>> next on american history tv, yale university professor akhil reed amar discusses the complex relationship between supreme court justices and american presidents. he looks back at the first appointed chief justice. he argues that historically judges were geographically balanced and there has been a more recent orientation toward demographics and political affiliation. >> we are thrilled to welcome akhil reed amar professor of law and political science at yale university. professor amar clerked for then judge stephen breyer. he is also a recipient of yale's highest award for teaching

excellence and is the author of several books including "the law of the land: a grand tour of our constitutional republic." i think that akhil was voted most popular professor at yale. at least he is my most popular professor. and you are all here because he is your most popular professor. before we welcome the popular professor upon the stage, please turn off cell phones or electronic devices and join me in welcoming akhil reed amar. thank you. [applause] dr. amar: good evening. welcome. thank you so much for coming. this is the new york historical society. we're going to be talking about the supreme court and we will be talking about these supreme

court history, but also talking about the new york angle on all of this, because this is the new york historical society. and, yes, why is this night different from all others? a well, here is one thought. it is really only this week -- it has become, i think, pretty apparent that the upcoming presidential election will be a subway series between -- [laughter] dr. amar: not just two new yorkers, but two people headquartered in manhattan, shades of burr and hamilton. why am i mentioning a presidential election, given that this is a conversation about the supreme court?

well, there lies my first of five points. it's going to be about that -- the interesting relationship between presidents and justices. and not only -- and i will work my way up to the present moment -- not only an election between two new yorkers for the presidency, but the supreme court really is on the ballot and new york plays a role, because the nominee for the vacant spot learned to be a judge right here in new york city, a clerk of henry friendly. i will say more about that. the chief justice. we will be talking about the robert court -- the roberts court go in one direction if mr. trump wins and another direction if mrs. clinton wins.

chief justice john roberts, he, too, learned to be a judge in new york city. he, too, was a clerk to henry friendly. the justice whose demise created this vacancy, antonin scalia a, was a new yorker. azhar elena kagan, justice ginsburg. justice alito is not from that far away -- newark. i know it's on the other side of the bridge. it's very much a new york story we will be exploring together this evening. account of the structure of that relationship and in particular, there are two big points.

there is a tidal pattern to the american presidency. and this tidal pattern creates face-offs at moments in american history between presidents and justices. so, here is the structure, the situation of the constitution. our justices are chosen politically. justices do not pick their successors quite. it's not a self-perpetuating meritocracy the way that yale law school will pick it successors. the way the cardinals pick the pope and the pope names cardinals and the cardinals pick the pope and this

self-perpetuating way -- no, our constitution provides for political choice to be made whenever there is to be a replenishment of the judiciary. both supreme court and the lower federal court. so, the process of selection is by design political. it is on the ballot when you vote or the presidency and the senate. that is not a bug. that is a feature of our system. so, it is the political selection and then judicial independence kicks in and then there is tenure -- tenure for good behavior. that creates an interesting dynamic. justices in the modern era stay on much longer than presidents, and presidents now our term limited in a way they weren't at the founding -- actually, some of the justices rotated off very quickly.

i'm going to tell you a little bit about john jay and how he could not wait to get off the court. the tenure of justices was very short and presidents could, in theory, be reelected in perpetuity. the way governors were reelected. at the time the constitution was adopted, the governor left only to become vice president, which he thought was "a respectable retirement." and he died in office. the presidency could last a long time. the judges rotated off for reasons we won't get into. but over the course of history, chief justices tended to stay a good long time. presidents have come and gone. we have basically 44 presidents in american history.

you can say 43 because we are counting grover cleveland twice. 17 chief justices, way fewer chief justices then u.s. presidents. here is the tidal pattern and the face-off. the way america's presidency has tended to operate, if a coalition emerges, manages to capture the presidency wants, very often it comes up with a formula that enables that party, that vision to capture the presidency again and again and again until some exogenous shot, some big change occurs and the tide shifts.

there are only a few tide turning presidents in american history. by tide turning, here is what i mean. someone who, when they are rising to power are really other. a different point of view prevails. they manage against the tide to win, to win again, reelection, handoff power to their hand-picked wing man -- their apostolic successor -- and in the next period, even when they were rising to power, it was another faction, another vision of america as sending. the next period that wins for more than it loses until the tide turns again. that is the definition of a tide turning president. here they are. they are the rushmore presidents. i wish it were my own theory. it's not quite. steve, my great political science colleague at yale developed this idea. i have a fuse small variations, but this is his model.

george washington, of course. when he is growing up, there's a very different regime in place. george iii. he hands of power in effect to his political ally john adams. that dynasty, the washington federalist dynasty, does not last long because john adams signs his name to extremely repressive laws. the alien sedition acts. that generates a massive backlash and thomas jefferson is the next tide turning president. very early on. he is running against a federalist regime. a very different sort of platform and political formula for success. he is getting votes for other folks and he manages to win. to win reelection and to handoff power to his wing man, his

secretary of state -- wing man or wing women -- just remember that, and matheson is going to win and win reelection and his secretary is going to win and win reelection and that party will become -- jefferson's party, basically the jacksonian party, the dominant political party in america -- they do not win every time, but they went way, way, way more than they lose. because people remember the alien and edition acts, but -- alien and sedition acts, but the federalists never appear again, at least not on the federal stage. washington, jefferson. what happens to that party? they basically commit political suicide when this unknown fella named abraham lincoln rises to power.

instead of saying basically the political wind is still at our back, the tide is still with us, we can outlast this guy, we are going to wait him out. we will say no to everything he proposes and he will be a failed reformist president, this talk, -- tall, skinny constitutional guy from illinois. they are not smart enough to do that. they do not pull a mitch mcconnell. they walk away from a game they are winning. this was not a smart strategy. this unilateral secession was unconstitutional. it will mean lincoln achieves a certain greatness in resisting this and he wins and he wins reelection and it was a very close thing and in effect hands off power to his wing man, ulysses s. grant to rid we skip over andrew johnson. that party is the dominant political party for a long time

because the democrats committed political suicide with slavery, secession, and not trying to accept the verdict of the civil war. they prevail all the way until another cataclysmic event, the great depression. their party gets the blame for it, herbert hoover. the next tide turning president is franklin roosevelt. no democrat wins the majority. woodrow wilson, grover cleveland. republicans are winning lamplight. -- landslides. franklin, the great depression, franklin roosevelt, the next tide turning president. he went again and again and again, hands off power to his wing man harry truman. and that was the dominant coalition until vietnam and just

the chaos of the 1960's sort of tears apart that coalition. it becomes the great society, late 1960's, and really ronald reagan eventually is the next genuinely tide turning president. who won reelection, one a third term called h.w. he can't run for a third term. he is term limited. until now we have been living basically in the era of reagan. those are the tide turning presidents. washington, jefferson, lincoln, roosevelt, and reagan. in 2016, if barack obama's secretary of state, his wing woman were to win, we would say the tide has again turns.

he won, one reelection, handed off power. if the democrats -- if they become basically the dominant presidential party then -- ok, now. the structure, the rhythm of the presidency, and if you are a democrat i am going to bum you out. since -- just remember the democrats are overwhelmingly the dominant political party until lincoln and the civil war looms so large in our memory that since lincoln there are only two democrats that have 12 popular -- won two popular votes for the presidency. franklin roosevelt and barack obama. that's it. wow, ooh. not jack kennedy, not harry truman, not bill clinton, none

of them. but the democrats have one popular votes -- not always -- won popular votes, not always majorities, at least five of the last six presidential elections. if they prevail again and go forward, and the republicans do not rethink their formula, then they are going to be the minority for a while. ok? -- that is the presidency. how does that interact with the court, with justices that are picked politically but have life tenure? do not have to leave if they do not want to. well, there are special moments when new, rising presidents confront the ghost of administrations past in the form of these hold over justices that have been appointed by the other party, the party you ran against, you know? presidents are change agents. they are promising a new thing.

most of them fail. the few that succeed -- the jeffersons, the lincolns, the fdr's, the obamas are going to confront a judiciary that is largely in the hands of the regime they ran against. that is the drama of these great moments. that is the tidal pattern and face. that is thomas jefferson facing john marshall, a federalist, who is basically in the washington-adams camp and there

is a confrontation and we basically call that marbury versus madison. the real drama is not marshal invalidating -- let me -- i should have started with washington, of course. my apologies. at there is not so much of a confrontation here. washington picks john jay. he is washington's guy. he does not inherit british judges. they were tossed out in the american revolution but just so you know, in 11 of 13 colonies, the judge of the colonies sided with george iii against george washington. article iii is the third for a reason. it has the least text associated with it. politicians are supposed to pick judges. judges are not supposed to pick presidents. that is why bush versus gore is a disgrace. and the reason that judges were third out of three, they are not the champions. there is not this face-off initially with washington because he is picking john jay.

with jefferson against john marshall, there is this confrontation and it is heightened because they are second cousins, they do not like each other. and note that john marshall has to swear in jefferson just as roger tawney is going to be swearing in abraham lincoln, and you remember the slightly flubbed the swearing in win over the was sworn in by john roberts? it was a slightly tense moment. i'm getting ahead of the story a little bit. john marshall invalidating an act of congress -- the real drama is whether it is john marshall versus thomas jefferson. john marshall's opinion -- he goes on and on about law in the -- how lawless the jefferson administration in the same way that today's court is being invited to say, well, the obama administration is lawless on immigration, lawless on obamacare, not just the law, but the implementation of the law,

the obama administration is lawless on carbon rules and the epa. this is nothing new. this is a feature of the distinct structural power of a presidency that is a four-year term with this tidal feature and justices who have life tenure. marbury is a drama. fast-forward -- roger tawney. abraham lincoln becomes president by running against roger tawney, by telling everyone who will listen how preposterous this stuff is. the young lawyer from illinois says -- i love this phrase -- i am an astonisher in political history. the tension when lincoln confronted tawney who wants to invalidate everything. he was to declare everything the obama administration -- i'm

sorry, the lincoln administration does as unconstitutional. it's a conscription law. and you can buy your way out of it, just like the individual mandate. he is afraid tawney will invalidate this whole thing. when tawney dies, they find in his desk -- the case never materializes -- they find in his desk a complete draft opinion. a draft draft opinion, if you will, holding conscription unconstitutional. the case had not reached the supreme court, but tawney is ready. he has it in his top drawer. lincoln's emancipation proclamation, if you read it, it has all of the poetry of a bill of lading. [laughter] dr. amar: and it does not free everyone. only some people in some jurisdictions. he is a lawyer. he tries to bulletproof it.

he knows if you give tawney that much, he will hold it unconstitutional -- if you give tawney that much, he will hold unconstitutional. the court is filled with jacksonians. people appointed by franklin pierce, may he rot in hell -- this is a c-span event, so i paused a little bit, but i think i can get away with that one. and james buchanan, that is the court that lincoln confronts because justices are ghosts of the past, and lincoln is running against the tide. some of you may remember this and your history book. i will not say you remember it from your childhood to rid but remember -- the new deal against the old court. franklin roosevelt confronts all of these republican justices, and in his first term he does not have a single appointment. nine appointed by an earlier regime, threatening to

invalidate every part of his program, the national industrial recovery, after the agricultural act and obamacare -- i mean -- and his social security structure -- these face-offs are built into the structure of a presidency that is four years and tidal and these justices that have life tenure. now reagan did not really have this confrontation. here is why. because earl warren, who was basically a supporter of lyndon johnson, missed time to exit and ended up doing things in a way so that richard nixon, even before getting elected, had two open seats to fill.

by the time reagan became president, previous republican justice had begin to start the judiciary in ways that were sympathetic to reagan. republicans had controlled -- i will say this again later -- republican appointees have controlled the supreme court since 1970. that is now no longer the case because the court is 4-4. we are facing an election in which the house, the senate, the presidency, and the judiciary are all in play. in january, they can all be good -- controlled by the republicans or the democrats or something in between. the court has not swung since 1970. that is part of the reason why

this is particularly frothy. fraught.t -- but yes, when obama confronts the roberts court, whose majority was appointed by the party against which he ran, that is the drama of the obamacare case. it's not so different from the old court and the new deal or roger tawney trying to invalidate everything lincoln is up to -- his habeas corpus policies, his draft policies, his slavery emancipation policies. it's very similar to the confrontation between john marshall and thomas jefferson. there is a pattern to all of this. i promise you since this is the new york historical society, we are not just going to do history. we are going to do new york. let me remind you of the new york angle. in that first one, george washington, he is picking a new yorker, john jay, educated just

down the road here, to be his supreme court justice. what makes thomas jefferson president in 1800? you could say the sedition act. or you could say new york. ehrenberg. that is actually the swing state. adams and jefferson running against each other and jefferson come second in that one and they do the rematch in 1800 and jefferson prevails. new york is the swing state in that election. it is looming very, very large. it is hamilton on this island. whoever wins the state wednesday presidency, setting up the confrontation. i admit the third face-off does not have so much a compelling new york angle. lincoln, tawney, neither has a big new york reference.

lincoln manages to win at the convention. but he does have the cooper address. it is key to lincoln's success. the fourth one is one of the most new york stories of all. charles evan hughes, the hughes court against -- the chief justice against franklin roosevelt. both new yorkers, both former governors of new york, both studied at columbia. they are friendly actually, although one is a democrat and a republican. when they refer to each other -- "governor." "governor." roberts is not the most extreme republican on that court. they were nicknamed the four horsemen of the apocalyptic -- apocalypse. to make life very difficult for frank when roosevelt and it's a very new york story. of course, the current court

headed by a new yorker, born in buffalo, learned law in new york city from henry friendly. the other members of the court -- ruth bader ginsburg, finished her law degree at columbia and was a brooklyn person, sonia sotomayor is a bronx person. elena kagan is manhattan all the way. antonin scalia was queens,. -- knows staten island. i mentioned sam alito. but also remember merrick garland, who learned his law in this city. he is the guy on the hot seat right now. it's very much a new york story. and what is going to decide? what is going to decide elections? who fills that slot on the supreme court? who becomes president of the united states? whether it is donald j. trump or

hillary clinton. it is very much a new york story. the ballot, and when you have judges -- the supreme court is very much on the ballot, and when you have judges, richard nixon or george w. bush -- judges that can tell us who can vote and who cannot with id laws, the court is influencing with elections who is going to win and who is not. these things interact. it is a very interesting interaction between the presidency and the court. that is my first thinking. my others are shorter. now here is another -- this is a long-term trend. the rise of judicial power. so, i'm going to say a little

bit more about this. john j quits the court. it's a hassle. he is offered the position a few years later. the reason john marshall becomes justice as the clock is winding down because his term is about to end and john marshall is the only guy in town. he says, it's got to be you because i know you will accept. john jay sat on the offer for a a while -- a while but by the time he actually said no, there were not many days left. what precipitated marbury versus madison? the so-called midnight judges when john adams, after losing, tries to pack the issue with even more federal judges to make the life more difficult for thomas jefferson and to protect his side because again, political appointments, and they

have life tenure, that was the backdrop of marbury versus madison, the race against the clock created by life tenure for the justices versus the very different tenure for a president. when jay is offered chief justice ship again, he declines up because the judiciary lacked the energy and weight indignity. i do not automate this thing work. it is just broken. john marshall began to see the possibilities of it. you have heard of marbury versus madison. name me, among other things, the proposition that courts can invalidate acts of congress. first, what was the great issue of liberty involved in marbury versus madison? correct. there was no great issue of liberty. [laughter] dr. amar: it was original versus

appellate jurisdictions and who cares? you can see how unimportant the court is initially. do you know how many justices there were on the original supreme court? six. an even number. how odd. how can a court ever operate with an even number? right now, you see we have eight. they are not imagining the supreme court will be the be-all and end-all for things. by the way, the supreme court building, when was that built? beautiful building. where did they meet before that? 1930. the basement of the senate. the great plant for washington dc, the judicial was an afterthought. they created from the beginning and executive mansion and a congress building, but nothing for the judiciary. it is third out of three. it is least and last. after marbury, 1803, when is the next time the supreme court invalidates an act of congress?

the answer is not until 1857, dred scott. and they made it all up in that case. holdings are unconstitutional, the missouri compromise, which prohibits slavery north of a certain line. that was in astonishment in history. the very first congress prohibit slavery in the northwest territories. there is no problem -- congress has the power to brevet slavery in the territories. the framers said that congress could do it. the northwest ordinance was passed before the constitution was ratified and everyone knew when the constitution went into effect, they left all of that. in 1820, when the missouri compromise is passed, the slavery north of a certain line, every single officer signs off on it or it every single cabinet officer. that includes john c calhoun from south carolina. just a newsflash -- is going to keep calhoun as the name of one of the colleges.

i was rooting for harriet taubman college. so, judicial review is not that important of phenomena and early on. constitutional issues are really important. presidents are vetoing bills all the time. half of the presidential vetoes are constitutionally based. presidents, there are about 50 because in half of them are constitutional and they are vetoing bills that courts would upheld or have uphold. andy jackson says, i'm vetoing it. judicial review is not actually, almost none of the important issues of the early republic ever get to court and are resolved. can presidents negotiate secret treaties? can they send secret invoice? how should they use rounding errors in the apportionment of the house of representatives?

can presidents fire cabinet officers at will? is the assumption of state debts by the federal government constitutional? lots and lots of early issues arrive and the supreme court does not play a role in the resolution. they are resolved in the other branches. the supremeow, court is the 800 pound gorilla. it ousts presidents and picks them -- richard nixon and george w. bush -- but twice a year it is invalidating an act of congress. not original versus appellate jurisdictions. who cares about that? they are invalidating or threatening to invalidate big laws like obamacare, loss about affirmative action and religion .n public life and immigration

huge constitutional questions that are being decided. campaign finance. really big ones. what is up with that? how is it that we have this rise of judicial power over time, the least dangerous branch of the founders becoming today's 800 pound gorilla? here are two factors i would identify. there are many that we can talk about. we could talk about how the courts, for example, there are many more judges today. they say friends come and go but enemies accumulate. judges accumulate. you need more of them. you cannot keep adding legislators. as dysfunctional as congress might be with 500, it would be probably worse with 5000. so at the time of the founding there are seven members of the house of representatives, about

105 members of the house of representatives and six justices. seven representatives for every judge. today there are about 1000 federal judges, two federal judges for every congressperson. that's a 15 fold change in the ratio. all of my students, some of them are here today, almost all of them, they want to be judicial law clerks, to work in the judiciary rather than congressional. the judiciary has a lot more influence because there are a lot more of them. the supreme court gets to decide which cases it will pick which it was not able to do and john arshall's day, which gives certain power to the agenda. there are many factors. we the people have increasingly punted issues to the court to decide. there are constitutional issues that presuppose vigorous judicious enforcement.

the 19th amendment and others. here are two, one of which is a particularly new york story. , in avided government world of divided government, no matter what the court does, you get a legislature is going to like it or the president is going to like it and the court cannot be overturned unless the legislature and the president are all on the same page two validated real in a world of divided government, the court has more running room. every single president since lyndon johnson, except jimmy carter has faced in opposition in the house of representatives for at least part of the time in office. they have faced divided government which gives judiciary more ability to do what it wants. john marshall had less running

room because the jeffersonians controlled, not just the presidency but the house and the senate. he starts misbehaving, he will get smacked down. and indeed, just to go back one last moment, the point about the face-off, another way of thinking about the drama, from a new york angle, if we pay, we -- people, the verb democratic new yorker hillary rodham clinton, how will new yorker john roberts played that -- play that? he will be the minority factor. we have not had many examples of chief justices in the minority. one we did was john marshall and he managed to make it work, even though, remember he is the last of the mohicans, the last of the federalists.

they have a good base. they have all of the seats locked. jefferson wins and wins again in madison winds and wins and wins again. john marshall was on the court for 34 years and these are basically jeffersonian appointees and he has to work with them and make it work and he manages to do that, but sometimes he is leading from behind because he had to create a coalition. he dissents, john marshall does, in only one important constitutional case in 34 years on the bench. wow. interesting fact, yeah. is roberts going to be able to do that if he finds himself in the minority? william rehnquist was not in the minority in general. andher was warren burger neither was for a warrant yes, a republican appointee, but a liberal republican appointee. it will be a distinctive challenge.

tawny was supported by all of these jackson democrats and pierce democrats and buchanan democrats on the court. contrariwise, if donald j. trump , if we the people pick him, and you have to understand that it's a real possibility, my friends, how would these new yorkers like ruth bader ginsburg and sonosite of my art and a lynn kagan -- elena kagan react to that? that is also a new york story. one thing that makes the judiciary powerful is a divided government because it enables the judiciary to be right-wing or left-wing and at least one of the two parties in the divided government is going to be happy with that. so, if hillary clinton manages to win and the senate and actually get the house, which could be in play because donald trump could lose the house of representatives for his party, that is going to be a very

different world for the likes of the republicans on the court. contrariwise, it could be the case -- both are actually possibilities -- that trump wins and carries the senate and the house and of course he will have the judiciary then, too. he will be able to replenish with the person of his choice. it will not be merrick garland, and now the unified government with a vengeance, the republicans controlling all of the branches and that could happen in this election which makes this election so interesting. one is rise of divided government led to much more judiciary power. one of the fact and i may give you the new york angle. after watergate and vietnam, you lost a lot of confidence in the other branches of government. they lied to you. you think the court is the savior. they were not part of the problem, they were part of the solution. i think they have lost some of --t with bush fisher scored

bush versus gore. they lost some of that credibility. here is what is unique about today's supreme court. there have been moments in american history when he left hated the court your that would be the 1930's. there are moments in american history when the right hated the court, impeach earl warren, 1960. we are living in a moment when the supreme court is being simultaneously attacked a two -- by two vividly by the left and right. they are teed off, for my friends on c-span. [laughter] dr. amar: there is a lot of anger in general and that is a new phenomenon. watergate, vietnam, i think they have made the court less, still held in high regard than the congress. divided governments have given the court more power and a lot lawyers, theyd

become their first start in the judiciary. here is another thing that is interesting that will lead into my next point. the rise of claims of judicial expertise. we are smart people. we actually have special expertise because we went to law school in this constitutional stuff is really complicated, so just a reminder, john j was very well educated but not all of the other justices have gone to come over the course of american history, has gone to fancy schools and had fancy degrees. most of them were not even judges before they were justices. john marshall was not a judge before he was a justice and his replacement, roger tony was not --udgment -- roger tony roger tawney, was not a judge before he was a justice. his replacements, weight and full or, were not judges before they were justices. that takes us into the 20th century.

earl warren was not a judge before he was a justice. neither was william rehnquist before he was an associate justice. and yes, it actually is true that william howard taft was a judge before he was a cheap justice but he had some of the really important jobs also. [laughter] dr. amar: you are thinking president of the united states and i'm thinking officer of yale law school. [laughter] dr. amar: whereas today, except for elena kagan, none of them -- except one, was a federal judge. the one none of you will even remember, not earl warren, not ,illiam douglas, not hugo black sherman menton. that was a court with a lot of political experience and today, except for elena kagan, all of the justices were sitting appellate justices at the time of their employment.

you rise within the judiciary of health and here is how it began, like going to a fancy law school, often in a college in new york or adjoining state, doing a clerkship, becoming a baby judge and working your way up through the system and i told you, that is john roberts who learned his law by studying under the feet of the great henry friendly. merrick garland studied at the feet of the same great new york city judge. it is the rise of new york in some ways, the great universities. to put it andy then i'm going to, we are going to move to questions and answers. rise ofhink about the claims of expertise, and there is suspicions about the expertise. all of these experts on wall street did things to their own advantage, and experts in the accounting industry and legal their ownare into

power trip. critics claim that. york plays a huge role here because within commuting ,istance of this lecture hall are three of the six greatest law schools on the continent. just a cab or a commute ride away, yale, nyu, columbia. expertisems of actually mean, for example, that the court today is no longer geographically balance. it used to be when justices wrote circuit, there was a geographic bound and now you focus on a demographic, how many , how many many jews catholics, how many blacks, how many asians and the like.

that creates the possibility of a very new york dominant court, which you could not have been in new york circuit in just circuit ring. i think i have said just enough to get the conversation going. one thing that we have not talked about, we talked about how you get on the court. we have not talked about merrick garland, and i have to do it -- and i am happy to do it. we can also talk about how people leave the court and whether they leave the court in politicized ways or not. there is lots of stuff to talk about and i think it is time to q&a.to please come to the microphones. these are actually, ask one question and indeed ask one question. thanks.

[applause] [laughter] >> professor, could you comment on your opinions as to why chief justice roberts seemingly abandoned his republican brethren on obamacare? dr. amar: that is the perfect question. the question is about john roberts and obamacare. that is his john marshall moment in which he rises above partisan politics. he might be right or he might be wrong but i think he is right. even if you don't. even if you think he is right, he was not partisan about it. he does not like this law, truth be told, and his party does not like this law and yet he decided the democratic appointees, good for him because washington dc, almost no one ever crosses party lines and he did. good for him. he did it not once but twice because in the sebelius case in which he upheld obamacare against the constitutional challenge, and the king versus

burwell challenge is one where he read the statute perfectly, sensibly, generously, and did not try to undermine it with clever technical lawyering that was not faithful to the larger purposes of the law. and again, you might disagree with him, but i think he was right. even if you disagree with him, note he was not a partisan. let me use a service chance to say one other thing. other people get off of the court. there is a, political appointment process but there is life tenure after that. true enough, for much of american history, you had people on the court, once and future politicians who did not give up a political life when they donned the ropes. why did john j leave the court? to become governor of new york. would haveue cushing

left the court had he been elected governor of massachusetts, but he lost. i can give you some new york angles on all of this. charles evans hughes, a former governor of new york, an associate justice and he leaves the court, a cushy gig. why does he leave it? to run for president of the united states. he only loses california by 40,000 votes. if he had one california, he would've been president of the united states and to become secretary of state because of his connection between secretaries of state and presidents. in american history, many of the early presidents, after the secretary of state's become presidents and others became really close like in your clay -- henry clay and daniel webster. there is a new york angle with this. william douglas who learned his law at columbia wants desperately to be vice president of the united states and comes this close to being fdr's running mate in 1944.

he had a more political personality than a judicial one. it was more suited to his temperament. critics would say he was a trump -like figure in many ways. he thought about running for the presidency in his own right and that is another new york angle. world, in our world is preposterous what i'm about to say, but in an earlier world -- justices did not give up politics or political ambitions. chase desperately wants to be president and is angling for it even as he is presiding over andrew johnson's impeachment trial. he is angling to basically replace johnson as the democratic nominee for the presidency in 1868, so all the people that lincoln put on the court or angling for the presidency, and that is not a street today. from an analytic point of view,

who is actually the republican's sanest choice. paul ryan is a good looking, young guy but he says no. who is a centrist, really smart republican, heartland of america, former high school quarterback, right out of central casting? i think it is john roberts. younger andter and better looking version of john kasich, you see? [laughter] dr. amar: just saying. [laughter] dr. amar: but of course what i just said is preposterous because, actually, he is not a pawn, and good for him that he is not. i do not always agree with him. justice roberts, if you see this on c-span, you have a big fan in yours truly. [laughter] dr. amar: and you learned your

law from the great henry friendly, who taught merrick garland and many others, and henry friendly believes that law is different from politics and so to and set alight and we are lucky that you have that view. >> i have a question. dr. amar: yes? >> have any justices been impeached and how would you do it if you could? i have a couple in mind. [laughter] dr. amar: remember in the 1960's, i told to the court was reviled by the right and other major bumper stickers, highways especially in the southland. >> i remember. dr. amar: you should not admit that. you were an infant. impeach earl warren. remember, impeachment is not limited to presidents or vice presidents or officers. that ifshall is afraid

he actually orders thomas guyerson to a point this will you mark bray to the position, and that is what my very is all about. he comes to court saying, i want you, the judges, to order james madison, who is jefferson's wing man as secretary of state, i want you, john marshall to order medicine to give this guy a piece of paper saying to use a judge. remember, adams was trying to pass the judiciary on with all of these federalist types. marshall is afraid if he does that, he's going to be impeached and maybe convicted. that is actually only the second worst scenario. the best scenario is he will be ignored and made a fool of. second best he will be impeached. i will tell you why he thinks that. remember, we have an advantage, and we know how history turns out that he does not. thomas jefferson is in france.

he says lots of things about the french revolution. the tree of liberty must be watered by the blood of tyrants. it is the natural manure. he does not know that this guy is not going to be a hugo chavez type. batferson does a lot of crazy stuff. why is he thinking he might be? he doesn't. he says jefferson is all of these horrible things, but too bad we do not have jurisdiction. >> what is the process? dr. amar: here is the process. i will tell you who was impeached. a justice who sat on the marbury versus madison court. a man named chase. not solman p. chase, but samuel chase. it is theally, and same process of any other impeachment, basically. in majority vote of the house of representatives and a two thirds vote of the senate. presidential impeachment is

different in that a chief justice presides, but otherwise, who presides? the vice president. that is wrong because he would win the presidency upon conviction and he has a conflict of interest. theevery other impeachment, chief justice to stop reside. in majority of the house, two thirds of the senate. i myself have been involved in the impeachment of an advisor of a lower court who was basically a crock. ok and convicted and ousted. chase was a justice, a federalist and he was bipartisan. he threw the book at jeffersonians who spoke out against john adams. he threw the book at them in prosecution under the sedition act and he was a little too vigorous, and would not let

juries hear the first amendment and other constitutional defenses of the defendant. he was a little too vigorous and all of that. he gave political speeches. and, there was an earlier federal judge was actually impeached and removed. critics said he was abusive of , maybend defender said he was just drunk. [laughter] dr. amar: we would say today, maybe he was suffering from dementia and alzheimer's. would you want your case to be decided i a judge with dementia? this guy's name was pickering. chase was impeached. he was on was convicted, a majority vote to convict but not by two thirds and i just have to tell you the story, and i know i am about to get the hook, but here is a life story. here is the greatest story. chase isme time that

being impeached for his partisan burr has killed alexander hamilton in a duel. andresides over the senate therefore, the impeachment trial of chase, leaving the newspaper saying, in those countries, the murderer is arraigned before the judge. [laughter] dr. amar: in our country, we have the judge being arraigned before the murderer. [laughter] dr. amar: thank you very much. [applause] you are watching american history tv, all weekend, every weekend on c-span3. to join the conversation, like us on facebook at c-span history.

>> we proudly give 72 of our delegate votes to the next .resident of the united states [cheers and applause] artifactsek american takes viewers into historic sites around the country. oldest tour some of the rooms in the u.s. capitol with moyle moyle. we hear about the historic events that have occurred in the suite, theleader's early rooms in the 19tnt