oh i'm sorry but i washington d.c. and here's what's coming up tonight on the big picture for this edition of conversations with great minds i'll talk with jeff sessions schussel a man who's worn different hats as a historian author of her cleanest presidential speechwriter talk about how president obama may soon be facing a crisis with the supreme court when franklin roosevelt have gone home a playoff and the recent inability or instability on wall street is concrete evidence our economy is not on the up and up so we still experiencing the sting of

the two thousand and eight recession or is this a second republican great depression. for tonight's conversations with great minds i'm joined by jeff schussel whose work you are probably familiar with even if you don't instantly recognize his name jeff is an historian a communications strategist gifted speaker speech writer former cartoonist in one thousand nine hundred seventy joined the clinton white house and rose through the ranks to become deputy chief speechwriter a rhodes scholar he holds degrees in history from both oxford and brown universities and print president clinton described him as one of the most eloquent historians of his generation he's written two books of american political history the latest being supreme power franklin roosevelt versus the supreme court he's now a retired comic strip writer fats was the comic strip of who would be a little more than one hundred fifty newspapers between one thousand nine hundred

ninety to ninety eight and is currently a founding partner of west wing writers he's trading and strategy from here in d.c. jeff welcome. great to have you with us. i understand you helped put together clinton state of the union address and were there. pretty much you know the democratic convention the farewell that's that's a bit of an arc of any quick thoughts on the clinton presidency and what it's like to be a speechwriter in the white house well it's a challenge to be a speechwriter for president who doesn't necessarily need a speechwriter we all know that president clinton famous last name or podium gives the speech forty five minutes with better know so if that's the case how do you add value to that equation how do you actually help him to be better at what he already does so well already so it was a challenging job it was as you would expect it really i can imagine the eleventh let's add like to dig jump right into this this is this i'm reading this book right

now and supreme power your book and in addition to being just one of the most brilliant pieces of good historical literature in terms of the quality of the writing it's also. it's a remarkable story as an american or a mark of a conflict in this battle of the titans of the. let me get contemporary for a moment then we can get in fact we can probably circle back to this eleventh circuit just declared obamacare the affordable healthcare act as unconstitutional so it's probably headed to the supreme court although the ripeness doctrine suggests it might not be till twenty forty but if it's next year it's going to be political dynamite might that set up the same kind of conflict with franklin roosevelt had in thirty five and thirty six where the court kept knocking down the new deal would took a while for the conflict between roosevelt and the supreme court to build it took

a whole series of cases in which the supreme court knocked down the pillars of the new deal before it finally reached a crisis point it essentially played out over the course of roosevelt's entire first term as president and it began to. resolved at the beginning of his second term as president so there's no question that what you say is right if this case afraid of any health care case goes for the supreme court in the coming term the result whatever it is will be explosive and it will happen in election year and it was changed the landscape in some meaningful way but whether that actually foretells a conflict on this scale of this to ration with this sort of impact for the course of american history in american life that's very much open to question it very much and whether whether obama has the temperament of roosevelt to do it is is another piece so let's let's get into some of the details of that and said that in in the thirty's in the early thirty's roosevelt elected thirty two sworn in in march of

thirty three. with the help of frances perkins another great wyatt biographer this is recently. putting together the new deal and the supreme court are going after what were the pillars of the new deal to say that the court the supreme court of the thirty's that he was court was knocking down the two big ones were the national recovery act the n.r.a. the national recovery administration which was really the centerpiece roosevelt's economic policy and then you had the aaa form program which which was the other big one and both of these were ruled flat out unconstitutional by the supreme court the first in the middle nine hundred thirty five and the second what was going to be a sister. well when those two programs went down in a good number of other ones all along with them along with the state minimum wage law that had been on the books for many decades and a whole range of other progressive reforms the court not only called back to breathe new life into old doctrines that it sort of by the ways. back in the.

early part of the early nineteenth century absolutely but they also created new doctrines as well and so they were really covering the landscape dr. runaway which is one of the things that roosevelt and is i always pointed to as evidence that the supreme court was acting very politically correct today would refer to that is judicial activist well it was certainly judicial activism and it was it was clearly a case where the supreme court saw itself the conservatives on the supreme court saw themselves as the last line of defense because you not only had a very popular roosevelt in the white house but you had an overwhelmingly democratic congress which seemed willing to do whatever it was that roosevelt wanted to do and yet you describe are not yet you describe the. the members of the supreme court are the majority the conservative members a supreme court at that time who later which are very rapidly will get to that.

as men of the nineteenth century since the early twenty's in the collective term for the court at the time was the nine all. polite term but it was actually the oldest supreme court in american history to that point in one nine hundred thirty six the average age of a justice on that court was seventy one and some of these justices really had come of age personally in a way actually in the nineteenth century during the gilded age or even before that one of the conservative justices was actually old enough to remember as a boy having watched lincoln's funeral procession and so they came of age in a different time and some of them held a very different belief systems than the one that prevailed under roosevelt in one thousand. was. would you characterize that belief system with regard to things like the general welfare clause or notion if it's actually twice the cost which.

you know there was there was a lot of belief that. during and after these battles and thirty six and thirty seven that the supreme court would knock down for example the wagner act or the with the social security interest and the alternately. good we'll get to why that. was the basis that basis the general welfare doesn't include the ability of the federal government to intervene or was it that the federal government was simply overreaching i mean what what was the rationale that they were using just really the conservatives on the courts saw the government overreaching in a number of respects with a number of different different clauses in the constitution or different doctrines the bill developed later in the problems with respect to delegation of powers they saw congress still getting too many powers to independent agencies or. organizations like the national coverage of ministration which i mentioned before there were problems with the commerce clause they saw the government over reaching

its power in that regard it would reach out with bobby kennedy. absolutely thankfully a lot of this have been settled before the nineteenth of interruption or so you know wills and so so the conservatives had all sorts of constitutional problems which of course underscore really a more in many ways expressions of their political and economic disagreements with the roosevelt administration and one of the liberals on the court justice stone who was no great fan he was actually a republican had been appointed by calvin coolidge was no great fan of the new deal but as a justice he believed sensually that the legislature the supreme court sorry the congress or state legislatures had been empowered by the constitution to essentially do what they felt that they needed to do in the national interest unless it were slee unconstitutional they were able to make whatever mistakes they wanted to make and so just to stone reproached his conservative colleagues and said

that they were simply acting on the basis of what he called their economic political actions and not on the basis of the constitution well and then there's that notion of egregiously unconstitutional and what that means. the cost of tuition and this is something in your book you describe where franklin roosevelt was laying out to forget who it was he was speaking to but he said here tell me where the prosecution says that the supreme court has the right to strike down laws and in that in many ways he was echoing jefferson's arguments against marbury vs madison eighty three. adams when he left the white house and one thousand nine hundred was basically packing the judiciary and the marshals and whatnot and and. barbara was supposed to have his commission all over to him and jefferson told james madison don't deliver and therefore it won't be legal and he won't be able to be just at the base or whatever it was it was he and so marbury sued

marbury vs madison and jefferson had his own confrontation with the supreme court there in one thousand zero three and that was the case correct me if i'm wrong when the supreme court said we have the right to strike down laws of the constitution something that had never been done before and jefferson went nuts you know he said if the stands than the constitution's a thing a wax in the hands of the judiciary how did how did roosevelt feel about that and then my follow up question up in advance of what other presidents of had the same kind of confrontations well this is as you have just explained this is a very old argument because back almost in the nation's founding and if you asked roosevelt privately and a number of his aides did in the recorded people in their diaries which i reproduce here. roosevelt felt that the founders had never intended the justices of the supreme court to have that power to overturn acts of congress and this was kind of a bogus belief among progressives at the time that they talked

a lot about what was we could talk about judicial activism they talked about what they called judicial supremacy that the court was essentially taking over the functions of the other branches of government it was sitting in judgment of everything that the other two branches did. you know roosevelt asked his justice department to do some serious research on this question of whether the right of judicial review was not actually a right and that the supreme court had grabbed it or as they said usurped it and i think he felt in the end that he never really could make the case against it that whatever the truth of american history might be that he was going on a hard time making the case the court should not have this role and i think that most historians who examine the question believe that whatever mr jefferson thought that actually if you go back to the constitutional convention you read the federalist papers it seems quite clear that the founders mostly assumed that of course the supreme court would have this power at the end and better not

a story to size something this this is less i've had a total of three through the whole this is super precedent yeah and it is for the president so. thomas jefferson one and franklin roosevelt and the other there were several presidents jackson rose teddy roosevelt lincoln who had battles of the supreme court where they of the same nature well they were of similar nature in terms of the balance of powers among the branches of government and there has traditionally tended to be a clash between progressive presidents and conservative supreme courts and robert jackson who was roosevelt's attorney general and became as you know justice of the supreme court he wrote a book about this called the struggle for judicial supremacy back nine hundred forty one to describe this is the most persistent rivalry in american history which is that rivalry between progressive presidents and the conservatives work or. the balance of power between the legislative executive branches of the judicial and

the third among equals as become the first among equals i want to get into you know what. kind of round this out and what happened in thirty five thirty six thirty seven in then. and wrap back around to what might happen with the obama presidency and what this means for us today in just a second we have with us jeff czeslaw schussel this is me the historian and author of this brilliant book supreme power we'll be back right after this break. what drives the world the fear mongering used by politicians who makes decisions to break through it's already been made who can you trust no one who is in view with a global mission or a region where we had a state controlled capitalism is called sasha's when nobody dares to ask we do our t.

question more. welcome back to conversations in the great minds i'm joined by jeff schussel author historian speechwriter communications strategist and self described lapsed cartoonist his newest book supreme power franklin roosevelt versus the supreme court chronicles franklin roosevelt's fierce standoff with the supreme court so

let's get back to that. this was coming to a head in one nine hundred thirty five thirty six roosevelt's reelected in what they thought might be a squeaker election some of the polls indicated that thirty six but it was a landslide he's got the house and senate the senate he's got the people the new deal is dropped unemployment from twenty five percent down to fourteen percent in just two and a half three years well four years i guess just person pretty amazing stuff and the supreme court is standing there going no. what happens what happens is that in february of one nine hundred thirty seven really just a couple of weeks after roosevelt's taking the oath of office to be in his second term as president he announces that he has a plan which he is putting forth to the congress to pack the supreme court that's not how he described it but that's how we know it today really what he was proposing is to increase the size of the supreme court from nine members to fifteen members that would have given him the math is easy to do that would have given him

six appointments overnight liberals would have overwhelmed then tenuous conservative majority of five and he would have had a clear path to the reforms that he intended for his second term and the way he was going to do this had to do with the magic number seventy seventy one. well the first magic number that's worth noting is the number nine there was a general assumption at the time in the general assumption today that the number nine and number just this is we have exist somewhere in the constitution in fact the founders had left that out purposefully they thought that the court would need to grow a little bit as the business of the nation expanded and they thought they would leave that to the wisdom of future congresses to decide how big the supreme court is so our congress and our president tomorrow could decide who the supreme court should be a court of seventy was entirely constant smaller and larger exactly as it had gone up and down over the course of the nineteenth century and roosevelt and historians

do that and so he understood that this was a quick and constitutional way to solve the problem as he saw it and i think it's worth clarifying that problem for just a minute and that is that roosevelt never saw any contradiction between the new deal and the constitution he did not believe in anyway that the new deal was constitutional and he was very careful to develop it in a way that he thought was perfectly constitutional he thought the problem was not the constitution the problem was this group this particular group of conservatives on the supreme court will stop. exactly exactly how do you do something about them without doing damage to the fabric of the constitution itself a lot of others proposed that he should amend the constitution in some way that would give himself or give a congress greater powers and take powers away from the supreme court he was not in favor of that kind of rebalancing so at that point in time also the average age of the supreme court is sort of seventy or seventy one and he was saying that after

seventy they would become justices americanus and there could only be one aggregated justice america's vote this was this was the device how do you get those six new justices on to the court you don't simply say expand it from nine to fifteen what you said was that the judiciary the entire federal judiciary not just the supreme court has to all their own people get old they slow down they become overburdened by their work and so what we need. is new blood in the judiciary and he was actually proposing to increase the size of the entire federal judiciary for every justice or judge seventy year old who refused to retire he would get supreme to actually nominate a new justice to sort of sit by the side of the older justice and i guess help help him with his work and so this was the device by which he worked to and it was it was somewhat disingenuous actually i mean he was really just trying to in fact. if i read your book right had he simply come to the american people and said these

people are obstructing me on the way i'm going to get around them is by expanding the size of the court by two or four they really really only need to. one arguably . the people probably would have been with him and congress would have it with him but instead by saying well seventy and i know some of these guys were very brandeis very highly regarded the oldest man on the court was around us and it's a little role in essentially not publicly with essentially new deal support right and he also is. and the people pushing seventy will go out of business this was one of roosevelt's great mistakes one of his great political miscalculations really one of the great ones of his entire life which was to believe that he could sort of slip this by people in this way when everybody knew the deal i mean this conflict between roosevelt in the court as they knocked down the unit or a as they knocked down the aaa as i mentioned and they knocked down other other important programs this was played out banner headlines in the nation's newspapers

this was a huge topic of conversation nationally for years and so when the conflict finally mounted to be open in this way everybody understood why roosevelt want to change on the supreme court yet he was insisting that it was because the court had been had become overburdened by its docket when in fact his administration's own numbers indicated that the opposite is true you. just to finish the story up roosevelt lost and the deal never passed and he was his presidency was wounded by this too up to a very substantial step a so is the court and in one hundred thirty seven inexplicably justices roberts and hughes two of the old fossils started voting with roosevelt. well this is one of the great mysteries and i certainly address it in the book and i'll give you my take on what happened here roosevelt so the end of his life insisted in this was his phrase that he lost the battle maybe he didn't

have to pack the court but he won the war because what he really was after was not having fifteen members on the court he was really after the court changing the sorts of decisions that it was handing down and in fact it did that because when roberts the swing justice switch switched as you said in justice use are all sort of gone back and forth but was generally more with the liberals and then with the conservatives so why did roberts switch and it does seem that if you recreate the environment around roberts and it's. you look at as closely as you can into his life and read the memoirs and notes in the diaries of the people who knew him very well it does seem first that roberts was very concerned with the public's view some justices couldn't care less but roberts appeared very much and a lot of the anger of the public really came down on roberts in particular because it soon as the swing justice in the same way that

a lot of public anger today is concentrated on justice kennedy because you think maybe maybe kennedy might side with the liberals and then he doesn't and if you're left of center you're very upset with that right it's very interesting. you talk about how in fact you just mentioned how roosevelt didn't see packing the court but for that matter he didn't see you know the the end is that this was all a means to in his mind was totally constitution and not just constitutional where you characterize it a book it was the survival of american democracy i mean literally that's because because because other nations you know coming out of the great depression were flipping the fascism or communism or whatever. as a as an historian have ever had a president since roosevelt who so passionately had a clear crystal clear vision of america and fought so hard for well i think we certainly have presidents who had clear vision and fought hard for it i think

president johnson had a clear vision and thought i think president reagan had a clear vision and. hard for it and i believe in my president president clinton certainly did as well you have not since the nineteenth or he's seen this sort of clash with the supreme court presidents are unhappy with certain decisions they're unhappy with certain justices and so forth but you have not had this monumental clash of institutions here since in the one thing much of this clash senator on the commerce clause. or stores that the or which is coming around again now in the mccarran probably some of the things are going to talk speak to well there was a lot of old commerce clause doctrine that by the one nine hundred thirty s. that had been discarded were discredited and there was a lot of argument in legal and constitutional circuit circles and within the court itself as to whether this is actually counts as commerce whether that counts as commerce if i if i can interject just people who don't know what we're talking about the commerce clause essentially says the cost of power is the federal

government to regulate commerce in among and between the state yes absolutely and so the conservatives had a very strict definition of what constitutes interstate commerce and so there is a problem within one state even if it happened to be a big industry given it was a big industry that made stuff that went all around the united states and had a big economic impact i didn't matter what mattered was that the problem was located within a state and so they would say that congress had no right to regulate that this was the moment in american history when that way of thinking began to break down and roosevelt made a very strong argument against this horse and buggy definition is he. well bit of a commerce clause he said look we're not forty eight independent states anymore if we ever work we are interdependent and what happens in the economic life of this state affects the economic life of that state and so we need to be able to apply national power to national problems and that was an idea that finally took hold and

the court in this moment in this conflict when justice roberts which and it's an idea that really wasn't challenge the meaningful way in the federal courts until this moment or present moment over the health care bill very interesting so it'll be fascinating to see if this court i mean there there are those who argue that modern day conservatives don't want to just you know go back to the reagan doctrine but they literally want to repeal most of the twentieth century back take us back to nineteen twenty five take us back to the earth thirty five of the courts striking down. them wage laws and constitution was you probably know there's a movement of legal thinkers on the right the helm sells the constitution in exile movement and they believe that the moment the constitution when it was right here in one nine hundred thirty seven which justice roberts which yes would it be ironic if another justice roberts were were flipped that. you talk also about how justice

roberts that era's justice roberts started ruling with roosevelt because the politics of the earth so affected you know we now have a couple of justices justice thomas whose wife is very involved in politics and justice scalia this has participated in fact the two of them participated in several called brother funded events. is there a precedent is there a history of supreme court justices not just being partisan i know some of them come out of the senate for example and things like that but actually be participating in activist types of ads and if so does. that happened on both conservative side the liberal side and what's going on with it right now this story really it has happened from time to time on both sides and just as douglas for example i came under fire for his partisan political activities he was very interesting becoming president of the united states and did some not so subtle

agitation toward that end having failed in that he thought it might be interested in becoming roosevelt's vice president in one nine hundred forty four again this was not a secret and later in his life he could be very outspoken about a number of issues justice goldberg also i guess you could say to the left of center who are also outspoken on these issues so it is not unprecedented but in that can the minute we have left here is it dangerous to the court or to these individual men i think it is a little i think it is the interest i think it puts the integrity of who are in the public esteem for the court at risk if we see the justices taking sides publicly taking sides or hanging around with those who are at the front lines of some of the biggest political fights of our time and so when you see a just a school year or justice thomas show up at the koch brothers for tree when you see justice alito dream to be the keynote speaker at a fund raising dinner for the american spectator

a very partisan dinner where justice alito gave a keynote address and took some pot shots all in good humor at president biden right after the election two thousand and eight i think you have a problem here and i think the record these justices need to be a little more restrained in how willing they are to show which side they're on it's going to be very interesting to see how this all plays just thanks so much freakiest things. to watch this conversation again as well as other conversations the great minds go to our website conversations with great minds dot com. after the break conservatives heather servo lisa de pest and resident talk show host joe madison join us for our weekly. drives the world the fear mongering used by politicians who makes decision to break through it through and it made who can you try.