>> you're watching booktv on c-span2. here's here's our primetime lineup for tonight. u..

>> it's not the level president

and a conservative court. it is president franklin roosevelt and the hughes court of the 1930s. indeed, it was 75 years ago this month that franklin roosevelt announced his court packing plan, which is subject of much of my booker and i will talk in a moment. but the clash between roosevelt and hughes at a critical time in american history i think is, it's a great story and it's an important one. also it raises questions that were important 75 years ago, and are important today. one being whether justice, concerts, of the supreme court can import the popular. alternatively whether a poverty

progressive president can try to bend the courts to his political policies. and those are questions and issues that are the same today as they were 75 years ago. first, let me tell you a little bit about roosevelt and hughes, who were remarkable leaders of the 20th century. they had a great deal in common. both were born in new york. both were only children to doting parents. both were ivy league educated. roosevelt went to harvard and hughes went to brown. both were two-term reform governors of new york. so that was what they had in common. now, they had a good deal that they did not have in common as well. roosevelt was raised in gilded

splendor on an estate in duchess county, new york, in hyde park his parents james and sarah roosevelt took franklin to europe on a very luxurious extended summer tour every summer. they sent him to a prep school, the prep school for rich boys before matriculating mainly to harvard. so he, roosevelt, had a very, very comfortable life. hughes, on the other hand, was the son of a baptist minister, who preached in upstate new york, glen falls, and also in new jersey. they were a family of very modest means. and hughes was essentially home

taught. partly that could be somewhat deceptive. his parents were both quite well educated and they were very, very vigorous teachers, and they taught charlie, as he was called as a boy, foreign languages and literature and history. his mother made him toe the line. and hughes himself read deeply and widely on his own. and, indeed, healing it really one year of formal schooling before he graduated from ps 35 in new york city. at the age of 12. and he wanted to go to college, but he inquired and realized he couldn't go to nyu into he was 14. so he took a year off, and in the meantime a friend told him

about madison college, which is now called dan in upstate new york, and new yorker and at the age of 14, little charlie, he was getting taller now, went to colgate and made superior grades, became restless and then transferred to brown university what he was elected phi beta kappa in his junior year, and graduated third in his class. so you can see that his trajectory was slightly different from roosevelt. hughes was a prodigy. he had a photographic memory, and as i said, he was a superior student, even before he went to school. and continued throughout his career. on the other hand, franklin roosevelt talked about the

differences and the contrast was quite and in different student. at harvard. hamate okay grades but nothing special, and is great interest was harvard crimson, the newspaper at harvard. so he didn't spend too much time studying, and then hughes went off in york city. is at the top of his class. franklin flunked a couple of courses. never finished but did pass the bar, the new york bar. hughes went on to be a brilliant lawyer in private practice but also made his name as an investigator of corruption and mismanagement in the utilities and insurance fields.

he was a very cool, very tough investigator. one very indignant ceo, and insurance company, when the question that very, very tough, said, sir, we are missionaries serving the public interest. and hughes said that he was looking into what seemed to be absorbent solid. he said yes, but the question still comes back to the salaries of the missionaries. and can't born in and he such a great impression and a catapult into politics. he was elected governor of kashmir and franklin on the other hand never really prepared for the practice of law. never really liked it but he was really waiting for his main chance and he show his great talents, which was in politics

so you can see the contrast between the two of them as they went through their early careers. their careers begin to intersect in 1916, and that's when franklin was now assistant secretary of the navy. he very consciously patterned his career on his distant cousin, theodore roosevelt. roosevelt had been elected to the state legislature, the new york legislature, as was franklin. and tr have become assistant secretary of the navy, as now had fdr. all that was left was for fdr to become vice president and president because that's what happened to tr our teddy roosevelt after serving in the cabinet as assistant secretary of the navy, then went on to

become vice president and president of the united states. >> it turned out that wilson won

the election just barely. roosevelt continued as assistant secretary of the navy, and then in 19 -- he went back to private practice in new york city. roosevelt in 1920 became the vice presidential candidate running with james cox of ohio. they got trapped by calvin coolidge -- warren harding and calvin coolidge of the republican party. at the same time, after harding was elected, he appointed his secretary of state. one year later, their fortunes into go up -- one going up in one going down. his became extraordinarily successful. as secretary of the state, he

held a disarmament conference in 1921, and he negotiated the reduction of the tonnage of warships -- the three major naval powers being the united states, great britain, and japan at the time. it was a great triumph. roosevelt, on the other hand, in 1921 was paralyzed from the waist down with polio. what would seem to be a very promising career, there was talk in 1920 that roosevelt would be the democratic nominee for president. 1924 or 1928. but he was paralyzed, and it looked like his career was over. so you have chief justice hughes going up and roosevelt going down. but it was the abominable

spirit. fdr began to think of a political career again. he was asked to attend the democratic national convention in 1924. he had braces all the way up and down his legs. he went to the podium on the arm of his 16-year-old son, james, and, of course, tried to make it look effortless. it wasn't. as he made his way to the podium, he gave a great speech talking about the happy warrior taken from a henry wordsworth poem, and the crowd erupted. they were deliriously happy, and they were clapping not just for al smith, but certainly for franklin roosevelt as well. four years later, roosevelt was elected governor of new york. in 1930, he was reelected by a landslide. in 1930, president herbert

hoover appointed hughes as chief justice of the united states. you can see them coming together. by 1930, there was great talk of roosevelt as the democratic nominee for president in 1932. in 1932, of course, he campaigned against hoover and beat him very badly. in 1933, march of 1933, franklin roosevelt and charles evans hughes exchanged letters. franklin roosevelt wanted to know if he could recite the entire oath, not just saying that i do. he asked him and he thought that was okay. he remarked that it was very interesting, he thought, that one former new york governor was going to be administered into another new york governor. they each expressed great

respect for each other and look forward to their association and a common enterprise. roosevelt was inaugurated president in 1933. by this time, hughes had made it very strong record as a libertarian. he made some very important decisions protecting freedom of the press, for example, and freedom of association. but what got him and roosevelt on a collision course was the constitutional challenges to the new deal legislation. particularly in 1935 and 1936. the hughes court began to strike down one piece of new deal legislation after another. now, hughes was actually a centrist, he was neither a

conservative nor liberal. but he wanted in the worst way to keep the core together and try to project an image of stability and integrity. so he tried to mask the court when he could. sometimes he could, for example, the court unanimously struck down the national recovery act. national recovery act administration, which was the legislation trying to stop the industrial sector of the economy. but he was not so successful when the court struck down the agricultural adjustment act, which was the act to try to spur the agriculture. sometimes hughes had most of the court with him, and sometimes he did not. he went back and forth. he tried to attend project the motion of stability on the part of the court.

his nuanced -- treatment of the constitutional. [inaudible] went right past franklin roosevelt. he was furious. he was furious over every single decision in which the court, made up of four ideological conservatives and three liberals -- the liberal wing was led by justice louis brandeis, but also benjamin cardoza and justice stone. hughes and his fellow appointee justice roberts were in the middle. roosevelt won the election in a landslide in 1936, and he had been thinking about doing something about this conservative court for a long time. he thought about a constitutional amendment, he thought about various kinds of statutes that might limit the court, and even a court packing

plan. a plan in which he would appoint additional justices who would be more sympathetic to the new deal legislation. in early 1937, on the heels of this very impressive reelection victory, roosevelt announced a court packing plan. it was in february of 1937. seventy-five years ago. his plan was -- he was concerned, he said, that the justices on the court were rather worn out and too old, and they needed some new justices who had energy and who he would appoint. it turned out -- and his proposal was that he would be able to appoint one justice for every justice over 70 years old. it turned out that six of the justices were over 70 years old,

including chief justice he was. but nobody was really fooled by roosevelt and his proposal. everybody thought saw it for what it was. it was an attempt to undercut the conservative court and try to restore the new deal constitutionally. hughes, who of course said nothing publicly, was furious. and he was asked by the senate judiciary committee that he would write a letter, which he did. it was a seven page letter, in which he documented how that court was completely up-to-date. he also said that if there were additional justices that the court came to 15 justices -- they would slow down their work rather than speeded up. there would be more conferences

and opinions, and it would take more time. so he in fact we rejected the idea that this plan was a good idea. the plan was resoundingly depleted. later, roosevelt and admiration for hughes, said that he is the best politician in the country. that he was just -- that he had a deal with one of the most popular presidents in history. and he did that. from 1937 to 1940, both roosevelt and hughes continued to lead. they did not seek leadership. roosevelt had been defeated. his court packing plan had been defeated. hughes was virtually inundated with new appointees. roosevelt appointed five members to the court in less than three

years from 1937 to 1940. hughes was surrounded by new appointees, all loyal new deal people. and yet he continued to lead the court. felix frankfurter had been a competent of justice stone, thought that hughes was scathing in his criticism. once he got on the court, he thought he was a great gentleman. hughes continued to lead even though he was outnumbered on the court by roosevelt appointees, he had great admiration from all his colleagues, and he basically ushered in the new

constitutional era, in which the court began to expand civil rights and liberties, which was something he cared dearly about, and they began to defer to congress in economic and social legislation. roosevelt never gave up. he was still mad over his defeat on the court packing plan. he was just angry as he could be. he refused to talk to some of the senators who had been instrumental in defeating him. but then he got on with the business, particularly in 1938 and 1939. he tried to get aid to the allies and great britain. it was very difficult, because he based in isolation of congress. some of those who opposed his giving aid to great britain were some of them who oppose his court packing plan as well.

roosevelt was up to the challenge, and he knew this. he was able to get aid to churchill before the u.s. entered world war ii. i think it was terribly important. hughes retires from the court in 1941. of course, we know that roosevelt continued and was elected to a fourth term in 1940. churchill was instrumental for an allied victory. toward the end of his life, he was very sick, but he refused to give in. he never let anybody know that he was as sick as he was. and then he died in 1945. it is an interesting photograph -- the last photograph in my

book on "fdr and chief justice hughes." it is a picture of hughes and his wife, antoinette, after the funeral service at the white house. hughes looked absolutely distraught, which suggests that he really -- despite their classes and friction, he had great respect and affection for franklin roosevelt. i know it is very clear from the documentation that roosevelt did for hughes. it seems to me that now we move forward to 2012. i will suggest certain parallels between the two presidents in the courts and may be some differences, and then i will open it up for questions from you. first, the parallels. roosevelt, like president obama, was a reformed democratic

president. both of them were willing to challenge the court when they got their decisions were wrong. certainly, franklin roosevelt did this. obama showed in his state of the union in 2010, but he was willing to challenge the justices who were sitting right in front of him. challenge them on campaign finances in the united states. i have no doubt that if this court -- the roberts court, strikes down the health care law which is coming up her argument next month, if they strike it down, all or part of it, i can president obama will be critical publicly. will he propose a court packing plan? i don't think so. obama is a very keen student of

american history, and he knows that most historians think the court packing plan is one of the worst things printed roosevelt ever did during his tenure as president. what about comparing the hughes court and the roberts court and the two chief justices? well, there are certain parallels. both hughes and roberts were brilliant lawyers before they were appointed to the court. they were both appointed by republican presidents. but i would suggest you that there is a difference in their politics and in their constitutional interpretations. hughes was a centrist. he was a progressive republican. as governor of new york, he was in internationalist and secretary of state, he really wanted to pull the court

together, and he was not ideological in his decisions. chief justice roberts come on the other hand, it seems to me that before he came onto the court, he was a fierce advocate for conservative causes. on the court, he is consistent in aligning himself with the most conservative members of the court on the most polarizing issues, such as campaign finance, and affirmative action, for example. i think there are similar similarities and differences. i do think that the court will be an issue in the presidential fall campaign because the law is at stake in terms of the future of the court. whoever is elected in november is probably going to have at least one and maybe more

appointments for the court. four members of the court are over 70 years old. during the next term, there are at least two appointments in the court -- it depends on who they are. they are is a great chance that the future direction of the court will be determined for many years to come, and in no small measure, the future of the nation. there are parallels, there are historical lessons to be learned from my book on "fdr and chief justice hughes." but i think on its own, it is a fascinating story of two remarkable leaders of american government in the 20th century. thank you, and i will take a few questions if you have them. [applause] [applause] [applause] >> any questions? yes.

>> i have two questions. one would be, you had said at the beginning that the difference in the social logical backgrounds of hughes and roosevelt. how did that affect their relationship when hughes was on the court? the other question is you talked about the issue of the supreme court packing. that is certainly a lesson for barack obama. what are some of the issues that tie them together -- roosevelt and hughes -- that obama should study and learn from and what might you do to influence the court? >> those are very good questions. the first one, in terms of the different backgrounds, growing up -- didn't have any effect on their relationship we met i don't think so.

roosevelt -- even though, as i said, he grew up in splendor in duchess county, he reached out. he he had such a capacity to reach out to farmers and blue-collar workers. and there was no pretense on it. he loved talking to people and he loved people. i don't think he was a bad all aware of casting in any way. hughes was -- he grew up in very modest circumstances. i think there was a certain humility to hughes. he was not the humble intellectual, he was a very brilliant guy, but i don't think as far as i know that he also -- there was no arrogance in terms

of resentment and class. what president obama might learn from studying my book on "fdr and chief justice hughes", i think you would already know without reading the book, because it is more towards his temperament, which is one of a more prudent and consider -- consider it. fdr got angry all the time. i think that obama is much more cerebral and careful. except for the court packing plan. but i think that he could go out and he could study some of what roosevelt did in terms of questioning publicly whether these were really authentic

constitutional decisions, whether these decisions rendered by ideological conservatives, who really were interested in conservative results. this was roosevelt's view. i suspect that this could be president obama's view from time to time as well. so he could look strategically how to get that point across. yes, back there. please wait for the microphone. >> [inaudible question] who brought these cases against the new deal? >> it would not surprise you. who brought the health care cases against the president's health care? generally people who are critics of the statute who may be politically opposed to the administration in power.

that certainly was so during the new deal. there were a number of cases brought by those, some of whom have been a very active party in the republican party. against the new deal legislation. not entirely, but many of the cases were brought by those who are critical of the new deal. >> [inaudible question] >> what particular statutes were struck down? as we said, one was the national recovery demonstration, which was the major statute about the industrial recovery act. that was a very broad-based statute to try to deal with industrial light. the agricultural act was one that tried to deal with

agriculture and the rural industry. there were a number of others as well that went up and down the spectrum of new deal legislation. yes? >> i am curious what you think about it when of -- in the new yorker, it was suggested by rick perry about possible term limits on the court. the civics of that plan and what you think about that providing a greater balance? >> well, it's interesting, because i don't think it's going anywhere. i think that even with the court packing plan, the fdr court packing plan, it was very clear that, again, as i told you, he was reelected as a landslide in 1936. yet, the american people were not keen on instituting messing

with the institution of the court in the united states. in terms of terror tenure or appointment. i think that is true even more so today. i think american voters as a whole like their supreme court. a review of the supreme court. they don't agree with all these decisions, but they respect the institution. they respected as it is. yes? >> what was the age difference between the two? >> between roosevelt and hughes? quite a lot. hughes was born in 1862. roosevelt was born in 1880. it was almost an 18 year difference. hughes, by the way, was a progressive republican. his father was a great admirer of abraham lincoln. when lincoln was assassinated, he came home -- and jews

remember this -- he remember his father said to his mother that if you had been killed, i would not have felt any worse than i did today. [laughter] >> that did nothing to hurt their marriage. they were a very happily married couple. >> this is a follow-up, but it's about the supreme court in general. on one side, they seem like a stepchild. different presidents want to get rid of them, like jefferson, on the other side, they seem to be all powerful almost like a monarchy. we take this from? do think they should be elected? do you think they should have term limits? >> remember, i studied constitutional law for many years. this is my bread and butter. i don't want to do too much to the court. [laughter] >> i think that over all it is

important that there's a stability to the court. i think they should have that security and even when there is great controversy, over the court as authorities, which there is today and there will continue to be, more often than not the court goes about its business in a very professional way. system itself has a way of working itself out. for example, the court struck down many new deal statutes, but within five years, roosevelt had appointed a number of justices and most of later legislation, the economic limit on trent legislation, up on trent was upheld. it goes in cycles. >> it is always interesting about the presidential

decisions. the decision in 1941 to remove japanese-americans and put them in concentration camps. i don't know if charles hughes was the chief justice at that point, but i wonder in your research if you have come across any of the reasoning behind the liberal presidents, such as roosevelt, allowing that to happen? >> roosevelt issued an executive order, which essentially allowed the displacement of these japanese-american people on the west coast. it was a gerbil decision. a gerbil decision on his part. a terrible decision on his part. a decision was sustained by the u.s. supreme court. hughes was no longer on the court. but some of roosevelt appointees were great liberals.

hugo black, william o. douglas, felix springford are all the majority in sustaining the constitutionality of those presidential executive orders. why? because they were patriots and they thought it was important that the military told them there was a danger on the west coast for sabotage from japanese-americans, they were and cried to defer to the military on that. a terrible decision. a bad decision during world war ii. this was after hughes was no longer chief justice, generally speaking, the court tends to downgrade support in times of war. certainly that was so during world war ii. the national security becomes

the number one issue, i think. >> [inaudible question] >> yes, the karl marx in case was heard and it was decided in 1943. >> [inaudible question] >> yes, but the great challenge and displacement was not italian and german americans, but at japanese-americans. that is where the court rendered several decisions. one of them was the most important, in which the decision where they gave the military and the executive -- liberty to deprive japanese-americans of their liberty.

>> yes? >> returning to the similarities between the past and present, are there similarities in the constitutional arguments of transport in striking new deal legislation down referred to by the roberts court's comment for example, in terms of the scope of executive power or size of government? >> yes. one of the arguments of many of the decisions of the hughes court, the issue is whether congress had exceeded its power to regulate and restate commerce. whether the regulations went across -- or he brought -- very broad-based legislation. that will come up next month. the question is whether congress

has exceeded party under the commerce clause. i think most of the presidents comments towards congress, that is, i think most of the presidents in 1930, which hughes row, dave congress more leeway to regulate interstate commerce. that became the modern commerce clause doctrine for the next 60 years. but we don't know about this court. this is a very polarized court. there is certainly presidents the other way as well. it will be very interesting to see that. to see what happens. thank you very much. [applause] [applause] [applause]