>> host: welcome to book tv's "after words." i'm dahlia lithwick from slate.com here with noah feldman to talk about his book "scorpians." welcome, noah. >> guest: thank you. it's great to be here. >> host: the premise of this book is that 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 but this book is about four. so tell me what makes them super justices as opposed to the others. >> guest: these are great people, great men and also great justices, and what makes them great justices is the last thing, a major impact on the constitution as we know it. they were hugely important decisions but they did more than that. they defied new ways of thinking that the constitution that today dominates the field of constitutional fought. so if you ask the justice to the what was your constitutional philosophy they may think it's my philosophy but they are expressing a philosophy first stated by one of those four men. they are also great men in the good old-fashioned sense of the term that they had huge personalities but they were deeply ambitious, that they participated in a world events and world affairs not just on the supreme court but before they went on the supreme court and in some cases taking leaves of absence when they were on the supreme court. so in that since the matter. they were household names and

their impact on history is meaningful. >> host: can you come in the interest of setting the table ha, tell us who the four are and just quickly, quickly tell us why they were critically important in how we think about the court today. >> guest: absolutely. i start with felix frankfurter, who when he went on the supreme court was the best known liberal lawyer in the country. he was a law professor famous for defending sacco and vanzetti who were accused and convicted and executed for murder, robbery that took place in south braintree massachusetts and whether they did that or not they were definitely closely connected to the terror network that has a lot of parallel to al qaeda and was active in the united states and he defended them so he was famous for that and obviously a little thing for him to do. on the supreme court, he was transformed into a traditional conservative and the reason is he believed in the ideal of judicial restraint. when he started coming up with the idea the supreme court was a conservative supreme court, blocking liberal legislator from

doing what they wanted. so frankfurter said we should back away, the court should have no role. on the supreme court to continue to believe that and that's what makes him a great justice, that he remained neutral and in that as a conservative. the next is robert jackson, whose most famous for having taken a leave of absence from the supreme court to go to nuremberg where he was the chief prosecutor in the famous nazi war crimes trial. before that though he was solicitor general of the united states are giving supreme court cases, u.s. government case in the supreme court, attorney general of the united states during the run-up to world war ii, when roosevelt need a lot of advice on how to maintain u.s. neutrality while the same time helping britain. so he played a huge historical role. and on the supreme court he was a amazing. he came to believe it didn't matter with the loss of or the constitution said. the job was to make things work and he said so very complicity. there are lots of justices who thinks so today but they are not

so honest about it. third is hugo black, a remarkable person from alabama, got himself elected to the united states senate by joining the ku klux klan which gave a statewide organization at a time he didn't have statewide organization and was powerful in politics. he was a very radical left-wing senator. he thought we should solve the great depression with a 30 hour workweek. when he went on to the supreme court he was unprepared and he knew it. but he read the classics, he did research on his own and came to believe he had a true way of understanding according to his original meaning. so he created the idea we are familiar with today that the only fair and just wait to read the constitution is in accordance with the founding fathers themselves said and he came up with this idea and did the research to teach insel how to do it and amazingly that made him a liberal justice also the end he became a conservative and most remarkably, it led him to take the view of the supreme

court in the brown v. board of education case should strike down segregation as a violation of the original meeting of the 14th amendment and that is a way of saving his oliver from having been a klan member. and last but not least, william o. douglas was a self-made man from poverty in washington state who became a law professor and was noticed by joe kennedy, senior who was the first chairman of securities and exchange commission. he brought douglas to be a commissioner and a year-and-a-half later was the chairman of the commission. he brought douglas to meet roosevelt and became a regular player in roosevelt's poker game and was a huge part of roosevelt's in our circle and he said that man please interesting game of poker and was put on the supreme court when he was 40-years-old. and on the court the first ten years he just wanted to be president of the united states and he did everything he could to become president. after that he developed a philosophy and that was of individual liberty of the

highest value of the constitution. interestingly he developed a philosophy at a 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 a version. >> host: one thing about your four great justices is they all work hard scrabbled self-made. they don't look to be sort of classic, you know, some of them went to great law schools, some of them no law school level. some of them grab middle class or poverty, one was an immigrant shaheen akaka if it's an interesting contrast who had absolutely entitled up bringing you describe as the gentleman at harvard so i guess what does it say of the men who were self-made very ambitious as you said, very driven but what does that say about fdr and about the

times that these were the men he sort of hand-picked and was involved in? what does that say? >> guest: roosevelt was called by his contemporaries a traitor to his class and people usually think what is meant by that is just the idea he wanted to restrict wall street when lots of his classmates were on wall street. he wanted to raise taxes when lots of his contemporaries were rich, and that's true but there's more to it than that. it's also that roosevelt was most comfortable not with people from boarding school and fancy colleges that he grew up with, but actually with people more colorful, more interesting and frankly very often were completely self made and he was the opposite of self-made. he was probably the most elite young person in america. his cousin had become president of the united states, he married eleanor, who was teddy roosevelt's favorite niece, had gone to the right schools and never had to work today in his life. now why did roosevelt choose

these particular people? it had a lot to do with the fact that 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 roosevelt and helped him to notice of them. so for a long weekend he wrote the first securities exchange act that helped create the modern regulatory system of wall street as we know it. hugo black, as part of his incredibly ambitious career subpoenaed the telegram which is like the e-mail of the day of everyone who did it in a telegram in washington, d.c. for several weeks period in the hopes of finding in there is a material about the executives which he did and then he used the material on the floor of the senate so he had gotten famous by saying that wall street is corrupt. jackson went head-to-head with andrew mellon who was the secretary of the treasury and one of the richest man in the country and a tax fraud trial which had the unintended result of creating the national gallery in washington. but of course it made jackson

famous because mellon embodied the united states, and last but not least when chairman of the fcc he took on everybody that he could. he threatened to take over the new york stock exchange and run it himself, they were scared, yet it could go around gathering groups of rich people and give them speeches calling it things like the cockroach as of wall street. all of these people got his 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 want to pose. you, i think, make a good point time and again about the extent to which ones biography does in for juan's judicial philosophy. and i could that's always hard to read as somebody who cares about the court because you want to believe justices our brains and that and the biography makes 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 lot but examples of ways and which some of the four great justices were influenced throughout their lives by either the way they grew up or their conflict in wall street or whatever it is, but some way in which the state shape not just the conduct before they got on the part of the conduct in the judicial world view after. >> guest: yeah. let me start with maybe the most shocking it civil 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 jerry come of freeport and constantly working multiple jobs. he worked his way through school, just to eat he would sweep the floor in a hash house. and when he got on to the supreme court, he was still poor and still personally a little

bit on stable. 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 were in this sort of led him to the point where his personal equilibrium was disturbed. at the time the supreme court justice has ever been divorcedp and douglas became the first justice to get divorced, then the second, then suffered, and he did remarry fourth time so by all accounts he was a fateful week into his fourth wife and during all of this, he announced he would never be president, one divorce was enough to do that in this period but also he began to ask himself what is my philosophy of life? you might say he developed a philosophy of life at the same time that he was melting down and he came up with the idea that the philosophy was a western state philosophy of take

a gamble, go out on your old,p the desultory horseman riding into the sunset and then he thought what does this have to do with the constitution? and he had an answer and it was our constitution protects our individual right to marry whom we wish, sleep with whom we wish, speak to whom we wish, associate with whom we wish it to find ourselves in terms of our liberty and basic freedom said he became the key 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 right questions, again, the views were imported and when the supreme court deals with the gay marriage question which eventually it will, again, the values he brought to the table are going to be discussed. so it's not a story necessarily of inspirational backrub leading him to make constitutional philosophy but of how personality matters enormously in the shaping of ideals. >> host: i wonder if as we are talking about how these

justices, their ideals were forged i wonder how much it matters a bye guessing you're going to say a lot that they came to be both public individuals in the various government capacities and leader of the court at a time when the court is dominated by the nine old men, by the grumpy old guy is that fdr had essentially written off. how much of them was influenced and how much of their jurisprudence was influenced by the sort of lock near era corporate view of the court that fdr i think was at war with? >> guest: it mattered a lot when they first started on the court because then in their very first years they were with roosevelt and 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 they didn't have to restrict themselves to the 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. there were jehovah's witnesses kids in schools who did not want to salute the flag it recite the pledge of allegiance and they truly believed sincerely this was an active idolatry, the pledge allegiance to the flooding and was similar to worshiping the flag and against their religious faith. that was on the popular of course in wartime america and the first time that came before the court roosevelt's justices mostly said that the witnesses were not entitled from exception to the rules of the didn't fit the fight could be suspended. after the supreme court held that there was violence all over the country and with witnesses killed in some cases, injured and others with witnesses,

meeting halls burned to the ground, and they realized they had a terrible mistake. felix frankfurter who had written the and then the first time refused to change his view and said judicial restraint is 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 justices said no way. we are the supreme court and we are going to protect minority, and justice robert jackson who had come on the court at this point for a very beautiful opinion, where he said that the government tell can't tell you what is orthodox to commit the job of the supreme court is to take certain things away from the government, and one of them is the ability to force people to salute. very inspiring opinion that was not judicial restraint. it was judicial activism, and once that happened, the other justices moved away from the focus on allowing the minnick plant legislature.

but it was no longer their primary motive and the punch line to that is interesting. in 1951, when the korean war was doing badly, president harry truman thought he should do something about this and i ultimately he decided, 1952 actually come to seize the u.s. steel mills from the corporations that own them to resolve a labor dispute in favor of the union which was a pro union thing that truman did and the roosevelt justices of all four of them voted to strike this town saying that he lacked the authority to do this and was the separation of power in presidential power it not so much about corporate power terrific truth is he was still doing it on the union, and by now none of them were on the side of the union. they saw this as a constitutional issue and shows how things have changed from the

depression when the main question was government regulating corporations to the post-world war two period where suddenly the issues look different to them. >> host: it also lighting shows how the definition of activism has always been so slippery and afraid that he has used that label. it's an entirely in the driven of label and a record at some level is activist by virtue of the fact they do things. >> guest: i agree with that and what's more is activism is what you get when you have high votes on the supreme court. a legislature that is doing something different. and, you know, historical neither liberals or conservatives have any monopoly on either criticizing the other side or as being an activist. when you want to do is look and see who is in charge of congress and who has the votes on the court and when they don't match, you find that many supreme court justices are prepared, in fact almost all too strict on legislation, and i should say we

shouldn't make the mistake of thinking that in their heart they believe themselves to be political. i think they often don't. the justices imagine themselves then and now in many cases to actually be following the constitution. if you look outside of their inner belief and what they are doing it is amazing how frequently they will get you activism. >> host: i want you to contrast for me because it is a very striking part of your book and we are talking to noah feldman, the author of "scorpions." fdr's deep involvement with each of these justices, for years in some cases, i think it's really striking when you compare it to other presidents, some of whom met their nominee the day before, some of them had been vetted by third-party is to read it seems to me each of these men in different ways was intimate from the poker game and down

quite intimately involved with roosevelt, and in fact felix frankfurter seemed to be a kind of i don't know of manipulating is the word you want to use but really pulling a lot of the before and a good thing or a bad thing is to have such a deep, deep relationship and political relationship on some cases jackson had a more lawyer relationship than some of the people or political at pfizer's not just before we got on the bench but after. it's something that changed for the better. i guess, it's changed completely on both ends. we have president's interviewing the supreme court justices like a job interview it gets on some impression in an hour or of the person but roosevelt who he knew differently and had known for years, and the knowledge of the people finding he knew what he was getting he was getting justices using correspondent but also what kind of people they were it people who would vote

his way and would do interesting important things on the supreme court and he got that and it's really, really changed as you say roosevelt justices did not stop talking to him when they were on the supreme court. they didn't stop playing political of advice, they didn't stop writing regular letters i get for it. felix frankfurter left to send people for jobs to roosevelt, usually to for roosevelt to ask but not always the kid doing that on the supreme court. when roosevelt need somebody who would be the assistant president, that was the title then, the most important person other than the president, he said there is a justice here, jimmy burns would be great for the job to read why don't you take him?pwpwpw sure enough roosevelt did hire supreme court justice to do that. and that's completely changed. today even the annual dinner that used to take place the justices go to the white house has been cancelled as perceived as in some way violation of separation of power. so we expect the justices today to be almost like monks, to be

cut off from the world of washington and a world of politics and certainly the president he will remember a couple of years back when cheney and the justice antonin scalia were on a hunting trip together scalia was heavily criticized for sitting on an opinion that involved the vice president and he wrote a separate opinion explaining they were not even in the same duck pond and was unimaginable in this period. i think we've lost something here. the supreme court is a political body as well as the traditional body. that is the reality. and if you were going to do some politics, you'll do it better if you have a better understanding of how the supreme court sent to the bigger political world of washington to meet a critical is how the supreme court sometimesw now in the beginning of the paula jones bill clinton litigation held that it was not going to be very inconvenient for the president or distract him at all if a lawsuit against him, a civil lawsuit by paula

jones continued during his presidency. the supreme court said this is a matter of principle. i don't care if you're the president, that would have been one thing that that is not what they said. they said well, you know, the rates are important, she should have a lawsuit but we are not that worried about the district and president and that was on eve. i think in today's world you could imagine justice is to understand the presidency so little they would think a lawsuit within occupied the president's time the was not the case then we wouldn't have had an outcome like that so to the extent they were making practical decisions there isú some of loss.p there is a big day in and the appearance of object to the. we think of these justices as priests. i personally think we shouldn't think of them that way, but we do think of them that way to some extent and that does make them seem objective and increases legitimate. that leads into my second question which is the justices were very that we behaved now.

he refused to recuse himself in a thing that looks a lot like the dhaka the you referred to with cheney and it seems as though correct me if i'm wrong, but that kind of behavior was called out by the other justices, by the media. it seems the world was a lot more leaking at that time and folks were giving interviews to the reporters. and i wonder if you could reflect on was a just a matter of these four guys who made bad decisions, you know, robert jacks and sending off appalling messages from nordenberg, were they making bad choices or were they getting caught making bad choices that our justices, as you said, i think, you know, there is never a scandal anymore. there's never a bad behavior. no one calls in the one out and in fact when president obama called out the cork in the state

of the union and was seen as shocking. one of the things i guess i'm trying to get is it was all out there at that time. now whatever intramural unhappiness is happening should stay intramural. >> guest: one of the reasons i had so much fun writing this book and one of the reasons i decided to write was the contrast between the justices today who are well behaved, polite, smart people and the justices of 70 years ago who were badly behaved and was found out they were badly behaved. it was in the newspapers and the location raised eyebrows and all kind of shock.pwpw i think part of what was going on in the lives of those justices is because they were different kinds of people, because they were in vicious people, because they were political people, because they are risk-taking, they did the things ambitious risk taking people like the politicians do. and it's probably not a surprise the supreme court which is not made up of professional

politicians are careful, cautious lawyers. i don't mean that as an insulting way but they would probably be pleased to be boring in that sense, so you don't catch them in political scandal or taking money from a foundation which has, you know, just a single donor or, you know, you don't hear rumors of them being caught in the supreme court chamber sleeping with their secretaries. there is a kind of world that is gone in that respect. so it partly they did make bad decisions and 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 channel with you could bring yourself to observe that, so one of the things i'm saying in this book is that you get a certain kind of greatness when you have a certain kind of person and if you prohibit those people from being on the supreme court and you 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 in many areas made great men and women that great men and women have false and there is a tradeoff there. and my theory is we did better in terms of the justices of the supreme court when they were sometimes badly behaved and all i will take the bitter with the sweet, with the devotee heater, the arguments, the anchor, the mutual hatred that emerged and the great ideas that came with it, the idea of changing the country, changing the constitution in meaningful ways in place of the friendly, pleasant, tea drinking, nice people who we have now and i should say i like him are, maybe they are nice people. >> host: i wonder how much that influenced by, again, the difference between the president's because it seems to

me that roosevelt was absolutely and he make this point with reference to hugo black, a political job and that is why i am taking someone out of the senate and he's a political person and was right in the wake of the court plan which at that point was a seat for him and he said this is part of my code to the court packing plant. i'm going to show you how little of this is by putting a petition on it. i try to match that one today when we are so careful to say not only is the nominee not political they never had a political fault in their life and if they had don't worry, we purged. so there's not just the difference in the men but in the people nominating and maybe the conversation that we want to have about the greatness that forces us to say the court is so utterly a political it really is that fdr would have laughed at.

>> guest: and you can actually see a nominee that there is a kind of schizophrenia, so president bush wanted people who had some politics but he couldn't appoint politicians, so both of the people he appointed four people who have been lawyers in the executive branch, so that -- and then if you look at the justice kagan, she also was a lawyer in the executive branch and when she had any opinions you see them in memos for the president when they ask about this for the confirmation she said i was a lawyer for my boss committees for my boss's opinions which is partly true but not completely the way that opinion writing or memorandum writing works and i think the political nature of the court for roosevelt was something he couldn't avoid because he lived through it and the whole public lived through it. they had this enormous series of eve ensler the new deal had been pressed and struck down the new deals and it's a nature that was unavoidable. we had less as an excuse because

fiske we lived through the bush v. gore decision which certainly looked like a highly politicized decision and somehow instead of emerging from that saying okay the court is political live with that we emerge by saying let's pretend even harder the court isn't political. let's engage in this kind of, and i don't think it is going too far to see its organized hypocrisy we have around the supreme court according to which we insist on their object to the and loyalty even as we have computer programs that judging by various factors can do a good job of how they are going to vote. i should add by the way it is important to distinguish the court from other judges because cost most are nowhere near political their job is not that the supreme court only hears cases of they're genuinely uncertain and i think roosevelt took the bull by the horns. >> host: i wonder if we are in the sort of business now of going back and forth between then and now costs for a minute about the rule of the confirmation process because

your justices had what, two days of confirmation of that? some of them did show up. >> guest: some didn't have any confirmation of all, hugo black, nominated only wednesday andpw affirmed on monday he didn't show up and no supreme court justice ever showed up for confirmation hearing until felix frankfurter. usually you would get most attend a proxy. it was considered below your dignity as a justice to be badgered by a bunch of senators and when you watch on television maybe it is but frankfurter did go and he went because there arg great stories in this that a series of red batres appeared before the senate and an announced essentially frankfurter must be incompetent, he was jewish, liberal, defendant sat go and vanzetti and was one of the funding advisers at the aclu, one of the founding advisers of the naacp so he had to be communist and of course in some cases he served on these organizations with

communists. there were actual communists on the advisory board and frankfurter realized he couldn't just sit in his office and hope it would go away so he went but what he did is also amazing in this contrast the way that the nominee is go to date. a senator said to him are you now or have you ever been a communist, and instead of just answering the question happily the way that one presumably what today's frankfurter essentials and yelled at him and said i would pose my americanism against yours at any moment i am an immigrant to this country and i am deeply committed to my american values and ideals. how dare you ask me that and the antiyour chamber burst into applause and you can see the senate record disturbance and then he got confirmed. >> host: and then he got reporting drunk to >> guest: this shows how different things were. he went out with dean acheson with his proxy, they got drunk

this is i think he should tell a story of what happened, and acheson was by the way of roosevelt school and the old-line said i don't think we should sure drunk of the white house and frankfurter said we are going to go to the white house comes to the drive to the white house committee wandered into the white house, into the secretary's office and we need 50 minutes of the president's time and the secretary says feiner, five minutes. an hour-and-a-half later they are still there with a different degree of relaxation to it to devote to the head of life. justice shows up at the white house the drunk but then people were a little bit more forgiving the i think of the human aspect of their public officials the and we are today. >> host: to go back to my initial question part of the problem of 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 slip on and watch a couple of days and it's

quite hypocritical and staged and then we flip the dhaka, whereas it seems to me very striking, and i've been covering the court for ten years, how deeply involved the public is in the court. so there's a strange way the hearings have become almost a proxy for involvement with the court. volume thinking of the example of hugo black that comes out after he confirmed that he's a kkk member. he gets on the radio and explains himself. americans listened and change their mind, but it is -- some do but least the extent to which there was a dialogue between the public of the president and the court about the court this they have the broadest and have cautioned weird staged a moment or the state of the union moment with the president put it seems the discourse hasn't improved in the modern media. it seems it's degraded. am i right in saying that?

>> guest: i agree on that assessment and i think it was messy before and he would see that for example the supreme court justices asked to do jobs for the president tsks. after pearl harbor there was a0w commission like the 9/11 commission and the sherman was a sitting supreme court justice who was a republican justice who voted in many cases in favor of roosevelt and the president called him up and said would you like to do this? he had been recommended by felix frankfurter who i think should get a when roberts to new do this and it was a political judgment to get him there but he did the job and of course leave iran, earl warren richard the commission after president kennedy's assassination. and again, hard to imagine these today. you can't really imagine one of the national commissions politicized having the chairman of the commission and that is i think partly because the idea of the justices have retreated into the temple that is the cord and built like a temple and appeared

from behind a red curtain as before every oral argument and should be treated as though they are priests of some secret religion or as demagogues. how this happened is an interesting question and it may have had something to do with watergate. when they had a fair amount of faith in the presidency it could sort of see the other institution of government as a in some way a human president would get a lot of faith with my grandmother thought fdr as just a person one could trust in every way and i remember when evidence began to come out of the little that fdr had done about the holocaust my grandmother refused to believe it because fdr was a great manager, she trusted him so the supreme court wasn't as important in this, way to have an interest in government but after watergate not too many people had that kind of trust in

the presidency any longer and congress, have heaven help us,úo the public wanted somebody to trust and the supreme court wit an intuitive flee or not worked its way into this world and everyone is political. everyone understands roe v wade was a controversial decision and support it and some people oppose them and understand the death penalty is a controversy issue in the gay rights can be carved for seal we've never the less treat the supreme court justices as above all because we want to. we are the ones to be yet. it's ron gistel justices. they are playing into the world. we offered in the role of the priest and they say okay maybe there's something to that. we saw this after president obama's exchange with alito at the state of the union. the reaction is we are never going to the state of the union again. why? because it's politically and we wouldn't want to be seen in the political environment, and here

they were forced out in a political way and that looks bad for us. even though they do sit there in their robes very telling late in the house of lords you have military people and bishops and the state of the union we have military people and our bishops so the supreme court justice or even where increased robes, that is where they actually come from, so there is a kind of ritual that in my view hasn't surfaced all that well but it definitely is part of fabric for life and maybe we need it. >> guest: i think and writing about it over the years i've said that for a deeply secular country we are very deeply religious country because we need that temple and clause five justices for all the aspirational reasons that you lay out and i think it's amazing if you imagine some of these guys at the state of the union

you can sort of imagine douglas on his feet and frankfurter having written the i think there was this sense that they were deeply involved in the president in politics and that was a more honest construction of the relationship. one thing i guess i want to go back to talking about, judicial philosophy and liberals because at the core of your book there is a mystery which is you have an opportunity, if your has an opportunity to respond by putting progressive liberal thinkers on the court and he puts a bunch of them on the court when he points out are extraordinary sinker's and theorists so it's not that we don't have a liberal judicial pherae it's that we have four. >> two of which end up becoming conservative. >> host: so part of the mystery is the sort of whodunit part, is how did the two of them get appropriated by today's

conservative court and i think more poignantly, and i do want to answer, but i keep wondering and this is counter effect will and it's not fair burlesque in the way, had there been one, had felix frankfurter proven to be the leader of the liberal wing, the bright light, would we be in a situation today -- you describe it in june and the magazine as a sort of crisis of judicial liberalism, but we be in the crisis had one of nominated, and it doesn't have to be frankfurter, it could be douglas i just can't help but wonder if the kind of destroy each other. >> guest: it's a great question and after all scorpion's -- or call the book "scorpions" because of one of the statements that the supreme court is nine scorpions in a bottle. so the fact that they were scorpions and became bitter enemies is part of why they develop these different philosophies and also part of

why some of the philosophies became conservative. the judicial restraint is an easy one. it became conservative when you had good wrolich is leader and presidents said the idea of judicial restraint could be deployed by conservatives and was for many, many years and as the supreme court itself became more and more liberal the dissenters on the supreme court, frankfurter among them could say we believe in restraint so we don't like the new rights and we don't want the right to abortions we believe in judicial restraint so it became conservative because the liberals were winning. with respect to a regionalism it's a little bit more complicated but in a way more interesting, too. the original was and is a liberal theory because he believed the conservative court had invented rights if you go back to the meeting would see the corporations didn't have those rights. over time a liberal supreme court began to invent rights for

individuals and as far as black was concerned if a white was in the constitution he was forced a matter how controversial it might be. if it wasn't he was against it will matter how desirable it might be and toward the end he himself was starting to look more like a conservative because he was nervous and upset about the new rights and by the time justice scalia and thomas cantelon the supreme court had rights they said one of india's original meaning of the constitution and that is how our original was in the can a conservative philosophy. so, you know, these philosophies can move and change especially if they have some component of the basic principal of at the core and i think that is part of what was going on. >> host: and then so to the second part of it i guess what i see when i look at it and what you see, clearly what you wrote in june as the liberal wing of the supreme court is an absence of a coherent principled

position and, you know, you sort of describe justice breyer as a pragmatic technocrat and ruth bader ginsburg as trying to hold the line. i think there was an argument to be made the justice john paul stevens tried to articulate something may be larger than that but so i am trying to map on to the liberal wing of the supreme court with a caveat that we have got two new justices we barely know, but whatever they have is it a legacy of one of these little legacies of too, is it a product of the failure of one of these visions that is dominated? >> guest: one of them did dominate through the 60's and even into the 70's and the was actually douglas. among the liberals the idea was the constitution is there to maximize personal liberty, and that i think became a crucial part of the constitutional picture and the other part of the story was the quality and it

started with african-americans and them dhaka ready for women and more recently for gay people, so the quality parts and little part didier just philosophy and i think they are still very important both to justice ginsburg who of course was an important figure in the women's rights movement before she went on the court and also to justice breyer who always, just about always will vote on the side of civil liberties for a quality. on the of our hand, when it comes to the economic issues, that were crucial in 1930 and are crucial begin today, neither of those viewpoints has much to say. it's not that they are wrong from the liberal perspective, it's just that they are not to the point and justices who have gotten accustomed to be activist in favor of rights are sort of in the habit of thinking that they are and when the supreme court holds that corporations

have the same free-speech rights as individuals it is a lot harder for them to stand up and say what i wish the it said in the citizens united cases with a net you missed the point of having the constitutional rights. a corporation is not of the nra or the naacp. exists one reason and that is to make money and i think that is the corporations. i love corporations. i think they are great at making money. that is what they're for and the mistake is to think an organization designed is the most advanced in to be in the history of mankind, the business corporation, would have any interest in speaking publicly about ideas that would serve the interest. they have an interest in speaking politically to make more money and they have their shareholders' money that way and i would say the liberals are out of practice thinking in these terms. roosevelt justices were not out of practice. these are the issues that really brought them to public life and have no trouble for saying for civil hugo black's explicitly, he never convinced the whole core of this, that corporations

have no constitutional rights at all. he said they are not persons and the constitution is talking about persons. show me where a corporation is a person and the lawyers of course have an answer, it's an artificial person, at which black's response was an artificial person is not a person. >> host: at the heart of your four craig justices, there is a kind of tragic loneliness, sort of hungary in addition to read the book in this kind of sadly. you don't come away that robert jackson had a happy and if his life. felix frankfurter i can tell you had a thought for him because he wanted to be oliver wendell holmes, he wanted to be the next brandeis and even though i think you can see he's a great justice i think it's fair to say he never became the justice he wanted to be and douglas i think particularly kind if ends up not

even getting credit for when you laid out. probably to the extent any one of these four ships liberal jurisprudence that came after. but brenda marshall got the credit. so i guess i want to probe a little bit was this an accident of history there was too much ego, too much ambition that having all four of these men on the court in the of diminishing all of them? it seems like a deeply sad, maybe i'm just projecting, but it seems they all ended up not feeling that they had achieved the greatness they hoped for. am i over reading? >> guest: i guess i don't see it as sending as a tragedy because of brown v board of education. détente won a chance, these four justices who hated each other and disagreed all the time, to actually agree on something, and

they did agree on something and the was the abolition of segregation of the fee in the constitution. and that was, is and if you probably all always will be the greatest moment in history. it didn't come easily to them. they had to argue, compromise their principles in certain ways that they were there and participate and jackson was sick in the hospital with heart attacks which he would shortly thereafter doherty of, and dragged himself of the hospital and he went into court to sit on a bench when brown was announced it was the last time they sat together as a court and the conclusion to the book and that is a triumph to me. collectively they triumphed. individually on a agree with you put together such ambitious people first of all drives them to greatness but second, none of them can give any of the others the credit they would like to feel because that would be detracting from their own glory and the was a problem.

four justices none of whom will say the others are great it takes some time in this case almost half a century for the rest of the world to catch up and say these people were pretty great and i think they did feel frustrated because in their own lives none of them one. they wanted to win because they were ambitious people they were not satisfied to write a few opinions and hope for the best. they wanted to be winners and their lifetime and none was a winner in their lifetime. >> host: that would have meant -- >> guest: the court adopting their view. >> host: and only their view. so structurally you can never win. >> guest: exactly. for the record even oliver wendell holmes, jr., didn't win in his lifetime and most of his opinions were dissent. he was thought of as a dissenter so there was justice primarily dissent but at the end of his career it wasn't that impressive and so holmes and brandeis looked like major figures on in that court. these folks however the

scorpions, continued to be together, serve together and be together and their legacies remain competing. it's amazing when i go read and speak to people about this book they will say to be well this is my favorite scorpion fly can see why you would write about this one but this one, they think all four were good it's essentially zero. nobody seems to like all of them and i think that the dusty trek from their reputation but i will say to me the reason the book for me was uplifting in the conclusion was brown v. board of education, the fact the could overcome their differences and come together for a brief moment. >> host: do you think that when you hold that up against what we hit scene on a the robert court conservative wing which is with little exception although i'm starting to see it now, the four justices who all looked to be in accord on most

things, and the caveat that there are fundamental differences between thomas and scalia and their jurisprudence and that of the chief justice and sam alito -- >> guest: on the religious questions, but we are really talking about where do we see them. >> host: and so i remember sort of describing oral arguments in the years after roberts and alito came on the court as just being sort of like watching harlem globetrotters where the conservatives were like, you know, they will all on the same page and you had a sense that the liberal justices were sort of gambling around sort of trying to find some unifying principle. now i think an interesting way that is starting to fragment and will be interesting to see if some of the same reasons but i wondered if the reason that the conservative wing of the roberts court has been so successful is there has been a willingness to subordinate ego and the need to

win to a very coherent vision of what the endgame is this the sun-dried? >> guest: i think it is true with one caveat and whittaker of the four conservatives, it's easy to forget for the rehnquist court they have included anthony kennedy and then the idea was justice o'connor was in the middle, say the conservatives including kennedy who were liberal and the middle justice o'connor and the rehnquist court was the o'connor court, rehnquist got to be the chief but konar got to make the decisions. justice kennedy had shifted and now one can't assume he was on the conservative side so in the guantanamo cases he rode the opinions confirming habeas corpus on the detainees in guantanamo and the gay-rights case this he's been the person writing the opinion recognizing the rights so on some hot-button issues he voted on the liberal

side his philosophy the is a coherent philosophy not shared by the ever justices and that is as individual rights for everybody. justice kennedy never met when he didn't like. he believes in the civil rights and the free-speech rights of individuals including the people and detainees and he believes in the free speech and civil liberties rights of corporations like google and that is a consistent view of the times that really dates back to the 19th century belief of liberty and deeply held belief it's not however the view shared by the conservatives or liberals on the court. and he's now the decisive voice on this court. will be interesting to see how the others deal with this but they haven't done a 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. one thing about justice kennedy

you see in making decisions for himself and part of the press is often nobody's voting with him. >> host: we have time just to sort of touch on one more piece of it but i saw it did earlier in the question and want to move back to it. we are looking at a brand new willing of the court, justice sotomayor in little over year, justice kagan for it seems like only a few hours, what do you see coming down the pike? do you see vv energized liberal court? can you see some of lurking new judicial philosophy that is going to sort of bring a the liberal court to get there? i know you wrote an interesting piece on sleet about the relationship between the two, so i wonder if you can take us through a little hypothesizing about what the future of the fleece the the liberal wing is going to look like. >> guest: i think it is an exciting time because we have a generation shift just as on the conservative side they are too young conservative justices there are also young liberal

justices come and just as there were some parallels in the life and the careers of cheese justice roberts of the conservative side there are parallels between the life and career of justice so why your and justice kagan, but strong-willed women, identifiable ethnic background, both went to princeton when there were very few women and the itself tremendously and both were on the supreme court by the time they're 22-years-old and everyone around them has known that all of those years. so these are people who inevitably are going to be twinned by history. they now link the next 30, 40 years of it because they are strong-willed people they want to define their views and have to do that to some degree against each other. they respect each other tremendous theater different than the scorpions who didn't always respect each other but they want to be distinct so recently use of justice sotomayor write an unusual position and a case involving an

hiv-positive prisoner from louisiana who stopped taking his medicine should have been granted by the courts and in favor of the prisoners get no other justice agreed and it is as though she were harking back to thurgood marshall conscience of a court kind of role, and hen didn't join the opinion and was a sort of signal i think to say you collect for thurgood marshall but i am thurgood marshall potentially coming and would require them to define themselves against each other and that would be interesting to see. the biggest questions are going to be economic questions. are any of the liberal justices will then to say the free market nevertheless to work effectively , and given the rights for individuals may not be there by its the corporations should have upon them and that i think is an open question. i know that we know for sure the decisions will come before the supreme court and will the liberals develop a coherent philosophy upon those questions and honest and direct and i answered optimistic i know it's a great time.

>> host: do you think, and this dovetails beautifully with how we started but the justices now there is a premium on a hiding who you are and what you think and that the minute you come on the bench you have to do something spectacular and dramatic to say this is to volume whereas i feel like i knew who felix frankfurter as we to be in the douglass, so i wonder if someone like kagan, flashing opinion, or just some of what i see in an oral argument as the two of them being very vocal and quite willing to elbow their seniors to the site is the piece that this idea that he can only keep your power drive for so long and we live in a culture where the confirmation hearings and you get to be yourself and it's a action i feel we might not have seen at the time. >> guest: it cuts both ways. on the one hand you're right to get the chance to sit on the supreme court, now you've got

tenure and it's time to let it all come out. on the letterhead if you spend your whole career conservatively preserving yourself for the court you may not exactly know what are the major issues you want to devote yourself to it associate. the scorpions knew what their big ticket issues were so it'll be interesting process for the justices, the conservative and liberal side, to figure out what motivates them. and then have to slash ayaan and i think we are going to see that and that is why it is could be interesting to study the supreme court in a period of time things are changing, where young people are coming in a changing things. that is what "scorpions" was like and what things are like now the supreme court, to my kid there something we can learn. >> host: i want to thank you for "scorpions." i said to my husband very few people can produce a page turner about supreme court history, but it's really a phenomenally interesting book and i want to thank you for being here on "after words" and i really look

forward to watching you watch the court the next ten years. thank you. >> guest: thank you. likewise. >> why would we hear the president and others talking about the fact we must make government efficient for the people did our founding father sexually design the government to be inefficient? ask yourself that question because this is a model for inefficiency but it was done deliberately. why? because in order to have the

liberties, you have to have the government with little power. the more efficient the government is, the more the liberties the individual has to give up to get to them. they cannot do their job efficiently and less they have the power to tell you what to do. very interesting, isn't it? yet our society today generally believes that we have to have in the efficient government because we have been told time after time after time we must make the government efficient. but that is a road that is loss of freedom. >> to watch this program in its entirety, go to booktv.ortg. simply tied the title or the author name in the screen and click search. ..