in other words would you have supported court packing yeah no I mean I was interested that the first witness of the congressional hearings on court packing was Raymond Mowley who had been FDR's top aide and basically the head of the brain trust in 1932 and 33 and he agreed that the court needed to respond to the changes going on in the country and that they were being obstructionist but he was by that time his relationship with FDR had soured took place in 36 and he resented the trickery with which FDR introduced it by shielding his real motives behind this idea that the court wasn't getting its work done and a lot of other spin that they tried to use to get it through and that they quickly abandoned and at this point I thought was quite an interesting one which is if you want to do this propose a constitutional amendment and that the reason they hadn't done that was because they knew it would be rejected so they tried to change it as a matter of law as a judicial reorganization rather than as a constitutional amendment but I thought it was of an interesting piece that in the popular imagination the court packing scheme is always used by FDR's extra constitutional power grab and really he was just proposing a bill that happened to be a bad idea and was defeated in congress but it wasn't some sort of a what we would now consider to be a power grab the bill is disingenuous in the sense that it makes age a proxy for something would we want to do we believe that a justice a better justice or a less good justice based on the age alone of that of that justice and yet the driving force behind the bill is that somehow when the justice reaches the age of 70 a light goes off in his or her head I feel this increasingly as I well I would agree with Ted that it's disingenuous I don't think that the bill had many or any good options it's often said that this was a foolish thing that he did but if he had gone to congress to the American people and said it's not age that's really an issue I just think that the justices are handing down wrong kinds of decisions and I want to court that hands down the right kinds of decisions I'm not at all sure I would have gone over very well either so he had to move in a direction that wasn't very promising or simply be passive and with every expectation that the court on the basis of past behavior was going to strike down the Social Security Act was going to strike down the Wagner National Labor Relations Act for Roosevelt to be passive does not strike me as being a height of wisdom or at all in keeping with his character it was so hubristic and so in keeping with what second term presidents do his second term was his worst and it's hard to imagine that comes to mind of a president whose second term was better than his first they always seem to overreach and get into trouble right after they get a big re-election victory and this just seems to be of a piece with that it's important to remember I think that the fact that there are nine justices in the Supreme Court is itself a legislative decision there's nothing in the Constitution that specifies how many justices agree on the Supreme Court so there was nothing constitutionally outrageous about the court packing scheme but I wouldn't have supported it either and the reason I wouldn't have supported it is because not because I disagree with Bill about the dangers of the court in the 1930s but because of the presidential dangers that it would set if every time a president didn't like the court he could change the size of the court the court would be of no would have no real standing at all another question and this is certainly an apt question given our present climate to what extent were nominees to the court in the 30s, 40s and 50s questioned by the Senate on their judicial or political positions well I can respond to that on the whole they weren't the we've really had two major shifts in the confirmation process of Supreme Court justices in the 20th and early 21st century and one is related to the Fortis Affair you remember where A Fortis is first proposed by the Johnson administration as Chief Justice and it ends up being filibustered in the Senate Johnson is then a lame duck president and the expectation on the part of the Republicans is that they may have success in the 1968 election which they end up doing so the the increased scrutiny in participation by the Senate in Fortis and then the subsequent resignation of Fortis marks the beginning of a higher level of scrutiny and then of course the next episode is the confirmation hearings of Robert Bork where for the first time members of the Senate Judiciary Committee openly say I agree that Judge Bork's legal qualifications are superb but I'm voting against him on ideological grounds that marks the entrance into the new process that's why primarily those two episodes are primarily why now it's almost a sine qua known for appointment on the court that you have previous judicial experience when you think of the people who are on the Supreme Court of the United States and have been regarded as having illustrious careers who wouldn't get through the present confirmation process that would include Hugo Black Earl Warren, William Douglas, Felix Franksford, the list John Marshall, the list would go on and on so I think one thing that's really interesting is that on the Hoover Court Cardozo was the only one who was not basically a commercial lawyer but Roosevelt appointed Black, Burns, Reid, Murphy, Jackson and Douglas all out of the realm of politics either you know former Attorney General former a senator head of the SEC or kind of on his team and I think that may have then Eisenhower did the same thing with the politician Earl Warren and then that sort of fell a little bit out of fashion and Bill Clinton tried to reintroduce that idea of bringing real world experience to the court that was why he wanted Mario Cuomo but you know relinquished that idea there's been that interesting tension between whether you bring people directly from the world of politics or those of legal distinction the what Ted is saying about things becoming more intense is certainly true but I'd rather leave this question to the panel that's going to succeed us which is going to be taking this up just one comment on the past in the Hoover presidency there were two nominations where the ideology of the nominees was a very strongly contested one was the Charles Evans Hughes despite the fact that he'd been an associate justice on the court because he had become a corporation attorney and something if I remember the correct sum I think it was 26 votes were cast against him because he was regarded as as a right-wing menace if he got on the bench more striking is the nomination of John Jay Parker of a circuit court of a field judge who was opposed both by organized labor and by the NAACP and his nomination went down to defeat after his views were challenged wholly on ideological grounds here's a more contemporary question in the audience since there was no commerce clause issue in Bush v Gore what do the panelists have to say regarding that decision and what it implies for the current court's attitude towards the boundary between federal and state jurisdictions on such basic political questions as who counts and certifies electoral outcomes any takers of course Bush v Gore is the poster child for journalism but it may not be fully understood that the court tried its best not to decide the case Bush v Gore is in a long tradition of other branches of government finding themselves in what they regard as an intractable political controversy and creating the matter to the court by suggesting that they are incapable of resolving this in the short run and if the matter were constitutionalized and the court entertained and decided the issue on constitutional grounds the heat would be taken off those other branches and if you want to go back and think about major cases how many qualify in those terms Dred Scott the legal tender decision the income tax decision the the question of incarcerating Japanese in World War II Brown versus Board of Education Roe v Wade these are all instances in which the other branches of government in a sense communicated the view that they would be happy to have constitutional challenges entertained and resolved by the court you know I covered it I was in Tallahassee at a courthouse where there were counting votes and actually a very successful so far fairly incident free morning that had several hours of counting votes and there were many fewer incidents than anybody expected after everything we'd all been through and it seemed like finally what should have happened earlier in the process was taking place which was you know a full and fairly supervised recount so there was no need for the court to step in at that point it was done on a strictly political basis and the best summary of it is in a book by a friend of mine Jeff Tubin that just came out called The Nine and I think he does a very good job of explaining the politics of it I think it's also important to remember that the electoral votes of the state were determined by the state legislature the Florida state legislature and the hands of Republicans had made it pretty clear that they were not going to accept any recount no matter how well it was done maybe that would have changed had the result been differently so I'm no great fan of Bush Figor but it did as Ted said it did move it did move the decision out of the politics of the state legislature and into the Supreme Court why couldn't they have just waited at least until the recount completed there was no urgency if the Supreme Court had not acted had the recount continued had Gore been seen to be the winner of the popular vote in Florida it isn't clear that he would have won the state anyway I agree with that we've got two questions here that may have already been answered but let me just raise them again since obviously some people in the audience still want to hear about this I I'll just read one of them because they're really both the same and they're directed at Bill Luttenberg and Ted White why do you think Owen Roberts changed his mind so briefly I think the beginning of wisdom and answering that question is we do not know Paul Freund many would say the greatest constitutional scholar of the period at Harvard Law School once told me that he gone up with Mrs. Roberts into the loft of the barn in the Roberts farm in Pennsylvania and not been able to find any Roberts papers and I've used the analogy of George Orwell as though someone had gone into every manuscript collection and I've been into literally hundreds of them and removed every Roberts letter because we have no paper trail for this one thing we can say is this and this is something we've known for 40-50 years that in 1936 Roberts votes with the majority striking down a minimum wage law in March of 1937 he votes with the majority upholding a minimum wage law for women in between comes the court backing plan Ergo many thought the court backing plan got him to change what's wrong with that chronology is we know that Roberts cast his vote prior to the court backing plan so the court backing plan could not have accounted for that particular change of of mind the larger question is how did he change from the kinds of votes and the things he said in Real Pension and Butler and the other decisions in 1935 and 1936 to his position on Johansson Laughlin in the Social Security case and cases in some subsequent cases and there it's conceivable to me that the court backing plan played a part I know it wasn't addressed to me but just a couple of notes that I found interesting Felix Frankfurter's diary for 1937 was stolen by the Congress and he was in the middle he had his fingers in everything so we're flying blind a little bit here on that and as far as on the minimum wage case now I could be wrong about this but my memory is that the Tepaldo case the first one was complicated by an even earlier minimum wage case from the 20s I think was called Adkins in that case which was argued by Dean Atchison of all people so the first case striking down the minimum wage was done on some technical issues that related to precedent and they used that as an explanation for why they were changing their minds in the second case in 1955 Justice Frankfurter produced a memorandum hitherto unpublished that Justice Roberts had written in which Justice Roberts suggested that he had not in fact changed his mind but that in the 1936 case the two cases are New York minimum wage law in 1936 and then the Washington minimum wage law in 1937 where Roberts takes different positions but the memorandum that Roberts wrote Frankfurter presented suggested that it was a more complicated matter than that going back to a 1934 case in which Roberts believed that he wasn't going to change his view in the 1936 case unless the court fully understood the implications of the 1934 precedent there's been a lot of speculation that that was produced after the fact there's even one law review article that implied that Frankfurter wrote the memorandum himself but I'm inclined to agree with my colleague Barry Cushman who wrote a book that was published in 1996 calling for a quote new trial for Justice Roberts suggesting that the idea that he had simply switched under political pressure was oversimple and giving a fairly detailed doctrinal analysis to try to make the point so since Bill is correct that we don't have any gun we don't even have a piece of artillery at all in the archives it's unfortunately in these sorts of events it's open season for academics and others to speculate well we're out of town time I want to thank first of all the members of the audience who submitted questions and apologize that we didn't get to all of them I want to thank the members of the panel and I want to thank all of you