>> president trump holds the campaign rally monday in lexington, kentucky. live coverage starts at 7:00 p.m. eastern on c-span. ♪ >> we get to talk about the supreme court history for an hour. i want to start by understanding the court today. the way our court is structured and evolved, how does the chief justice in this era wheeled

authority. what tools do they have? elizabeth: the question is, in this era, as always, the chief justice, first and foremost, is the head and steward of one of our three branches of government. i think there are some unique aspects about that job, in the sense that the court is not a political branch. it was deliberately designed not to be. the chief has a difficult job, because i'm sure you have had -- heard this expression. he is -- they are the chief among equals. they cannot control the other justices. they have the power to cajole, but not control. and there are some great stories throughout history that illustrate that as well. host: specifically, does the chief have a role in what cases are heard, and who writes the opinions? elizabeth: those are probably

two of the principal distinctions of the chief justice. they preside over which cases to take, and it is a small number of cases the court actually takes and here's out of the numbers that are petitioned. it's under 10%. some -- they have a list that is called the discuss list. if it doesn't make that list, it is presumptively denied. he also presides over conferences. certainly a role in managing the docket and what gets taken. then you mention the opinion assignments, which is an extraordinarily important job. it's when the chief has when he is in the majority.

if the majority of the court -- if he is not in the majority, it is the most senior justice. we can talk about stories when a chief might adjoin a majority and have a hand in trying to keep consensus. host: what number of justice is john roberts? elizabeth: i'm not sure. there have been 102 justices. i want to say between 10-15. very few. host: we have a few clips to show during this hour. the first one is him describing his job, using a metaphor he uses often. >> the job does not give you a prominent role or historical significance just because you hold the job. you look at folder and you understand his job and how the court functions. in the next room, charles evans

hughes, as you recall his role to turn back the court packing plan. you think about the independence of the judiciary. things like that. host: he talks a lot about how one makes history. he often refers to himself as calling balls and strikes. how has this chief justice approached his tenure on the court? elizabeth: i think he is the consummate steward he was describing. it goes back to chief justice john marshall, who had this incredibly important role in establishing where the courts place -- court's place is our democracy. it's hard to have a proper conversation about chief

justice's without spending a moment on john marshall. this was in 1800. john mack before heat -- adams, he has two months before is to cede control of the white house and congress to the antifederalists. he decides one thing he could do is put a number of judges on the bench before he leaves. he chooses, as chief justice, john marshall, secretary of state at the time. he was at the constitutional convention in virginia and he spoke about what chief justice roberts just said, the independence of the judiciary. he said, to what quarter of society do we look for protection of rights and overreach in the political branches if not the judiciary? adams appoints john marshall as chief justice and tries to put judges on the bench before he leaves and he runs out of time.

that leads to one of the most consequential cases in supreme court history. host: which one? elizabeth: marbury versus madison. it's so much what chief justice roberts is talking about today. he talks about how he approaches his job and the role of the court. it was in that case the court established its role in our constitutional democracy and we have seen it across the administration's, all the way through history into the present moment. the court has this role where it has to be independent of the particle branches, so it can serve as a check, but it can't be seen as unaccountable or unresponsive to the people. justice robert -- chief justice

robert understand that. the way it was handled in marbury versus madison was wonderful. he was on the supreme court, where one of the judges, that president adams had appointed and confirmed did not get his commission from the new administration. the judge said, if you them to give them the commission. there is a statute that allows them to do that. what john marshall knew was that if he issued the order, he had no way to compel jefferson and the administration to follow it. he could issue the order, but -- if they had an order but not executed, it weaken the court. marbury was right to bring a lawsuit and come to a supreme court -- the supreme court. the provision in the law that he wanted the supreme court to enforce, the underwriting the executive branch to do

something, is beyond our power as a constitution, so we can't do it. what he did was that we, as the supreme court, are here to interpret the constitution, even if it is against legislation as an act of congress and we're the ones who say what the law is. they did it in a moment where he was taking away the courts own power. that is the case any chief justice looks to to say that was the principle that was not established at the time, but the foundation of the court's role in society. host: let's return to clips and hear what he has to say about that case. >> many countries that have constitutions, their political documents. if you have a dispute, it will be resolved however disputes will be resolved. any election if you are lucky. force of arms if you are not. political disputes are resolved.

john marshall said this is different. the constitution is a political document. it sets out the political stage. . it's also a law. if the law, we have the right to tell others what it means. that important insight into how the constitution works has been the secret to success. host: it's funny that john marshall was our fourth chief justice. people would think of him as the first because of this ruling. wasn't immediately known how significant it was or did it play out over time? elizabeth: the significance played out over time. the chief justice certainly knew the import of what he was doing.

again, who's doing it in a way where he wouldn't cause rancor or be seen. that's one of their jobs, to preserve the courts role, but do -- in a way that supports the structure and doesn't provoke. he mentioned chief justice hughes and fdr's court packing scheme. this was the point when we saw the import of marbury versus madison coming into play. it's another great story in history. host: let me work my way through history a bit more. one thing before we leave this case. this court under marshall established the tradition of speaking with one voice on opinions. before then, they had many many -- they had -- there have been many opinions. what is the importance of speaking with one voice? elizabeth: it adds to the credibility of the institution and the notion that we've been talking about with chief justice roberts, that the court is nonpolitical.

you hear this in the parlance of the court. they say they serve the constitution, not constituents. we conference, we do not caucus. we are here to do the work of the court. it was my impression that chief justice roberts said publicly, how things are perceived when people talk in partisan terms. host: you are a trustee of the u.s. supreme court historical society. what is that? elizabeth: it's a fantastic organization that has done a lot of great work preserving a lot of the history we talked about today. also, public understanding as institution. it's not an institution you are familiar with.

it's a terrific organization. some of the historical materials, if you visit the website, you can see videos, audio clips, papers, understanding the role of the court and some of the most consequential decisions of our time that people talk about every year. just a terrific organization. law do youd of practice? elizabeth: i have testified in the justice department several times. it's a testament to our great country that i am sitting here with you. i am a first generation american. i have been lucky enough to live

about things i was reading about in school. host: where did you go to law school? elizabeth: harvard. host: how did you first get interested in law? elizabeth: i've always loved history. there's such an intersection between law and history. i think i can't say i am one of those who woke up and new at 10 years old that i wanted to be a lawyer. in college, part of it was, i was looking for a good job. i was thinking about going to medical school. law school was shorter. a lot of it was just relationships. you meet extraordinary people on the way. justice thomas, he was one of those. many people in my career have encouraged me as a lawyer, but because what we contribute to society has moved me. host: what do you do? elizabeth: a lot of it is work on opinions and petitions that come to the court.

both as a justice and the court as a whole. it's a tremendous privilege. one of the privileges that we don't talk too much about what happens in the court process. there are rules around that. it's really about the support of the court. the amount of work is tremendous. the volume of petitions that come in are than the thousands. for each case, managing the research, opinion drafting, making sure that the conference and vote is reflected in the opinions and getting them out of the public in a timely way is a tournament of work. the justices do their work obviously in the vote in their writing. law clerks are there to do the work of getting the opinions out. i clerked for justice thomas in 2009. typically there are four judges. host: we have a clip from 2016.

apparently he has a tradition of taking his clerks to gettysburg area. he was asked -- every year. this is his expiration. >> in these jobs, a lot of negativity comes in. that's the lesson i learned, that somehow, you keep it together and you say, look, i know i am experienced. i've seen how the sausage has made -- is made. all we have left is the ideal of what -- of this great republic. that's basically the reason. plus, it is kind of fun. >> you can contemplate how our country could have gone in a different way. >> if we had one, that would have been a problem. that would've been a problem for me. host: we see his sense of humor. he is talking about how people watching the sausage being made

can be jaded about it and how it's important to the about the ideals. what did you learn about being inside the court that you did not realize before by studying? elizabeth: it's an extraordinary institution. the cases are difficult and they can be controversial. there is no way to report on them without taking a topline in some respects. i do think what you experience and asked -- certainly what i experienced, was what he was talking about, which is, regardless of votes or views on a case, all the justices, every law clerk is there to further the work of the court. and going to places like gettysburg or walk in the halls of the building. you see and feel the history. you realize you are a small part in a moment of a great institution that has survived tremendous things. some great stories and great drama we can talk about.

he has always survived and protected our country. what i remember seeing is everybody working hard to further the court's role. there was a civility and collegiality, where you could have our disagreements intellectually, but everyone knew we were there to do the work of the court. to this day, i was at a dinner recently, and there was a hundred years with the supreme court law clerks. there were people going back to the 1950's at the dinner. there is a sense of, you're part of something bigger and you had these friends for your life. host: we will return to history. you talked about the court and years of particular strife, and what others was during the roosevelt administration, when a

frustrated roosevelt decided he was going to expand the size of the court. what are the interesting stories from the area of attempted court packing? elizabeth: i will focus on the role of the chief justice. the country in the great depression, a lot of people were suffering. fdr, and his first term, but a lot of the -- relief with the new deal program. elected in a landslide for his second term. the court, some of those programs came up for judicial review and most of them passed muster. a few did not. the few that did not were ones where the administration was trying to regulate the domestic economy in a way that infringed on the rules of the state, because in our democracy, there is a vertical component there is a horizontal court for the executive branch of the president. there are the states that are sovereign. there were two big cases that frustrated fdr.

the court had declared that the things demonstrated wanted to do -- demonstration wanted to do were unconstitutional, and that frustrated the president because he had such a popular majority behind it. one of the functions of the chief justice is to inaugurate the new president. it was funny, the marbury versus madison case, it was chief justice marshall inaugurating thomas jefferson before this court case came that pitted them against one another. the same thing with fdr. he wins the second term, and he is being sworn in by chief justice hughes, who presided over the court decisions that obstructed some of the new deal programs. the swearing in, historical account is funny. a windy day, chief justice hughes had whiskers flapping in the wind. chief justice hughes had the idea that maybe they were going a little bit far with the programs.

he read the oath very seriously and solemnly. fdr responded after, i understand usa my oath is to uphold the constitution, but it is the constitution as i see it, and effects of a one, to adopt to the challenges of democracy. this will set up a contrast between the court and executive branch. what fdr did after that was open -- and by the members of the court to his house. everything goes swimmingly. three days later, this is february of 1937, he announced a court packing plan and his plan is, for every justice on the court who is 70 or older, the president can appoint, if that justice does not retire, the president can appoint any justice up to six. that would have allowed fdr to put up to 15 justices on the

court. that will ensure his new deal legislation would not get struck. chief justice hughes handled this in a way that is extraordinary and may explain chief justice' roberts -- chief justice roberts expiration. he was lobbied by people to speak out against this plan. he refused to do so. he ended up writing a letter that was widely understood to say, i do not agree that there is any need to change the number of justices on the court and the president's reason, which was the reason that the order justices could not keep up with the caseload. apparently it was pretext and unjustified. i have to laugh a little bit. he might not have been able to put the narrative out there.

i issued this letter saying, this is pretext, it is not right. different historical explanations on the chief justice's approach, but it exemplified the point that we don't what the supreme court embroiled in politics and you have to have a deft hand in managing them. host: he wanted to be a candidate for president, but that changed. he brought it to this conversation on presidential well. elizabeth: you have probably heard the expression a switch in time saves nine. chief justice hughes was deft at not being drawn into the fray on the court packing plan, but also after congress voted on the legislation, he managed the conference and started putting more hospitable toward fdr's

legislation. another justice retired, and that opened a spot for fdr to appoint any justice, who he could hope would be consistent with his program. that was hugo black. that was another era of the court. host: there was note -- there is no constitutional mandate for the size of the court. elizabeth: the deafness i was rough -- referencing, it's hard to convey, but there is a structural component to the courts's place in our democracy. it is on coequal footing with the other branches, but it does a different job. there is no constitutional restriction or prescription on the number of justices. looking back, and certainly the chief justice saw the court packing plan. he sought as a way of the

executive overstepping its bounds. and unseating the constitutional bout by allowing the president to pack the court. if you are an fdr fan, you might have had no problem. if that is allowed, what happens when the president does that to someone who is not so excited about. we want this to be for the democracy. host: the next chief justice was appointed by harry truman. chief justice fred vinson. we have a newsreel of the era that shows when he was sworn in. ♪ >> before the south florida call -- before the south portico of the white house, fred vinson is sworn in as the 13th chief justice of the supreme court. the former secretary of the treasury is congratulated by members of his proud family. on his shoulders rests the task of bringing harmony to the

nation's highest tribunal. host: interesting to see the crowds that were attracted to washington -- a swearing in of a chief justice. what was america like in the postwar era that this court was going to be part of? elizabeth: you heard the quote in the clip that part of the idea behind this appointment was to bring unity to the court. to understand that, you have to understand what immediately preceded vinson, which was chief justice stone, and this was a funny segue, because we talked a little bit about the court packing of fdr in the new deal and chief justice hughes.

he retired is when fdr gets a new court pic, and it is hugo black. he had a notorious feuds with several members of the court that chief justice vinson and the clip we just was appointed to try to unify. very tough job. he is the chief justice who merely preceded vinson. hugo black, robert jackson, significant jurisprudence. they had a notorious feud. hugo black had been in the senate. there were cases leading up to his appointment. one was about fair labor standards act issues. basically, hugo black had taken a position on the u.s. senate and jackson felt like he was conflicted and some of the rulings. chief justice stone was unable to make peace and control what was a public airing of divisions on the court. chief justice vinson and he was frustrated with the inability to manage black. he had gone out to do the nuremberg trial. he was still an active member of

the supreme court, but not sitting. had an eight-member court. no tiebreaker. truman's idea was, appoint vinson and see if he can bring some unity do this. he was unable to do so. he inherited a fractured court. all of the accounts is a get -- got demonstrably worse. host: did he have a judicial philosophy brought? elizabeth: i don't know if he did, the way some people think of chief justice's today. nikki was close to the president. etiquette was difficult for them, because some regard him as a crony, felix frankfurter was on the -- was a harvard professor. chief justice vinson felt like he had some disdain for him. vinson was the presiding chief justice when brown versus the board of education before the first argument for the supreme court. the historical accounts are that the court at that time had open content -- content for the chief.

-- contempt. he cannot control what they do, but it is about control, not control. that has consequences for the first round of brown. the case was argued, vinson, and this is an record, he was in conference. he had one justice as you would have upheld segregation issued in brown. he could not get it clear majority and was basically paralyzed. his inability to handle that -- people talk about vinson pushing out the timeline and having the case, for reargument and buying the court sometime to figure out what it was going to do, it was felix frankfurter who came up with the idea that they should have five questions to be re-argued. buy some time for the court to sort out its position. what happened after that was

chief justice vinson died before the reargument. this article accounts are, this is a rather unflattering thing. it's reported that he said his first fine ever that there was a god. earl warren was appointed and it was a very different approach. host: there was a notes project -- there is a notes project going on where notes that -- where the notes that these justices take are beginning to be digitized and made available. i saw and a story that in december of 1952, when this case, called briggs versus elliott, was being heard, the conference notes show that split, that four justices were ready to find segregation unconstitutional, and one, stanley reed, voted to uphold it. the notes say from that day, i'm not sure what we should do

today. he could not find a way out of that. ultimately, it was important for brown, heard by the next court, to be unanimous. why could they not let it go as a split decision? why was it important for to be unanimous? elizabeth: i will comment on the project in a moment i think that is a significant one. to the point, unanimity. the chief justice really tried to bring unanimity to the court on decisions like brown. he was governor of california. he was deft at looking at the conference and the country and saying if we do this, it has got to be unanimous. there were two reasons. one, it was a fairly divisive issue even at the time. second, they were overruling a major precedent. as you have probably known and heard, the supreme court is not a political body, so it cannot

just change its mind or overrule its own decisions on a whim. there has to be a reason. chief justice earl warren was extremely sensitized to the fact that if they overruled the segregation before the court in round, they would be overruling the six euro decision in plessy v. ferguson that set under the reconstruction and summarize amended, quality is fulfilled by having separate but equal facilities. so chief justice earl warren understood you had to get to unanimous opinion and more than that, getting it short enough so the papers could publish it. so people could see the work of the court is one. everyone could read it. and then there came how to administer that, which we know from the civil rights era was the culprit but that was a following chapter. host: one of the other big cases we dealt with during the vinson

years was youngstown company versus sawyer. why was this a landmark case and what was significant about it. how did chief justice vinson approach this case? elizabeth: this was the steel seizure case. the chief justice i think it was an instance of not understanding the views of the other justices. the executive branch wanted to seize still production factories in the country, wartime justification. the question was, does the executive branch have the power to do that. it infringes on commerce and states rights. and vinson thought and assure the president the court would approve it he did not know his own conflicts well enough to know they would not. they reversed, and it was significant because one of the courts major roles, and a delicate one as you can imagine, starting with marbury, is acting

as the final word on when the constitution draws a line on another branch of government. so the steel seizure case, like some others we have seen and can talk about, are about the court saying when another branch has gone too far. in that case it is the executive branch. host: one part of the story caught my ear. the chief justice assured the president this would not be overturned. how much do we know from history about the conversation of chiefs signaling to a president, especially when they are the same party, which direction a major case might go. is it rare? elizabeth: my sense is that it is rare but it is hard to know. some of the projects like the digitization project you mentioned can be illuminating. because you can get

contemporaneous notes from the other justices. i should say the notes of the justices typically are not public, they are the notes of the personal property of the justice part they can decide to leave their public papers in the library of congress or institute. this is illuminating. my sense is that it is not common. it also undermined chief justice vinson's credibility with a corporate i mentioned cronyism there was criticism he was too close to the president, and that is not the job of the court. that is not the job of the chief justice. you are not partisan. you're not a crony. you are there to do a particular job. there was criticism and i think that damaged his credibility with the conference. host: we segued into oral warren who was successful in the unanimous decision on brown v. board of education. a landmark case. let's talk more broadly about 1953 through 1969, the warren court. eisenhower appointed him. did president eisenhower get what he expected philosophically from earl warren? he was a law

and order governor. when he appointed him, what was he hoping his view might be on some of the big issues in society at the time? elizabeth: it is hard to say what the president had in mind or if you had a view in mind heard one thing president said publicly in appointing chief justice warren was that he got someone who could bring unanimity and consensus to the court. host: but the court is thought of now as a much more liberal court. you had a republican president appointing him. philosophically, whether republican surprised at how the warren court turned out? elizabeth: the partisan lines and parties are different than today. the republican party of lincoln, it was not a great surprise that the chief justice earl warren would be as active and supportive of civil rights, which was in-line with the party of lincoln and the idea that there should be equality. i think in that respect, maybe

not so much of a surprise. again, the issue-the question highlights an important point about the relationship between the appointing president and the court. which is that once the justices get on the court, this is the balls and strikes. you get the cases and you have to call them as you see them. justice thomas has said that, you are the chief say that. whatever a president's expectations on some level, if you see some diversions, that is probably a good thing because it means the justices are doing their job. host: during the earl warren years, besides brown there are number of landmark cases and categories. voting and redistricting, baker versus carr, reynolds versus sims. we dealt with a number of the

committal procedure cases, miranda, matt versus ohio, gideon versus wainwright and katz versus the united states. what we talk about criminal procedure since he was attorney general, and a law and order governor. those landmark cases in the area of criminal procedure, how does that change the country? elizabeth: they change the country in innumerable ways. going back to what the constitution talks about, the notion of due process. a lot of governors, not surprising to say, look, the only way that law and order maintains its credibility and even as a prosecutor, if your prosecutions hold, is if they are done fairly. and if the criminal defendant has rights. basic fund mental constitutional concept of due process. it is a great example and i'm glad you raised it, of how the court is sometimes misperceived as having jurisprudence on a partisan basis and when you look at for example, justice thomas' fourth amendment jurisprudence, a number of his decisions are pro-defendant in the way the warren court decisions are. they ensure the defendant has

certain rights against the government or law enforcement. look at someone like justice thomas, why think is perceived if you look at media counts as a conservative justice on the so-called right of the court, was many cases that are pro-criminal defendant, because they derive from the same constitutional principles as some of the earl warren court jurisprudence. host: free speech, the famous new york times versus sullivan, student free speech, tinker versus the des moines school district. in the area free speech, what is the earl warren court known for? elizabeth: very significant in terms of galvanizing free-speech rights. the no school prayer case was also during the earl warren court. again, that was not necessarily as surprising. when you look past earl warren

for that next chief justice, warren burger, nixon campaign for a someone would rain in the earl warren court you still have significant opinions like the case, i think the burger court upheld say you cannot compel the media or newspaper to print the response of a political candidate whose position the paper attacked, because that is compelled speech. the burger court also held that the right of the free speech of the first amendment can a compass right not to speak. some of the decisions from there warren court weren't extraordinary are lined with one political philosophy or another, then it was with constitutional first prince pulse. host: another we hear about is griswold. elizabeth: griswold versus connecticut was one of the cases i think is a foundation or widely regarded as the foundation of privacy rights, in

the 14th, constitutional due process. it has led to a lot of cases, roe v. wade, planned parenthood versus casey, that talks about a right of privacy that it hears in the constitution that the court has built out. that is one of the areas that is a controversial part of the earl warren court's jurisprudence, and certainly now in the burger court, and the current court. when you look at that light of cases and some of the examination going on now, as a matter of process, it is not fundamentally different from the kind of re-examination and thoughtfulness the court engaged when it was considering brown against years of precedent under

plessis. people sometimes focus more on results than process. the court is doing its job of not overstepping its role but also re-examining were necessary some of the jurisprudence as time proceeds. host: we have a clip earl warren gave before retiring talking about one of the most important cases he saw. i want people to hear what he looked and sounded like. let's watch. >> we have the legislatures must give equal representation to everyone. that was where the expression one man, one vote came into it, into being. of course it is not just state legislatures. but it has been expanded to the congress, and expanded also to local government. it is this right on all levels of government.

in that sense, i think that that case, from which all the other reapportionment cases followed, is perhaps the most important case that we have had since i have been on the court. host: the case he is talking about is baker vs. carr. why would he see this at the most significant during his term? elizabeth: it is significant in terms of the point he was making about, this is a fund mental notion of equality, what does that mean and how is it enforced or safeguarded in a political democracy, if you do not have that sort of representation. it raises questions about the respective roles of government. i think the court's role is the safeguard. that individual right can be exercised in electing members in the local branches.

that is a fundamental part of our jurisprudence. if the court were not to protect that, the foundation of democracy would erode. host: you told us that warren burger was appointed by richard nixon when chief justice earl warren retired. he referenced other chief justices from history and their ministry to scales. what is the view of the way that warren burger administered the court during his term? elizabeth: in the historical accounts he was initially aligned more with the stone vinson era. chief justice earl warren was a superb tea. when warren burger came in had difficulty. he was not well-liked by some justices, notoriously justice douglas, who was concerned that to the point we discussed

earlier, chief justice burger would be there to carry out the president's mandate of walking back some of the warren court era jurisprudence in a way that was more political or agenda driven then should be the role of up chief justice. how much was driven by dissenting justices own agendas is hard to say. one could make the argument both ways. but chief justice burger had a harder time. you saw this and some of the cases. i think it was roe, on the first argument round. that case was re-argued just as brown was. that was a case where the course reargued is to buy some time. i think it was justice douglas who leaked a dissent and try to publicize some of the divisions on the court and make the

chief's job harder. he faced a more uphill environment than perhaps warranted. and if he didn't, perhaps warren was better at organizing. justice jackson was a big proponent of judicial restraint and was concerned about the court overruling precedent, and how to get to the result in brown that justice jackson agreed with but was worried about who should do it and what the court's role was. chief justice warren, justice jackson had a heart attack, and he went to the bedside, and try to get by and, including also from the dissenting justice you mentioned he was going to vote for segregation. he got the unanimous court in the room to announce that opinion. burger had a harder time getting that consensus. >> you mentioned new york times versus united states, roe v. wade, greg v georgette death

penalty case, regents of the university of california affirmative action which we continue to see cases referred to. and then united states versus nixon. why was that case so important? elizabeth: that was the executive privilege case and the nixon administration. is there a constitutional foundation for the executive, or the president to assert privilege over presidential papers and communications? this was going back to marbury or the new deal era. the courts consequential role in saying what the law is, and then mediating this structural separation of powers, where it is who gets to do what in our government? what was significant in the case, the court said we are going to uphold the privilege.

the privilege whether you like how it is being exercised or not, exists to protect the role of the executive. there is a deliberative process. we want our elected representatives to have debate and deliberation. there is a presidential prerogative as an executive to make certain decisions and not have the second guests or monday morning quarterback. the court saw that and said this privilege has a constitutional underpinning so we will uphold it. it was a very significant decision. host: another appointee of nixon was william rehnquist appointed in 1972. when ronald reagan was president, he elevated rehnquist to chief justice in 1986. can you talk about william rehnquist's judicial philosophy. what with his view of the role of the constitution, for example. the great tension is the original list versus the living document. elizabeth: if you are to

categorize him and i'm not sure it is possible to do so, possibly more on the original list side. in contrast to some of the justices we have been talking about, william rehnquist's jurisprudence focused on the vertical component, between the federal government and the states. host: ronald reagan's issues. elizabeth: very relevant, the federalism. the william rehnquist court re-embraced the idea that, and this harkens back, it has echoes of chief justice hughes reacting to the new deal legislation. there certain prerogative the federal government and local branches have, but it is for the court to say when they go too far, whether infringing in a branch of the federal government or the states and individual rights. we saw during chief justice

rehnquist's tenure is a refocusing of a court attention on the relationship between the federal government and the states. host: that being said, will he not know is been over to decisions that really work the balance of powers, that is of course the impeachment trial of present clinton in 1999, and then bush v. gore in 2000. elizabeth: one of the significant duties of a chief justice, he was a big gilbert and sullivan fan. when asked what he did or how he perceived his role presiding at the senate trial, he said you know i did nothing in particular and i did it very well. so i think he did not relish the role. to the point we have been talking about all morning the , issue of where the courts work in the role following the government, chief justice rehnquist did, and coming out of the impeachment proceedings on what he termed sort of

tongue-in-cheek, the relative order of the supreme court as against the free-form environment in the senate. and he was happy go back to the court. host: let me stay with that for a minute because it is all the town's thinking about now. usa today from october of this year. a little historical note that late chief justice rehnquist was a busy man on generate 20, 1999. the impeachment trial of bill clinton was in the second week. he had to stop presiding over oral archivist moves the senate to reside of the trial. one of the lawyers are going be for the high court that it was john roberts. here we are as extremist forward, john roberts made third chief justice in american history to preside over and impeachment trial. mitch mcconnell has led the caucus through a process orientation. on whether the current situation leads to impeachment trial in the senate.

has anything come out on the supreme court on what the role of the chief justice might be? elizabeth: no and he actually consulted or had with him a congressional parliamentarian. as a constitutionally prescribed role of the chief justice of overnited states presiding the united states in and impeachment trial i do not know , that anything about the role has changed. the question is more, is there something going on where in anticipation of such a trial and having maybe the chief justice otherwise occupied that they've alter the schedule. not to my knowledge. that would be internal to the court.

although i might be surprised. host: there only two times before that this has happened. are there records available to know how the chief justice's role shapes up during this? the last one was andrew johnson, and it was a very different congress and country at the time. elizabeth: there may be. it may be something where the visit to the historical society's website. the chief justice remains the chief justice. they vote and there are people there to do the work of the cases. so i would imagine the work of the court will carry on. host: let's bring it back to the current court. we've been looking at chief justices in the role they have taken. with that in mind, justice roberts is going into the 15th year and presiding over this court. what are the broad observations one might look at, about the roberts court and how he has approached it? elizabeth: this goes back to a point you raised in the beginning and is evident in the clips you showed at the start of the hour.

one of the big points is that that chief justice has been very cognizant of and on a tremendous job of being a steward of the court as an institution, balancing the importance of maintaining public confidence and access to the court, with its role, meaning a nonpartisan, nonpolitical role. that goes to the digitization. transparency and access are very important. but the discourse inside the court needs to maintain its integrity. there something to be said for preserving that. you saw this last month in the gerrymandering case. there was a bipartisan request out of congress to of live streaming of the oral arguments. the chief justice counsel wrote a letter to the bipartisan coalition and said, we cannot accommodate that request. because the court is concerned

that it may alter or adversely affect the nature and quality of the discourse on the case. but what chief justice roberts has done, in counterpoint to maintaining the line on things like that, is gone out of his way to make public access available in other ways, like the audio is now available i think same day transcripts of oral argument's by the week, publishing the opinions quickly. chief justice burger had the same thing. he revolutionized the court in terms of public access to the building. and some things that helps people understand the court's role. and preserve some transparency, while ensuring the courts work still has the nature and character necessary to do its job i think that will be looking back, big part of the legacy or a notable one. host: we have one less clip of have one last clip of the chief justice, 2018 university of minnesota law school. he hits on the themes you

described. >> the court has from time to time erred, and erred greatly. but when it has, it is because the court yielded to pressure. we need to know that at each step we are in this together. there is a concrete expression of this collegiality and a tradition at the court that has prevailed for over a century. before we go onto the bench to hear argument in a case, and before we go into the conference room to discuss a case, a pause for a moment and shake each other's hands. it is a small thing, perhaps. but it is a repeated reminder that, as our newest colleague put it, do not sit on opposite sides of an aisle. we do not caucus in separate rooms. we do not serve one party or one interest. we serve one nation.

host: hitting on the themes you talked about throughout the hour. but the reality is appointments to the supreme court are partisan these days. especially the kavanaugh hearing. and it brings a lot of partisan attention to the court. how can a 5-4 court not be partisan? elizabeth: because the vote and basis of the vote, if it is 5-4 or not, is not about partisan and political ends, it is about the jurisprudence. i think there is a huge distinction there. this is why i mention justice thomas' fourth amendment jurisprudence. in the commerce clause, if you take on a partisan level and i remember well, as one of his law clerks, i do not know if you remember the partial-birth abortion case, congress tried to pass restrictions. the authority for that was the

commerce clause. justice thomas went out of his way to say i do not think the commerce clause authority extends that far. he met with a lot of anger and some surprise on what i will call the partisan right. the answers that it is not about partisanship when you look under the hood of the jurisprudence. it is hard in topline reporting to do that sometimes. you see people are voting on principles. sometimes the outcome is one way or the other. this is calling balls and strikes. this is what differentiates the court from the local branches. -- from the political branches. i agree with the point chief justice roberts makes. and chief justice warren reflect on his tenure. there's another where he reflects on a different part of his tenure, related to japanese internment. this struggle account is that chief justice warren had tears in his eyes looking back on that case and saying that was one part of my tenure i very much regret. that i voted to uphold that internment and treatment.

i think that is what the chief justice means, that the court bends to political will. if you go back to the time and look at the political will and sediment in the country, that was the sentiment in the country. but chief justice warren be the first to agree it was the wrong result. if the court had done the courts work, maybe we would not have had that result. host: and that is the last thought as this court embarks on a term with some very big and likely controversial cases. thank you for spending an hour with us. elizabeth: pleasure. [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] ♪ announcer: all q&a programs are available on our website or as a podcast at c-span.org. journalists discuss their

book the great pretender. it is about experiment in the 1970's designed to test the reliability of psychiatric diagnoses. checks themselves into mental hospitals, claiming to have hallucinations. they were required to admit having a mental illness. next sunday. >> we are making it easier for you to watch the coverage of the impeachment inquiry. if you miss any of our live coverage, go to our impeachment inquiry page.

from thedded a tally associated press showing where each house democrats stance on the impeachment inquiry. webpage. on our and easy way to watch c-span's unfiltered coverage, anytime. an update from british prime minister boris johnson on the brexit deal as the promised deadline to leave the european union loomed. he also talks about the future of the u.k. national health service and the government's recent talks with u.s. drug companies. his remarks come after lawmakers decided to halt and a general election on december 12. the prime minister began the session by thinking john bercow. this is a little over an hour. he prime minister. dr. alan