the year before 65 and 64 he got on the lady bird special, lyndon johnson's wife, the first lady had a railroad train that she would take around the campaign the lady bird special so godwin was a democrat but a conservative democrat, byrd democrat they did not like a new deal they did not like thehe grt society silver godwin to embrace the johnson campaign by getting on the lady bird special and change the dynamics of little bit he would've been seen in anti-great society person he'spa campaigning with johnson any must share values that president johnson has so we picked up some voters and johnson supporters that might've been weary but they were willing to vote because he campaigned on the lady bird special, godwin when he announced his campaign is

leading argument for why people should elect him governor he wanted to make investment in public education that does not sound like ath byrd machine here they are abandoning all these things that they held for so long campaigning with president johnson advocating for more funding for public education, meanwhile the john birch society they want to investigate subversive influence in government and that sort th of thing in the nothing leader george lincoln rockwell wanted the school curriculum there is always fights over the school curriculum. george lincoln walked well wanted it to say whites were supremacy they were superior he wanted the added to the curriculum so the thing about godwin and his coalition he got the machine people that he would've otherwise gotten in the lyndon johnson supporters that were new to the coalition and he

got booze campaigning in northern virginia and bill talk campaigning on the southside this is an interesting coalition yay booze, bill tuck, president johnson, lady bird and even senator byrd held on and did not make an announcement until very late into the campaign, october the october surprise was harry byrd endorsing godwin this is the most fascinating part of the coalition. i went to the history of bill tuck and the right to work labor leaders supported godwin based on the relationship that he had formed with president johnson, the funny thing here this is the largest coalition that godwin could've possibly put together ooand totally creamed linwood

holton in that election only four years later it all fell apart and linwood holton got elected government. in his book linwood holton in the 1965 campaign, there was no chance for republican to win every dinner gubernatorial race in 1965 his goal was name recognition to get his issues out there, to get people talking about him, to build up some buzz, he figured if he got anywhere between 30% of the vote and 40% of the vote that would be worth it pretty got 38% and the 65 election and came back and ended up winning the election of 1969. linwood holton slayer of the byrd machine. so now we have to confront the legacy of the byrd machine. this is a photograph taken by my friend who is in the audience in this portrait of here he byrd is

no longer in the building this is actually the go but a tutorial portrait of here he byrd from the 1920s as a young man, this portrait used to be out of the entrance of the senate chamber. it isee been removed and it is w and replaced by pocahontas. governor byrd has been excised from the capital building. there is another portrait of here he byrd as an old man on the third floor wearing a a whie suit so is not been totally evicted from the building. the presence of harry byrd is stillke around we have to confrt his legacy, what we associate him with. there is massive resistance, you cannot get around that this is the first thing people ill willl you if they knew about the byrd machine they knew the white supremacy around massive resistance staying clearly. smaller government, this thing about the election, the short ballot is one of the most significant that remains with us

today. if you go to other states they will elect the secretary of state that oversees elections we do not like that person in virginia that is because of her burden is short ballot theree will be the secretary of agriculture in the deposition that voters choose we don't do that in virginia because of here he byrd in the short ballot. there are a lot of things, clerk of court had a eight year term because they ran the local political machine. a lot off these features of the byrd machine the things that he did to maintain power are still. with us and a legacy even if the byrd machine and the politics in general are not quite around. i have some other titles that are for sale if you're interested in george lincoln rockwell in northern virginia and i would love to take some questions. i set a lot of time aside to take as many questions as you want to ask their people from

around with microphones in order to get audios for the cameras. does anybody have a question they want to ask? >> if not i'll call on specific people. >> the second time in 75 or 76, did anything significant happened duringk that time or d they just disassociate in a second run for governor tori around. >> i miss the beginning part of the question, can you say that q again. >> we got elected in 75 or 76, did hee disassociate himself wh the byrd machine by that time or did people still see him as a byrd machine dude. >> people saw him as a byrd machine dude but he was a republican, the second time that he read and he did not run as a democrat so we had a a former democrat governor who is making aa comeback running as a republican and that got awkward,

could you imagine showing up to the party events and showing up of the republican chairman in a few years before we were trying to defeat them, that was a significant change the southern strategy where republicans were really going after the old conservativeo voters in the souh and making them into republicans this is very successful and the chief example on the second campaign for governor ran as a different party a republican party this is the reason i put this as the byrd machine as the election of linwood holton he makes this comeback as a republican and the machine was dead by that point ier think. other questions? >> i'm glad we have 70 questions. >> can you say more about the

other end of the byrd machine the other one that you don't agree with that happens later, what is it exactly. >> is not that i don't agree i mentioned at the top of my speech out 20 years ago when i first moved to virginia people were constantly talking about the byrd machine,.acd this thai said i want to s learn more abot the byrd machine. some people argue it still around with us, i don't think that is accurate but godwin made a comeback, was he a byrdta machine character on the second go around, that's a debatable question. harry byrd junior was a senator for many, many years after the death. byrd, is that the byrd machine, that's aow double argument. you could also view it as a slow steady decline after the death of her burden 1976. i said the argument could bee

made that the machine lasted longer then the election of linwood holton but i like that as an endpoint to the narrative talking about the machine. >> microphone. >> i want to go back to your initial comment that harry byrd was responsible for underfunding education in virginia. i guess i'm trying not to massive resistance but he was active in politics for many years before that point, what was the concern about public education? >> a long history of not fully funded it, underfunding it and the conditions at the high school are a reflection of the generational approach to public education why it was not funded. it's interesting if you think

about the re-adjusters fighting for more money for public education way back in the 1880s, something like that is a divide that goes back a really long time like progressives with her head in the clouds and they want to see a better society and invest inhe public education and conservative people looking at the balance books and saying i can't afford that we do what have debt spending. the wholeid thing about byrd he did not want debt financing he did not want any debts. if they did something they would need to pay for. as a result you funded a public education system massively underfunded for a long period of time and that led to a lot of problems and some people would say that problem is with us today in terms of underfunding of education. you cannot look at the byrd machine is having legacy that remains with us today and systemically underfunded public be linden.ld >> when you say the byrd machine ran elections out of the courthouse from the clerk, what

does that mean practically, are you talking about ballot stuffing or you talking about supplying money for grassroots campaign. >> i'm not talking about ballot stuffing, there was certainly an era of ballot stuffing virginia history and that predated the jim crow constitution that i was talking about that is a reaction to the ballot stuffing and the reaction to thehe crazy electios they said will have to tighten the rules of what it means to have an election so we don't about stuffing, that is when they created the new rules around the jim crow constitution. we know the election is totally legal there's nothing illegal is what they were doing but the courthouse that's where the functionaries happen so chief judge had patronage power that he got fromm the machine and the chief judge he gets to appoint the members of the school board and the members of the electoral board in thehe chief judge of te

circuit court had a really important position to play in terms of patronage for the machine plus the clerk of the court was the political center. they identify candidates to run for office and they supported the candidates, they kept them in power so when the machine exist to keep itself a power using the levers that they got which are patronage and money so when we say the byrd machine ran out of your local county courthouse, that is what you're talking about the judges and the clerk of court acting in ways to perpetuate the political power of the machine. >> thank you for the question. >> were you able to visit larry the margate's museum in winchester. >> i was not but it sounds like

i should go there. >> it is no longer i just wanted it was a short period of time he has now passed away, i was just curious. >> any other questions while we're here? , lots of questions, you're holding a microphone. >> giving his opposition how popular was he in southwest virginia in the second question how much did hisis brother playn his political life. >> the brother he is mentioning is the famous admiral in many ways way more famous than harry byrd. if you look at the newspapers and thee time. they're always giving the copies to the admiral in the navigation that was treacherous parts of antarctic were wherever he went. he really was in his brother's

shadow for a lot of his life. there were three brothers, tom, dick and harry and i think that's where we get the expression tom, dick and harry, the three brothers. so the two questions, i forgot what the other one was. >> of the unions, governor talk had this plan to undermine the power of the unions with the interesting strategy of conscripting allmb the members that go into the militia and threatening the court-martial. it's really radical and creative solution to this problem and it worked. then he followed up the next year with the right to work law that we still live with today which is for under ever mind the power in virginia so he was not popular with unions. it's funny that he had union support 1965 this is part of a strangeness that led to the demise of the byrd machine. that the union leaders are

suddenly endorsing a byrd machine governor, up is down and this is opposite of what people isexpected. >> to somebody have a microphone here? >> thank you so much forfo the research and for the talk. we talked a littlee bit about te role that you had with the newspaperman early in his life do you think he captured inability that control the narrative from that experience and to what extent did the news media play a role in the byrd machine? >> controlling the narrative circus in 1920s we live in a different media environment that they lived in. it is really interesting if you think about the state senate, this time period that were talking about in the book many of those guys the state senators were newspaper executivesan or reporters and you don't really see that anymore, did that give byrd or carter glass or any of those people more insightful

view into shaping the narrative? i doubt it. i think in some ways it was a business like any other and if you think about harry byrd's approach to pay-as-you-go, you can apply that to any business it doesn't necessarily have to be a newspaper business. it certainly did give the ability of harry byrd to shape the narrative in winchester and that is true, if you live in winchester you read harry byrd's newspaper. so that was really important. it is curious to me that you really don't see this anymore and you really don't have a lot of journalist there is a form in the house of delegates currently. and i think there are two form of journalist. we don't really see the on the senate side anymore. i'm just curious you would think more journalist would want to run for office but not this journalist i'll tell you that. we have some of the questions.

>> yes. >> to an arranger handicapped? >> we will hand you the microphonet here. >> it was reallyte interesting o hear about the short ballot in my question i never heard the explanationto before, americans love to vote, how did he convince people that were able to vote for all of these positions to give him the power and create a short ballot. >> it is easier for voters if it's a short ballot, the voters at that time would've been presented with the ballot that would've been confusing and require a lot of research. who do you want to vote for as agriculture secretary, i don't have the candidates. a fulsome ballot where you elect every member of the cabinet

takes voters to a lot of research to know who the candidates are for the cabinet positions. from the perspective ofpect the voter it is actually a lot easier to know about the three statewide candidates and whatever else is on the ballot. that was a sales pitch to voters, this a be simple, easy for you ass a voter and it's a pitch that work because this is what we live with currently. if you go to other states they elect a whole lot of people that we don't elect, our governor has the power to appoint all those people. this is another important way machine works, the governor was invested with so much power as a result of the short ballot in the change enabled the short ballot that harry byrd and the machine governor's had patronage and other governors would care for. >> we have time for one more i am told.

>> this might be an ignorant question but given the duration of the byrd machine didn't have anything to do with virginia's off-site collection in one term. >> i don't think so, i think that predated. >> if you think about the short ballot and it's easier for voters you don't have to study the candidates that one around for secretary of agriculture. it's easier for voters unless research for voters but then you have to vote every single year of the odd year electionio even year end that the system that predates the changing of the short ballot but this is definitely something to think about when you thing about voting virginians are some of rathe most, we had a lot of elections but fewer candidates as a result of the short ballot that harry instituted when he was governor. >> is taken going to hand the

microphone to the folks at the museum and i would like to thank you all very much for coming out. [applause] >> if you are enjoying american history tv sign-up for our newsletter using the qr code on the screen to receive the weekly schedule of upcoming programs like lectures and history, the presidency and more, sign up for the american history tv newsletter today and be sure to watch american history tv every saturday or anytime online at c-span.org/history. >> american history tv saturdays on c-span2 exploring the people and events that tell the american story. at 7:00 p.m. eastern best selling author david grant

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>> my name is janie bosket and i have the privilege of serving as ceo at the museum of history and culture and am proud to be the first to welcome you to tonight's program. this evening we are so pleased to be co-presenting this timely discussion with our friends at the john marshall center for constitutional history and civics . i am pleased to serve on the board of the john marshall center that's not the most important reason my collaboration between these two organizations issuch a unnatural . we have shared values and a sharedhistory . after all chief justice john marshallwas the first president of this historical society . civics and history are fundamentally linked and essential for an engaged citizenry so we are proud to present this program together e . i had to take a sidebar because today i was looking at the civics study presented

annually by the and bird public policy center and thinking about it in the context of having robust conversations about being engaged in our government and they do this every year on constitution day. and it wasn't pretty. to say the least. less than half, 47 percent of us adultscould name all three branches of government . only one in four respondents could name a single branch . asked to name the right protected by the first amendment people were at a loss. less than one in four, 24 percent could name freedom of religion. this is a time for education organizations like the john marshall center to keep doing everything we can, everything we can to inform and engage

virginians, americans and anyone who will listen who is is fortunate enough to be in this country.we can do that together and we are thrilled to put out such an engaging program that hits on these very topics tonight. thank you to the members of history and culture and members of the john marshall center for empowering us to do this collective good work. it's my pleasure to make introductions for this program, to invite my trustee paul harris to introduce our speakers . thank you so much. [applause] >> good evening. good evening. i have the distinct pleasure of introducing our distinguished moderator r and our distinguished panelists, two of whom are former colleagues from the department of justice and a new friend in don verrilli,

delighted to have all three of them with us. i'll begin by introducingour moderator , officer allison orr larsen is a 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 has received many awards honoring her teaching and scholarship including the statewide outstanding faculty award in the rising star category. this is virginia's highest faculty arm. she is ffa scholar of constitutional law and legal institutions hewith a focus on health information diet dynamics affect both. her work at the supreme court has been featured multiple times in the new york times, washington post and wall street journal and was also the subject of her testimony before the senate judiciary committee in april 2021.

officer larson has published in the nation's top law reviews. in her work has been cited by four different us courts of appeals, appeared with stephen cole there as a guest to discuss her scholarship, she also has a little fun. her scholarship with the supreme court. a subject on which she has testified before the presidential commission on supreme court reform. professor larson earned her bachelor of arts fromwilliam and mary and law degree from the university of virginia where she graduated first in her class . after law school professor larson clerked for judge j harvey wilkinson of the court of appeals for the fourth and for justice david souter of the united states supreme court. professor larson.

i will introduce thepanelists in the order in which they served as solicitor general . paul. paul clement was the 43rd solicitor general of the united states. mister clement is a partner at the partner at the clement nd market law firm and distinguished lecturer at georgetown university law center . mister clement served as solicitor general fund to june 2005 till june 2008. before his confirmation mister clement seserved as acting solicitor general or nearly a year and as principal deputy solicitor general for over three years. he has argued over 100 cases before the united states supreme court. mister clement's practice areas focus on appellate matters, constitutional litigation and strategic counseling and he represents a broad array of clients in

the supreme court and federal and state appellate courts. last year he successfully argued cases involving significant issues of energy regulation , statutory interpretation , sovereign immunity and edarticle 3 standards and argued a trademark appeal in the fourth circuit and constitutional appeal before the 11th circuit. mister clement earned his bachelor of science degree; lonnie from georgetown university school of foreign service, master of philosophy degree from darwin college at cambridge and juris doctor, magna cum laude from arbor law school where he was supreme court editor of the harvard law review. following law school mister clement clerked for lawrence silverman of the us court of appeals for the dc circuit and for justice and tone in

scholarly of the united states supreme court. he went on to serve as chief counsel of the us senate subcommittee on the constitution , federalism and property rights. we welcome mister clement. [applause] >> donald b verrilli junior was the 46th solicitor general of the united states. mister verrilli is a partner in the law firm tolls and olson and founder of the washington dc office. mister verrilli is a lecturer at columbia law school where he teaches classes on the first amendment and supreme court. previously he taught first amendment law for many years at the georgetown university law center. mister verrilli is one of the nation's premier supreme court and appellate advocates . he served as solicitor general from june 2011 to

june 2016. for serving as solicitor general mister verrilli served as deputy white house counsel and previously as associate deputy attorney general in the united states department of justice . in those positions he counseled president obama, cabinet secretaries and other government officials on a wide range of legal issues involving national security , economic regulation, domestic policy and the scope of executive and administrative authority. mister verrilli earned his bachelor of arts degree come loud from the yale university and is juris doctor degree with honors from columbia law school where he was editor-in-chief of the columbia law review. please help me welcome mister verrilli. [applause] and last but certainly not least, knoll

francisco was the 47th solicitor general of the united states . mister francisco is the partner in charge of the washington office of the jones day law firm. mister francisco served as solicitor general from 2017 to 2020. he represents clients in a broad array of civil and criminal litigation, 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 in the areas of eglobal climate change, opioids and asbestos, tobacco, firearms, healthcare administrative law, freespeech, religious liberty and separation of powers . he earned his bachelor of arts degree in economics with honors from the university of chicago .

and his juris doctor with high honors also from the university of chicago. after law school mister francisco served as law clerk to justice scalia of the united states supreme court and before that served as a law clerk to judge ludy on the us court of appeals for the fourth circuit. later mister francisco served as deputy assistant icattorney 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 me welcomemister francisco . [applause] allee, over to you. >> thank you so much paul. you all are in for a treat. have you ever seen when they do up hollywood promo and they say all-star cast? this is an all-star cast of lawyers.

so you heard from paul these are former solicitor general's of the united states so i thought we would give you a little context for why that's such a big deal and what that means. the office of solicitor general supervises and seconducts litigation on behalf of the united states and the supreme court. they are very busy because approximately two thirds of the cases the supreme court hears on the merits involved the united states. so bs g, solicitor general has been called the 10th justice and the reason for that is because that office has developed over time a reputation of fairness and reliability. i know when i clerked we think of the great resource and so i think it's important and what we're going to do is tell a little bit about the history of that office and

here's some more stories along the way i hope. let's just start off withsome basics . what's it like to prepare a supreme court oral argument today and then maybe we can draw some comparisons to earlier years. i'm guessing it's kind of hard, what's the hardest part about it. >> it's hard all the way around but the hardest part for me , there are cases when you're solicitor generalyou have to argue where you know you're going to lose . you've got to go in there and represent knowing you're going to lose and get your head being in but you can't go up to the lectern inking that way. so letting yourself in the position whereby the time you stand up there you actually believe this loser of a case you have to argue

that you're right about, that always for me was the most challenging part of it. >> that is certainly a big part of it but the first thing i'd say is there often people refer to the solicitor general as the 10th justice. i've never heard a supreme court justice refer that way. but what don said is exactly right. one of the arts of being the solicitor general is that sometimes you know you're going to lose the case and your position is locked in because you are representing the government but there are good ways to lose and bad ways to lose. but i'm only half joking. sometimes you're trying to guide the court to rule in a way against you that's going to do the least amount of damage to the government's institutional interests and

the first case i ever argued in the supreme court was against god and it was a big separation of powers case where it was clear the court was leaning in favor of my client on the bottom line position that had to do with presidential appointment ha authority but there were two ways i could rule, the first was a broad rule that would have called into question a lot of resources and the other was a narrow rule my client would have one but nonetheless it wouldn't have such a broad impact on the government's functioning going forward but i always use that as an example that i point to about a solicitor general standing up and doing a powerful job of f pushing the court towards ruling against it but in a way that was the best way for the government to lose in that case and don was brilliant when he argued that case. >> pay net no attention to that issue. if you want to rule against

me on that, i'm okay with that. and we got precisely zero votes . and i'll just add first on the 10th justice thing, one of our illustrious predecessors the late drew davis talk about the 36th law clerk. and i think that sort of captures the relationship and power dynamic a little more accurately but there is that kind of close relationship and its board partially as the fact that it is a coordinate branch of government that's being represented by the solicitor general but it's more practically born of the fact that you ate are a repeat player up there. the sta losing two thirds of the court's cases but you also have this kind of institutional interest and you're going to be back up there maybe on the same issue during nighttime in the office i've argued for our

five cases involving certification issues arising out of the war on terror but i also argued for our five cases involving challenges to the campaign finance law and it's just that in that context when you're back up there on similar issues in a couple of hamonths with a different relationship with the court than you do if you're just up there for a private company as their lawyer. this gets to what both don and noel were getting at which is preparing an argument for any client is different. next month i'm going to be arguing a case about patent law that's really different. so it's always a daunting task to get ready to present arguments to the court but in some ways it's more daunting for lawyers in the sg's office because i think they are charged with this knowledge of broader institutional interests and

priorities of the executive branch and government and that's why this idea of sort of losing a case the right way, that doesn't translate toprivate practice very well . private practice if you lose you lose and telling a client in private practice, the best way to lose this case, that does not get you hired for the sql. but in the government that's really a thing cause you are going to be up there and you lose like to take an example from the case but if you lose the first case that was a challenge to the campaign finance law but you lose it in a way you can win successful ones that's a much better result for the government then losing the first one in a way that makes d it hopeless going forward and that is an important part of that dynamic and it is what makes arguing cases in the office if anything even a little morechallenging . >> when you lost an argument

today especially with lawyers like we have in front of us conversational if it's done right. has that always been the case is oral arguments in the courts change. take us on a historical tour. >> i love one of the reasons i apwas happy to come here is if you talk about john marshall to supreme court advocate or a history buff and i felt myself sort of both you d want to say yes as quickly as possible and one of the things reflecting on this, the dynamic of oral arguments is so much different today than it was in the time that john marshall was thechief justice . in those days, the oral arguments would span days in big cases. you have multiple advocates for one party in the case and they could literally spend

days arguing in front of the court . based on what i've read, as a result of that, the kind of exchanges with the justices were not kind of what you're used to in the modern court where things are on the one handmuch more compressed but on the other hand , are much more interactive than suggested. if you say it can be a conversation, and the an argument but either way it's very interactive with the justices and the time. things are changing by theday at the supreme court . the first decade or so i practiced there everything was the same and nothing changed and in a case it would be 16 minutes for an argument and like days back in the marshall area. 30 days if you were appearing back on the united states. you would have 10 minutes of argument time and that's it. on an issue of huge national importance and that is the most difficult thing you can

do as an advocate is at your 10 minutes to make your whole case. john roberts when he was an advocate in the office he likened the difference between a 30 minute target argument and tenant argument and the difference between with a parachute from 30,000 feet and 10,000 feet. there's no margin for error or digression, it'sincredibly intense . you're changing a little bit and maybe john and noel want to talk about that and the other thing i would say it's even in the modern era exchangedover the past 40 or 50 years . you go on and i highly recommend it, you'll listen to the oral arguments and huge controversial cases from the 70s, nothing like roe versus wade or any case from that era. you will be astonished by how

much airtime the lawyers have and howrelatively few interjections from the justices there are. that all changed in about 1986 . and we had all lateral to mold and you can talk about it. >> the great year of 1986 was when anthony scalia came onto the court and it changed the dynamics of the oral argument . prior to that you had oral arguments driven by the lawyers, not the justices . the lawyers had an opportunity to make their ha case. paul is right that today things are changing but there changing with within a limited band that is very different than what it was like in the times of chief justice marshall. right now we're going from what used to be a tight 60 minute argument to in really big cases where there are lots of parties or three or four hours you're more ordinary case probably an hour and a half. back home you would have days .

and justices would rarely ask any questions at all if you want to see all modern loanalog of what that was like you can look at some of the european courts and international courts. i had the opportunity as part of the ado g team that argued at the court of justice 20 years ago and we were there eight hours a day where different lawyers stood up and made speeches for eight hours a day. not a single question from any member of the court and if there was a question it was understood the question would be submitted in writing the day before so the following day we could show up with our prepared response to their question in writing. i suspect that's a lot closer to what the supreme court was like when chief justice marshall was presiding over the court and when you compare to that, the changes today seem fairly ... their

fairly modest from going from an hour to an hour and a half . but the big change between the marshall era and john's era was when william came in and made the hot bench the standard rather than the exception. >> i clerked on a court 84, 85 and it was not uncommon then to go for that 30 minute period with two or three questions. sometimes there were no questions even. and it was different because sometimes the justices would fall asleep. that's inconceivable now because there's so much going on. but i really like the fact that it's loosening up now because i had these 60 minute time frames and you've got all these thjustices up there who are brilliant people and

they want to get their questions in so it was a little bit like a game show. they had to hit a button to activate their vemicrophone and you would see the microphones hovering so they n could get in. and as an advocate i thought it made it quite disgruntled, someone was asking about this and the fact that there's not this strict time limit anymore and the arguments are running lawlonger and everybody relaxes , each justice knows you can get the question answered at some point in the argument, i like it. that does tend to go on a little bit but overall i like it. >> we're not doing these multi-day arguments anymore but do you think there's part of marshall's legacy that does live on in today's supreme court ?

what do you think? >> let me start with just there's lots of different ways to approach this. obviously his legacy lives on in judicial review and that's the most obvious way going all the way back to marguerite but just to kind of comedy anecdotes i like actually even predates john marshall going on the supreme court. just shows what an iconic figure he is in the law and the continuing legacy he has. when he was in the house of representatives as the representative from richmond he gave a speech on the house floor on march 7, 1800. which i think is the most legally significant speech, not politically, the legally significant speech ever given on the house floor. and it was in response to the robinson era which president adams had returned and pressed to the british and he was hung by the british. this was a crossbow when

there was a motion on the floor of the house to censure john adams fordoing that . and he marshall got onto the floor and gave this lengthy speech where he defended the president's prerogative and in the course of defending the president's prerogative, he used this phrase about the president being sold organ of the united states in foreign policy f. and so but john robbins scare, the thomas nash, that is probably not on the top of everybody's list of things you were thinking about what level of care will i marshall use in defending the presidents was picked up by the sprinkler in curtis right and in that case continued

sometimes treated only for the court's decision sometimes mark continues to every separation of powers ace in the report all the presidents prerogatives in foreign affairs john argued the case while he was a surgical asabout the presence of authority to is not supporting documents, to manifest itself in the court and is a this issue, wrestle with wthis sort in reference and essentially rolled in and john's position people were overrating that phrase phrase when the today is john marshall john marshall john

marshall called on chief justice for this kind figure in the law, probably that speech falls into sort of the dustbin of history but because it's marshall and even if you all stop talking and let my colleague have a word in edgewise it's just an anecdote that i love that shows that if you're breathing a case at the supreme court these days you can trace something back to john marshall and you do it. you go out of your way to do wa it and it had force. every one of the justices i think has the greatest reverence ncfor john marshall and the great chief justice but even if you got to find a house of representatives speech if you can do trace it back to marshall you're halfway home. >> conversely if your opening line is chief justice marshall was wrong. >> you're not going to lose

the right way. >> but i think marshall's legacy is the entire structure of what we do. the sort of high water mark of the federalist party was the constitution and john marshall was one of the leaders. after that you're pretty much wayne and the republican party moving with thomas jefferson and at that point, marshall's job as the chief justice was to essentially defend the high watermark in the federalist party with the enactment of the constitution and even as republican presidents with put more and more members on the supreme court where marshall saw his federalist majority disappear you must to present all the successive justices from different political party had a different view in the role of the states to adhere to this you. >> on what the original

constitution meant and the federal system created. not to keep harking back to our old boss justice scalia but years ago i had an opportunity to attend a law day with the suit marine corps at quantico and it was a speech i had heard and made and i heard him say if you ask people what the constitution is the bill of rights justice scalia's response was every banana republic has a bill of rights. most of them are better than ours, more detailed, many more provisions but not what makes our constitution so important and durable.an it's the structure of the parts of the constitution, that's the part that was essentially the child's of the federalist party. initially it was the republicans that were trying to impose minutes on the constitution right away and wanted to original

constitution was still so flawed it needs the panelists in john marshall against those original minutes, they came later but those amendments are part of the original constitution is the structural actions, version of powers between the three branches of federal system of the separation between the federal and state ultimately. marshall believed would be the bulwark of freedom. i think is the legacy you have to live with. so many of the arguments we played upon our what are those separations horizontally between branches and vertically between the government and the states. >> one other thing we take for granted but was john marshall's achievements was the very idea of picking up on what nolan referred to that when the supreme court rules on a matter of what the

constitution means and says to another government for the city what you have done constitution that actually would be the thlast word. that would decide the matter for the country. that was a foregone conclusion, that was a hotly debated political and jurisprudential issue to decades of decades and the ways that they identified and also to, i don't know whether it's the force of his personality, of course of his intellect were both but unlike now, now a big case comes you read in the paper well, justice x the majority opinion justice why incurred. in marshall's time they managed a departure from the tradition in england at the time to get the court to see with one voice.

and almost every decision. so that even where individual justices might have had a different view about what came after the opinions spoke for the court and almost always spoke unanimously that was vitally important in this context to establish the court was going to play this role . of having the last word on the constitution. the fact that they were able to speak with one voice was really important contribution that i do think is a very important part ofmarshall . >> and prior to marshall i think chief justices would just write their own opinion. you had to go out where each one cameout to find out . >> etthat's a significant shift. to speak with one voice as an institution and i think it might lend itself to something we hear in the news a lot which is the idea of t legitimacy, the courts

literacy . what would thatwere meant to john marshall .what does that mean to a student of marshall? >> i don't think at the time legitimacy so much was seven justices or six justices at the time. they are was a much more fundamental itbattle about legitimacy. but at the time it wasn't clear as john said the supreme court had the authority to declare in a case or controversy whether a law was unconstitutional. it wasn't weird the supreme court had the ability to review a final decision out of the supreme court. it wasn't clear whether the court had the authority to pass on the constitutionality of an act of the president. every one of those principles was established as an opinion written by chief justice john marshall.

they were talking about legitimacy in a much more fundamental sense that was essential to the nation that we live in. and of course, president jefferson was howling mad about all of this. he was constantly complaining about it and trying to get congress to enact legislation to strip the courts authority . it was an extraordinarily intense congress. >> the brilliance of marshall is in trying to establish the legitimacy of the court and review he picked the marble case and the statute statute he strikes down as unconstitutional is the statute purported to give authority to the supreme court, the mandamus act. the brilliance of picking that case to establish judicial review is nothing the other branches can do

about it or evendefine his will . if he picked instead an act of congress that's purported to give the president some great authority and then issued a judicial opinion that said well, the president can't have that authority under the constitution then the question is of you're going to enforce that would have been since the supreme court doesn't have an army as the saying goes so the one context where nobody could essentially do anything once he said that the supreme court doesn't have the authority to exercise the kind of mandamus jurisdiction congress reported to get them in the judiciary act of 1789 cell the fact that he picked something where he was denying the court's power is brilliant . and it just shows how he was playing the long game to essentially establish a power of judicial review that would eventually be deployed in

more controversial circumstances just on the majority opinion, it seems also. in addition in england and those first 10 years of the supreme court with opinions but then marshall says we have an opinion ofthe court , did he just think about the difference, if you're a lawyer trying to argue the case in the lower court and you're trying to get the lower courts to do something that's inconsistent with what the supreme court said how much easier is it if you can say there's no supreme court opinions of justice curtis said this and they don't map up so do what you want, josh whereas when there's majority opinion for the court , that kind of essentially boxes in the at least the lower courts have to follow that opinion so part of what he was doing was establishing the legitimacy of the supreme court these are the other

branches the same time is establishing this report is not a general judicial system and he does all and gets his colleagues to go along. just this personal brilliance i understand it took a lot from the justices that helped t but it's just what a remarkable legacy. >> they don't say we decided even when it wasn't that court, those nine people. so one of my legacies of marshall is he believed in breaking bread with colleagues and the importance of collegiality. i've even as i didn't point out we had solicitors general president, presidential administrations all of whom like each other and i want to know do you think that is alive and well the court and

the office of the solicitor general and do youthink it's important ? iknow you do . tell us why it's important. >> it's really important and one thing about the tradition of the office is that every sg takes seriously and feels the obligation to sustain and protect that is a nonpartisan institution. as paul said earlier about the relationship of the office with the court important part of that is not be sustained as a partisan institution so it was important in all of us in thinking about this 20 some odd lawyers in the office and sg will hire some number of local younger lawyers and. you really do that hiring a nonpartisan basis so that is appeared to be tilted in one political direction or

another to try. this can be challenging course because you are arguing cases in front of the court not on behalf of administration this administration will take policy decisions that will seem very political at the sg is going to be defending trying to create a sense of confidence in the courts and the public as well as in the rest of the executive branch that this is not a partisan operation is really important and i think it then is part of the reason why we all come out of that experience and feel like we share a sense of value to. >> we really do, don and i are on several cases now and there are a few lawyers thati enjoyed working with more . then don. i think that the civility that you put on is essential. we're in a day and age where

you see how corrosive our political culture has become and how vitriolic the exchanges become whether it's driven by political will or whether it's driven by tv news, i have no idea but one thing to me always been important about the legal profession is that we to be a model of civility. we need to talk about these 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 issues that you have people up there very civilly presenting the best argument that we made there on their own side staff is of the justices also acting as civil and congenial body can come to the best decision. if we're taking pot shots trying to posture for the news cameras we're not doing the administration that we're

representing any favors not doing the justices any favors because they're not able to try to figure out what the right answer is to those difficult issues. >> i agree with that and the reason the madera went a long way in marshall's date is the cause they were dealing with these kind of difficult issues. but the level of the issues i think ask only gotten sort of more momentous. if you think about last term in the supreme court and issues the court was dealing with and the decision whether to overrule when it's precedents, that put so much pressure on the institution and on the individual justices. i do think that all of the justices value the values of collegiality, their institutions that the court has that have lunch after

arguments they would talk about the case . actually we talk about. but 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 there dealing with and just to underscore a point don made i do think that's an important thing for the justices but i do think in the sg's office in particular that is something that is valued. when i was solicitor general not only did we try to hire on a nonpartisan basis for if anything alwill have bias to try to hire people who would clerk for some of the more liberal justices because i already knew how justice scalia thought. i didn't need much help on that but one of the things we do in the office and

subsequently to prepare for supreme court guidance is to have a court where people ask you questions along the lines of the justices would ask if you think about that, as the sg with higher and have people that think like half the court you're going to have lousy moot courts so you're not going to get asked half the hard questions. it was important to me in i think the tradition of the office to hire people across the spectrum to make sure it's good for the office but it's good in the short run to . you get better courts thatway . i think that does pay dividends in lots of small but important ways in terms of the way the office approaches issues because even if it's a politically controversial case there is a thread of the long-term interest of the federal government and the issue and it cuts across administrations because

republican administration might like property rights a little bit more than the democratic administration but at the end of the day the government is a taker of property, not atd property so you have to keep in mind as you are considering the government's position is in a particular case and so to in other areas of the law. putting a premium on that makes the office function higher level otherwise possibly. >> another part of it too is nola mentioned we had a case against each other and paul and i have had a number of cases against each other and they are cases of great importance. for me and i suspect we all share this, you come out of that process with a sense of all. these people are on the other side of these cases are

extraordinary lawyers and it's sort of an intimate process being in court and arguing. i came away with a sense of not only about the brilliance of these two faults before us but of their good faith. and of their commitment to the same shared sense of values that we live in a constitutional system . you make that matter of i primary importance. we are each dedicated for the preservation of that system. so just that generates an enormous amount of respect. >> what's amazing is you hear that same refrain year after year from alumni of the office of the solicitor general regardless of which residential administration they were serving. how do you like reinforce

those norms? how are, how is it handed down from one generation to the next? >> the senior deputy solicitor general, he's been there for 145 years now? andhe is , you guys might have different views but to me he transmits the culture from one generation to another. the fact that within the office you have, the way the office is structured you got the solicitor general, 4, now five career deputies and 16 the office of the solicitor general. career deputies tend to be there for a long lktime. the administrations change but these are people that have been there their entire careers serving in that office and that's one way the

culture is transmitted but it's also just being part of a larger legal culture and maybe being into a certain extent the leader within that culture every one of us ofeels the obligation to transmit those values. also, the younger lawyers really believe that so if you were to come in and conduct yourself in an overtly political manner or seem like you were using the office to advanced partisan objectives you wouldhave to call full-scale revolt among your staff .ll you would be to manage it but those values are highly ingrained. >> did it surprise you when you started in the role of solicitor general, anything you weren't expecting ? >> i'm the wrong person to ask because by the time i was solicitor general i had been

there for 4 years. what surprised me most when i came into the office really was this notion that what really differentiated it from being a lawyer in n private practice is how much positional knowledge you were charged with. because and it's like the corollary to losing the right way or winning the right way is you are expected by the justices to understand all the various interests of the us government and so when you're arguing in a private practice they don't ask you about some otheraspect of the corporation that you don't know anything about . it's sideload information but when you're in the united states, if you're arguing in case of the environmental protection agency and there's a shared statutory authority with the army corps of engineers the fact case involves the epa rather than

the army corps will not stop the justices from asking you all sorts of questions about that and sometimes they will essentially, i think we argued case where we got asked by one of the justices is that the state department's position and you ke are expected to know kind of all of this. and in some ways it's incredibly daunting but in some ways one of the really glories of the office is when you get a new case you sort of call in that expertise across the entire federal government and bring it into one room and you get the benefit of all those kind of different agencies and their expertise. i have this one anecdote and we're not in the worst part yet but i have one. where i was arguing a case about the jurisdictional reach of the clean water.

justice scalia was all over me about the ridiculous position of the united states that even a ditch is covered. and i was able to tell him only because the guy in the army corps told me this in a moot court but i was able to tell justice scalia actually technically justice, the erie can now is a ditch. and if we all think that's part of the navigable waters of the united states, right? it's not easy to get justice scalia to take a step back but he did that's like i didn't come up with an answer on my own, i came up with that because you have the benefit of all these government lawyers and to mold! , the egos of the office which is the perfect

embodiment of it but there's an ad in almost every government agency. and they also are these repositories of kind of the institutional knowledge of these various agencies and the estes office, that's what you want to tap into because you want to win your case but you really want to make sure you are kind of vindicating the long-term interest. things changed from a democratic administration to a republican administration but there's this core institutional interests that stays the same and that's what you really want to e protect. and that does think permeate the whole enterprise. >> i want to make sure we save time for questions but also get to the war stories part so would you like to share your favorite moments either in the court or as an sg one of your favorite moments moments or