responded when senator hatchet asked if you might rely on substantive due process arguments to strike down social problems, programs, such as osha, food safety laws, childcare legislation and the and the like by telling him that, quote, the court determined correctly that it was the role of the congress to make complex decisions about health and safety and work standards, end of quote. now, all of those issues could come before the court again, just as the roe v. wade matter might come before the court again. so, my question about whether the constitution protects a woman's right to choose is, frankly, not one bit different from the types of questions that you willingly answered yesterday for other members of this committee. >> and that's a look at what the current nine justices on the supreme court had to say about abortion and the law. a reminder that all supreme court

nomination hearings, in their entirety, are available to watch online, anytime, at c-span. org. >> in light of the upcoming midterm elections, pictures of is a new elected member of congress. we asked this year's competitors, what is your -- and why? make it 5 to 6 minute video on what is your position on this issue. don't be afraid to take risks with your documentary, be bold. amongst the $100,000 in cash prizes, is a 5000-dollar grand prize. videos must be submitted by january 20th, 2023. visit our website at

studentcam.org for more information and step-by-step guide. >> hello, welcome to another edition of at home with the roosevelts. i'm paul sparrow, director of the presidential library in hyde park, new york. we are recording this session on september 17th, which is constitution day. what better way to celebrate constitution day than talking about the supreme court. with two outstanding experts on the subject, no president had a more significant impact on the supreme court than fdr. he appointed eight justices during his administration, some of whom help change american democracy for the better. he got to the point that no supreme court justices during his first term, which was a point of extreme frustration for him. we will talk about that a little bit later. the role of the supreme court has changed over the years. today it certainly plays a central war in our political process. but make no mistake, the court has always been important.

joining me today is professor john barrett professor of law at the st. john's university, and fellow of the robert h. jackson fellow. he is the writer of the jackson list, a popular email newsletter and website. and editor of jackson's acclaimed 2003 posthumous book, quote that man. an insider portrait of franklin d. roosevelt. the last new deal insider memoir. also with us today ralph blumenthal distinguished lecturer from baruch college in new york, a former new york times reporter, continues to be a contributor to the times and other publications. author of five books, including the believer about the harvard psychologist john mack who investigated ufos an alien encounters. he actually has a very direct connection with fdr, we will talk about that in a minute. we will start with professor barrett, give us a little bit of your background specifically with your work on justice robert jackson. >> thank you, paul for this

opportunity, and really the privilege to be at the roosevelt library at homestead in every sense except actual. the path that led me to all of this was really being a lawyer in washington at first. i worked with the department of justice in different federal investigations for about seven years. i then became a law professor. among my areas public life, public figures, legal ethics and constitutional law. sort of a converging on the supreme court and the people on the core. robert jackson in particular. someone who was in roosevelt's cabinet as attorney general. was confirmed by the senate in five different jobs in a very short run of years. he became a big project. for our topic it matter that jackson was a named assistant attorney general in 1937, principal witness defending the president court

backing plan, and then the solicitor general who over the next two years argued in defense of new deal laws constitutionality before the supreme court. it is the jackson path that brought me into this roosevelt world and the court performance the tide in. >> jackson was of course part of the nuremberg trials, we can talk about that separately. professor blumenthal, give us a little bit about your background both as a reporter and working at the library collection. one of the key members of fdr's administration. >> thank you paul. i really appreciate being on with you and john. i am a distinguished lecturer at baruch college as you mentioned. in that capacity we supervise our archives collection in the newman library, among which we have a collection of the papers on

lutha halle gilles the third, as a member of the committee that really reorganize the executive branch for fdr. that came up right in the middle of the court packing fight. that is interesting. i also was on the new york times for 45 years. one of my happiest stories, actually, was being up at the roosevelt hohman library to do a story on top cottage in 2001 when it was renovated. also, i have written a lot about the holocaust, and of course robert jackson's role as prosecutor at nuremberg. it is a very sterling episode the prosecution of these nazi criminals. anyway, i should say, i came into the subject from a book called 168 days, which is a virtual diary of the court packing controversy, co-written by turner caliber, co-editor at the new york times when i started there. -- it is a wonderful account, not

completely unbiased and we can discuss, of the day today struggles back and forth over the court packing controversy. it is a privilege to be here. >> cloud to have you here. for those of you don't know, tom cottage is a home that fdr bill in hyde park here. in the 1930s, he planned to move into and live in after he left the presidency. one of the first designed houses in america that was made to accommodate handicap person, with a wheelchair. there's no thresholds on the door. the doors and windows have lovers. i'm really is an architectural marvel. it is only open part of the time. it is part of the national park service collection of properties appear. they have eleanor home on south hill, the top cottage, the vanderbilt mansion. quick plug, anyone coming up to the

hudson valley make sure you stop here and visit in. back to this subject at hand. let's talk about fdr's court packing scheme. john, set the scene. what were the circumstances that made fdr so frustrated with the court? and what he did he try to do to change it? >> i think you have to go back a little bit before his presidency and remember that we are in the great depression the stock market crashed in the fall of 1929, coincidentally during that term president herbert hoover had three supreme court appointment opportunities. he made great appointments, no denying that. it is the luck of the draw if the president gets vacancies. president trump got three, president hoover got three.

president roosevelt elected in 1932, inaugurated in 33, and that first, term he got zero. as you mentioned paul. he had a super majority in both the house and the senate. there was an attack on legislation in the problems of japan -- the torpid voluntourism of the hoover air was replaced by the new deal. the new deal ran into a supreme court roadblock. in the course of that four-year term, not only did roosevelt have no chance to appoint justices but the nine who were there struck down major reform relief laws. here's a quick laundry list. national recovery act. the railroad retirement act. section three of the national recovery act. the fraser lumpy act. the tax component of the agricultural adjustment act. there were poll conservation act. the amendment to the bankruptcy law, and a state new york minimum wage law that was a state level counterpart

progressive level. roosevelt was the popular, powerful, democratically response of president. the supreme court was a tremendous obstacle. reelected overwhelmingly in 1936, he decided to use his political capital on his supreme court problem. >> what did he do? what was his strategy? what was he trying to accomplish here. >> well, he took it very personally. actually, he had this dream that the supreme would cooperate with him in getting his programs going. now, maybe john can help me understand, and our listeners, whether roosevelt was being disingenuous or if he really believes the separation of powers did not apply to him. the idea that and he came up with the idea to appoint six new justices and then cooperate with them and he would cooperate. to get his program through it is insane to our way of thinking today. >> it is a mystery to me how

much he believes that he could really merge these two branches of government. what happened is, he was really smarting under these rejections. although the court overturning of the nra actually probably helped him in retrospect, because it was so unpopular. he was resolved! it was really unlike him with his perfect temperament and his great sense of timing, his wonderful way of reading the country, he kind of lost it! he decided to put all of his chips on this plan to change the court. there were several, there were four actual proposals given to him by home or cummings, his attorney general. one with a constitutional amendment, which would be very difficult. one was statutory to change the jurisdiction of the court. they were various levels of

tinkering. the last one was to add the provision that whenever a justice reached 70, he or she -- while he in those days, no she. he would have to step down. or roosevelt could appoint somebody to take his place. that was his plan. he somehow got convinced that this was doable. as john said, he had this wonderful supermajority. he coasted in with 27,000 votes, a huge majority in 1936. he had every reason to think that the country was just waiting. labor was on his side, liberals were on his side, that this would be welcome. of course, it was not! >> a little context here. the 1936 presidential election, as you mentioned, was the largest electoral landslide in american political history. i always

think that fdr had extraordinary political instincts. they got him to where he was. elected and then reelected in a wheelchair is simply incredible on every level! during one of the darkest times in american history. i would also like to point out that he made the three biggest mistakes of his entire political career i think during that period after that landslide victory. he decided to pack the court, he decided he would primary the conservative southern democrats who are holding up legislation in congress, and he cut the budget, leading to the rose recession of 1937. as you said he lost it. he was so enthralling with his own success in popularity that he tried to do things that were way off path of with the american people wanted. john, talk a little bit about what's the reaction was when he put this forward. even his own party had trouble supporting

him in this court packing scheme. >> yeah, the constitution does not prescribe a size for this supreme court. it is a creature of statute. originally it was six and went down to five, it's oscillated around in the 19th century. since the 1870s we have had a nine member court. it's now been 60 years of the country being used to nine as if it is etched in marble. that is a visceral reaction trying to grow the court in 15 with one fell swoop of trying to fill it with like-minded and -- it was somehow un-american even though it is an unconstitutional. it opened up some of the fault lines in the democratic party. there were old barons who were the committee chairman's. there were southern segregationist to a part of this coalition that roosevelt was trying to hold together. the court and the

target was not such a publicly notoriously evil institution. especially the way that roosevelt spun it out. he claimed in the announcement that the justices were so far behind on their work. there was a pile of unaddressed certiorari petitions. which was jargon and just not true. he also claimed that these aging justices no longer had the fastball. that was a hard thing to claim about louis brandeis, the oldest of the bunch! that's been sort of hit a wall of hostility. it immediately became controversial. roosevelt did try to recalibrate. robert jackson was one of the people who told him, you need to start telling the truth about this! it's not about age it's not about backlog it is about interpretations that particularly be for most conservative justices have poured into their constitution.

they have read state powers to protect our welfare and use their police powers must to restrictively. it is about the core putting its political preferences in place of the proper understanding of the constitution. democracy can and should respond by appointing more straight shooters. i would even say more conservative justices in terms of constitutional interpretation as opposed to these four horsemen radicals. >> if i could just jump in here, it wasn't dead in the water from the beginning. it might've seem like it would be because vice president garner came out of the meeting where the news was sprung on him holding his nose and going like this. he had a shot a good shot at getting this through. because of all the reasons we mentioned. his popularity, the election landslide, et cetera. through a series of almost

biblical, greek, whatever you want to call them, missteps, he succeeded in sabotaging himself. even though it was not a popular thing to change the third branch of government, it could've been done. had it been handled differently. it is not just self sabotage. there are external events. a couple of things that happened in that 30 30 or 40 days. announcing the plan in february, early march the senate hearings are happening. the supreme court justices sent a letter to the chairman of the committee that says we are current on our

work. they blow up that cover story. then the supreme court in mid march starts to hand down decisions upholding new deal laws. all of a sudden the supreme court problem is receding. a statement imam wages upheld. the national liberal nation is upheld. social security is argued that spring. in may it's constitutional is upheld. that confluence of events made it really much less necessary to do something dramatic. >> of course that changes one of the decisions that led to one of the great catchphrases of supreme court history. a switch in nine states time. >> as roosevelt as i said in my notes, he would not take yes for an answer. the courts went out of their way, enough if they decide the decisions in order to placate him. that was a good question. was it done with design. did they see the lie in reliving need to uphold the good new deal programs. for whatever reason the court gave him what he wanted. basically, i don't know if you want to use this image but it dug his grave for him and he jumped in. he didn't have to. it really is amazing how he missed all the

signals and just plowed ahead. he was determined to remake that court. put up to six that would carry through his programs. it is just astounding. it is still a political mystery. the turner callan's book that i reference, he and else up interviewed everybody but the president. we don't know, i don't know maybe john knows. in roosevelt's own riding and what has come out in his papers about what his thinking was about this. why he wouldn't take yes for an answer. >> he was much too careful to leave a paper trail on anything! [laughs] >> we have a question from the audience, i hope i pronounce this way. camilla -- how do we know that core packing was unpopular? outside of the conservative voice of the court? did average americans in the

1930s have a strong opinion on the court? >> the two strong constituencies of roosevelt, farmers and labor, and liberals -- they all turned against a pretty quickly! he lost his natural constituency. it was not popular from the beginning. it is interesting. he thought, roosevelt thought it might be. which is why he embarked on it! he started losing his natural allies from the beginning. am i right on that, john? >> no, i think that's correct. look at the mailbags. some of which is archive there. >> we have millions of letters! >> you can measure, page by page, the public reaction. a lot of it is very critical. look at the congressional committee votes. ultimately the congressional committee reports. it rejects the first version of the proposed bill. and the urgency is receding in the springtime, the presidency does pull back. it was a second

version that expands the courts buy two seats that he well would have one had that been pushed through to a vote. he kind of had to deal with the senate majority leader, senator robinson from arkansas, who would get that over the finish line. roosevelt had frankly promised him a supreme court appointment, one of those two seats. he was making nice, a jefferson island picnic with all the members of congress early that summer. robinson drop dead right after the fourth of july. at that point, one more development justice band of inter announced he was resigning. roosevelt finally felt he had a vacancy to fill! at that point, just none of it was worth any more trouble. we live with nine, you can see the dominoes. black is appointed in august, read the next year. both felix in a dog with the next year. frank murphy the next year. robert jackson and james burns the next year.

these eight roosevelt appointees just one after another in the wings, starting in the summer of 37. >> there were so many opportunities for him to compromise. not so much cummings, who was a true believer as his attorney general, but others came to him, repeatedly, with offers. wheeler, montana -- with offers to compromise. he just wouldn't have it! he was dead set on moving ahead. he wouldn't even recognize the reality of what was happening. his own allies were coming to him with stories about what's going on out there. how he was losing, you know, support -- constituencies. he was very bull headed in that. it is extraordinary. the sense of timing that we credit him with, the exquisite sensitivity to political wins. he just was dead set on this.

>> there is a little colonel in this that i think is maybe an explanation of that. home are cummings, the attorney general, was really the harassment and the proponent in this. part of the problem on the supreme court was justice james make reynolds. he was one of the four horsemen. he was a wilson appointee. he had been in the wilson administration with fdr. as attorney general, mick reynolds had drafted, in effect, a court packing plan. when cummings found that in told it to roosevelt they both thought it was such an incredibly wonderful car mixing to take on mcreynolds with this proposal. i think they got too attached to the idea. that held their enthusiasm in february, march, and into the springtime finally before recalibration started. >> we have another question from my wife, what's determines

what's level of justices are on the court? does congress have the power to change that number? could they change it down? as you said earlier, it's been five, it's been seven. you know, is that? >> it is entirely a statutory manner. it is an axe judiciary act, if you will. to create a supreme court seat, if one became vacant and could've all-ish one. i do not think a law can abolish a sitting justice. the constitution protects against that. also in older history and in recent history we have seen that the senate has the power to sit on a nomination. that happened under president under president andrew johnson, it happened under president obama for a stretch in 2016. >> also congress has the power to limit the jurisdiction of the court. it can say that the court would need a supermajority to overrule any decisions. thank can tinker with the mandate of the court

in so many different ways. we think that is somehow protected in the constitution but it is not. congress could not only change the number of justices but reorganize their responsibilities. >> i want to go back to something that john was talking about which was this string starting in the second term of the administration going forward, disappointment of eight justices. i will ask you both into question, like who is your favorite child. of the a, who do you think was the most significant employment that he made, in terms of both changing the core and changing america? >> john, point to you first. >> i have a bias but i think it is well founded, in favor of robert jackson. i think he was such a special, incredible talent. a beautiful probably the best rider in the courts history. a case by case jurist. he did not pigeonhole easily.

it turned out to be quite a fractious court. this rose about court that began in the late 30s and lived on to the late 50s. jackson was kind of more on the conservative side, but in the middle if you will. a much more a case of time person. he was the exception in the japanese american exclusion cases. and of talent jackson is the person. in terms of significance, i may be hugo black because he broke the ice. that really started the flow. and of course black served until 1971, a long and distinguished career. perhaps overcoming the stigma of having been a ku klux klan member, not coming out just after he was appointed to the court, undeniably. he chartered and egalitarian path of our constitutional law. by the late 1940s, he really had becoming the leading liberties justice. he was that, for most of his

career, i think he is also very important. i have two children, i don't pick save a children. i look at these justices and think, really, that is an all-star team! quite a talented roster with almost no exceptions. >> who do you put your money on, ralph? >> i would say black also. it's interesting that rose about claimed him. he probably was blindsided. he didn't really do his homework i'm black and his klain membership, although it did end up pretty irrelevant based on the direction that he took on the court. it's also interesting that there was this deal to appoint joe robinson to the vacancy after advantage retired. robinson, of course, was carrying the president water off through the court packing case. he with the senate majority leader who literally worked himself to death and die before he could

be appointed to the court. roosevelt turned on him. he was afraid as a southerner he wouldn't carry through his liberal agenda. he left robinson hanging. really a very sad episode in history. robinson, i found out, his best friend was bernard baroque, i didn't know that. -- >> there is a college named after him isn't there? >> well, that's where i work. baruch college, but rookie of course being a famous financial adviser to fdr. it is strange just the way things turned that whole thing could've been settled long before it went down to defeat. if the plan had been carried through rose about would've appointed robinson to compromise and maybe a 0. 2 justices not go for the full six. as i keep coming back to

this he was adamant that he was going to have his way or the highway. >> all i have two more quick comments about the appointees. i want to flag felix frankfurter he was of course brilliant and his career i think most closely to the judicial restraint model that actually the court packing model is about that our country should be made by our elective representatives it is the supreme court's job to get out of the way of a national government. and stake a vermont have ample powers in our system. so frankfurter it's sort of a through line. also just a charming in fascinating character. the other person that i think we all forget is that roosevelt elevated harlan fixed gellin to be a republican a coolidge appointee to the court, in the 1920s. roosevelt did that in the summer of 1941 as a sort of bipartisan non political move. that is a lost are. that was a great thing for the president to do.

>> he was a member of the liberal minority, wasn't he? >> that's correct, he was not one of the four horsemen. >> interestingly, frankfurter actually oppose the court packing plan, right? >> in his private heart, he held his powder and did not do anything publicly. >> roosevelt became very frustrated with frankfurter. we are going to go back in time for a minute and then we are going to come up to the present day. i want to go back to talk about why the supreme court has this power to determine what is constitutional law and what is not. it goes back to the very founding days of the early

1800s with the rather extraordinary legal case of lamar barry versus madison. let's talk about this and why this it laid the foundation of why the supreme court gets the final say >> was that to me well ma barry versus madison except the supreme court to rule on all legal battles in the government. it is not in the constitution they took on that power later on it was deemed worthwhile in terms of bounced power without that the court would have been a really weak sister to the other two branches it is an interesting example of how the founding fathers hadn't thought of that once the court came up with it everyone said this is a good idea, the court should have that power! it became ingrained in our system. we can't think of what it would be like without it so it really is a great example of how the constitution is a living

document it just added this element and never had in the beginning. everybody said, that's a good idea. >> there is in marbury a sort of logic that gets them to the power to engage in judicial review. the court has to decide cases, it decides cases that arrived under the constitution. sometimes a provision of the constitution might be in conflict with a statute. -- the answer is the constitution defeats a statute. the court strikes down a unconstitutional statute in the context of a case. the power of judicial review though is different than that answer becoming the authoritative last word. >> right. >> judicial review becoming a judicial supremacy. i think that process is something that we also to wrestle with. with the court packing plane was pushing back on was judicial

supremacy being asserted over a new deal laws in the early 1930s. robert jackson wrote a whole book about this called the struggle for judicial supremacy, published just as he became attorney general in the 1940s. historically in the supreme court it became institution that inflated itself as big as it could get away with, as we would let it get up -- and marbury was the start. they left that road to big. other times we push back. a 1937 court packing issue is one. judicial for by individual justices is another. proposals for court reform today, obviously, would be in that vein. >> so we have got some good questions coming in now. please, if you have a question just put it in the chat. joanne morris

wants know what argument was given for increasing the court from 6 to 9 in the first place? when and who did this? did they face similar opposition? that's a great question. >> it was not in one fell swoop. generally it relates to the structure and creation of the lower federal courts. as the number of circuit court grew, a corresponding supreme court justice because of the circuit riding responsibilities, it largely explains the early growth oscillation. those circuit panels were injustice visiting in riding and joining the circuit court activity. i think bennett is workload driven. there is more and more cases coming within the jurisdiction of the court, i'm sure the supreme court was communicating to the congress that they could use another guy up here! laws grow the size of the court. that is what largely got off to nine. >> a lot of political and more workload? >> i think structural for the

judiciary and workload. the political moment is more in the civil war non-filling vacancies. the legal tender case was pending before the supreme court and basically congress let the court shrink rather than that andrew jackson grow the core in the wrong direction, that might have threatened reconstruction. >> one of the original proposals for reform in the court along with the packing west to designate different districts for each of the justices, right? they would come from nine different parts of the country and all that. they would be limiting roosevelt, trying to think of two people. wasn't robinson from one place? arkansas or something? somebody came from the same place as another justice, he had to be ruled out. that was one of the ideas

to trying to get the justices picked from different parts of the country. we have a question from princess michelle, your highness, do you have any information on how president fdr celebrated the american holiday thanksgiving. my mom and dad were born here during his term of service in the usa. my mom was born in the american holiday thanksgiving. i can answer a little bit of this. for many years, fdr would celebrate thanksgiving in palm springs, georgia, after the rehabilitation center for polio that he created down there. he bought an old rundown spa and created the world's lead polio research center. he will go down there every thanksgiving in spend time with the patients in the mid 1920s, he first got polio he went there for quite a while when he first became president. as president he went down there and he could drop his act. he could let people know that he was crippled, handicapped, he could swim in the pool with them. they called him doc roosevelt. it was a

tradition that really meant a great deal to him. good question. >> that image from photographs was the first thing that came to mind when i heard the question. the other thing i know but not in detail is that the date of thanksgiving, that particular thursday was standardized under roosevelt. so it made it more of a national holiday, a fixed date. >> it was standardized because because it created a controversy. retail industry asked him to move it up earlier so they had a longer period between thanksgiving and christmas for people to buy things. he moved it, there was such an outcry about it that he had to move back and solidify that date forever. >> you mentioned polio, we should not let -- >> we lost ralph for a second. technical wizardry. >> and i'm back? are you back? >> yes. >> has that, is that better? is that all right? so, this is the

100th anniversary of fdr's polio in 1921 that of course made him a great leader that he was. he gave him the empathy, they gave him the strength the power to overcome adversity all these things that abandon him during the court packing thing. the embassy, his wisdom, the only thing he had left with his strength. he had that in access, maybe too much in this case. it is interesting that this is that important anniversary. which history could've been different. he may never have developed into the later he was if he hadn't had that adversity to battle against. >> i absolutely believe that. we have a great question which has come in from christopher d..

was jane hampered's appointment roosevelt's way of paying him back for not taking him on as vice president? a little political history here as well as a court history. certainly a interesting character. threatening to run against brazil as well. any comments on that? >> i'm not sure how explicit that was. it's 1941, after 1940 has occurred and it's over and done. i'm not sure what's said under burns would have gone to a third term president. they obviously had a fine relationship. roosevelt had a high regard for his talent. not only because he put him on the court, and a year later when burns hated the job anyway, roosevelt pulled him out of the court and into the white house and had him manage the economy during the war. i think lawrence was and executive branch manager or legislator way ahead of being a judge. >> right. do you agree with that, ralph? >> all will defer to john here. much more of an expert than i am. the people who end up being with the president on this court packing thing the ones

who are against him it was really loyal group, tommy cochrane, others who stood with him at a time when so many other people were abandoning him. wheeler, and connally and others. garner, of course! so, it is interesting that he had a small circle of people. and jackson! you know, jackson was one of the people that really stood by the president, right john? that is right. in many more, the one that was never published in his lifetime, i had the luck to find the manuscript and these families support to publish it. in four pages, he tells his experience with court packing. he recounts going over to the president, to the white house, for a meeting with the inner team in february when this has been announced. it is off to a bumpy start. jackson is telling the

president, before you go fishing, before you head out of washington, you need to have another crack at explaining this. a pile of unaddressed certiaries -- is not during the day. roosevelt, according to jackson, positive, that is a terrible explanation, isn't it. they went into a fireside chat and started to tell the truth. it was more of a political process that had a chance thereafter. >> we have a lot of questions coming in. we want to jump over to a question from camilla about the connection between justices and political perspectives. the question is, did the 1930s justices have the similar controversies or is this a modern development in terms of over political connections outside of the court system? we will start

with you, ralph, on that one. >> i would tell you that the book, 168 days, opened my eyes to the poison atmosphere in washington. i had a new deal as the program that everyone subscribed to and sailed through that roosevelt saved the country. then you look back and we think that our time is full of internalized, strive, and political poison. what went on back then, it is amazing. the court, i do not know how much the court itself took part in that. we do not know. the book itself does not know what went on behind closed doors. we still don't know. certainly all around the court, the atmosphere in washington at those days was murderous. in that sense, nothing has changed. >> if i am understanding the question, if she's asking about supreme court appointments,

where there poisonous fights in that context? generally, no. roosevelt had a big majority in the senate. he could get his appointees confirmed. that is a fundemental difference between his time in our time. the one that did not have hard sailing but an ugly whispering campaign around it from the bad side with the nomination of frankfurt in 39 and the antisemitic reaction to that. frankly, the hold -- the whole nomination -- was roosevelt not giving a about antisemitism. he flicked his chin at adolf hitler by putting america's leading lawyer and prominent american and you on the supreme court. >> also, the senatorial courtesy in those days was very strong. when and if roosevelt nominated a senator like hugo black, that immediately sailed through because it is courtesy. i do not know if we still have that today.

>> it seems highly unlikely. there is a sense that many people have today, taking the people that are not history buffs, that this contentious nature of the supreme court's new. it is a new phenomenon. it used to be that they would just sit in their robes and the supreme court would hand out things. everything was fine. have you heard about brown versus board of education? it is an interesting thing to look at because of the connection that it has to the roosevelt court. it is perhaps there was no decision in the american history that has had more significant consequences on the way that millions of americans would. talk about how this came about and why it was such a revolutionary decision. it took them out of traditional roles. let's start with john.

>> that is a huge question. in the starting point is obviously the creation of this country as a slave country with our constitution ducking that moral con destruct as the price of ratifying a unity of slave states and previous states and a race through the 19th century, the civil war, the minutes after the civil war. this is fundamental historic reality and our permanent challenge. it is our deepest sin. we won world war ii with a segregated army fighting against racial supremacy siri opponents. that all came home and had to get settled out. the dissonance of not, nazism, impaired pull japan, and going home to being a separate country. this is what the w cpa attacks. it is what's a court full of roosevelt appointees would

still. frankfort, jackson, black, douglas, they are the heart of the court. they begin to deal with this in the late 1940s. they are the leading edge. for them, this is not at all a hard question and morally, or personally. in various ways, it is a challenging legal question. the guys who wrote the 14th amendment or segregationists. frankly, jimmy burns, who we are talking about at this point is the governor of south carolina. he is a segregationist. the supreme court, with owen williams leadership and -- in a series of decisions, worked its way to give meaning to the equal protection clause. >> i think it is our finest moment in constitutional history. >> and you could not draw a clear vision between the congress and the court at that time. congress was controlled

by saint southerners by the majority system. groups like aggregations, powerful chairmen, people who roosevelt had dealt with all throughout his administration's yet here we have a supreme court that is taking a radically different approach to equality, and you shape of americans acai. if i get it in up to congress we never want to segregated the schools. >> i find it an interesting book and to the other cases that came up during the roosevelt demonstration where this idea of protections of american i. d. ills were thrown out the window. i have to wonder what those conversations were like. as you pointed, out

jackson is the dissenting voice in the non judicial sense. the case stressed the court in a way that forced it to make a decision. you are in the midst of this war and you have this fear gripping the country. how did this decision come down? why did they not acknowledge the constitutional rights of american citizens who have to have japanese ancestors? >> they did and they did not. the court decides these series of japanese american in a slow walk. the curfew cases not get

decide until 43. internment cases do not get decided until late 44. at this point, the war in the pacific is far offshore approach approaching japan. this is through the island hopping carnage that we were winning. imperative of national security is gone by that time. the majority fictionalizes at the time when the president of the army decided that we had a security decision. -- national security is a real thing. it is a vital thing. it's also something that can be held as a crutch. the supreme court was beaten down by the claim of national security. >> and you only have to look at this climate in this country after 9/11 to see how inflamed the society can be by the pearl harbor attack, 9/11 attacks, and more recently, all the statues that were passed around militarizing the police. they were invading our privacy, monitoring the muslim community, the patriot act, so we do not have to look back that far to understand the mentality of the country after pearl harbor. look what happened after 9/11.

>> i think it is interesting that the supreme court played eight key role in whether these muslim ban, travel bans, were constitutional. they found themselves in the middle does a political firestorm as it has for so many cases when president biden was elected after supreme justice being appointed by trump, there was this movement that he should pack the court. walk us through, we will start with you john, what this would've been? how can this even happen in today's political environment? well with this process look like today? >> they are not votes, she's

not the political priority. the meaning is exactly would proposed in 1837 there is no basis to think that the ordinary process was manipulated both in 2016 and in 2020. after the death of justice scalia and -- these two were being consequential appointments that distorted something that should have naturally been the other way. president biden, i think, probably, wants to spend no political capital. he began a commission that was started by brilliant academics who have been talking, and studying, writing. there are a range of proposals ranging from statues to constitutional amendments to retirement schemes and

rotations that would depoliticize the court that could be talking without a constitutional amendment. in other words, justices for good behavior, which is interpreted to mean for life. this doesn't necessarily mean we have the right sit on supreme court cases. this is until one expires. it can be structured that they move into service court or become a senior bench in the recusal or something. they want to give it to be justices. in the meantime, it would be a vacancy that would be created. let's say every president in a four-year term got two appointments, that would be a much more regular thing. that might take some of the political venom out of this process. of course, it would take a statute. it might be challenged. it is ironic to see how the supreme court would be asked in deciding them. after we got past that he would take

some number of years before we were in the new regime of orderly and less politicized supreme court opponents. it's a very hard question. >> also, when roosevelt came up with this court plan, it was immediately seized upon that one of the justices -- not cardoza. anyway, he was great and really popular. now because people are living longer, that age does not seem to old anymore. secondly, look at the differences between biden and fdr. biden is much more careful, not as sure footed in a political animal or good politically as roosevelt. biden

did not come off a 27 million vote landslide, 27 million vote landslide that fdr did in 36. they are different people. roosevelt is very headstrong on this issue. biden is not committed to this issue, from what i can see. the latest refusal of the court to delve into the texas abortion law really threw a new element into the debate. a lot of you are thinking that biden is not going to invest his prestige on this issue. now this is of all issues is very valuable. it caused a lot of decisions like that by the court and they may move this panel to come up with something. we've got a couple of questions that have come in that are not strictly related to the court. i will try to answer a couple of them. princess michelle asked again who was franklin roosevelt friends with from the monarchy and government from the united

kingdom. very famously he invited the king in queen of england to come to america in 1939. americans say, hopefully realize that they didn't particularly like the british monarchy. a matter of fact i had a very low popularity ratings. the previous king had advocated because he married an american. there was a real sense that the english monarchy did not want anything to do. roosevelt knew that we had to solidify a relationship with them. the war was coming! he knew the war was coming. he knew that britain would be a critical ally. he invites the king and queen, they have a big fancy dinner in washington. they come up here to hyde park, fdr famously has the hot dog picnic up at the cottage. where he serves hot dogs to the king and queen. they feared other things to. i think you talk a little bit about that ralph in your article. >> i think they tried to serve some sort of a foodie cocktail

to winston churchill who spat it out. [laughs] absolutely, that was a famous episode. roosevelt saw the need to cultivate closer relations with england. it very well could have lost the war once and for all for the west. he had this wonderful relationship with churchill, of course. i think roosevelt addressed him as, i forget -- by a navy title. >> he was the former naval person. >> former naval person, right. >> they started the correspondence when he was still the first corner of the admiralty before he became prime minister. in that case he would refer to him as a naval person. president of the united states is not supposed to be talking to the british navy. he later referred to him as the former naval person. >> i spent the pandemic reading all six volumes of churchill forward to history. it's the only good thing that came out of the pandemic. >> we have another quick

question, we are running out of time here. question from andrew smith, i appreciate the importance of the supreme court stuff. i wonder if you have planned to have another conversation on fdr subjects in the future. first of all we've been doing this for a year and a half. each week or two we do a new program. we did the education specialist or the curator, they are all available on our youtube page. our facebook videos. we have done everything with fdr's relationship with different presidents such as eisenhower or johnson, the great depression, the yalta conference, there is a lot of material there. we had to start -- i think we've done 75 of these conversations with authors and historians. please we have lots of content! we will continue to do this, hopefully someday as the pandemic eases we will go back to doing live programs. at which point we will continue the live streams and records them and put them on our youtube that we have a collection of this content.

this is going to be the last question. it is a really good one. it's from joanne moore. isn't a lifetime appointment isn't supposed to be a way to avoid politicization and justices feeling beholden to a certain president or political viewpoint? >> lifetime appointment. ralph, we'll start with you? john after. that was the -- that was the idea, it refers to federal judges below the supreme court and the core. it is a wonderful mechanism for insulating them from the day-to-day political pressures. a used to be the fbi director had something similar, a tenured term that isolated ham. i think it worked well historically. i think it could be very difficult to take that away. i defer to johnson fatigued here. >> now, i agree completely. it is valuable insulation. the

question is, how much do you need? lifetimes today can be very long things. if there is a way to permit a justice to serve out beyond the politics of his or her appointed moment that is desirable in insulates them. i don't think that needs to be 30, 40, or 50 years. although due to heart disease robert jackson died at age 62 after serving only four years on the court. one of those he was a wall being a prosecutor at nuremberg. one can make his or her mark doing great service on the supreme court without needing many many decades. also if we are not trying to play forever, we might not prioritize appointing ever younger people. perhaps we will get more of the career wisdom and experience more senior people. 68 70-year-old people, including people who have held high public office