is that part of the book, and is that true? >> yes and no. the way the movie was framed which i thought was amazing, was in the open, you know, he gets dumped by a girl and hacks into computers. we have blogs from that day, and he did get dumped by a girl. that is all in mark's own words. he hacks into the computers, pulls up pictures. we know there was a girl. we know her name and she had a bad date, drank beers, and launched it. she's a theme throughout the movie. .. my book, she's in the opening of the booked. the old not in the end. a little bit different. there was a girl that it started with. that is real. >> we have been talking with ben

adversaries as the justices with the most lasting influence on constitutional law. mr. feldman discusses the contribution to the modern constitution with dahlia lithwick, senior editor and legal correspondent for the online magazine slate. >> host: welcome to book tv's

"after words." im dahlia lithwick from slate.com and we are here with noah feldman to talk about his book "scorpions." welcome. >> guest: thank you. it's great to be here. >> host: the premise of this book is there were four great justices appointed by fdr and i want to start with a definition question which is what is a great justice? fdr put nine justices on the court. tell me what makes them super justices opposed to the others. >> guest: these are great people, great men and also great justices, and great justice is they had a lasting major impact on the constitution as we know it. the road hugely important decisions but more than that the defined for new ways of thinking about the constitution that today dominates the field of constitutional fox. so if you ask the justice to do what is your constitutional philosophy they may think it's my philosophy that actually, they are expressing the

philosophy first state to buy one of those men. there were also great men in the good old fashioned sense of the term the huge personalities they were deeply ambitious, they participated in world events and world affairs not just on the supreme court but before they went on the supreme court in some cases taking leaves of absence when they were on the supreme court. so in that sense, they mattered. they were household names, and their impact on history is meaningful. >> host: can you in the interest of setting the table and tell us who were the four are and just quickly, quickly tell us why they were critically important to what you think about the court today. >> guest: i absolutely. i start with felix frankfurter, who was when he went on the supreme court the best liberal known lawyer in the country. he was a law professor and defended sacrilege and betty who were accused, convicted and executed for murder, robbery that took place in south braintree massachusetts, and whether they did that or not, they were definitely connect closely connected to a network

that has a lot of parallels to al qaeda and was active in the united states and he defended them, said he was famous for that and the was a little thing for him to do. on the supreme court he was transformed into a judicial conservative and the reason was that he believed in the ideal of judicial restraint. when he started coming up with this idea the conservative supreme court blocking liberal legislators from doing what they wanted and so frankfurter said we should back away. the court should have no role. when he ran the supreme court he continued to believe that and that's what makes him a great justice that he remained neutral and ended up. the next is robert jackson, who's mostly famous for having taken a leave of absence from the supreme court to go to nuremberg as a chief prosecutor in the famous nazi war crimes trial. before that though, he was solicitor general of the united states are doing supreme court cases, u.s. government cases in front of supreme court, attorney general of the united states during the run-up to world war

ii, when roosevelt needed a lot of legal what is on how to maintain u.s. neutrality, while at the same time helping britain to bate said he had a huge historical role and on the supreme court he was amazing. he can to believe it didn't matter with a loss of and constitution's head and supreme court job is to make things work and he did so explicitly. there's a lot of justices who think so today but they are not so honest about it. third is hugo black, a remarkable person, southern alabama got himself elected to the united states senate by joining the ku klux klan, which gave him a statewide organization at the time he didn't have state what organization. it was influential alvan mccardle text. he was a left-wing senator. he thought we should solve the great depression with a 30 hour workweek and when he went to the supreme court he was woefully unprepared and he knew it, but he read the classics, he did research on his own and came to believe he had the true way of understanding the constitution according to its original

meaning. so he created the idea we are family with today that the only fair and just wait to read the constitution is in accordance with with the founding fathers themselves said, and he came up with this idea and did the research to teach himself how to do it, and amazingly that made a liberal justice for the first part of his career ought with the end he became a conservative and most remarkably, it led him to take the view the supreme court in brown v board of education case should struck down segregation as a violation of the original meaning of the 14th amendment and that was a way of sort of saving his honor from a klan member. last but not least, william douglas was a self-made man from poverty in washington state who became a professor and then was noticed by joe kennedy, sr., the first chairman of securities exchange commission. he brought douglas to be a step from the commission and a year-and-a-half later was the chairman of the commission. he brought douglas to meet roosevelt, douglas became a regular player in roosevelt's

poker game and was a huge part of roosevelt's inner circle, and this is interesting -- that young man played an interesting game of poker and was put on the supreme court when he was 40-years-old. and on the court for the first ten years he just wanted to be president of the united states and did everything he could to become president. he developed a judicial philosophy and that was of individual liberty of the highest value of the constitution. interestingly he developed a philosophy at the time his own life was kind of a mess. but it had a constitutional value even though his own life was messy, he was able to articulate his vision according to which the constitution should let all of us. >> host: one thing that is so stunning that you're four great justices is they all follow a kind of hard scrabble self-made path. they don't look to be the sort of classic, you know -- some of them went to great law schools, some of them went to law school level. some grow the middle class or

poverty, one was an immigrant. and it's an interesting contrast to roosevelt himself, who had this absolutely entitled upbringing as this gentleman at harvard. so i guess i wonder what does it see that these men who were effectively self-made, very ambitious as you said, very driven. but what does that say both about fdr and about the times that these were the man that he sort of hand-picked, and he was involved in picking them. what does that say? >> guest: you know, roosevelt was called by his contemporary a traitor to his class. and people usually think what is meant by that is just the idea that he wanted to restrict wall street when lots of his classmates were on wall street, that he wanted to raise taxes when lots of his contemporaries were rich and it is true but there's more to it than that. it's also that roosevelt was more comfortable not with people from boarding schools and fancy colleges that he grew up with, but actually with people who were more colorful, more

interesting, and frankly, very often were completely self made. and he was of course the opposite of self-made. he was the most elite young person in america. his cousin had become president of the united states, he married eleanor, who was roosevelt's favorite niece, he gone to the right schools, never had to work a day in his life. now why roosevelt chooses these particular people, i think it had a lot to do with during the depression all four of these people stood up and actively took on wall street and that was something that impressed the heck out of wall street and helped him to notice. so over a week and he wrote the first securities and exchange act that helped create the modern regulatory system of wall street as we know it. hugo black, as part of his ambitious career subpoenaed the telegram, which was like the e-mail of the day, of everyone who said in a telegram to washington, d.c. for several weeks-period and hopes of

finding material by executives which he did and he used the corporate material on the floor of the senate, said he had gotten quite nationally famous that wall street is really corrupt. jackson went head-to-head with andrew mellon with the secretary of the treasury and one of the richest men in the country and a tax fraud trial, which had the unintended result of creating the national gallery in washington but of course it also made known the establishment. he embodied the financial system in the united states. last but not least, douglas when he was chairman of the fcc briefly took on everybody he could. he threatened to take over new york stock exchange and run it himself. they were scared and he would award of gathering groups of rich people and give them speeches called things like the cockroach is of wall street. and all these people got roosevelt's attention in this way and they convinced him that they were on the right side. >> host: which is a nice segue to the next question i wanted to

probe. you, i think make a good point time and again about the extent to which ones biography does in form one's judicial philosophy and i think it is always hard to read as someone who cares about the course because you want tohw believe justice is our brains and that and their biographies make no difference because they done the black robes and their biography falls away. can you give a few examples -- you don't necessarily have to give a whole lot -- gist examples of ways in which some of your for great justices really bourn influence throughout their lives by either the way they grew up or their conflict with wall street or whatever it is but some way in which this gives shape not just to the conduct before they got on the court that the conduct in the judicial world after. >> guest: yeah, let me start with me be the most shocking example which is william o. douglas, who i mentioned a moment ago. his personal life was on stable

from childhood really. his father died when he was very, very young. and he was very, very poor and constantly working multiple jobs. he worked his way through school, just to eat he would sweep the floor in the house. and when he got onto the supreme court he was still poor and he was still personally a little0w bit unstable. and one of the things he liked to do is run around with the kennedys, joe kennedy and do the things that joe kennedy liked to do. and you can imagine what those things often work, and is sort of led him to the point where his personal equilibrium was really disturbed. at the time the supreme court justice had ever been divorced, and douglas began the first justice to get divorced, then the second, then suffered, and he did remarry a fourth time go by all accounts he was at very faithful even to his fourth wife. and during all of this, he

gradually -- first of all he never became president. one divorce was enough to do thatp during this period, so he came to ask himself what is my philosophy of life. you might say he developed this philosophy of life of the same time he was melting down, and he came up with the idea it was a western state philosophy of take a gamble, go out on your own,p the solitary horseman riding into the sunset. then he thought what does this have to do with the constitutio and he got an answer, and his answer was our constitution protects our individual rights to marry whom we wish, sleep with who we wish, speak to who we wish, associate with whom we wish and to find ourselves in terms of our liberty and our basic freedom, so he became the figure in writing opinions that eventually led to the right to contraception, eventually the right to abortion, and you know, when the supreme court had the gay rights questions, again,

douglas ' views have been quoted and when the supreme court deals with the gay marriage question which eventually it will, again, these values that he brought to the table are going to be discussed. so it's not a story necessarily of an inspirational background leading him to the philosophy that it's a story of how of the personality just matters in the shaping of ideals. >> host: and i wonder if as we are talking about how these justices, their ideals were forged, i wonder how much it mattered and i'm guessing you're going to say a lot, that they came to be both public individuals in the various government capacities and then leader of the court at a time when the court was dominated by the so-called my old man by these grumpy old guys fdr had essentially written off. how much of each of them was influenced and how much of it was influenced by this year of view of the court that fdr really getting close at war

with. >> guest: a lot at first. it mattered a lot of the first starter on the court because then, in their first years they were with roosevelt and their overarching goal was to stop the supreme court from blocking the legislature from regulating business. but when they realized that they were a majority of the court, they discovered that they didn't have to restrict themselves to judicial restraint to holding back. they realized they could also do things affirmatively, and there was a crucial moment when they realized this, and it happened in a case involving the pledge of allegiance. they were jehovah's witnesses in schools who did not want to salute the flag and recite the pledge of allegiance and the reason they didn't want to do that is believed sincerely this was an active idolatry. to salute it was similar to or shipping the flanagan it was against their religious faith. that was very unpopular of course in wartime america.

the first time the issue came before the court but roosevelt justices mostly said that the witnesses were not entitled to an exception from the rules. if they didn't fit the fact the could be suspended. then after the supreme court held that the was violence against witnesses all over the country and had grown with witnesses killed in some cases, injured and others with witnesses meeting holes burnt to the ground, and they realized they made a terrible mistake. felix frankfurter who had written the opinion the first time refused to change his view. he said the restrained was right when we were fighting the nine old men. it's right now, and it's going to continue to be right in the future. the other liberal justices said no way. we are the supreme court. we are going to protect minorities, and justice jackson, who had just come on the court at this point, wrote beautifully when he said that the government can't tell you what is orthodox, and the jaw of the supreme court is to take certain things away

from the government, and one of them is ability to force people to salute. very inspiring opinion, but it wasn't judicial restraint. it was just activism, and once that happened, the other justices really moved away from the the focus on allowing the legislature to regulate corporations. they still voted that way, mind you, but there was no longerp there really primary, primary motive. and then the punch line for that is in 1951, when the korean war was going very badly, president harry truman thought that he should do something about this. and ultimately, he decided, 1952 actually come to see is the u.s. steel mills from the corporations that own them to resolve a labor dispute in favor of the union. this was a pro union truman did, and the roosevelt justices, all

four of them voted to strike this down saying that he lacked the authority to do this and although it was about the separation of power and presidential power, not so much about corporate power the truth is he was still living in on behalf of the union. and by now, none of them on the side of the union. they saw this as a constitutional issue and it shows how things change from the depression when the main question was government regulating the corporations to the post-world war two period where suddenly the issues look different to them. >> host: it also shows how the definition of activism is always been some slippery. that everybody has used that label. it is an entirely in the drift in legal and every court at some level was activist just by virtue of the fact that the two things. >> guest: i agree with that, and what is more his activism is what you get when you have high votes on the supreme court, and a legislature that's doing something different. and, you know, historically,

neither liberals nor conservatives have any monopoly on either criticizing the other side or as being activist. when you want to do is you want to look and see who is in charge of congress and who has five votes on the court, and when those don't match, you find that many, many, many supreme court justices are prepared, in fact almost all are prepared to vote down to strict on legislation to it i would say we shouldn't make the mistake of thinking in their heart they believe themselves to be political. they often don't. the justices imagine themselves both then and now in many cases to actually be calling the constitution. if you look outside of their inner beliefs of what they are actually doing, it is amazing how frequently five votes will get you activism. >> host: i want you to contrast for me because it is one of the striking parts of europe book, and we are talking to speed, the author of "scorpions," fdr's feith involvement with each of the

four justices, for years before in some cases, i think it's really striking when you compare to other presidents come some of whom met their nominee that before. some of them had been vetted by third parties. it seems to me each of these man in different ways for quite and -- quite intimately involved with roosevelt, and in fact felix frankfurter seems to have been kind of manipulating, i don't know of manipulative as the word to want to use, but certainly pulling a lot of strings for years before. and i wondered if that is a good thing or a bad thing to have such a deep, deep relationship and political relationship that in some cases i guess jackson had a more lawyer relationship but some of the people were political, not just before they got on the bench but even after. can you talk about -- is that something -- it seems like something that's changed and i wonder if it is for the better.

>> host: >> guest: exchanged for the better on both ends. to have presidents interviewing justices like a job interview. it gives some impression in an hour but roosevelt nominated people he knew intimately and he had known them for years, and the knowledge of those people and he knew what he was getting. he knew he was getting justices but he also knew the kind of people he were and he didn't want people to vote his way, he wanted people to the interesting things on the supreme court and he got that. the other way that it has really changed, is as you say, that roosevelt's justices did not stop talking to him when they were on the supreme court. they didn't stop playing poker or giving political the device. they didn't stop writing regular letters back and forth. felix frankfurter, who love to send people for jobs for roosevelt, usually waited for roosevelt to ask, but not always come kept doing that. when roosevelt needed someone who would be called assisted president for more mobilization, that was the unofficial title, the most important person other than the president of the

country, felix frankfurter said there is a justice, jimmy burns, he would be great, why don't you take him? sure enough, roosevelt did higher supreme court justice to do that.0w and that's completely changed. today, even the annual dinner that used to take place where the justices could the white house has been cancelled as, you know, proceed as in some way in violation of the separation of power. so we expect justices to date to be almost like monks, to be cut off on the world of washington and politics and certainly to be cut off from the president. you will remember a couple years back when cheney and justice antonin scalia were on a dhaka hunting trip together. justice scalia was heavily criticized for sitting on an opinion that involved the vice president and he wrote a separate opinion of his on explaining they weren't creek on the same pond, and it was unimaginable back in this period. i think we lost something significant here. the supreme court is a politica body as well as a judicial body. that is the reality about it and i think if you're going to do some politics, you will do it

better if you have a better understanding of how the supreme court takes into the bigger political world of washington. a great example of this is when the supreme court sometime back now in the beginning of the paula jones bill clinton and litigation held that it was not going to be very inconvenient for the president or distract him at all. it's a lawsuit against him, civil lawsuit by paula jones continued during his presidency. now the supreme court said this is a matter of principle i don't care for the president. the lawsuit can go far. but that is not what they said. they said well, you know, her rights are important. she should have a lawsuit but we are not that worried about the district and president. that was just my youth. in today's world you could imagine justices to understand the president's see so little they would think a lawsuit and occupy the president's time. that was not the case then.p he wouldn't have had an outcome like that. so the court making practical decisions i think there is some loss. that said, therep is a big gain

in the appearance of object to the. we do think of the justices as priests. i personally think we shouldn't think of them that way, but we do think of them as that we to some extent and that makes them seem more objective and increases how legitimate they are. >> host: so that is a beautiful leading to my next question which is some of the justices were badly behaved, noah. hugo black was in the kkk, he refused to recuse himself in a thing that looks a lot like duck gate you referred to with cheney. pacings again, correct me if i'm wrong, but that kind of behavior was called out by the other justices, by the media. it seems like the world was a lot more leaking at that time and folks were giving interviews to reporters. and i wonder if he could reflect on where they just -- was it just a matter of these guys who made bad decisions -- robert

jackson said the loss of paulen messages from nuremberg. were they making bad choices or were they getting caught thinking that traces that the justices as you said, you know, there's never a scandal anymore. there's never a bad behavior. no one calls anyone out, and in fact when president obama called out the court in the state of the union it was seen as shocking. so i think one of the things i guess i'm trying to get that is it was all out there if the time. now whenever happiness is happening it sure seems its intramural. >> guest: i should see first one of the reasons i had so much fun writing this book and one of the reasons i decided to write it is a huge contrast between the supreme court justices today, ford has used a well-behaved, smart, polite people come and the justices of 70 years ago, who were badly behaved, and it was found what they were badly behaved. it was in the newspapers, and the occasion of raised eyebrows and all kind of shock.

i think that part of what was going on with those justices is because they were different kinds of people, because they were in vicious people, they were political people, because they were risk-taking people, they did the things the ambitious, risk taking people like politicians do. and it's probably not a surprise as today's supreme court was not made up of professional politicians are careful, cautious, i don't mean that in an insulting way. you know but they would probably be pleased to be boarding in that sense. so you don't catch them in a political scandal, catch them taking money from a foundation which has justice as a single donor. you know, you don't hear rumors of then being caught in the supreme court chambers sleeping with their secretaries. there is a kind of world that is gone in that respect. so i think partly it is that they did make bad decisions, but making occasional bad decisions is part of what many truly great people in history do.

and you just have to turn on the cable news channels if you can bring yourself to observe that fact. one of the things i am seeing in this book is that you get a certain kind of greatness when you have a certain kind of person. and if you prohibit this kind of people from being on the supreme court, if you limit narrow and constrain your choices of public officials to only the good boys and girls, you get a lot more boring people. and you know, we sometimes i think in many areas need great men and women, but great men and women have falls. and there is a tradeoff there. and my view is that we did better in terms of the justices of the supreme court when there were some badly behaved, and i will take the bitter with the sweet, the bad behavior called the arguments, the anger, the hatreds that emerge, the great ideas that came with it, the ideas of changing the country, changing the constitution in

meaningful ways, in place of the friendly, pleasant, tea drinking, nice people whom we have now. i should say i liked more. they really are nice people. >> host: i wonder how much that is influenced by, again, the difference between a president who appoints them because it seems to me roosevelt was absolutely clear, and you make this point with reverence of hugo black a political job. and that is like taking someone out of the senate. he's a political person and it was right in the week of the court packing plan which at that point i think he knew was a deceit for him, and he said this is part of my little color the to the court packing plan i'm going to show you how political this is by putting a politician on it. i try to map that on to today when we are so careful to say not only is the nominee not political. they never had the political

fallout in their life and if they have don't worry, we purged it. so i think if there is not just a difference in the great man but in the people nominating the great men and maybe the conversation that we want to have about the greatness that forces us to say this court is so utterly a political. it really is. that fdr would have laughed at it. >> guest: and would have thought it is ridiculous. you can see in the present nominees this the kind of schizophrenia. president bush wanted people who had some politics but he couldn't appoint politicians, so both of the people he appointed or people who had been lawyers in the executive branch. and then if you look at justice kagan she also was a lawyer in the bridge and when she had opinions you could see them written down on memos she had for the president. she said i was working for my boss, i was a lawyer, these were my boss's opinions, which is partly true but of course not completely the way that opinion

writing or memorandum writing works and the political nature of the court for roosevelt is something he couldn't avoid because he lived through it and the whole public lived through it. they have an enormous series of eve ensler the new deal had been pressed and struck down the new deal said the political nature was unavoidable. we have less of an excuse because we have lived through the bush v. gore decision, which certainly looked like a highly publicized decision, yet somehow instead of emerging from that same yoakley the court is political its live with that fact we emerged by saying let's pretend even a harder that the court isn't political. let's engage in this kind of -- i don't think it's going to far to say it's organized hypocrisy that we have around the supreme court according to which we insist on their not activity even as we have computer programs. judging by various factors to a reasonably good job of how they are going to vote. i should add by the way it's important to distinguish the supreme court for other judges

because most lower court judges are nowhere near political but the supreme court only hears cases if they are genuinely uncertain and i think roosevelt just took that boy the horns. >> host: and i wonder if you can -- if we are in the business now of going back and forth between then and now, for a minute about the role of the confirmation process because you're great justices had what, today confirmations of that? some didn't show up. >> guest: most didn't have confirmations at all. hugo black is an example, nominated on wednesday, confirming wednesday. he didn't show up and no supreme court justice has showed up for a confirmation hearing until felix frankfurter. usually what to do is that most attend a proxy. it's considered below is your dignity as a potential justice to be badgered by a bunch of senators and frankly when you watch on television media is the dignity that frankfurter did go, and the reason he did, and there are great stories in this, is a

series of red batres appeared before the senate and announced essentially that frankfurter must be a, not. he was jewish, liberal, he defended second and vanzetti, he was one of the founding advisers of the aclu, he was one of the founding advisers of the naacp, said he had to be and so in some cases he served on the organizations with communists, there were actual communists on the advisory board at the time to read and frankfurter realize you couldn't just sit in his office and hope this went away. so he went, but what he did is also amazing in the contras in the way that the nominee is going today. you know, a senator said to him or you now or have you ever been a communist. and instead of just answering the question happily the way that one presumably would, frankfurter essentially says sir, i would pose my americanism against yours at any moment. i'm an immigrant to this country, deeply committed to my american values and ideals.

how dare you ask me that question and the entire chamber person to a walls. you can see the senate record disturbance. and he got confirmed. and then he went out and he got reporting the trunk. and this shows the different things work. he went out with dean acheson leader secretary of state who was his proxy. they got drunk frankfurter said i think we should go tell roosevelt the story of what happened. and acheson, who was by the way of roosevelt's school, the sort of old line, so i don't feel we should just show up the trunk and frankfurter said no, no, we are going to go to the white house, so they drove to the white house, wandered into the white house, wandered into the secretary's office and said we need 50 minutes of the president's time. the secretaries is fine, five minutes to read a given an hour and a half later they are still at the president with details comes a different relaxation to read today that would be a headline. supreme court justice joseph at the white house drunk. but people were a little bit

more forgiving i think of the human aspect of the public officials and we are today. >> host: and i wonder if, just to go back to my initial question, part of the problem in the confirmation hearings we have now is there is this lack of knowledge about the rest of the confirmation process, and then we sort of flip and watch for a couple of days, and as you said it is quite hypocritical and staged, than we've lit up, wear as it seems to me very striking, and i've been covering the court for ten years, it had deeply involved the world with the court so that i think there is a strange way in which confirmation hearings have become almost a proxy for the involvement in the court. i am thinking of the example of hugo black, it comes up after he is confirmed that he's a kkk member. he gets on the radio and explained himself. americans listen and they change their mind. some do. but to the extent to which there was a dialogue between the

public and the president and the court about the court then that seems to have been priced, and in its place we have this weird stage moment either at the confirmation hearing were that weird state of the union moment with the president. but it seems that this course has not improved in the modern media. it seems it is the great read am i right in saying that? >> guest: i agree with that statement and i feel that it was messier before and you would see that in the supreme court justice's being asked to do jobs for the president. so flexible after pearl harbor was a commission like the 9/11 commission and the chairman of the commission was a sitting supreme court justice owen roberts who was a justice of someone who voted in many cases in favor of roosevelt and the president called him up and said you know, would you like to do this? he had been recommended by felix frankfurter who said i think you should get owen roberts to do this, and roberts was a political judgment to get him there but he did the job, and of course later on earl warren and

chaired the commission after president kennedy's assassination. and again, hard to imagine these today. you can't really imagine one of the big national commissions politicized and had a supreme court justice as the commission, and that is i think partly because of this idea the justices have kind of retreated into the temple that is the supreme court, and it's of course built like a temple, and appear magically from behind the red curtain, which you actually do before every oral argument, and should be treated as though there are, you know, either some secret religion or as demagogues. how this happened is a really interesting question, and i think it may have had something to do with watergate. at a time when the public if they're not have faith in the presidency, it can sort of see the other institutions of government as in some way also human. if human president has a lot of faith in the way my grandmother may she rest in peace fatah of

fdr as just the person one could trust in a free and absolute way. i remember when evidence began to came out about the little fdr and the circle had done about the holocaust my grandmother absolutely refused to believe it because fdr was a great manager. she trusted him. so the supreme court wasn't as important in some ways to having trust in government. but after watergate, not too many people had that kind of trust in the presidency any longer. oúúo and congress hasn't helped us. so i think the public wanted somebody to trust. and the supreme court, whetherú intuitively or not, worked its way into the role. and although everyone gets to the supreme court is political, robie we've was controversy the decision and people support abortion rights and some people oppose them, and understanding the death penalty is controversial and gay-rights can be controversy issue and gay marriage can be a controversy issue we nonetheless treat theún supreme court justices as above it all because we want to. you know, we are the ones who

are doing it. it's not just the justices. they are playing into the role. we offer them the role and they say okay. maybe there is something to that. we saw this after president obama's exchange with alito. the immediate reaction is we are never going to the state of the union again. why? because its political and we wouldn't want to be seen in a political environment. and here we were forced to act in a political way, and that looked bad for us. even though they do sit there in their robes which is also very, very telling, sort of like in the house of lords you have military people, and you have the bishops. devotee of the union we have military people sitting there and our bishops that the supreme court justice. they are even wearing priest robes. imagine that is where these rogues come from. so there is a kind of ritual and that in my view hasn't served us all that well but it definitely is part of the fabric of our life and maybe we need it. >> host: i think in writing

about it over the years i have said that for a deeply secular country we are actually a very deeply religious country because we need that temple and we need those clause i justices for all of us aspirational reasons that you lay out i think it's -- and i think it's amazing if u.s. imagine some of these guys at the state of the union you can sort of imagine douglas on the seat and frankfurter, having written the thing. i think that there really was this sense that they were deeply involved in the president and politics and that that was a more honest construction of the relationship. one thing i want to get back to talking about judicial philosophy in liberals because of the quarter of your book there is this mystery which is you have an opportunity, fdr has an opportunity to respond to a conservative court by putting a progressive liberal thinkers on the court and he puts a bunch of them on the court who point out

our extraordinary figures and the arrests. so it's not that we don't have a liberal judicial fury at this time. >> guest: and the end up becoming conservative. >> host: that is my first question. as part of the mystery is the sort of who done it, how they get appropriated by today's conservative movement at the court, but i think more poignantly, and i do want you to answer that, but on the keep wondering and this isn't fair last it any way, have there been -- had felix frankfurter proved to be the leader of the liberal wing, the bright lights, would we be in the situation today? you described in june in "the new york times" magazine this sort of crisis of the judicial liberalism. what we be in a crisis today had won in dominated -- and it doesn't have to be frankfurter. it could be douglas, but i just can't help but wonder if these

kind of destroy each other. >> guest: it's a great question and after all, i called a "scorpions" because of the statement that was set by one of the former supreme court clerks that its nine scorpions in a bottle. to start with the whodunit question the fact that the press or the hands and started as allies and became enemies is part of why they developed the different philosophies and it is also part of why some of the philosophy speaking conservative. so the judicial restraint is the easy one to read it became conservative when you had the liberal legislature and the liberal presidents. and so, the idea of judicial restraint could be deployed by conservatives and was by the conservatives for many years. and as the supreme court itself became more and more and more liberal, the dissent on the supreme court, frankfurter among them, could say we believe in the judicial restraint so we don't like these rights, we don't want the right to abortions we believe in the country so it became the few because the liberals were winning the with respect to

original listen, it's a little bit more complicated but i think in a way more interesting, too. for the kube like it was a theory because he believed in the conservative supreme court had invented writes for the corporation and if he went back to the meaning he would see they didn't have those rights. over time, a liberal supreme court began to invent rights for individuals. and as far as black was concerned a favorite was in the constitution he was for it, no matter how controversy would might be. if it wasn't in the constitution he was against it no matter how desirable it might be and toward the end of his career he himself was starting to look more like a conservative because he was upset about the new rights being invented and by the time justice scalia and justice thomas came along the invented lots of rights which they said were not in their original meaning of the constitution and that is how our regionalism became a philosophy. so, you know, these philosophies can move and change. especially if they have some component of the basic principles at the core.

and i think that is part of what was going on here. >> host: and so to the second part of it, i guess what i see when i look at it, what you see, clearly what you wrote in june that the liberal wings of the supreme court is an absence of a really coherent principles addition and, you know, you sort of describe justice breyer and sort of, you know, pragmatic technocrats and ruth bader ginsburg holding the line. there was an argument to be made justice john paul stevens had tried to articulate something may be larger than that that i'm trying to map onto the liberal wing of the supreme court with a huge caveat we have two new justices that we barely know, but with the for the half, is a legacy of one of the two or is

it a product of the failure of one of these visions to have dominated? >> guest: i fink one of them did dominate through the 60's and into the 70's and that was actually douglass' '. among the liberals the constitution was there to maximize the personal liberty, and that i think became a crucial part of the picture and the other part was the quality and to start with quality for african-americans and quality for women and more recently for gay people. so the equality party and the liberal party think it actually emerge as the dominant liberal philosophy and very important both to justice ginsburg who of course is an important figure in the women's rights movement and also justice breyer who will vote on the side of civil liberties for equality. on the other hand, when it comes to the economic issues that were crucial in the 1930's and crucial again today, neither of

the viewpoints had very much to say so it's not that they are wrong from the liberal perspective it's just that they are not to the plate, and justices who've gotten accustomed to being pretty activist in favor of rights are certain that thinking the rights are good things and they think corporations have the same speech rights as individuals it is a lot harder for them to stand up and say what i wish they had said this to you miss the point something constitutional rights? a corporation is not to the naacp. exists for one reason only and by the way i don't see that is a bad thing for the corporation, i love corporations. i think they are great at making money. that is what they are for. and the mistake is to think an organization designed is the most advanced moneymaking entity in the history of mankind, the business corporation would have any interest speaking publicly

about ideas that would serve the public interest. the hidden interest in speaking politically to make more money and they have their shareholders' money that way and if the liberals are out of practice at making these terms. roosevelt's justices were not out of practice. these are the issues we've brought them to public life and the of no trouble saying yes for example hugo black said in the descent can never convinced the court of this corporation's of the constitutional rights at all. they are not persons and the constitution is talking about persons commercially, lawyers of course have an answer to that. it is an artificial person. to which the response was an artificial person is not a person. >> host: at the heart of your four great justices there's a kind of tragic loneliness, sort of hungry ambition. this book in sadly you don't come away thinking robert jackson had a have the and if

his life. felix frankfurter i can tell you have a soft spot for him because he really wanted to be oliver wendell holmes, he wanted to be the next brandeis, and if you can see he's a great justice i think it's probably fair to say he never became the justice he wanted to be planned douglas i think particularly kind of in-depth not even getting credit for what you just laid out and he's probably to the extent any one of the four shapes liberal jurisprudence that came after. marshall got the credit. i guess i want to probe a little that was this an accident of history that there was too much ego, too much ambition that having all four of these men on the court in to the diminishing all of them? i mean it's just seems like a deeply sad, and maybe i am just projecting but it seems like there the in the feeling they

didn't achieve the great christmas. am i over reading? >> guest: i guess i don't see it as ending purely as a tragedy because of brown v board of education. so, does have one chance before the justices who hated each other and it is agreed all the time to actually agree on something, and they did agree on something and that was the abolition of the segregation in the constitution, and that was, is and always will be the greatest moment in the history of the supreme court and they participated. it didn't come easily to them. they had to argue and compromise their principles in certain ways that they were all there and participated in the justice jackson who was in the hospital with a heart attack which he would shortly thereafter dhaka off track himself out of the hospital and went into the supreme court to sit on the bench when board was announced it was the last time the four of them sat together as a course

and the conclusion to the book and that is a triumph to me. collectively they triumphed. individually on the agree with you that when you put together such ambitious people it drives them to heights of greatness but second, none of them can get any of the authors the credit that they would like individually to feel because that would be somehow detracting from their own glory and the was a problem if you have the four justices macomb will be great it takes time in this case probably almost half a century for the rest to catch up and say these people were pretty brave and i think they did feel frustrated. in their own lives none of them won. they wanted to win because they were in vicious people they were not satisfied to write a few opinions and hope for the best. they wanted to be the best and none was a winner in his lifetime >> host: that would have met -- >> guest: the court adopting their view. >> host: so you can never win. >> guest: for the record even oliver wendell holmes jr. didn't

win in his lifetime and many of his most important opinions were dissent. he was thought of as a great dissenter as there is a mode of great justice to primero the dissent, but by the time the end of his career came they were not that impressive and so they look like the major figures on that court. these folks, however, the scorpions, they really continue to be together to serve together and to compete with each other and their legacies remain competing. it's amazing when i go around and speak to people about this book they will say to me this is my favorite scorpion. you can see why you'd written about this on the the other three, come on, they were not good. people who think they were all good izzie robie but nobody seems to like all of them and i think that does detract from the long-term reputation but i will say to me the reason the book ultimately is for me was uplifting in the conclusion is brown v. board of education. the fact to overcome their differences and actually come together for a brief, brief

moment. >> host: do you think when you hold that up against what we have seen on the robert court conservative wing of which is little exception although i'm starting to see it now before justices who looked to be in accord on most things, and again, the caveat that there are fundamental differences between thomas and scalia and their jurisprudence and that on the chief justice and sam alito, but they are subtle. we are talking about here. >> host: and so i remember sort of describing the oral arguments in the years after roberts and alito came on the court has just been sort of like watching the harlem globetrotters and they were all on the same page and you had a sense the liberal justices were sort of a rambling around

4 trillion -- to find a unified principal in certain ways it is starting to fragment and will be interesting to see if for some of the same reasons i wonder if the reason the conservative wing of the court has been so successful is there's been a willingness to subordinate the ego and a subordinate the need to win to a very coherent vision of what the endgame is. does that sound right? >> guest: i think it is true with one caveat, and it is you talk about for conservatives. it's easy to forget that for most of the rehnquist court but conservatives included anthony kennedy, and then the idea is that justice o'connor was in the middle, as the four conservatives including kennedy who were liberals and the middle justice o'connor and the rehnquist court was really the o'connor court. rehnquist got to be the chief but o'connor got to make the decisions. justice kennedy and now when one

speaks of the conservatives' one cannot assume he's on the conservative side. so in the guantanamo case he's the person who wrote the opinion for habeas corpus rights on the detainee's in guantanamo. in the gay rights cases he has been a person writing the opinion recognizing gay rights so on some hot-button big-ticket issues he has voted on the liberal side. his philosophy is a coherent philosophy of chaired by any of the other justices and that is really a philosophy of individual rights for everybody. justice kennedy you might say he never met when he didn't like. he believes in the civil rights and the free-speech rights of individuals, including gay people and detainee's. and he believes in the free speech and civil liberties rights of corporations, like google. so that is a consistent view of a certain kind of really dates back to the 19th century belief in liberty in this country has very deeply held belief.

it's not however the view that is shared even by the conservative or liberal court. and now he is the decisive voice on this court. so, you know, it will be interesting to see how the others deal with it but they haven't done a very good job of winning over justice kennedy on a certain kind of issue. he has on his own way. they haven't been able to convince him to read one thing about justice kennedy is making decisions for himself and part of the proof of that is nobody is voting with him. >> host: and with a time just to sort of touched on one more piece of it earlier in a question and i want to move back to it we are building a brand new light of the court. we get justice sotmayor who's been on just over a year, justice kagan who has been on it seems like only a few hours. what do you see coming down the pike? do you see a reenergize cord? do you see some of lurking new judicial philosophy that is going to bring the liberal into the court together.

i know you wrote an interesting piece on sleep recently but the relationship between the two so i wonder if he could take us through a little hypothesizing about what the future of the liberal wing of the court is going to look like. >> guest: i think it's an exciting time actually because we have a generational shift just as on the conservative side there's a generational shift and the justices, now there are young liberal justices. now there are some parallels in the lives and careers of chief justice roberts and alito on the conservative side there are also some parallels between the lives and careers of justice sotmayor and kagan, both very strong-willed women from new york city, identifiable of the nec backgrounds, to princeton when there were very few women and both excelled tremendously and both were on the top of the supreme court from the time there were 22-years-old. everyone all around them has known that for all of those years. so these are people who inevitably now are going to be twins history. they are linked for the next 30, 40 years.

and they're going to want because they are strong-willed people to define their views and they are going to have to do that to some degree against each other. they respect each other tremendously and in that way they are different than the scorpions i read about who didn't always respect each other but they want to be distinct. and so recently we saw just a sotmayor id three unusual opinion in which she said a case involving an hiv-positive prisoner from louisiana who stopped taking his medicine should have been granted by the court in favor of the prisoner and no other justice agreed and it is as though she were parking lot to forget marshall conscience of the court kind of role. and not knowing that opinion it was a sort of signal i think to say well, you clerked for third marshall by samford marshall, and would require them to define themselves against each other and i think there would be interesting to see. the biggest questions are going to be economic. or the liberal justice is willing to say we love the free market, the free market nevertheless needs to be

regulated in order for it to work effectively, and given that the rights of individuals may not be the rights the corporation should have conferred on them, and that i think is an open question. we shall see. i know for sure the issues will come before the supreme court and the question is will the liberals did of a coherent philosophy of the question and honest and direct and i am optimistic. >> host: do you think that -- and this dovetails just beautifully with how we started, but the justices now they are such a premium on hiding to hutu are or where you really think that the minute you come on the bench you have to do something sort of spectacular and dramatic to say this is who i am, whereas we knew who felix frankfurter was going to become and who douglas was going to be pitted and so i wondered if something like kagan, splashy opinion or just some of what i see in the argument as the two of them being very, very vocal and quite willing to not go there seniors the justices of sight is of a

piece of this idea you can only keep your powder dry for so long and we live in a culture where the confirmation hearings end you get to be yourself and it's a very big splash action i feel we might not have seen at the time. >> guest: it goes both ways. on the one hand you are right, you get the chance to sit on the supreme court now you've got tenure and it's time to let it all come out to be on the offer and if you spend your whole career cautiously and conservatively preserving yourself for the course you may not exactly know what are the major issues you want to devote yourself and associate with. the scorpions new with the big issues were so they will be an interesting process for the new justices. on the conservative and liberal side, so to figure out what really motivates them and then to splash and i think we are going to see that. that is why it is quite an interesting and whites to live and study the supreme court in the period of time when things are changing. young people are coming and changing the spirit that is what

scorpion's was about, a previous program and that is what it's like on the supreme court now we can learn. >> host: well, i want to thank you for "scorpions." i said to my husband is very few people can produce a page turner of the supreme court history but it's really -- it is a phenomenally interesting book and i want to thank you for being here on "after words" and i really really look forward to watching you watch the court for the next ten years. thank you. >> thank you. likewise. >> up next, john prendergast provide a people who've been engaged in helping africans fight genocide, rape and the use of children soldiers. he presents his beget parnes and noble booksellers in new york city. [applause] [applause] >> thank you. ny