book was talk about the last two gubernatorial elections, the last election where the byrd candidate won, and he was running against the republican, holden, who was the republican running for governor successfully in 1965. that was a crazy election because the john birch society also had a candidate running in this race so this was sort of anti-communist small government, a little on the wacky crazy side. they had their own candidate, the conservative party they created, william story was a bit more aggressive on wanting to maintain massive resistance and of course there was the nazi leader george lincoln rockwell also ran for governor that year, 1965 is a really

fascinating year, george lincoln rockwell, fascinating guy, don't talk about him much in this book but if you want to know more about george lincoln rockwell you can pick up northern virginia, had a whole chapter about george lincoln rockwell who led the american nazi party arlington so arlington is home of the american nazi party. on the campaign trail, he would say the most radical things he could possibly think of knowing it would get headlines and would get printed. he was in it for the publicity so the dynamics here of that election were so fascinating because god when put together this crazy coalition you don't really think of as being the bird machine. this is why it was falling apart. a good example of this, one of the things god when did in that 60-65 campaign for governor is the year before, he got on the

lady bird special, sold and then johnson's wife, the first lady, had this railroad train, the lady bird special, so godwin was a democrat but he was a conservative democrat, a bird democrat, they did not like the new deal or the great society. for godwin to embrace the johnson campaign in that way by getting on the lady bird special, actually changed the dynamics a little bit because godwin would have been viewed as an anti-great society person but here he's campaigning with johnson so he must share some values johnson, president johnson has so he picked up some voters that -- johnson supporters that might have been wary of god when but were willing to vote for him because he campaigned on the lady bird special. godwin also when he announced his campaign, his leading argument why people should elect him governor's he wanted to make investments in public education, that doesn't sound a

bird machine. here we are at the end of the bird machine abandoning these things they help for so long. campaigning with president johnson, advocating for more funding for public education. meanwhile the john birch society went to investigate subversive influences in government and that sort of thing. the nazi leader george lincoln rockwell wanted the school curriculum so there's always fights over the school curriculum, continuing to have fights over the school curriculum, george nicaragua want to the school curriculum to say whites were superior, white supremacy, wanted that added to the curriculum. so the thing about god when it is, the fascinating is he got machine people you otherwise about, the johnson that were new to the coalition and also, start booth campaigning for him in northern virginia and bill huck campaigning for himself

sides of this is a really interesting coalition, start booth, built-up, president johnson, lady bird and even senator bird kind of held on and did not make an announcement until very late into that campaign, october, the october surprise was harry byrd endorsing god when. this is the most fascinating part of the coalition, labor leaders. i went to the history of bill huck and the right to work, labor leaders supported godwin in the 65 campaign based on the relationship he had formed with president johnson. they figured johnson likes them we will vote for. here are just coalition godwin could have put together, and that election and four years later it all fell apart, holden got elected in his book

opportunity time holden wrote in the 1955 campaign there was no chance for a republican to win a virginia gubernatorial race in 1965 so his goal was name recognition to get his issues out there, get people talking about him, to build up some bows. he figured if he got anywhere between 34% of the vote and 40% of the vote that would be worth it. he got 38% of the vote in the 65 election and came back and ended up winning that election in 1969 so holden here, slayer of the byrd machine. so now we have to confront the legacy of the bird machine. this is a photograph taken by my friend craig who is in the audience and this portrait of harry bird is no longer in the building so this is the gubernatorial portrait of harry bird from 1920s or as a young man.

this portrait used to be outside the entrance of the senate chamber, you see the senate chamber there. it had been removed and it is now replaced by pocahontas so governor bird has from the capitol building. there's another portrait of harry byrd as an old man on the third floor wearing a white suit so he's not been totally evicted from the building, the presence of harry byrd is still around. we have to confront his legacy today. what do we associate him with? there's massive resistance, can't get around that. the first thing people tell you, they know about the white supremacy around the massive resistance, a stain clearly. smaller government, this thing about the elections, the short ballot, one of the most significant changes the remains with us to date. if you go to other states, they will elect a secretary. we don't know what that person

in virginia, because of hair byrd, there will be the secretary of agriculture, oppose vision voters choose go we don't do that in virginia because of harry byrd. there are a lot of things, clerks of court have 8 year terms because they ran the local political machine. a lot of these features of the byrd machine, things he did to maintain power are still with us and remain a legacy even if the byrd machine are not quite around. so some other titles for sale if you're interested in george lincoln rockwell you can pick up a book in northern virginia and i would love to take some questions. i spent a lot of time, hopefully to take as many questions as you want to ask. there will be people roaming around with microphones in order to get audio for the cameras. anyone have a question they want to ask? if not, i will call on specific people, in the back.

you might want to wait for the microphone. >> the second time being 75, 76, did anything happen during that time? or is it associated with the byrd machine during his second run through? >> i missed the beginning of your question. say that again? >> godwin got elected in 75 or 76. did he disassociate himself from the byrd machine or people's for him as a byrd machine do? >> people saw him as a byrd machine dude but he was a republican. the second time he ran, he did not run as a democrat. you have a former democrat governor making a comeback running as a republican. that got awkward. can you imagine showing up to party events, the republican chairman, just a few years before you were trying to defeat them.

that was a significant change. the southern strategy where republicans were going after the old conservative blueblood voters in the south and making them into republicans. this is very successful and one of the chief examples of that is godwin, the second campaign for governor ran is a different party, republican party. this is another reason i put that as the deathknell of the byrd machine, the election of holton because then when godwin makes his comeback as a republican the machine is dead by that point. other questions? good. i'm glad we have so many questions. >> can you say more about the other end of the byrd machine, the when you don't agree with, what is it exactly?

>> not that i don't agree with that but i mention that the top of the speech, 20 years ago when i moved to virginia people talking about the byrd machine. i said i've got to learn more about this byrd machine. some people argue it is still with us. niels godwin did make a come back. was here byrd machine character the second time around? the -- harry byrd junior was a senator for many years after the death of harry byrd. that is an incredible argument. you could also view it as a very slow, steady decline after the death of harry byrd in 1966. an argument could be made the machine lasted longer than the election of holden. i like that as a end point

talking about the machine. question over here. microphone. >> i want to go back to your initial comment, the harry byrd was responsible for underfunding yet. i am trying massive reasons but he was active in politics for many years before that point. what was the concern about public education? >> long history of not refunding it. underfunding it. the conditions, a reflection of that generational approach the public education where it was not funded was interesting when you think of the adjusters fighting more money for public education in the 1880s. something like that is a divide goes back a very long time like

progressives with their head in the crowd who want to see a better society and invest in public education, conservative people, can we afford that? the thing about byrd he didn't want debt financing want any death. they would need to pay for it so as a result of public education system massively underfunded time. that led to problems. some people would say that problem is still with us in terms of underfunding education. you can't look at the byrd machine as having legacies that remain with us today or underfunded public schools would be chief among them. >> you say -- when you say the byrd machine ran elections out of the courthouse, what does that mean practically? you talking about ballot

stepping or supplying money for grassroots? >> not talking ballot stuffing but there was any of ballot stuffing in virginia history and that predated, the jim crow constitution, that is a reaction the ballot stuffing and reaction to the crazy elections. we have to tighten the about what it means to have an election so we don't have ballot stuffing so the created the new rules around the jim crow constitution so doing the elections totally legal, nothing illegal about what they were doing but the courthouse the functionaries happen. the chief judge had patronage power, gets to appoint members of both board and the control board and the chief judge of the circuit court, how -- a really important way in terms of patronage the machine, plus

the clerk of the court. the public center. candidates to run for office, supported the candidates, kept them in power so the machine exists to keep itself in power using the levers they got which are patronage, and money. and when you say the bird machine ran of your local county courthouse, you are talking judges and the clerk of court acting in ways to perpetuate the political power of the machine. thanks for the question. able to visit larry lamarr yates museum? >> i was not like i should. >> reporter: it is no longer. i just wondered, if it's only a short time, he has now passed away, just curious.

>> any other questions over here? other questions? you are holding the microphone. >> given his opposition to unions, how popular was he in southwest virginia? second question, how much did this play in his political charisma? >> the brother he is mentioning, but famous admiral who was in many ways more famous than harry byrd. if you look at the newspapers of the time period, they were always given all these copies to the admiral but is circumnavigation of treacherous areas wherever he went. you really was in his brother's shadow a lot of his life dealing with his brothers, tom, dick, and harry, i think that's where we get the expression tom, dick, and here, the brothers.

to questions, i forget what the other one was. union. governor talk had this plan will undermine the power of the unions with this really sting strategy of conscripting all the members of militia and reading them with a court-martial. really radical and creative solution to this problem, it worked and he followed it up for next year with the right to work law which with today, which forever undermined the power of unions in virginia. he was not popular with unions which is why a 20 that godwin had union supported 1965. this was part of the strangeness that led to the demise of the byrd machine. union leaders are suddenly endorsing the byrd machine governor? this is the opposite of what people expected.

someone have a microphone? >> thank you so much for the research you have done and for this talk. you talked a little bit about football you had as a newspaperman earlier in his life. do you think he captured an ability to control narrative from that experience q2 to what extent did the news media play a role in the byrd machine? >> reporter: controlling the narrative. we live in a different media environment they lived in. it is really interesting if you think about the state senate. this time period, that we are talking about in the book, many of those guys, state senators were newspaper executives and you don't that anymore. did that give byrd for carter glass for any of those people a more insightful view at shaping the narrative? i doubt it. in some ways it was a business

like any other. if you think about harry byrd's approach to pay-as-you-go, it is any business, doesn't have to be newspaper business. it certainly did give the ability of harry byrd to shape the narrative in winchester, that is true. if you go to winchester and read harry byrd's newspaper, that was really important. it is curious to me that you don't really see this anymore, you don't have a lot of journalists, there was a former journalist in the house of delegates, i think there are two former journalists in the house -- don't really see that anymore. it is curious. the more journalists would run for office, not this journalist. some other questions. raise your hand for the

question. and you microphone here. >> reporter: interesting to hear about the short ballot. my question, never heard that explanation the 4. americans love to both. how did he convince people who were able to vote, to you that power and create short power? >> easier for voters. voters were presented with a ballot that would have confusing and require a lot of research. you want to vote for is agriculture secretary? a ballot where you elect every member of the candidate takes voters to a lot of research,

actual we from the perspective of the voter, your three statewide candidates and whatever else is on the ballot. that the sales pitch to voters. this would be easier for you has a voter. that a pitch works because this is with other states elect a lot of people we don't elect. our governor, this is another important way the machine worked. and the change they made with that. harry byrd and his governors had patronage other governors killed 4. yes you , i. >> may be an ignorant question, the have anything to do with virginia's off cycle election

and one term? so. if you think of the short ballot, easier for voters is the candidates who want to run for secretary of agriculture, that is true, less research for voters but got to vote every year and that is the system that predates the changing of the short ballot. something to think about when you think about voting, virginians, our elections deal with. candidates as a result of the short ballot stood to did when he was governor. i think i will hand you microphone to the folks at the museum and thank you for coming out. [applause]

>> if you are enjoying american history tv sign up our newsletter using the qr code on screen to receive the schedule of upcoming programs like lectures in history, the presidency and more, sign up for the american history tv newsletter and watch american history tv every saturday or anytime online, c-span.org/history. >> live sunday on "in depth". at author and author and essayist mary eberstadt talks to take your calls on religious freedom and the sexual revolution in america. mrs. eberstadt, an expert on christian altar, the author of many books, it is dangerous to believe, how the west lost god and adam and eve after the pill revisited. an update to her 2012 book about the social change brought

about by the sexual revolution of the 1960s. join in the conversation with phone calls, facebook comments and text lapse. "in depth" with mary eberstadt live on booktv on c-span2. >> i have the privilege of serving as president and ceo at the virginia museum of history and culture and i'm honored to be the first welcome you tonight's program. thank you so much for joining us. this evening, we are so pleased to be hope presenting this timely discussion with our friends at the john marshall center for constitutional history and civics. i'm pleased to serve on that board but that's not the most important reason why collaboration between these organizations is such a natural. we have shared values and a shared history. chief justice john marshall as many of you know was the very first president of this historical society.

6 and the history are fundamentally linked and essential for an engaged citizenry. i was thrilled to present this program. have to take a sidebar. the other day i was looking at the civics study presented annually by the atom byrd policy center at the university of pennsylvania. thinking of it in the context of having robust conversations being engaged in our government, we do this every year on institution day and it wasn't pretty. to say the least. less than half, 47% of us adults can name all three branches of government. only one in four respondents could name a single branch. asked to name the rights protected by the first amendment, people were at a loss.

less than one in four, 24% could name freedom of. in. this is a time for educational organizations like the john marshall center to keep doing everything we can everything we can to inform and engage unions, americans and everyone who listens were fortunate enough to be in this country. we will keep this great work and do that together and thrilled to put on such a program that hits on the topics tonight. thanks to all members of history and culture and but members of the john marshall center for empowering us to do this collective would work. it is my pleasure to make introductions, to invite my fellow trustee and the john marshall center, paul harris, to introduce our speakers, thank you so much. [applause]

>> good evening. good evening. happy to introduce our distinguished moderator and distinguished panelists, two of whom are former colleagues of the department of justice, delighted to have all of them with us this evening. i will begin by introducing a distinguished moderator, professor allison larson's professor of law and director of the william and mary institute of the bill of rights law. since joining the william and mary law faculty in 2010, professor larson received many awards, teachers and scholarship including statewide outstanding faculty award in the rising star category. this is virginia's highest faculty honor. she's a scholar of constitutional law and legal

institutions with a focus on how information dynamics affect coast. her work on fact-finding at the supreme court has been featured multiple times in the new york times, washington post and wall street journal and also the subject of her testimony before the senate judiciary committee in april of 2021. professor larson has published in the nation's top law reviews and was cited by four of these. to discuss the scholarship, also has that. her scholarship wants supreme court and echoes brief. the subject she testified before the presidential commission. she earned her bachelor of arts degree from william and mary in our degree from the university of virginia which graduated first on her class.

professor lawson clerk for jay harvey wilkinson with the first circuit, and david souter of the united states supreme court. >> i will introduce the panelists in the order in which they serve as solicitor general. paul. both 43rd solicitor general of the united states russell clement is a partner at the clement and murphy law firm, distinguished lecturer at the georgetown university law center. mister clement served as solicitor general from june 2005 until june 2008. before his confirmation as solicitor general, mr. clement served as acting

solicitor general for nearly a year and principal deputy solicitor general for three years. he has argued 100 cases beyond the supreme court. mr. clement's practice area focused on appellate matters, constitutional and strategic counseling representing a broad array of clients in the supreme court and federal and state courts. he argued supreme court cases and significant issues and energy regulation, statutory interpretation, state sovereign immunity and article 3 standing and argued a trademark appeal in the fourth circuit and constitutional appeal on the eleventh circuit. mister clement mr. clement earned a bachelor of science degree from georgetown university of foreign service. and the doctor from harvard law

school. when he was supreme court enter of the harvard law review. following law school he clerked for a judge lawrence h silverman, for the dc circuit, in the united states supreme court. he served as chief counsel of the u.s. senate subcommittee on the constitution, federalism and property rights. please help me welcome mr. clement. [applause] >> reporter: donald marelli junior was the 46th solicitor general of the united states. he is a partner, and with the washington dc office, mr. marelli is a lecturer in law at columbia law school where he

teaches classes on the first amendment and the supreme court. previously he taught first amendment law for many years at the georgetown university law center. he's one of the nation's premier supreme court and appellate advocates who served as solicitor general of the united states from june 2011 to june 2016. before serving as solicitor general, he served as deputy white house counsel and previously as associate attorney general of the united states department of justice. in those positions he counseled president, cabinet secretaries and other senior government officials on a wide range of legal issues involving national security, economic regulation, domestic policy and the scope of executive and administrative authority. here and his bachelor of arts degree from the yale university

and agree with honors from colombia law school where he was editor-in-chief of the colombia law worldview. please let me welcome mr. marelli. [applause] >> and last but not least, noel j francisco was the 47th solicitor general of the united states, mr. francisco is partner in charge of the washington office of the jones day law firm. mister francisco served as solicitor general from 2017-2020. he represents clients in a broad array of civil and criminal negation, challenges to federal and state laws and regulations, and government investigations and enforcement actions. the matters he handles often have significant public policy implications including areas of

global climate change, opioids, as best as, tobacco, firearms, healthcare, administrative law, free-speech, just liberty, and separation of powers. here his bachelor of arts degree in economics with the university of chicago, and also from the university of chicago. after law school he served as law clerk to justice antonin scalia of the united states supreme court, and before that served as law clerk to judge j michael monday on us court of appeals. later, he served as deputy assistant attorney general in the office of legal counsel at the us department of justice and prior to that as associate counsel to the president of the united states. please help cisco. over to you.

thank you so much. you are in for a treat tonight. have you ever when they do a hollywood promo and they say all our have to? past? this is an all-star cast of lawyers. and three that are general in the united states. thought it would give you context for why that is such a big deal and what it means. . of others that are solicitor general conduct litigation on behalf of the united of the supreme court and they are very busy because approximately we 2 thirds of the cases the supreme court years on the merits in. the united states. the solicitor general has been called the 10th justice. the reason for that is because

that office has developed over time a reputation of fairness and reliability. we always pick up the gray leaf first. and so i think it is important, we are going to talk about the history of that office and here are some more stories along the way, i hope. start off with some basics. what's it like to prepare a supreme court oral argument today? we can drop that into earlier years. i am guessing it is hard. what' s the hardest part about it? is hard around the hardest part at least for me, there are cases as solicitor general you have to argue where you know you are going to lose.

you've got to represent the united states but you know it will get your head beaten and but you can't go to the lectern thinking that way. getting your self and positions so you stand up to argue a case you believe this loser of a case, you are right about. that for me was probably the most challenging part of it. that is a big part. the first thing i would say is often people refer to the solicitor general is the 10th justice. i never heard a supreme court justice. >> what don said is exactly right. one of the arts of being the solicitor general is sometimes you know you've got a losing case and your position is not locked in because you are representing the government but

there are good ways to lose and bad ways to lose. i am only half joking. sometimes you dodge the court to raa will that will do the least amount of damage to the government's institutional interests. the very first case i argued in the supreme court was against that, big separation of powers case where it was pretty clear that the court was leaning in favor of my client on the bottom line position. and a lot of recess appointment. my client would have won. it wouldn't have such a broad impact, on the functioning going forward. the solicitor general standing

up and doing a powerful job pushing the court towards ruling against him in a way, the best way to lead in that case. >> pay no attention to that. >> i am okay with that. got precisely 0 votes. >> on the 10th justice, and what that is the 36th law clerk. the relationship and power dynamic more accurately but a close relationship, partially, the branch of government

represented by the solicitor general, more practically born of the fact that you are a repeat player. you alluded to two thirds of the court cases but you also have this institutional interest and you are back up there, on the same issue during my time in office. i probably heard four or five cases involving issues arising from the war on terror but also argued for 5 cases involving challenges the campaign finance laws. in that context, back up there on similar issues in a couple of months. a different relationship with the court than you do if you were just there for a private company as their lawyer. preparing an argument for any client is difficult. next month i will argue a case

about patent law, that's really difficult. it is out of the daunting task to get the argument to the supreme court. it' s a more daunting task for the lawyers in the s&p's office because being charged with this knowledge of the broader institutional interests and priorities of the executive branch, losing the case the right way, doesn't translate to the process very well. telling a client in private practice, not hard for the equal. but in the government that is really a thing. you are going to be up there. taking an example, if you lose the first case the challenge to

the campaign-finance laws, or subsequent ones, much better result for the government than losing the first in a way that makes it hopeless going forward. that is an import part of the dynamic and makes arguing cases more challenging. >> when you watch an oral argument, lawyers in front of us, from these cases, oral argument in front of the court changed. on a historical tour. >> the reason i was so happy to come today, talk about john marshall, supreme court advocate or history buff, as quickly as possible, reflecting on this, the dynamic of oral arguments is so much different

today than it was when john marshall was the chief justice. back in those days the oral arguments would and days, multiple advocates for one party in the case, they could spend days arguing in front of the court. based on what i have read, as a result of that, exchanges with the justices are not what you are used to things are much more compressed but on the other hand, i am more interactive with the justices. it could be a conversation, argument, with the justices and the timing, by the day, with the supreme court, the first decade or so i practiced there. everything is the same and nothing changed.

60 minutes for written argument, days in the marshall era. 30 minutes aside, appearing on behalf of the united states he would have 10 minutes of argument time and that is its. on an issue of huge national importance. 10 minutes to make your case. john roberts when he was an advocate in the s&p's office likened the difference with tween 30 minute argument and 10 minute argument and the difference between being dropped 30,000 feet to 10,000 feet. there is no margin for error or digression. it's an intense experience. changing a little bit, talking about that, the other thing i would say, it changed a bit in the past 40 or 50 years.

if you go on lawyers.org and listen to a big oral argument, controversial case from the 70s, roe versus wade or any case in your you will be astonished by how much airtime the lawyers have and how relatively few interjections from the justices there are. that changed in 1986. >> the great year of 1986 is with -- justice antonin scalia came to the court and it changed the dynamics. you had oral argument driven by moyers and not the justices you get an occasional question but moyers had an opportunity to make presentations. paul is right that things are changing. they are changing within a limited manner that is very

different than it was in the times of chief justice marshall. we are going from what used to be a tight, 60 minute argument to come in big cases where there are lots of parties, 3 or 4 hours, to an ordinary case, probably an hour and 1/2. days of arguments, justices rarely ask any questions at all. if you want to see a modern analog you can look at some of the european courts and international courts. to be part of a doj in the international court of justice. we are there for 8 hours a day, different lawyers stood up and made speeches 8 hours a day. not ethical question from any member of the port and if there were going to be a question, and there wasn't, it was understood the question would be submitted in writing the day

before so the following day we can show up with a prepared response to questions submitted in writing. i suspect that is a lot closer to what the supreme court was like when chief justice marshall was presiding over the court compared to what it is and when you compare it to that, the changes we are talking about today are fairly modest in going from an hour to an hour and 1/2 but the big >> between the marshall era and today's era really was when scalia made it the standard. >> i clerked 8485 before justice scalia arrived. it was not uncommon to go to the last -- 2 or 3 questions, no questions. quite remarkable. the justices -- sometimes i

think -- that is inconceivable with so much going on. it is quite different. >> it is loosening up a little bit. with a 60 minute time frame timeframe, these justices are brilliant people who thought about the cases and got questions in. they have to hit a button to act the fight the microphone and ask questions so you see them huddling over it. and it is quite disjointed. somebody else jumps over here, not a strict time limit and the arguments are running somewhat longer. each justice knows you get questions at some point.

and overall i like it. >> we are not they are given, marshall legacy >> reporter: his legacy lives on. in judicial review. going all the way back to marbury. the anecdote that i like predates john marshall going on the supreme court showing what an iconic figure he was and the legacy he has. in the house of representatives, he gave a speech on the house floor on march 7, 1800, which i think is

the most legally significant speech ever given on the house floor. it was in response to what president adams returned to the british, he was hung by the british. there was a motion on the floor of the house to center john adams for doing this and marshall got onto the floor where he defended the president and in the course of defending the president's prerogatives, he talked about the president being the sword of the united states in foreign policy. john robbins, that affair, probably not on the top of everybody's list of things they are thinking about tonight.

at one level, that affair has gone into the reset. the language marshall used in defending the president's prerogative was picked up. that case continues to pop up, sometimes attributed to the court's decision sometimes attributed to marshall. there is an important separation of powers issue, involves the prerogatives in foreign affairs. when he was solicitor general, the president's authority to recognize foreign government manifesting the dispute over passports. the court risk with this issue,

sole organ reference and essentially in favor of the government but cautioned people against over reading that phrase. that phrase wouldn't be what we are talking about if john marshall weren't john marshall. if john marshall all due respect to the people of richmond had just been a representative of richmond, the great chief justice, not gone off to be an iconic figure in the law, that speech falls into the dustbin of history but because it is marshall. i will stop talking and let my colleagues get a word in edge wise. just and anecdote that i love, if you are briefing a case in the supreme court, if you can trace it to john marshall, out of your way to do it, every one of the justices has the greatest reference for john

marshall and the chief justice, even if you have to find the house of representatives, take it back to marshall, you're halfway home. conversely if your opening line is chief justice marshall was wrong -- >> not going to lose the right way. >> marshall's legacy is the entire structure of what we do. the high watermark was the ratification of the constitution. john marshall, one of the leaders of the ratification of the constitution. after that, you saw the republican party of the time move into ascendance with thomas jefferson and marshall's job as chief justice was to defend the high watermark, the announcement of the constitution. one of the great things you saw

was republican presidents put more members onto the supreme court where marshall saw his federalist majority disappear. he was able to convince those justices from a different political party, a different view of the role of states versus the federal government to adhere to his viewpoint on what the constitution meant and the federal system created. not to keep harping back to our old boss, justice scalia, but i had an opportunity to go to the marine corps at quantico. it was a speech i had heard him give before, talked about how if you ask a lot of people what the importance are -- important part of the constitution they go straight to the bill of rights. justice scalia's response, every banana republic has a bill of rights. most of them are better than ours, more detailed, many more provisions. but that's not what makes our

constitution so important and so durable. it is the structural parts of the constitution. that the part of the constitution that was essentially the triumph. it was the republicans that were trying to impose amendment on the constitution right away because they wanted to prove the original constitution was so fatally flawed that it had to be amended at the outset. it was the federalists and john marshall who led the fight against those original amendments. the original amendments as part of the original constitution, the structural protections, separation of powers between the three branches and the federalist system, separation between the federal government and the states, that ultimately folks like marshall believed would be the ball work of freedom. so many cases are what are

those separations, horizontally between the branches, vertically between the federal government. >> one other thing we take for granted was john marshall's achievement. the idea that when the supreme court rules on a matter of what the constitution means answers to a state what you've done violates the constitution that would be the last word. that would decide the matter for the country. that was a hotly debated political and jurisprudential issue through decades and decades. and also, don't know if it was the force of his personality or intellect, when a big case

comes out, the justice wrote the majority opinion, three or four decents. the tradition of england at the time to get the court to speak with one voice and almost every decision. where individual justices have the right outcome and opinion spoke for the court and almost always spoke unanimously. that was vitally important in a contest to establish the court was going to play this role in the system of having the last word on the constitution, and the fact they spoke with one voice as often as they did was an important contribution to that. it is an important part of that. >> prior to marshall, each justice would write their own opinion and have to read them.

>> that is a significant shift to speak with one voice as an institution and might lend itself to something we hear in the news a lot, legitimacy, the court's legitimacy. what would that word have meant to john marshall? >> i don't think at the time legitimacy went through so much, they were fighting a much more fundamental battle about legitimacy. at the time, it wasn't clear that the authority to declare at least in a particular case an act of congress was unconstitutional. it wasn't clear the supreme

court had the ability to review a final decision out of the supreme court. wasn't clear whether the supreme court had the authority to pass on the constitutionality of the presidency. .. opinion written by chief justice john marshall. so they were talking about legitimacy in a much more fundamental sense that, was, you know, essential to, you know, to the nation that we live in today. and and of course, president jefferson was a howling, mad about all of this. i mean, he was constantly complaining about it and trying to get congress to enact legislation to strip the court's authority, its jurisdiction. and so, you know, it was a it an extraordinarily intense conflict. and the brilliance of marshall is as he's trying to establish the legitimacy of the court and the institution of judicial review, he picks the marbury case and the statute that he strikes down. it's uncommon stitution is a

statute that purported to give additional to the supreme court a statute of the judiciary act. and so the brilliance of picking the brilliance of taking that to establish review is as nothing other branches can do or defy his will and support to give them great authority and issue a judicial opinion that says it can have the authority under constitution and how you enforce that, the supreme court doesn't have that so picked the one concept where nobody could do anything once he said in the support of any so the fact that

he took something denying the court power and that you shows to have initial review that would be deployed in more controversialt circumstances. in the tradition in the trying to argue the case in the lower court and get them to do something inconsistent with what the supreme court said. how much easier -- the supreme court opinion just as curtis said this, what you want and the

majority opinion for the court, that backs it in the lower court and establishing legitimacy of the supreme court and at the same time establishing the pinnacle of the judicial system and it does all of that and there is personal brilliance and it's remarkable. >> the court across time, they don't say is decided even when it's the court. one of my legacies of

collegiality that would be remiss if i didn't say different presidential administrations, do you think it is the court and general and that is why it is important. >> it's really important and the office is to try first and the obligation and protect. if the nonpartisan institution and the important part is this

about 40 some words in the office and they will hire young lawyers to come in early to the hiring office. or, another. and to try it now and this can be challenging, of course, because you're arguing cases in front of the court, behalf of an administration. that administration is going to take a policy position that are going to seem very political and the sg is going to be defending them. so there's going to be some measure of that. but trying to create a sense of confidence in the court and in the public as as in the rest of the executive branch, that this is not a partizan operation. it really part of the job. and i think then is part of the reason why we all come out of that experience and feel like we we share a sense of values about. and i mean, we really do each

other. donna and i are co-counsel in several cases now, and there there are few lawyers in dc that i enjoy working more than that, than i think that the civility that you're your finger on is essential. we're in a day and age. you don't have to look far to see how corrosive our political culture has become and how vitriolic the exchanges have become. whether it's driven by political the political world, or whether it's driven by tv news, i have no idea. but one thing that to me has always been a central important about the legal profession is that we need to be a model of civility. we need to exhibit how people ought to be talking about these very difficult issues because every one of us has had to argue the most controversial issues of the day when we were in the job of solicitor general and the only way to effectively resolve those kinds of very difficult issues is if you have people up there very civilly presenting

the best arguments that can be made on their own side's behalf, so that the justices also acting as a civil and collegial body can come to the best decision if we're just taking pot shots at each other and trying to posture for the cameras, we're not doing the the administration that we're representing any favors, and we're certainly not doing the justices any favors because not able to try to figure out what the right answer is to these most difficult issues. now, i mean, i agree that and, you know, the you know, the reason the madero went a long way in marshall's day is because, you know, they were they were dealing with these kind of, you know, difficult issues. but, you know, the level of the issues, i think, only gotten sort of more momentous. you know, if you think about just, you know, last term in the supreme court and, some of the issues that the court was dealing with and, you know, the decision whether to overrule one of its precedents, roe v wade, i

mean, that puts so much pressure on the institution and on of, you know, the individual justices. and i do think that, you know, all the justices sort of value the values of collegial quality. there are institutions that the court has. you know, they have lunch after argument. they don't talk about the case. i hear they talk sometimes about the advocates, but i they don't talk about the merits of the case. and i think those kind of practices are absolutely vital, especially when you consider how controversial the issues that they're that dealing with. and just to underscore, you know, point don made, i do think, you know, you know, you know that's an important thing for the justices. but i do think that, you know, in the series office in particular, that is also something that really, really is valued. and, you know, when i was solicitor general, you know, not only did we try to hire on a nonpartisan basis, but like, if anything, you know, i almost had a bias to kind of try to hire

people who had clerked for some of the more liberal justices because i figured i already knew how justice scalia thought. like i didn't really need that much on that. but like, you know, one of the things that we all do, both in the office subsequently to prepare for supreme court arguments, is to have moot courts where people in your moot court, you know, ask you questions, the lines that the justices would ask. and if you sort of think about that, if you sort of just as the sg would hire and just people that think like half the you're going to have really lousy moot courts because you're not going to get asked half the hard questions. and so, you know, i was i was very important to me. and i think this is just a tradition of the office to sort hire people sort of across the spectrum to make sure it's good for the office, but it's good in the short run to just get better, moot courts that way. so it's and do think that does you really pay dividends in lots

of sort of small but important ways in terms of just kind of the way the office approaches issues because even if it's a very politically controversial case there's a thread the long term interest of the federal government in the issue and you know and it really cuts across administrations. right. because, you know, a republican administration might kind of like property rights a little bit more than a democratic administration. but at the end of the day, the government is a taker of property, not a take of property. and so, you know, you kind of have to keep that in mind, as you're considering what the government's position is in a particular case. and, you know, so to an other areas of the law. so so i think, you know, really putting a premium that makes the office function at a higher level than it otherwise possibly. you know, if you're just maybe one more, you know, another another part of it, too, is that, you know, mentioned that he and i had a case against each other. paul and i have had a number of cases against each other. and there were, you know, cases of really great importance and

to actually for me and i suspect, we all share this. you come out of that process where sort of with a sense of awe, you know, that these people that are on the other side of you in these cases are extraordinary lawyers. and then, you know, it's kind of a, you know, a sort of an intimate process being in the court and arguing and, you know, i also came away with with from it with a sense of, you know, not only about the brilliance these two folks here as, lawyers, but of good faith and that of their commitment to sort of the same shared sense of values. you know, we live in a constitutional system. we make that a matter of paramount importance. we are all in our each in our own way, dedicated to to the preservation of that system and. so that just just generates an enormous reservoir respect.

what's amazing to me is you hear that same refrain year after year from alumni of the office of the solicitor general, regardless of which presidential administration they were serving and what how do you like those norms? like what makes that office unique? how, how or how is it handed down from one generation to the next? it's going to ed kneedler. you know, i was he's the deputy solicitor general in the office. he's been there for what? how many? 45 years now? 40 years. and he is it you might have different views, but to me, there's this ed neither he transmits the culture from one generation of assistance to another. and the fact that within that office you have the way the office is structures you've got the solicitor general you've got for five career deputies and then you've got about 60 assistance to the solicitor general. that's the structure of the

office. the career deputies tend to be there for a long time. folks like us, we flowed in for a few years. the administrations change, but these are people who dedicate their entire careers to serving in that office. and that's one way that i think the culture of the office is transmitted, but it's also just being part of a larger legal and maybe being into, to a certain extent, a leader within that legal culture. i think every one of us feels the obligation to transmit those types of values. there also. you know, the the younger lawyers in the office really believe it. and so if you were to come in as an sg and conduct yourself a in a overtly political or seem like you were using the office to advance partizan objectives, you'd have like a full scale revolt among your, among your staff. you wouldn't, you wouldn't be able to manage it. it just would, it wouldn't work because those values really are ingrained ingrained.

did anything surprise you when you started the role of solicitor general, anything you weren't expecting. i mean, you know, it's i'm the wrong person to ask because by the time i was solicitor general, i did that office for four years. i think surprised me most, though, about coming into the office. when i first came into the office really was this notion that what really differentiated it from being a lawyer in private practice was how much additional knowledge. you were charged with when you went up to the podium because you know in the it's like the corollary to kind of losing the right way or winning in the the right way is you know you are expected by the justices to really understand all of the various far flung interests of the us government. and so, you know, when you're when you're arguing in a private practice like they don't ask you about some other aspect of the corporation that don't know

anything about like they stick to your, you know, the siloed information. but when you're up there in the united states, like if you're arguing a case about the environmental protection agency and there's some shared statutory authority with the army corps of engineers, the fact that the case involves, the epa, rather than the army corps or vice versa, is not going to stop the justices from asking you. you all sorts of questions about that i mean, you know sometimes you know, they will you know you know essentially i mean i think we argued a case where you got asked by one of the justices, you know, is is that the state department's position? i mean, you know, you get asked like you are expected to know kind of all of this and and in some ways incredibly daunting. but in some ways when one of the really glories of the office is you get a new case, you sort of, you know, call in the expertise across the entire sort of federal and you bring it into room