every person in that woman's family. .. next on "book tv." marsha coyle examines the supreme court under chief justice john roberts. under his leadership the court

has looked at cases ranging from health care to gun ownership. this is a little under an hour. >> thank y'all for coming. this feels like old home week for me. not only being here again, having a chance to chat with marsha. we overlapped for 20 years in the supreme court press room. -- marsha. >> you see her book the roberts court for struggle for the constitution. the struggle for the constitution. not sort of whose constitution is it but who understands the real meaning of the constitution, right? you maimed this, just for those who haven't had a chance to look at the book.

marcia made an interesting choice to frame her story of the roberts court through the lens of four major roberts court cases. one about guns. one about race. one about money and one about health care. so it doesn't get much more fundamental than that. and you can have lots of struggles for the constitutional implications of those subjects. so, ask you to elaborate a bit on that. >> sure. the struggle is within the court over the meaning and the scope of certain provisions in the constitution. but it's also a struggle outside of the court as i show, as i tell the backstoriries of the four cases that i picked to draw the reader through about seven years of the roberts court. so this is a, a story about the roberts court in general and then a story specifically about these four cases and, it's also

a struggle within our country. you see it playing out almost every day over the meaning of certain provisions of the constitution. but i would like to tell you a little bit why i chose the four cases that i did. as linda said, they cover four areas, race, guns, money and elections and health care. initially i was looking to do something that i think most supreme court books don't always do. most supreme court books either focus on the nomination confirmation process or what's happening or happened in the supreme court itself but i really wanted to tell stories of how cases get to the supreme court. they don't land at the courthouse door fellly bloomed, fully grown. it take as lot of commitment by the people involved, a lot of

strategizing for the lawyers. it is a hard slog often through the lower courts although some cases get there very quickly depending what happened in the hour courts. >> people may not realize the court only takes 1%, only one to 2% of cases they meet them. >> that is amazing they get on average 8,000 petitions every year for people that want the court to review their cases. but as i was looking for the four cases i wanted 5-4 decisions. i wanted those to show that the court is always divided 5-4. it's not. as you find out in the book as many of us know who cover the court, really more than 50% of the decisions that are issued by the supreme court are either unanimous, 8-1 or 7-2. >> we had three unanimous cases

yesterday. >> yes. there is a lot of consensus across the court although it is often divided idealogically divided. i wanted 5-4 decisions because that's where we learn the most about individual justices and how they view certain provisions in the constitution and as well as how they approach their jobs. i also obviously, wanted, what i would call signature decisions of the robert court. the court john roberts, jr. i think these four cases will always be associated with the roberts court. obviously i wanted good back stories. people you wanted to know about. you're going to read, you will read about a seattle mother, kathleen brost, who called herself a mama bear before pail pail coined the term and -- sarah palin coined the term. her effort initially

unsuccessful to get her daughter into an oversubscribed high school in seattle. when she found the school district was using race as one of a number of tie breakers, she filed a lawsuit and challenged it and it went all the way to the supreme court. i also found along the way, that, and i didn't start with this in mind, that these four cases also had something else in common. they had very smart, conservative or libertarian lawyers behind them. in some cases, you would call them a agenda cases. these were issues that, the lawyers or the organizations backing them wanted to get to the supreme court for a final decision and they had their eye on an increasingly conservative, hopefully sympathetic supreme court. that's why i chose the four cases that i did. so i wanted it to be a book that is a good read, not just a

heavily legal book and that is not what i wanted to write. >> so, john roberts has been chief justice for eight years. his predecessor, william rehnquist he, i think was chief for what 17 years, something like that. so we're early in what we anticipate a tenure of maybe 25 years. john roberts was the youngest chief justice ever named to the court since the great john marshall at age 50. did you ever have the feeling that it was too soon to judge or to offer a take on the roberts court? >> i did actually and i point out in the book, and i tried to make it very clear, that i do consider this still a young court even though the oldest justice is 80 and, really only have i think now three justices who are still in their 50s.

but i did wonder about that i guess i should tell you how the book really came about first. i was covering elena kagan's confirmation hearing in the summer of 2010 when i received, really two extraordinary e-mails. the one e-mail was from an editor at simon & schuster who was very interested in a book about the supreme court. the other e-mail was from a very faithful pbs fan a young man, who attach ad photo and asked me to marry him. [laughter] >> marcia was already taken by the way. >> i was. but i did show it to my husband. by the way it was such a beautifully written proposal who proposed to me in a parking lot in downtown baltimore. [laughter] but there was no future in that proposal. so i did respond to the one from

the editor at simon & schuster and. she really convinced me that, it was a good time to look at the supreme court because even though it was young, and this was five years into john roberts's tenure as chief, it had shown a willing necessary to really take on some very controversial issues. and, part of the reason i picked the four cases i did because i wanted issues i thought based on those five years would have some shelf life. that we would see them coming back and we have. this term in particular there are two cases involving race. next term there's another big campaign finance case, brought by the way, by the same lawyer who brought citizens united to the supreme court. i'm sure we're going to see another health care challenge,

not the kind we saw last term as you probably read, there are a number of lawsuits throughout the country, they're moving fairly quickly, raising religious questions about the new health care law. and guns, gosh, there's litigation around the country trying to fill out the meaning of what the court did in the district of columbia gun law. so, she made a pretty good case tax let's take a look at this young court, with new members, and, see what's going on. and that's why i decided to give it a shot. but i do make the point that it's early. and linda and i talked a little bit what that means in terms of john roberts himself. >> right. so, just to backtrack a bit, so these four cases, helloer, the gun case, parents involved integration case, citizens

united of course needs no further introduction and health care cases, you said they all come to the court, brought by or supported by quite activist players, some repeat lay players from the right, and to ask the supreme court to take these cases, take these issues up for decision. it was kind of leaning on an open door. is there a roberts court project or are there jobs roberts project? is there a agenda that he seeks to project on the constitution in your view? >> i think he has certain definite views of certain areas of the law. as i explain in the book, when i deal with the seattle and louisville, kentucky, school district cases involving race, i think he has very clear picture in mind as to how he views the use of race, racial class

anycations -- classification, and he signaled that in his very first race-related case, a texas redistricting case, when he did not join with justice kennedy in finding that a certain district had been redrawn to discriminate against hispanic voters but he had this famous line in his opinion, it's a sordid business, this divvying us up by race. i thought, boy, that's a flag as to what's coming. he surprised us a little bit in 2009 when he took up, the court took up a voting rights case. everyone thought that section 5 of the voting rights act, which is really a key provision. just requires certain jurisdictions with a history of voting discrimination to get any changes in their voting policies precleared by either the justice department or a federal court in

washington d.c. he wrote an opinion in that case where the court did not strike down section 5 but he shot an arrow across the bow of congress saying there's a real problem here with section 5. you've used old data. the country has changed and now we're going to see what happens with the voting rights act again this term. i wouldn't be surprised if he writes that case. so i think race is one area where he has a clear idea. i don't know that it's an agenda. an agenda is something that you think somebody is looking, looking for particular cases to bring in. i think race is a concern. the first amendment, he has strong feelings about the first amendment and i believe he thinks that the court is develop agco aren't view of free speech, especially speech that we don't

particularly like but should be protected. entirely different from campaign finance of the tough put that in a different box. so i don't know that he has an agenda. i just think he has some very strong feelings about certain areas of the law. one justice told me that he thought william brennan was the most influential justice of the 20th century because he did look for cases that came up through the pipeline, got to the supreme court, and then wanted to take them because he had a definite view that he wanted to get into the case law. >> well of course because at the time he was doing this he thought he could win. >> exactly. >> no point taking cases if you can't count to five. >> that was his famous line. i think he told all his clerks it was about counting to five. >> right, right. so you mentioned that the justice told you something. talk a bit about reporting this

book out. you did talk to justice. you did talk to law clerks. you are a working journalist who still shows up in the press room every day. so there are interesting issues there. >> i'm very worried about the lunch with the chief justice that holeds every spring for reporters. you know, how is he going to look if knows anything about the book? [laughter] but, i requested interviews with justices and i was surprisessed at the -- surprised at the amount of access i did get and i hope i got that access because i've always tried really hard, and you can tell me if i don't succeed on the news hour and in my work for the national law journal and to really play the court straight down the middle and try to give everyone enough information to make their own decisions about whether you think the court did the right

thing. so i think they viewed me as fair. but they're very nervous about talking to the press and, it surprised me how many of them don't really understand the ground rules. one justice said, okay, i'll talk to you but it's all off the record. [laughing] i said, i'm an oil fashioned journalist. off the record means i can't use anything you say to me unless i can find some other party to say the same thing or confirm it. i said what about background? this justice said, oh, well, what's the difference? i said well background means i can use it but i don't say that you said it. i don't name you. and the justice said, oh, that's fine, that's fine. you would think after all the years they have been on the court and they have had interviews with the press they would understand the ground rules. some of them would only talk off the record, but were gracious enough to let me come back and

go over things that i'd like to either put on the record or on background. justice scalia was one of the brave ones who allowed me to put portions of the interview on the record and so did another justice. it's tricky and it was the first time i ever spent a lost time with them. i was fortunate to get like an hour or more when i did sit down and when i think back on that i wish there were a lot of other things i had asked that i didn't ask and i guess, i don't see it as a conflict doing the book because i tried again in the book to do what i do every day in my job and that is to present the court as fairly as i can and let you decide for yourselves whether you think the court's made the right choices that it

has. i quote in my introduction, justice souter who has retired from the bench and he spoke in sort of a public conversation in new hampshire, at the new hampshire historical society and he talked about how the court does its job and he was asked, how, how do you know if the court is doing law or is it doing politics? how does the average person tell? he said, well, you know, you really have to read the decisions and, i wonder, is that, is that too much to ask but, i think he's right. you really have to just try to get as much information as possible to see if they made the right choice because the constitution doesn't always give clear answers to every question that comes to the court. >> so that is john roberts. is he running the court?

is the leader of the court? you look at the health care case and of course he did write the controlling opinion, much of which he wrote only for himself and the four justices to his left of course joined him in the holding that penalty on the mandate is sustainable as a tax. the justices to his right not only abandoned him but dissed him pretty openly. he is chief justice in name of course. is chief justice in fact? >> i don't know. i was thinking, i'm not even sure chief justice rehnquist was chief justice in fact. when you talk to the justices, it is really interesting, they all say no one is a leader of the court. there is no leader of a bloc. another justice said to me, well, there's no leader but

there also not nine stovepipes. what they say, what you have to do is you have to go into, their conference meetings after they hear a case, and you have to listen really hard to what's being said by each justice. and then, you have to find the play in the joints, if it looks like it will be 5-4 or 4-4, and who might be the one that has to go one way or the other. they even disputed, we often called the court the stevens court for a number of years, for a number of years, because of justice john paul stevens success, getting liberal, more liberal victories in the face of a conservative majority. a number of them said, no, he wasn't the leader of the liberal bloc. he was the kind of justice who didn't believe in going down the

hall to sit with another justice and chat and try to convince or persuade. he did everything through his writing. he felt very strongly his justice should make up his or her mind. i don't know how when you have nine, truly independent, strong-minded, very experienced judges how a chief just really leads the court except perhaps in some very special circumstances as we saw earl warren did and, i don't know. i think it may be too soon to see how strong a chief justice roberts will be. >> of course he came in an unusual circumstance, right? >> very unusual. >> if people remember, that summer of 2005 when first justice o'connor shocked everybody by retiring, and then chief justice of course, died. that was all within eight weeks. and there had been no change in the court's membership for 11 years, right?

>> 11 years, right. >> so this group that was left, seven of them having been together for 11 years and john roberts this new kid on the block comes. being chief just test you immediately become first in senority, even though he was the most junior. he never actually had run anything, right? >> he had only been on the lower appellate court two years, which is not a lot of time. >> suddenly he is not only chief justice of the united states, many people mistakenly say, chief justice of the supreme court but he is the head of the judicial branch with a thousand federal judges, thousands of employees, all kinds of internal politics, budgetary matters, just all kind of stuff. so do you have a sense that, talk a little bit about the job of being chief justice. >> it is exactly what you said. there is an administrative part of his job that is very important. i mean he also appoints the judges who serve on the foreign

intelligence surveillance court, with which is a very secret court which is dealing with some very sensitive matters concerning national security. and he is the head of the judicial branch much. its, he, he's trying very hard and has been to be sure that judges are paid the way he thinks they should be. >> that's been a failure. >> that has been a failure and i don't know it is really his fault. trying to get anything through congress these days is very, very difficult. so, i remember, i think, chief justice rehnquist say, using the famous phrase, that when you're chief justice at least within the court your first among equals and i think, i also remember, probably you remember this, we used to have lunch with chief justice rehnquist and one

of the common, not complaints but comments about the court was, there are so many justices are writing separate opinions and can't you do anything about this to, you know, have the court speak with one voice. he just sat back and he kind of laughed. i think he made have even used the phrase, it is like herding cats. i think he, i haven't heard any complaints about his job as chief on the administrative side of things. i'm not so sure it is something he really enjoys but i think we have to wait and see, you know, what kind of chief justice he's going to be. >> of course people, as people know, we have the phenomenon of justice sandra day o'connor a couple weeks ago expressing to some degree a little bit of regret about bush against gore. do you sense there are any members of the majority that ruled in any of your four cases, citizens united comes to mind,

who having watched what's unfolded in the several years since citizens united cale down, have, are having any second thoughts bit? i'm asked that all the time. i will save my answer because i'm interested in your answer. >> in terms of the five justices who voted for the citizens united decision? no, i don't think they have any regrets. the ones i spoke to felt they, that this was an obvious way to go. , i just guess last term the court had a petition come up involving the state of montana. montana had a 100-year-old law that banned corporate spending in elections. the montana supreme court basically thumbed its nose at u.s. supreme court, saying, well, citizens united doesn't really apply to our situation. this law is 100 years old.

we have a history that show how corporations actually owned the montana government for many years and we don't want to go back. it was challenged, their law was challenged again by the lawyer who brought citizens united to the supreme court. when it got to the supreme court the five justices said, sorry, citizens united applies. even though two justices had written separately, gee, i think maybe it would be good to take a look at the montana law. perhaps the premise upon which citizens united was based is weak here because take a look at what's happening out in the country with money in elections but the court didn't even have a signed decision. it said we're not going to hear the montana case. citizens united applies period. >> they overturned it summarily. >> right, right. they overturned the montana

supreme court's ruling. i call this a very confident, sometimes bold conservative majority and i think that citizens united is a good example. there are no regrets on citizens united. i'm not sure about what might happen if guns comes up again but, i would be very surprised if they backtracked on the district of columbia gun decision. they won't probably backtrack on the fundamental holding that it is an individual right. >> there is a question of what that means. >> right. i think it will be very interesting to see what they say on questions that are coming about gun regulation. and what kind of scrutiny the court should give to gun regulations. so, no, i think this is, this court, not many regrets yet. >> what surprised you the most that you uncovered as you were -- you've got a few interesting tidbits here. >> you should tell me what they

are. >> what surprised you the most? some back stories? take citizens united, for instance, how, as the case was reargued as we know. >> right. >> didn't seem to be all that significant on the first round. in fact it was on nobody's list as one of the major cases of that term. so what happened there if. >> i think that was very interesting. the sort of consensus was during the first argument in citizens united the deputy solicitor general being questioned by the chief justice and justice alito, they were pressing him on how far his argument would go in terms of the regulation of corporate spending and, he made a concession that the government could ban books that were funded

by corporations. he didn't really mean that they would ban books, so much as he meant that you could regulate the money that was used to publish these books but it was one much those ah-ha moments. justice alito was, that's extraordinary. that's astounding. then shortly after that we get the, the announcement that the court's going to rehear citizens united, and, it's going to consider, it said specifically, and this was the court's open questions, whether it should overrule the 1992 decision that did ban the use of corporate and union fund in federal elections. and also a provision within the mccain feingold law that it had upheld just in 2003 on,

again, the use of those fund for ads during certain periods of campaigns. . . the movie that was highly critical of hillary clinton, and one of the questions before the court was, you know, whether the law even applied to the movie. and the chief -- we have come to understand, going to write a narrow opinion saying that it

did not, and that would have been that. miller did of -- the justice kennedy for a very long time have made it very clear that they felt that the 1992 decision banning corporate independent expenditures was wrong. and they had said that in several decisions after word, and this was sort of the defining moment for them. justice kennedy wrote a concurring opinion that was much more broad than what the chief justice was going to write and suddenly the chief justice majority swan to justice kennedy, and that chief justice had to decide, you know, what he was going to do. he had, justin and -- i think it was 2007 in another case brought

by jim who brought citizens united to the supreme court had affirmed the 1992 decision and the key provision in bed fine gold lot. >> to the great dismay of justice scalia. >> and justice kennedy. right. exactly. he also wrote a concurring opinion that was focused really solely on the concept of standing by prior decisions. and in this opinion why he should not stand by those prior decisions. but what was going on also at the same time was justice souter had been assigned to a dissent by justice stevens. and he wrote of blistering to send about the fact that the court was going to up release an opinion. this was before the second argument, andrew on issues that really were not before the court. the citizens united organization

had abandoned a big challenge to the law in the lower courts. there had been no briefing on those issues before the u.s. supreme court, and he basically said, this is not the way that we do things around here. it will be in my dissents. that is not the way we should be doing things. and that is ultimately why i was told by several former clerks and justices that there is what they call an institutional button. if, you know, the court is about to do something that might look very bad for the court in terms of its institutional reputation -- >> not to use the word activist. >> activist, okay. the justices will stop and take a second look at justice me. he pressed this very hard and pressed him hard with the chief justice. and that is really why.

now, the justices said to me, number of them said to me, they don't remember if they took a vote on the the argument in citizens united or whether it was just consensus. they should be real argued, but that is why they said they reed argued it in order to give the lawyers in the case more time and opportunity to brief the two questions that the court presented. it was sort of a little disingenuous of justice kennedy. ultimately in the citizens united decision when he opened by saying something to the effect that the case raised these issues and yet as was pointed out in the dissent, the court raised the issue, not the case, not the lawyers initially anyway. so that is really how it came about. justin steven -- justice stevens ended up writing this tent --

descent because justice souter retired from the bench. so stevenson -- >> they did not have him to kick around anymore. >> no, they didn't. >> we will keep talking for another minute. you see the to standing microphones. people do have questions you can start buying up to five lining up. >> a lot in the book about how the justices do their jobs. and they did talk about what it means to have new justices coming in, four new justices in just five years and how that affects them, and it affects in some cases their jurisprudence, as one justice said, old alliances are suddenly gone. you could depend on certain justice to vote the certain way because they agree with you, and then suddenly that is no longer true. another justice talks about how being on the court is really like being in a marriage because you live there for a long time. you have to learn, you know, what sort of things take off

another justice, wind to go to the mat and when not to with interpersonal relationships. some justices like a close personal relationship, others, you know, prefer a little more distance. so it is really interesting how the changeover has affected that. >> i remember justice stevens lovely memoir by the chiefs, he said that he thinks the most important thing that happens during the rehnquist court was the retirement of thurgood marshall and his replacement by thomas. i think one can say, you could argue that the most important thing that happened during the roberts court was the retirement of sandra day o'connor in january of 2006 and her replacement by justice alito. >> absolutely. you really cannot underestimate that. they were both conservative, but very different kinds of conservatives. justice alito is much more conservative than justice

o'connor was. he has tipped the balance in certain areas of the law. he tipped the balance an abortion. his very first term. he also tipped the balance in campaign finance, and -- >> and on race. >> race. yes. absolutely. >> hanging by a thread. >> i was just going to say, this term will be very interesting to see. one of justice o'connor's key decisions on affirmative action is very much in play in the cases that -- out of the university of texas that the court will decide probably before june. so he has been a very important change. and the center of the court, what we call the swing vote. and once she left and justice alito came on, justice kennedy really moved into that swing vote category. and he does not swing to the left as often as justice o'connor was willing to do.

so that is all, sort of, solidified the conservative majority on the court. >> i think it is probably time to start with questions. i will alternate, but i will start over here. >> supreme court justices put a lot of energy in a dissenting opinions. >> absolutely. i think justice ginsberg had said that dissenting justices read for the future. and, perhaps, the best example of that was chief justice rehnquist. he was known as the lone ranger in his early years on the court because the wrote descends and often just for himself. but once the court began to shift to the right to he started to see some of what he believed in become majority opinions.

so, yes, i will tell you a funny story. years ago i was having a christmas lunch in d.c. and justice scalia was having lunch at a nearby table. we thought, oh, you know, why don't we just send over, you know, -- it was an italian restaurant obviously. why don't we just send over and after dinner drink to him as the spirit of christmas. well, he did not accept it. he came over to explain, and he said he would have accepted it if he was writing a majority opinion, but he had to go back and write a dissent, and he needed a clear mind for that. [laughter] >> what do you think is going to happen when about one dozen people accounted for about 80 percent of the super pac

money? forty you think we will go if we continue on this route which is the clear that the conservative majority will continue on this route. you are going to have just a very handful of people controlling the vast majority of money that is spent on political elections thin -- >> well, i think it is -- that that is where things are headed obviously. but i think the supreme court would probably say to you go to your congressman there are attempts being made and that successfully to change the federal election laws and ordered someone at least provide more public disclosure of who is behind the funding of campaigns, but they have not even been able to get that through congress. >> it's not 100 percent clear

that disclosure laws would be of help. >> exactly. although the court did, and citizens united, they're were eight justices to did endorse the disclosure, current disclosure requirements. only justice thomas dissented in that decision. so i know it does not look very helpful, but i think that congress is the way, is the average to address it. and unless the court changes, i don't see them backtracking on what they have done so far. they're definitely on the deregulation trend. >> at the court can change really in terms of obama and anyone else could not even get nominations for regular courts. >> presidential elections due matter. >> my question deals with the

health care issue. you think he was motivated by their fear that the court began to look like a political entity rather than a jurisprudence entity. >> this is probably one of the most common questions we get. do i think so, i take him at his word. sincerely trying to grapple with the issues. i think it was first a crime to vote with the four conservatives . when they came back and said that means that entire logos, not just a mandate and not just the provisions of the law better economically tied, so will take down the entire statute. i think he my supposition, i

know him covering the court. my supposition is that was just too much for him. he is more of a minimalist then the folks to his right and more of an institution last. i feel he must have said to himself, there has got to be another way out of this mess. and the tax question has been presented, had been argued, both by the solicitor general and others who have fought in the case. that was there for him to rely on. so i don't think that it was, you know, a cynical or strategic move. in fact, it was a rather desperate move to extract something from what would have been something much too far for him. >> i agree with that wholeheartedly. i think the media really did

focus on the commerce clause issue in the case to the eighth collision of the tax issue almost, and it was always in the case. in the case got to the expert -- supreme court the solicitor general really beefed up that argument. there is this doctrine, if the court can't find a way to interpret the law in a constitutional fashion verses and -- versus striking it down, that it should take the path that upholds it. and that think he found that tax power was the right path. >> for people that are interested in the health care, will plug the book that just came out not published by oxford university press, the health care case. it consists of about 20 essays in different aspects of it. i woke -- i wrote one of them on what the chief justice was

doing. it is a nice little book. >> it is really a fascinating case. so much going on outside of the court at the time. we talk about special interest. so many organizations, so many law professors and others who wanted the court to go one way or the other were riding constantly. there are speeches on the floor of congress about it. i cannot remember a time when there was such a strong effort to get justices recuse from a case as we saw with the efforts -- efforts against justices "the roberts court: the struggle for the constitution" and thomas. it is really a fascinating case. and my chapter in the book. >> sure. >> i. jack mackenzie. hello, again. >> yes. you are jack mackenzie. >> it is nice of you to come all this way.

i would like both of you to comment about what justice o'connor has said. also one thing about it. her participation was not a slip of mind. she ridiculed the voters who could others in the ballot. really heavily gays in the case. what is your view -- what do you think about whether she has made this comment. >> well, i think -- well, first of all, it is not unusual for some justices to have regrets or second thoughts about decisions that they have made. i think with justice o'connor

she has seen a good part of her legacy endangered by the fallout of bush versus board and the more conservative justices that have succeeded her on the bench. i don't know that i can say anything more. she did not really elaborate a lot. so i will just leave it at that. >> if you parse out what she says, what she said was, maybe we should not have taken the case. which kind of begs the question of having taken the case, what do you do with the case? >> it was not a useful recantation. it was knocked the hell you know, after justice lewis powell cast the deciding votes in 1987 which rejected the gay-rights

claim in that case. after he left the bench he said he voted the wrong way. >> it is hard. i do not want to attribute her a kind of a global regret that she seems to feel. >> sir. >> my name is tom wallace. this is a question out of sheer ignorance. i left law school about 50 years ago, and i guess i can reveal the law school by saying that another first-year students got here was justice scalia. i am curious about the rationale and the history. you're talking about the roberts court, yet roberts is the newest justice, already became the supreme court chief justice. but the history and rationale of letting the newest justice be the chief justice when in an academic and the university, the

head of the history of the english department is someone who has seniority. in congress, senate, or the house, the head of committees have seniority. that is how they get to the head. the implication being may have been there longer, therefore they know more and are wiser. so when you talk about their record and yet he was -- he became a supreme court justice this session, what does that say about is it the roberts scored? and what is the history and rationale? i am sure he is not the first chief justice to arrive in court as for stay on the job chief justice. it is something that just has always perplexed me somewhat. >> well, and fact, there have been have you sitting associate justices who have been promoted. rehnquist was one of them. typically they have been drummed out of the have and all of a sudden they are chief justice. it is interesting.

that was a pattern that george washington the established by naming john j. as chief -- first chief justice of the united states. the constitution, article three of the constitution does not say that. it just says, there shall be one supreme court, and actually, the article three, the judicial article does not even mention the chief justice. does not describe any function to the chief justice. we only learn that there is supposed to be chief justice because elsewhere in the constitution it says that the chief justice of provide -- preside over the senate trial over presidential impeachment. it could have been otherwise george washington, they're were six justices. you could have named six and rotated the chief justiceship or whenever. but we, you know, being what it is, we kind of from the very beginning got locked into that. you could do the thought

experiment on the federal jury because the federal court of appeals, the chief judge is, in fact, the senior among those who have not yet reached the age of 65. that person become chief justice after seven years, i guess it is . >> would that suggest that the office or the role is not as important? why could we not develop a system where the chief justices, in fact, the senior justice? >> there would be nothing unconstitutional about that if you are an original list. well, if you were an original list it goes by the intent of the framers, obviously, those who framed the constitution seem to assume that somebody would be nominated and confirmed to a position of chief justice and would hold that position to life that is the original understanding, but it is not --

it is a very interesting question. >> i really could not add to that. whether it means that it really is the roberts court or the rehnquist court, i think it is just tradition that we call it that. i will say that during one of the interviews i had there was the justices said he did not understand why supreme court's were called after the chief justice. he said, why should renquist be blamed for what that gore did? and it suggested, instead, that the court been named after the president and named to the last justice to the supreme court which would make this court the obama court which i think would come as a big surprise to president obama. >> okay. we have time for one last question. >> could you please share your thoughts on the testimony that

roberts gave during his confirmation proceedings and specifically whether you feel that he was perfectly candid? >> it did not quite here. white candid during his confirmation hearing. >> so, i think, yes, i think he knew what he wanted to be when he got on the supreme court. he believed he is a minimalist judge. the empire has kind of fallen apart. justice "the roberts court: the struggle for the constitution" reacted to that very well. there is room for discretion. and you're not always calling balls and strikes, but i think he was very candid. he will point to a decision where he has been a minimalist judge. he is not all the time that, but he would defend the decisions worry has not been minimalist as

believing that that is what the law required. he is not going to be a minimalist judge if the constitution tells them to do something otherwise. but i think that he was candid, as candid as they can be. they're not going to tell you what is in their heart and mind about abortion or other hot-button issues that may come before the court. but in terms of how he sees himself i think he was candid. >> well, it is interesting. i think he meant what he said in this situation in which he said it. so if you look at the first roberts' term, 2005, 2006, a lot of people came away from that saying, oh, you know, mr. moderation. i think -- i think a number of people misinterpreted that term. of course justice o'connor was sitting for the first half of

it. there was a constraint there, but to the extend that he did vote in a minimalist way, he was getting rather savagely attacked from the right by justice scalia who excoriated him for folk traditional minimalism, flowed judicial modesty was the phrase that he used. and so within a rather short time he saw a difference john roberts emerging, and we saw a different dynamic on the court. i think in response to what was going on, you know, behind the curtain. >> but also in the areas that he had very said use. the second term, 2006 tested as a seventh term as when they took up the seattle school district cases. >> different terms.

>> very different, very divisive and many -- for rulings, and there were issues that think he had rather firm views on. so, you know, not always consistent. and they approached the law in different ways and have different views. >> well, thank you so much for being with us tonight. [applause] >> is there and nonfiction of your book you would like to see featured on book tv? send us an e-mail. tweet us. twitter.com/booktv. what are you reading this summer? book tv wants to know. >> two books. the first by pulitzer

prize-winning author and investigative journalist entitled who stole america. and it is a real eye opener. anyone that wants to, i think, really understand america, how we got to where we are today, why the average american is struggling the way we are, i think that this is one of the most awful and, as i said, my opening reads, at least for me and a long time. and someone that i have listened to, read before, and is my review, i would highly recommend the book. and as a policymaker obviously will we can learn from the policies of the last 30 to four years that may have contributed to this.

we go from here. so it would be relevant to many others as well. >> the second but that i have read is a rather small one in terms of pages. inquisitive and instructive. it's called ever anshan, ever news it's written by one of the great american bishops, intellectuals he founded the structures and how best to reform them. and as someone that oversees the third largest bureaucracy and many structures and very often asks why is it the way that is, how can we do this better. i think that all institutions can and should go through

reform. this is a very, very thoughtful book. it is in addition to many of the book city is written and published. he is someone that i admire a great deal. american in the archdiocese of san francisco. >> let us know what you're reading this summer. tweet us @booktv, posted on our facebook page, or send us an e-mail. >> next, a psychotherapist gary greenberg presents a history of the diagnostic and statistical manual of mental disorders board the dsm presented by the american psychiatric association and used to assign definitions to mental illnesses. the author reports that the book first published in 1952 has been controversy and the release of each of its editions. this is about 50 minutes.

[applause] >> so, i want to thank, well, gideon for coming out tonight. blue rider press which has taken a huge risk by being so supportive of an author that it has made me question myself loving, which is, you know, it remains to be seen if it will survive. [inaudible] >> estimate to continue to be able to write. >> thank you for being here. gary just flew in from portland. >> and boy are my arms tired. >> after having been on tour for the last two weeks. so he has done a lot of these things. so, i guess we are going to talk for 20 or 25