>> a former deputy chief speech writer for president bill clinton recalls franklin roosevelt's confrontation with the u.s. supreme court who objected to vital atlanta else of his new deal legislation. the new york historical society is the host of this event and lasts about an hour. >> greetings, fellow dead heads. so your favorite album is what? no. hello everyone. it's great to be here with my pal, jeff and his terrific book. i mean, like really great book. and you know, timing is everything in life. i'm going to not talk a lot, but i want to tell one little story. i went to college with a woman who later went to work for the "wall street journal," and then as far as we could tell, like disappeared from the face of the earth and she was supposedly writing this book and no one had heard from her, no one knew what she was going to do, you know, whether this book was ever going to come back. years passed, years passed.

finally in the spring of 1990, this book comes out. the book comes out, the week anita hill testifies before the senate judiciary committee and my friend was susan falutey, and the book was "backlash," so sometimes timing works out and i thought of that about "supreme power," because just for jeff's benefit, john roberts decided to get into a nasty fight with barack obama, but then the congress decided to pass a potentially controversially involved major piece of legislation, which may wind up before the supreme court, all for your benefit, jeff. >> thousand. >> fabulous. >> my publicist and i worked this out very carefully over a period of months. >> w.w. north runs the world. >> ok. like your last book, "mutual contempt," a sensational book about the relationship between

r.f.k. and l.b.j., really just a wonderful book, anyone interested in that period. jeff's book is the first book that made use of the white house tapes, so these people in realtime talking about the issues that are subject of the book. you turn, several years later, to the core packing crisis of the mid 1930's. why? >> well, i'll speak specifically about the core packing crisis in a minute, but i clearly am drawn to stories of conflict and this is truly one of the great conflicts of the 20th century. it's the greatest constitutional crisis of the 20th century. >> are we getting a little ringing in the sound system? is anyone hearing that, or have i been to too many dead concerts. are we ok unthe sound, is everybody ok? i'm sorry. go ahead. >> and there are no colors swirling over here.

i think i'm drawn to narratives of conflict, because in the clash between titans of one kind or another, whether it's lbj and rfk, or the supreme court, fundamental institutions are brought to the fore, and these two individuals are really fighting for great stakes. >> let's talk about the plot of "supreme power." set the stage. 1935. what's happening with regard to f.d.r. and the new deal and how is the supreme court involved? >> well in 1935, the supreme court starts to essentially dechair the new deal to be against the law or against the constitution. it begins in earnest to strike down not just new deal programs, there are a hot of new deal programs, but the centerpiece he is of the new deal. it begins with the national recovery administration, the recovery act, the nra, and then it moves on to the aaa, the agricultural adjustment act, the

farm program and other central pillars of the new deal are knocked down in short succession. usually but not always by a very narrow margin, 5-4, and so there's a very real question by 1936, whether roosevelt can actually get anything fundamental done in the country, because the supreme court is standing in the way of everything, not just in the way of the federal government, but in the way of the states, because states meanwhile are passing laws, trying to implement minimum wages and all sorts of things, set maximum hours for certain kinds of jobs and the court begins to strike in earnest, these sorts of pieces of legislation down too, so as justice stone put it at the time, the court seemed to have tied uncle sam up in a hard knot and it wasn't clear how he or we were going to get out. >> even though no one in this audience is nearly old enough to remember anything about franklin roosevelt, i think he's familiar figure to many of us here. talk about who was on the supreme court at this time, who were they, and just characterize

the court at this moment. >> well, this was the oldest court in american history, and this is something that people were aware of. they were known popularly as the nine old men and the oldest was brandeis, but there were mainors nearly as old as brandeis, and -- many others nearly as old as brandeis and the court had been consistently conservative for a number of decades by this point, really for many decades and there was a clear sense from the time roosevelt was elected in november 1932, that there was going to be a confrontation between fdr and this court. it's not simply that they were old, but that many of them, not including brandeis, but many of the older justices were really 19th century men, in spirit. you had willis who was actually old enough to remember as a boy watching lincoln's funeral procession. charles hughes, chief justice at the time and had been out court in 1910, charles evans hughes,

when he was a student at brown university, not only had no running water or central electricity in his dorm, but he has two closets, one for his stuff and the other for the coal that he would use to shovel into his heater. >> and my favorite, perhaps the worst human being ever to serve on the supreme court, james mcgrannal, who the story goes, was such an appalling anti-semite that used to get up and leave the conference room when brandeis or cardoza would speak. >> not only that, when cardoza was inducted as a justice, mcgrannal was forced to sit through the inducks ceremony and pulled out a newspaper and russelled it loudly throughout the induction ceremony. >> so that's the core. who was the chief justice. >> charles evans hughes and i'll say something about him in a second butting it back to your last question. the other thing to know about the court, they didn't use the

term at the time, but to use a term of ours, it was a very activist court and between 1933 and 1936, it was overturning federal lolls at 10 times its previous rate. and so this was a court on a mission, and it really did the conservative justices really did see it as a mission, a holy war some of their supporters said, against communism and anarchy, in which they saw communism in the new deal. >> without descending too far into legal geekdom, what was the rationale, the legal reason that all these new deal laws were unconstitutional. >> well, there were a lot of different doctrines and clauses and votes, from the contracts clause and the doctrine of substantive due process and a whole range of other things that were used to strike down these programs. many old doctrines were revived for the task and so forth, but fundamentally, the conservative'conservative's motf

constitutionality was in the lays fair doctrines of the -- raise fair doctrines of the 19th century and the constitutionality implying a limited government, states rights, and a constitution of limitations. it was not as roosevelt felt, a broad avenue through which a lot of things could pass and get done. it was a constitution of limitations and sometimes as one of the justices said, those limitations pinch. >> now, one of the questions that often comes up with supreme court justices, certainly a question that i have thought about a lot in terms of the period that i wrote about, is how much are the justices applying principles and letting the chips fall where they may, and how much are the justices finding legal principles to accommodate a political result that they want to reach. >> well -- >> and so as you get to this critical new deal period, and period of conflict, how does

that tradeoff look to you. >> certainly, there were a lot of precedents that could be and were applied to strike down social legislation, whether it was before roosevelt or particularly during roosevelt's presidency. there was no shortage of opportunities for the conservatives to do that, but there were also very many opportunities for them to sustain a lot of this legislation. there were other precedents that they could have called upon as well, so both options were really there in front of the court and what you see during this period and i alluded to this a moment ago, you see the justices scrambling in some cases for doctrines that have been out of favor for decades, that everybody thought had sort of declared decades before and suddenly, they're applying them with vigor to these new deal cases or applying two of them to the same few deal case when they could have decided on narrow grounds. they're deciding on the most sweeping grounds possible, so they are essentially

preemptively dechairing any legislation of this kind unconstitutional. >> fdr, obviously the protagonist of your book in many respects, the protagonist of the period, talk about his attitude towards the court. he is obviously one of the great figures in american history, but talk about how he looked at the court as a political institution, as a legal institution, and as the conflict between the -- him and the court grew. >> well, he saw the court as a political institution. and that probably won't surprise anybody here, but when roosevelt in the 1932 campaign gave a campaign speech, i opened the book with this, chapter 1, he goes to baltimore in octobe october 1932, and he's -- he's campaigning against not only hoover, but against the republican rule generally and he says, the republicans have control of the white house, they have control of the congress, and for a good measure, they

also have control of the supreme court. that would seem a fairly uncontroversy am statement today, but it was slows of i have at the time, or at -- slows it's at the time, or at least the republicans tried to make it explosive at this time, trying to make it shocking that he was still in politics and there still was this notion, very strong then, still exists today, but not quite at this level, that when someone put on the judicial robes, that he parted with his politics. he might take an idol interest in politics, like following the pennant race in baseball, but they were above this sort thing. roosevelt never bought that and one of the things he asked this new attorney general, homer cummings to do when he got in to office was to figure out how many of the judges on the federal bench at all levels, had been appointed by republicans and how many by democrats, and there were only 28% of federal judges were democrats by affiliation.

and so they felt that they had a big partisan problem on the federal bench and roast development didn't think fundamentally this was about the constitution. he thought it was about special interests and politics. >> so all through his first term, he has these problems with the laws getting overturned. when does the idea start to percolate about the court doing something for the first time. >> when he's inaugurated, he's aware there's going to be controversy with the court. if roosevelt keeps after his campaign promises, there's going to be a confrontation an one of his key supporters, an incoming support from california, actually sits down with the incoming attorney general and says, what are we going to do with b the court, what are we going to do about the old fossils on the court as he put it and he floated an idea that they would pass a constitutional

amendment to relegate any justice past the age of 72 to emeritus status, just sort of push them aside so this is beginning to circulate and starts to percolate in the press even before very many new deal programs have passed. >> so the notion of doing something to the older justices is in the air, even early in the first term, now one of the curiosities about the supreme court that am lot of people don't realize is that the number of justices is not established in the constitution. that there's nothing in the constitution that says there's nine and that is a creation of congress by law. talk a little bit about that concept, because again, i think as you've said, people are surprised by that. >> it's an amazing thing actually to consider, most people don't really think of it this way, but tomorrow, the congress could decide, they increase the number of gist it is to 17 and there's nothing in

the constitution to suggest that it can't do so. the founders left the number deliberately an open question and in 1789, the number of justices was set at six and it went up and down over the course of the 19th century. sometimes for reasons of efficiency, sometimes as the business of the country increased, you needed more justices, but usually it was a matter of politics, and there were a series of presidents, beginning with madison and running all the way through jackson, who kept coming to congress and saying, i want more justices. they wanted more of their own appointees on the court and actually in 1866, congress eliminated two seats on the supreme court, just to deny andrew johnson a chance to appoint anybody. >> which is an extraordinary story, and it was really only under president grant that it went to nine and has remained ever since. so when does court packing

become more of go from a just conversation with one senator to something like a real proposal? >> well, it's an idea that never really establishes much momentum. it's in the air from the beginning, as i suggested, an one of the things that i wanted to do in this book was to try to track when the idea first begins to emerge and public discussion when roosevelt starts to get letters suggesting it and so forth and it really does happen right away, but it is very much a fringe idea. it comes up and usually when it comes up, someone says, he could do this, but of course, he wouldn't do this. it's an outrageous idea, a terrible, appalling idea and that's what most of roosevelt's advisers said, so most of the discussion throughout roosevelt's first term is not about packing the but amending the constitution. so with things come to a head, there were 100 separate

constitutional amendments proposed to strip the court's review of social and economic legislation so that it just can't even consider these questions or to allow the congress, this was a very popular amendment, to allow the court's ruling to be overturned by a -- it was like a rolling constitutional convention. this was a national discussion, a national debate, radio programs, constant coverage in the sense, so there is the sense by the time roosevelt winds the land slide reelection in november, that something is going to happen, he has to do something about the court and almost surely it's going to be a constitutional amendment. >> and how does that evolve? >> as everybody seems to be getting higher and higher on the idea of amending the

constitution, roosevelt source on it for some -- sours on it for some reason. one was pragmatic, he thought it would be too hard and too long to amend the constitution. >> you have to go through all the legislatures. >> light. and 13 states could decide it's not happening and it's not happening. but fundamentally, roosevelt didn't think there was a contradiction between the constitution and the new deal. he thought the probable recommend was not the constitution, but the problem was this group of justices, particularly the five who were voting against the new deal, so his focus became a, how do we do something quick and expedient that will solve of the problem and b, how do we do it without disrupting the fabric of the constitution. there's nothing wrong with it and nothing in the constitution that should stand in the way of what the new deal was meant to accomplish, so he comes back to this idea that's been in the air all along, but it's been dismissed all along and that is

packing the court. >> and how -- i mean, it's funny, court packing is -- that's how it's described, but a lot of people, i think, don't know what the actual proposal was. how was it made public, when was it made public, and what was it? i mean, what was roosevelt's proposal about the court? >> well, i'll start with the last question. the proposal, which roosevelt thought was very clever, and took them a while, he -- roosevelt and his attorney general to arrive at this particular advice, they new they wanted to expand the size of the supreme court so they could essentially outnumber the conservatives. they had given up on the idea of trying to force the conservatives off the court, so what do you do, you outnumber them with liberals, but they got stuck for a while on what kind principle they could hang this on, so they went back to the very beginning and this question of age. and their argument was that for any justice, who had passed a certain age, in this case, it

was 70 or 7 70 1 of 1/2, that te president, if they refused to retire, that the president would have the right to appoint an additional justice to essentially sit beside that justice an on the court, so what would have happened in 1937, if roosevelt got what he had asked for and as none of the six who were over that age it resigned, he would have gotten to appoint six new justices overnight. >> there would have been 15. >> there would have been 15, and there was much debate about this, but they said a limited 15, even if all nine were 80 years old. they could only reach a ceiling of 15, and so this was part of the problem with the plan. well, there were many problems with the plan politically, an one, as you suggested a while ago, that the number of nine had been reached in 1869, and so no one remembered that it had ever been anything like that.

anything other than that. and so there was the sense that it was sacrosanct in some way, the number nine. but also that this was an insult to old people and you had these great distinguished jurists, the most distinguished in the view of liberals was brandeis, who was the oldest member of the court. and so -- and then you had the added problem of the fact that roosevelt couched the plan in an argument that it wasn't about ideology at all. it was about efficiency. and he sort of implied that these older justices were falling behind in their work, and this was true across the federal bench and so what we needed was more judges at every level. and so -- but this didn't really fool anyone, and i think -- >> how was the public -- what was the public -- when did the proposal, with was it made

public? >> 1936. >> he was that the first inauguration in january, so he's inaugurated january 20th, he proposes this two weeks later. >> a month -- yeah, actually, two weeks later, that's right. >> and what's the public reaction. >> well, just take a half a step back. there is, as i said earlier, the sense that roosevelt is going to do something about the court, and it's only a matter of when. but he hasn't been talking about it publicly and so there's a general sense, both in the congress and in the country, that this isn't going to happen immediately, but it will happen soon. people in the congress are waiting for some kind of signal from the president, what he's going to do, but they sort of feel, many of them feel that they can't wait for roosevelt and they tried to get ahead of him and in the first 10 days of the congressional session, in 1937, there are 50 propose pals to curb the supreme court. so there was a lot of activity and roosevelt felt that he had to step up his timetable so that

congress didn't get much farther than he had. roosevelt kept his plans with respect to the court a secret, even from most of his inner circle. it was really developed -- of after four years of very wide ranging and open conversation with all sorts of experts and advisers and members of the government, he essentially shut the process down in the fall of 1936, and went into a bit of a huddle with his attorney general, homer cummings, and the plan was pout together in pieces within the justice department, so that cummings' assistants didn't really flow what they were working on. he told them all of the seam thing. you're working on a project of great importance. and what it added up to, they didn't know, so the plan, when roosevelt unveiled it, at the beginning of february, was a huge shock. to the nation, to the congress, which he had not consulted, to his cabinet, whom he had not

consulted, and again, this is one of the real -- roosevelt felt that this element of surprise would be part of the -- would be instrumental to the success of the plan, that he would surprise his enemies and get this through very quickly, and instead, it became one of the biggest problems that he faced. >> well, was there support for it? i mean, talk about how the -- it was a huge land slide in 1936, overwhelming democratic majority in the house and senate. did the democrats support him on it? >> well, some of the democrats supported him on it, but a huge number didn't, and the progressives in the party and a number of the liberals actually abandoned him on this. a sufficient number. for a range of reasons. there were a number of progressives -- progressives in that period were kind of iconicclass and most were loaners in the senate and they have been leaders and -- >> give some names.

>> men like hiram johnson of california, who had run on the bull moose ticket with teddy roosevelt in 1912, who had been a reformist governor of california, and by this point, he had wanted two things, hiram johnson. he had wanted to be president and he had wanted to be a supreme court justice and by 1937, it is clear that neither of these things was going to happen and he is old and ill and imbittered, terribly imbittered at roosevelt, who he thought was -- and you had burt wheeler, who had split from the democrats in 1924 to run on the progressive ticket and then came back and wheeler was a real fighter and had actually been for roosevelt sort of, publicly, but i had suspicions about roosevelt in 1932 and almost immediately almost became very personally imbittered toward roosevelt, so you have a number of the progressives, who have personal grudges against the president and ideological concerns that there's too much power being centralized in

washington and then you had liberal democrats who worried that if a court became more of a political extension of the white house, this was their fear, then civil liberties would be very much in danger, and the court had to -- had actually been a real champion of civil liberties, even as it was conservative on economic questions, it had been really championing free speech and other civil liberties over the course of the 1920's in particular, and so there was the feeling on the part of a lot of liberals and liberal groups, catholics and others, that there was a lot to lose if the supreme court -- not due to roosevelt appointees, but the next president's appointees, if he happened to be a conservative. >> to me, what i thought the most dramatic part of your book, was the machinations in the court itself, because they were simultaneously the focus of this controversy, yet not technically

allowed to speak out under the rules decorum, then in effect. how did the justices respond? >> well, they were -- even cardoza was opposed and he was roosevelt's strongest supporter on the court. >> and brandeis was a supporter of the new deal for the most part. >> he was a supporter of the new deal, but he actually thought that the nra and the aaa were sort of a disaster in certain ways, and so even as he was deeply involved with many members of the administration and had been mentor to many of them, he had his suspicions about the new deal and centralization of power as they saw it, but they were all strongly opposed, as you might imagine to the idea of packing the court. they thought that it would do great damage to the institution of the supreme court, that there could be no respect in the supreme court, once it became such a political football. and some of them talked among themselves about resigning, if the court packing plan passed, at least a couple of them probably would have, and you see

them, to your question, during this period, they're really chaffing at the constraints of being supreme court justices and not being able to say anything publicly, so this starts to break down a little bit. mcreynolds who you mentioned, gives a public speech to his fraternity brothers, and talks a lot about sportsmanship. >> do you remember what school it was? >> i think it was vanderbilt. i have to look in my own index. >> i don't mean to put you on the spot. >> and so mcreynolds speaks out and there's a little temperature pest about that. meanwhile, charles evans hughes, the chief justice is working behind the scenes to discredit the plan, particularly this notion that the justices are behind in their work, so within days of the launch of the court packing plan, hughes has the

leading political reporter for the "washington post," who is a conservative, who was a conservative paper, brings him into his chambers, and provides all sorts of information that becomes a series of front page articles, that take apart this notion, point by point, this notion that the court is behind in its work, and this is damaging to the plan in its first days and then really the most damaging thing that hughes did over the course of the court fight is he allows -- he let's it be known through brandeis that he might be willing to testify against the plan, in the senate. that he might actually be willing to be called as a witness. he actually was willing to be called as a witness, and sit there in the senate judiciary committee and attack the plan. brandeis ultimately gets cold feet and advises the chief not to do this, but they talk together about other ways to undercut the plan and so what hughes does is write -- he writes an open letter to burt

wheeler, who by this point has become the leader of the senate opposition to the court plan and very useful to the conservatives, because here's a democrat, who has been with the president in a lot of things and he's leading the opposition, so hughes writes a letter to wheeler saying, thank you for asking me my views. let me tell you what i think. and again, using the same information, point by point, devastates the premises of the court plan. and the next day in the newspaper, one of the newspapers, there's a cartoon, with a big target, and a cannon ball going through it and it says bull's eye, the hughes letter -- >> the hughes letter becomes a big -- >> and what hughes does, which again, points to the political sophistication of charles evan hughes, who is no slouch compared to roosevelt, he gets the agreement of two other justices, brandeis on the left, and vannedder vanter on the right and suggests that this came about so quickly that he at

any time have time to consul anybody but clearly you can see that we speak for the entire court, which was not true at all but it was done and it was very effective. >> does the plan ever officially die at that point? i mean, what happens next at that point? >> well, the plan has a series of near death experiences over the course of six months. >> sort of like the health care plan. >> that's right. with a different ending. >> right. >> exactly. >> but i think that it's very easy to look back and see this as doomed from day one and a lot of the accounts suggest that it was doomed from the day that he unleashed the plan. and i think that's not right. i think one of the things that's remarkable and speaks to not only the enormous power that roosevelt had, the power of persuasion that roosevelt had, and also to the strength of his

argument against the court during that period is when he launches this plan and shocks everybody and there's all this opposition in the press, and there's all this opposition in the congress, if you look at the gallup polls, it's evenly split and even though the numbers go up 1%, 2%, kind of back and forth and ultimately the opponents gain an edge over the course of this, the public remains pretty evenly split throughout this fight and it does seem that it could kind of go either way, so there are many opportunities over the course of the six month fight, no matter what is happening and we talk about some of the twists and turns, where roosevelt might very well have gotten exactly what he asked for and gotten six justices, or if he had been willing to compromise as a number of his advisers were urging him to do, he could have easily i think gotten four justices or two and we would have a court of 11 or 13 today. >> one name you have not yet mentioned, who is in many respects, the -- a central figure in all this, justice roberts. why is he so important?

>> well, owe went roberts is important, because it is owe went roberts who switches in the middle of this fight. as the bill is being debated in the senate, roberts votes to uphold a minimum wage law that is virtually identical to one that he voted down exactly one year before. >> and this is sometimes called the switch in time that saves the nine. >> that's right. >> but do you think -- why did he switch? that is a historically rich question. >> this is one of the great mysteries of the period and there are a lot of theories. he burned his papers before he died and he never -- he never talked openly about it, although he did imply a number of things, which i'll get to in a moment. owe went roberts was an interesting guy. he was from philadelphia, he was an industrious and hard working

guy. he went to the university of pennsylvania and did so well there that as soon as he graduated as a law student, they hired him immediately to teach the law. he was a brilliant advocate, a republican in a very republican city, and he came to the attention of president coolidge, who appointed him to investigate the tea pot dome scandals of the harding administration and he did a very effective job at that. he sent the secretary of interior, albert fall to jail and was sort of celebrated for his probity. his ideology was an open question and with he got appointed by hoover in 1930 to the supreme court, he had not been hoover's first choice, but hoover's previous choice had been shot down by progressives in the senate, bow sides saw something to cheer about. conservatives look at his record as a republican and some of the public statements that he made abandon they thought he's with us and liberals thought well look, he prosecuted the harding

administration and he's not an idealogue and those sides cheered the appointment of roberts and actually, his ideology, his jurisprudence remains something of a mystery, even within the courts for years. stone couldn't figure him out and he seemed to go back and forth, generally conservative, but open minded in certain ways, and had been involved and even wrote some important liberal opinions in the early 1930's. but in 1935, he throws his lot in with the conservatives. and it's not simply that he's voting with the conservatives, it's that he's writing these incredibly vehement, almost scornful opinions. they put him very much out in front. he writes the opinion on the aaa, he writes the opinions on some other things, they are very strident and sweeping opinions, so he seems entirely lost, so it's an amazing thing when he finally switches back. >> and that is in 1937? >> that's right. >> what is the political impact

of the court switching to a more new deal posture? >> well, it's tremendous and i just want to be sure that i -- that i finish the thought on roberts, come back to your original question, which is why he switched. >> you're right. >> and he was very interested in public opinion. not all of them were to that extent, but he was more out in washington's social and political circumstance else. he really did seem more than the others to care what people thought about him and he was so attractive in many ways that he was even talked about seriously as a presidential candidate to run generals roosevelt in 1936 and he seemed to like the attention. now, when the supreme court began striking everything down in this way, and he was, as i've said, very much in the front of that, a lot of contempt really rained down on him, because he had flipped back and forth before, and he was seen to be responsible for this, in the same way that today, most of it comes down on justice kennedy.

you know the way that scalia is going to vote in most cases, but the question is justice kennedy, so when something goes the wrong way from someone's perspective, they tend to point the finger at kennedy and it was the same with roberts, he took this very much to heart, it was a very difficult period formerly -- for him and it seemed that the public machine amassed against the court and then the incredible repudiation of conservativism in the 1936 land slide, seemed to have a real effect on roberts, and he finds him of self back in the camp with brandeis, cardoza, stone and hughes. >> and how, just to finish the narrative, how does the plan die officially. >> well, many of roosevelt's advisers, as you would imagine, be expect that now the court has switched and he's getting the results that he sought, not just in the minimum wage case, which wasn't technically a new deal program, but then the wagner act, the national labor relations act is upheld.

the first one was in march, the second one was in april and in may, supreme court upholds social security, which everybody had thought was doomed. and so throughout this period, commentators and even some of roosevelt's advisers, are saying, give up the fight, wait to see if roberts and hughes go back to the other side, you can always renew the fight later or compromise and settle for two justices, but here's the main reason that he doesn't do that and why he keeps fighting. because -- well, two reasons. one, he doesn't believe for a minute that he and roberts are in the liberal camp to stay, particularly roberts. he flipped before, he's going to flip again, and the second reason is that it is an open secret in washington that roosevelt years before had promised the next supreme court seat to the senate majority leader, joe robinson, who is this big bull of a man from arkansas, who has had this dream his entire life to be a supreme court justice an even though he

opposed most of the new deal, he carried it through the senate on his shoulders, and so roosevelt offered this to him and robinson promptly made this known to everybody. and so roosevelt understood that if he only got two seats, one of them was going to have to be robinson, who wasn't really a real supporter of the new deal, and then the other seat would be a liberal and they would just cancel each other out, so he wouldn't really gain anything in terms of the balance of power on the court. >> so how it ends. >> so how it ends. so this drags out for a while. and roosevelt keeps fighting into the summer, and ultimately, robinson says to roosevelt, i've got enough votes, i'm going to push this thing through, we're going to get it done. at the very least, we're going to get four, i might even be able to get six and as robinson is throwing himself bodily in to this fight, yelling at people in the galleries and the senate and back and forth with wheeler on the floor, it's very sort of almost violent in the senate,

not at all like today, robinson collapses in the senate, turns purple and is carried outside, where he gets some air and then goes home and the next morning, he's found dead on the floor of his apartment and with robinson dies any hope that anything is going to get done. there's a chance to the very end that robinson is going to carry this through, and get at least four and maybe sex justice -- six justices with the president but with robinson, that chance goes away and the opponents are able to kill the bill. >> but, roosevelt loses the battle and wins the war, because -- i mean, it's interesting, one thing that george bush, jimmy carter and franklin roosevelt have in common, george w. bush, is that they didn't get any supreme court appointments in their first tell. jimmy carter only served one, so he's the only president in american history not to have -- to serve a full term and not make an appointment to the

court, but when they start coming to roosevelt, they come in a rush. these appointments. so who leaves first and who gets appointed? >> well, this is actually an interesting twist that i didn't mention in the story, which is that in the middle of the supreme court fight, after the supreme court has upheld the municipal wage law and uphemmed the -- the minimum wage law and up medical the minimum wage act, this is is a devastating blow, all of a sudden roosevelt gets to appoint a justice, this is a very carefully timed retirement that he worked out privately with wheeler and one other senator, thymed for maximum effect, and then a few days later, the court upholds social security, so one by one, the pegs are being knocked out from under roosevelt's argument, so after the fight has finished, right after the fight is finished, in october 1937,

roosevelt finally gets to appoint his first supreme court justice and he appoints hugo black and we all know that hugo black, many people view him as one of the great jurists of the century, or at least the second half of the century, but one of the things that drew roosevelt to hugo black, there were two things really, his loyalty to the new deal, and also, the feeling that this would really stick it in the high of the senate. -- eye of the senate. black didn't have a lot of friends in the senate, he was a tough sort of investigator and he alienated a lot of his fellow senators, but because of this tradition, which might still exist, we'll see some day, of senatorial courtesy, where any senator is nominated to the court is sort of waved through, they knew they had to approve black, but they didn't like it. >> and that is followed by william o'douglas, wily douglas. roosevelt has eight appointments

to the court. >> he completely transforms the court. it is a roosevelt court very quickly. >> and remains such for a generation, and one of the things that the roosevelt court is known for is allowing a very expansive conception of federal power, federal legislative authority, which apparently includes health care reform, but maybe we'll see. so step back fo for a second. why should we care. it's a great story, it's fascinating, but why is it relevant today? >> well, i think it's relevant for a number of reasons. and first, it raises the question of the court is a political institution, and whether public opinion, public pressure, political pressure exercises or should exercise any influence on the supreme court. this is sort of an eternal question in american public life.

and the court at this point had taken itself very far outside of the mainstream of american thought, and really was standing in the way of what a vast majority of americans felt needed to be done. it was taking no judicial notice, to use a term of the court, of economic realities. and so the court had allowed itself to fall very much out of step and there was, as there has been periodically in american history, a sharp public counterreaction. which had, as it often does in american history, an effect on the court itself, and the decisions that the court made, so this is a question for us very much right now. >> well, and let's address that question. you see barack obama during the state of the union attacking the court for the citizens united case. you see justice alito saying not true and all of us lip reading from home.

you see chief justice roberts in his speech in alabama saying it was an unseemly spectacle and maybe the justices shouldn't go at all. what did you learn in writing supreme power that informed how we should view what's going on today? >> well, i think a couple of things. first, i think that president obama needs to be careful that he doesn't personalizes the fight with the supreme court. i think it was entirely appropriate for him to criticize that opinion and to do so in the state of the union address. he didn't attack the justices or the idea of judicial power. he said this decision is going of to serious consequences and we're going to try to act to correct those. and i don't think we should assume that the justices are so vulnerable that they can't sit in a real and hear that. we don't worry too much about the sensitivities of the members of congress. i'm not sure why we should

assume that the justice are so delicate gentleman. >> especially when they have life tenure and members of congress sure don't. >> that's right. so i think it's entirely appropriate for a president to criticize a supreme court decision, to criticize as many supreme court decisions as he thinks need to be remarked upon or corrected. but i do think that court packing episode shows us is that there is serious political danger for a president in personalizing a conflict in the court, in having, as it seemed a couple weeks ago, we might have pa kind of running back and forth between the white house press office at the very least and the chief justice, and other justices, not only did we have alito's reaction during the state of the union address as you mentioned and the keefe justice's comments, but clarence thomas said something similar in between that didn't get as much just notice, because we're sort of used to clarence thomas saying things like that. >> but not in court.

>> not in court. that's right. >> not since 2006. >> but i think that what the court packing episode also points up is there is real danger in the court as well and even though chief justice hughes was very effective when he came out publicly in that way against the court packing plan, it did give commentators a great opportunity to paint him as a politician and there was some real damage done to the court during that period, where the justices were quite clearly seen as political actors, and if justice alito, justice thomas, and particularly, chief justice roberts are going to continue to comment publicly in whatever fashion, on the other branches, or the propriety of what the other branches may be saying or doing, then i think that there is a long-term cost to the credibility of the court. we don't believe that they are

purified by the putting on of judicial robes. we don't believe that anymore, but we want to believe that and we don't like to think of the justices as raw political actors who are juries comment -- just commenting, as mitch mccounselor might on what the other branches are doing. >> let's move to questions. we have a gentleman with a microphone. we only ask that you stand up when you speak and speak into the microphone so our c-span viewers can hear you and see you. >> when that last supreme court ruling came down about the corporate giving, i was very much enraged and i thought i'm going to send a letter off, but then i thought, i can't send this to the supreme court, because they're not going to even bother with my opinion. am i correct in assuming that that's true? >> well, i might defer to jeff on this one. >> the answer is, there is nothing that stops you from --

it will take some time to get there, because all of their letters are checked for anthrax after the anthrax scare and it takes a very long time for the mail to get there. it varies a lot. harry blackman, his papers are in the library of congress, and he kept all the mail about roe vs. wade. he became deeply obsessed and personalized his identification with that, and he kept all the hate mail and he kept all the mail that was favorable to him and he read it all intently. several of the justices, i would say, a majority, don't read those kind of letters at all. but you as a citizen are more than able to write a letter, and all you need is a zip code, 20543 and it will get there, no problem. next question. how about way in the back there?

>> mr. skwrao: hi. he recently in the past years, i've noticed people saying that justices won't retire because they want to keep their hone political views maybe or their own desires in check. why would all these conservative justices decide to leave the court at such a crucial time with they were so opposed just weeks, months, years before? >> wow, what a great question? >> that's a very good question. they decided the gig was up, roberts was not coming back, even though roosevelt doubted that, they had been in conferences, in the judicial conferences, and they had a very strong sense, which they shared with one another, that it was over, that roberts wasn't coming back. hughes, who had gone back before a little bit, wasn't coming back, and that there was really no point in staying on the court. so one by one, particularly the older justice, who had had some health problems, left, and the last holdout among the conservatives was, as you might

expect from our description, mcreynolds, who famously said at the time, and i will edit this comment, that he would not leave the court as long as that crippled s.o.b. was still in the white house. ultimately, roosevelt, by being reelected a third time, outlasted mcreynolds and mcreynolds finally retired and of course, roosevelt was reelected again. but there was the feeling that it was a lost cause, at least for a generation, and they were right about that. >> yes, sir? >> a number of states have sued for the health plan and i wonder why. >> the plan was rather controversial, as you remember, and you know, 13 republican attorneys general have sued, the

definition of a state attorney general is someone who is running for governor. and this is a politically advantageous move on their part. you know, there is now a great deal of commentary, including some by me in the web and elsewhere, about whether these lawsuits have any chance of succeeding. i think the answer by and large is no. certainly, just to cite a legal doctrine, there is a doctrine which says that the courts don't address controversies until thee controversy is joined. the thing that is most challenged in these lawsuits is the individual mandate. the requirements of people to buy health insurance. that doesn't even kick in until 2014. i don't think the court will address a challenge until people are required to buy health

insurance. i think it's political theater, not that there's anything wrong with political theater. can we go here? how about all the way back there. >> i wanted to hear your comments about the nra decision ancase, the sick chicken case. >> the sick chicken case is the case that killed the nra in 1935 and there was some trepidation within the administration about going forward with this case but they didn't have very many great options. this was not a great test of the nra and there was also, as i suggested earlier, a hot of ambivalence in the nra by that point and a question of whether it should be reauthorized and in what form, so it all came to rest on this case about a kosher chicken plant in brooklyn.

now, kosher chickens, many of us, implies a certain kind of purity. this was very far from the case in 1935. the industry was notorious for selling diseased, contaminated birds that had this pressing on them and they seemed to be very clean, and so there was -- as in most industries, and this is what the nra was about, there were codes that were agreed to by the leaders of the industry, and signed by the president, by which they agreed to impose a minimum wage, to impose caps on the number of hours, to improve working conditions, and any one of a number of other things, so these four brothers in brooklyn were charged with violating the live poultry code on a number of counts and there were found guilty and this found its way all the way to the supreme court. now, this was, as they suspected in the administration, this was a very unfortunate case to go to the supreme court, and this is the one new deal case, where it

went not 5-4 against the administration, but 9-0 against the administration. and even cardoza said, his famous line from the period is, that this was delegation run riot. they found this unconstitutional, partly on the grounds of excess of delegation of power from the congress to extra legislative entities like these code authorities, and so this was a -- even though roosevelt on a certain level is happy to see the nra go, he didn't want it to go in this fashion. it was a moment of real drama. it was a day that became known as black monday, because there were a couple of other decisions that went against the administration. :

>> it's something i should have pointed out earlier. this question of why roosevelt would not wait. we've talked many times about how old the justices were, and you raised the matter of this incredible secession of appointments that roosevelt got. again, why did he just wait? particularly if some of these

decisions he didn't necessary object to in the political sense like the nra decision. and i think it's important to put yourself back in the model, which is something i tried to do in the book. there was a very real sense in the country, and roosevelt shared it, that if they couldn't get some of these things through the court, not the programs but the very notion of a governmental obligation to provide economic security for citizens. if you couldn't get minimum wage is through the court, if you couldn't get maximum powers, if you could improve working conditions, if you could recognize labor rights, the simple right to organize, that there would be a violent revolution in the country. this was not a far-fetched notion in the 1930s. at the beginning of 1937 you have a wave of sick of strikes across the country that become very violent. and there is a sense that if the wagner act as if struck down, there's going to be something approaching a revolution. one commentator said when the

court reaches its decision on the wagner act, on the national but labor relations act, they would've rioted in blood blood or inning. and they opted for ink. >> the real revelation to me of reading "supreme power," i was aware of the crisis but i never read a whole book about it. i kind of assumed it was this sort of mad power grab by fdr who was drunk on power after winning this tremendous reelection. and yet there's that element, but your portrait of fdr, you at least understand why he did it, that it was not an entirely irrational act. and i think that's a tremendous contribution to understanding of the period. i'm sorry, just a couple more questions before we go. this gentleman in the back. i will start with you. just a couple more. i don't want to deny anyone.

>> professor, you said before 1935 bed and decades of the court being conservative. before roosevelt ashley got his apex, was there any kind were the court was not conservative? >> i am not a professional i just play one on tv, on c-span tonight. [laughter] >> i'm not one either, but you can call me professor. [laughter] >> senator, i will answer to that. [laughter] >> the truth is -- call you lots of things. there's not a lot of shine prefer the court between about 18 '80s and this moment when the court switches. there are certainly some important liberal decisions, particularly as i suggested in the area of civil liberties. the court had actually taken over this period of -- well, in the teens and 20s, kind of a mixed you up states experiment with social and economic legislation.

there weren't really very many federal experiments until roosevelt got in federal government under harding and coolidge and hoover generally didn't think the federal government should be in the business of passing economic or social reform. most of it was being done by the state. the court tended to take kind of a mixed view, and our swings in the court. >> you're a a little kind. the court was awful. sometimes described as a lock their era after a case from 1905 where new york state passed a law that said that was a maximum number of hours bakers could work, and the court struck that down as a violation of the right to contract of these poor slob immigrant bakers. you know, the court, an engine of, you know, uncontrolled capitalism. i mean, that's certainly my take on that spirit i think on the whole that's absolutely right,

and in 1918 you have a hammer decision which overturned the federal ban on child labor, to such an extent that it seems the only solution is to ban child labor by a constitutional amendment, which never picks up steam and then dies away. >> one more question from this gentleman here. wait, wait wait, wait for the microphone. >> i was in college in 1937, and to round out what you said -- [applause] >> and i'm still here. and to round out what you said, there wasn't just roosevelt, it was huey long. there was townsend. they're all kinds of nuts running around. [laughter] >> with political theories. and roosevelt had to take that into consideration. >> i thank you for the comment. that's absolutely right.

the stakes for the survival of democracy as roosevelt put it. he felt that the very survival of democracy depended on getting some of the social and economic reforms through now, as he said. we could not wait for the justices to retire. so he arrived at a plan that may seem to us to be a radical, but something that you raise a moment ago, he actually felt considering all the alternatives, and i talked a bit earlier about the constitutional amendment which were very radical in their unbalancing system of checks and balances, that actually the most moderate and prudent and reasonable thing to do would be to pack the court. it was clearly constitutional. it had been done many times in the 19th century. it would solve the problem immediately. it would pick justices carefully, and it did not do damage, as i said earlier, to

the fabric of the constitution. he really didn't want to tinker with the constitution because he didn't think there was anything wrong with it. and so i think that it's very easy to say this was a rash act and hubris. we can say it was the wrong thing to do. we might disagree with roosevelt chose to, but he arrived at this decision as jeff indicated, after a lot of debate and discussion with his advisers over a number of years where they carefully considered just about every option under the sun. they look that would've been done in the united kingdom. they looked around the world at other acts of judicial war and what could possibly done in this case. so with a very thorough examination, he spent the entirety of his first term doing it and then he arrived at this decision. so it was neither rational nor impulsive. it may or may not have been wise, but it was not an irrational act. >> it was so long ago -- am i right? fox news was just on the radio, am i right?

[laughter] >> did you what one more question? >> can we get one more? just hang on and wait for the microphone. william. a great friend. [applause] >> jeff, that is a brilliant narrative utah, and i appreciated. i wanted to say, the one justice who was barely make it was hard and was a member of the court. and whose appointment by roosevelt was chief justice in 1941. it seems to me to indicate roosevelt great respect for the court. stone was a conservative appointed by calvin coolidge, and he himself was critical with the liberation of the court regarding what had gone on. my question really is about democracy. the supreme court is an undemocratic institution. its members are appointed for life and are accountable to no one. and the exercise of power that can cancel out with the vast

majority of americans say they want in a congressional legislation or however. isn't it our obligation to ask questions about our court and to criticize it, and to insist that it be opened up as a jury has opened it up in his brilliant books? instead of pretending that this is a group of nine people who operate objectively and who have only the best interest of the nation at heart? let them defend the federal election commission decision. and let the congress -- [applause] >> first, i just want to thank you for being here. there's no one i know who has done more to preserve the legacy of franklin roosevelt and ambassador daniel. [applause] >> and my short answer to your question, yes. [laughter] >> i think the court should be criticized, and i think it's decisions should be question. and while they are unaccountable

and electoral sense, this is the way that courts are held accountable, by constant public discussion of what the court is doing and a constant public discussion of the state. at one point over the course of this long life, as you know, it was frankfurter, advise roosevelt to take the country to school. you want to educate the public about the court, about its power, and the effect of its decisions. and that's something that roosevelt bring much to do hard. and i think it's something that really every president should take to heart, and i want to be good. i wasn't implying the president obama shouldn't engage in a similar sort of discussion. i do think that it's important that his staff members don't see this as the kind of out and out political brawl that they have with john boehner or mitch mcconnell. this is a different thing and they need to proceed with caution, but they should be to do what they believe and they should call attention to what the court is doing, absolutely. >> supreme power is a force out

the bookstore. i encourage it want to buy and i thank you all. [applause] >> for more information visit west wing writers.org. >> speaking with mike with his book, great things are expected from the virginians in the american revolution. can you tell us a bit about what

exactly virginians role was in the american revolution? >> gladly. virginia's role, as i tell my students, virginia played a crucial role in the revolution. a lot of folks that are knowledgeable of the revolution understand the role, people like washington and jefferson and such, but militarily speaking, virginians role was gigantic. it was huge. even though when you look for battlefields and for key events, military events you don't find many except for what happened at the end at yorktown. virginia and served everywhere from canada all the way down to georgia on battlefields throughout, and they played a huge part of the american army. including outlast. they played a crucial role of the war, and, of course, in the revolution, and this is something in my research or other books i've been kind of learning more about the

revolution wasn't just the war from 1775-81 arsenal. it was also a lot of events that led up to 1760s. virginia played an important role in opposition to british policies that led to ultimately combat in 1775. so we played a leading role and, of course, militarily speaking. >> how do you come up with a title for the book? >> the title was something i came across about five years ago when i was doing research on my first book, which happened by accident. is a revolutionary war read actor, some of my friends and i were trying to create a new unit. we wanted to get the impression correct. we want to have the right colored uniforms and such. so i was doing research on the hunting shirt. i came across the letters and diary of a captain, captain john

smith from virginia. and in it he writes a letter home after a riding in harlem heights in 1776, and there was a passage of the letter that just struck me as kind of a neat quote. and essentially he said that we have arrived in virginia, and by the way, this was the first virginia regiment to join the continental army. data within a couple a couple of riflemen before that. so now the virginians are really arriving in force. he writes great julie was expressed at our arrival. and as a result great things are expected from the virginians. and we expect to go through a great fatigue. wow, great things are expected from the virginians, that's a great. and i transported away for a while and actually wrote a book, and a few years later when i decide to expand my research on virginia's role, that was the natural title that came to mind.

>> virginia produced some of our country's most notable leaders, mason, jefferson, george washington. is there something about the state itself that brought out great leadership? >> i don't know about great, if there's anything about virginia itself that brought out great leaders. i know that what a lot of people forget is the importance virginia played. we were the biggest, most prosperous -- were the largest colony of the 13 colonies. i think a lot of folks forget that. they are almost oblivious to the fact, there's a phrase they used to use, virginia was the bomb be used as a. we were it. i guess our sheer size contributed. i'd like to say there was such about virginia's. i've been here 20 as myself and another state, but i really

couldn't account for what it was, what cause, why virginia -- i will say though, you are right, and ancient mansion, washington is the father of the country, and jefferson is father of the declaration, and, of course, later on you have madison and mason, important leaders of other political areas. virginia to produce great leaders, for sure. >> want to everyday virginians think about british and the revolution? >> well, it depends. you're going to have some toward or loyalist support, but it wasn't so great here in virginia. maybe in new york we have quite a bit of loyalist support. that's what my book focuses a lot on, more the everyday virginians. i have a lot of books on that. what i think is the is you can see, as you see the whole

dispute percolate and develop, more and more virginia's buy into what their leaders are saying, there rights are threatened and they may become absolute slaves so that people 3000 miles away did it in england, so you read the virginia gazette and you get the -- were at a disadvantage. were always at a disadvantage as researchers, it does there's not a whole lot of maternal of everyday virginians. that's difficult. almost every book he read about is going to be biased towards the lead, upper class, the leaders and all that. but there's enough out there still, diaries and letters, especially that you get an idea that to some degree the are the same pages, they bought into the rhetoric, so to speak, in my opinion at least. >> and how did you choose to organize the book? >> well, i've wanted this book

to cover the whole revolution, so it's about 20 years. i think, i tend to be more of a military historian, so the bulk of my, the military aspect of the war itself. but i go chronologically. i can to give good overview of the political events. and some of the little things that happened in virginia that a lot of people aren't aware of, moving on through 1760s, 1774. that's a year that is overlooked by almost everybody. some really great things right here, locally where i teach. there's a lot of -- it's chronological to answer your question. i go chronologically spent we've been speaking with michael cecere, author of "great things are expected from the virginians." >> thank you.