well i'm john hartman and 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 russell a man who's worn different ads with his story and author approach to mr presidential speechwriter talk about how president obama may soon be facing a crisis with the supreme court when franklin roosevelt's work on holiday play out and the recent inability or instability on wall street is on pretty evidence our economy is not on the up and up so are we still experiencing the sting of the two

thousand and eight recession or is this the second republican great depression. replies 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 speech speech writer former cartoonist in one thousand nine hundred seventy joined the clinton right 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 batch was the comic strip it appeared daily in 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 thank you 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 a president who doesn't necessarily need a speechwriter we all know that president clinton famously stand or podium and give a spellbinding speech forty five minutes no so if that's the case how do you value 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 really i can imagine he. lets out 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 stories that are remarkable 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 top twenty forty but if it's next year it's going to be a political dynamite might that set up the same kind of conflict that 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. you resolve the beginning of a second term as president so there's no question that what you say is right if this case or 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 an election year and it will change 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 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 biographer this is recently. putting together the new deal and the supreme court 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 of roosevelt's economic policy and then you had the aaa reform program which which was the other big one and both of these were ruled flat out unconstitutional by the supreme court first the middle one nine hundred thirty five and the second what was going to be a sister as well when those two programs went down in a good number of other ones so along with them along with the state minimum wage a war that had been on the boat for many decades and a whole range of other progressive reforms the court not only called back in breathe new life into old doctrines that sort of been left by the ways. back in the

military leave or the early nineteenth century absolutely but they also created new doctrines as well and so they were really covering the landscape ducks. trying to lee which is one of the things that roosevelt and is allies pointed to as evidence that the supreme court was acting very politically correct today would refer to that as 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 of the supreme court at that time who later retired 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 that time was the nine old men out of her 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 intellectually 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 system than the one that prevailed under roosevelt in the nineteenth. was. would you characterize that belief system with regard to things like the general welfare clause or notion. that's actually close the gustafson. you know there was that there was a lot of belief that. during and after these battles in thirty six and thirty seven

that the supreme court would knock down for example the wagner act or the it was those three areas and they all they did we'll get to why but it. 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 record so the government overreaching in a number of respects with the number of different and different clauses in the constitution or different doctrines that been developed later in the problems with respect to the delegation for the powers they saw congress tell you to meet powers to independent agencies or. were who are going to say she's like the national coverage ministration which i mentioned before there were problems with the commerce clause they saw the government over reaching its power in that regard

whatever a coward bobby kennedy. absolutely thankfully a lot of us have been settled before the nineteenth sorry interrupted bill wilson and so so the conservatives had all sorts of constitutional problems which of course underscored 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 and supreme court sorry the congress more state legislatures had been empowered by the constitution to essentially do what they felt they needed to do in the national interest unless it were originally unconstitutional they were able to make whatever mistakes they wanted to make and so just a stone per. his conservative colleagues and so they were simply acting on the

basis of what he called their economic predictions and not on the basis of the constitution well and then there's that notion of egregiously unconstitutional and what that means. the constitution 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 in the constitution says 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 eighteen zero three. adams when he left the white house and eighteen hundred was basically packing the judiciary and the marshals and what not and and. marbury was supposed to have his commission a liver to him and jefferson told james madison don't deliver it and therefore it will be legal and he won't be able to be a just peace or whatever it was it was he and some are were sued marbury vs madison

and jefferson had his own confrontation with the supreme court there in eighteen 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 in the constitution something that had never been done before and jefferson went nuts you know he said if the stands than the constitution's of thing with wax in the hands of a missionary how did how did roosevelt feel about that and then my follow up question out in advance of what other presidents of had the same kind of confrontation 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 typically in their diaries which i reproduce here. roosevelt felt that the founders had never intended the justices of the supreme court to have the power to overturn acts of congress when this was kind of a bogus belief among progressives at the time. that they talked a lot about what was we could we talk about judicial activism they talked about

what they call judicial supremacy that the court was essentially taking over the functions of the other branches of government 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 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 to hard time making the case that the court should not have this role and i think that most historians would 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 assume that of course the supreme court would have this power at the end and that are not

a story decisive something this this is what i did three yes you would call this a super precedent yeah and it is for the ultimate president so. thomas jefferson one and franklin roosevelt and the other there were several presidents jackson rose the roosevelt lincoln who had battles with the supreme court with a 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 a justice of the supreme court he wrote a book about this called the struggle for judicial supremacy back in nineteen forty one and he described this is the most persistent rivalry in american history which is that rivalry between progressive presidents and a conservative supreme court yeah or. the ballet. it's a power between the legislative executive branches and the judicial and then with

the third among equals has become the first of a long calls i want to get into you know what. kind of round this out and what happened in thirty five thirty six thirty seven and then wrap back around to write might happen with the obama presidency and what this means for us today in just a second we have with us jeff czeslaw schussel he's used me the historian and author of this brilliant book supreme power who that predicts. what drives the world the fear mongering used by politicians who makes decisions compelled to break through it through the pain made who can you trust no one who is in view with a global machinery to see where we had a state controlled capitalism is called satchels when nobody dares to ask we do our tea 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 close to the state 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 he's got 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. four years i guess just some 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 weeks after roosevelt's taking the oath of office to begin his second term as president you know it says that he has a plan which he is putting forth to congress to pass 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 with a overwhelmed and 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 sanction at the time in the general assumption today that the number nine and number just this is we have exist somewhere in the constitution 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 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 what the supreme court should be a court of seventeen was entirely constant smaller and larger exactly as it had gone up and down over the course of the nineteenth century and roosevelt knew that it is story and that and so he understood that this was a quick and

a 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 ruled so. exactly and exactly how do you do something about them without doing damage to the fabric that would constitution it so a lot of others proposed that you should amend the constitution in some way that would give himself or give the congress greater powers and take powers away from the supreme court he was not in favor of that kind of rebalance and so at that point in time also the average age of the supreme court said a seventy or seventy one and you know saying that after seventy they would become justices americanus and there could only be one aggregate 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 know when people get old they slow down to become overburdened by their work and so what we need he said is new blood in the judiciary and so when he was actually proposing to increase the size of the entire federal judiciary for every justice we're judge seventy year old who refused to retire he would get to actually nominate a new justice to sort of sit by the side of the older justice and i guess help help with his work and so this was the device by which he worked to and it was so 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 were obstructing me and the way i'm going to get around them is by expanding the size of the court by two or four he really only need to even one argue. that people probably would have been with him and congress would have it within but instead by saying well seventy an hour some of these guys were very brandeis very highly regarded the oldest man on the court was around us and as a liberal and essentially not publicly but essentially a new deal some right and he also a. people pushing seventy will go to just 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 n.r.a. is they knock on the aaa as i mentioned and they knock 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 he mounted to be opened in this way everybody understood why roosevelt want to change on the supreme court yet he was insisting that it was because the court to be 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 to the old fossils started voting with roosevelt why oh 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 in the end of his life insisted and this was his phrase that he lost the battle really

we didn't get the package for it 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 no one roberts the swing justice swung switched as you said and justice hughes also had gone back and forth it 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. if you look 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 of him some justices couldn't care less but roberts cared very much and a lot of the anger of the public really came down on roberts in particular because it serves as the swing justice in the same way that a lot of the 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 for that matter he didn't see the the end is that this was all a means to in his mind was totally constitution and not just constitution where you characterize it a book it was the survival of american democracy i mean literally of his because because other nations you know coming out of the great depression were flipping to 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 a clear vision and fought hard for it i think president johnson have

a clear vision of fought hard for i think president reagan had a clear vision fought 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 going since the night in march of this clash senator on the commerce clause. clause was at the heart of which is coming around again now in obamacare and probably some other things going to speak to that well there was a lot of gold in congress 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 and whether that counts as commerce if i can interject people who don't or talk about the commerce clause essentially says that the hostage empowers the federal government to regulate

commerce in or money between the state yes absolutely and so the conservatives had a very strict definition what constitutes interstate commerce and so. here there is a problem with in one state even if it happened to be a big industry even it was a big industry that made stuff that went all around the united states and had a big economic impact it didn't matter what mattered was that the problem was located within a state and so they would say congress had no right to regulate but 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 as he called it the commerce clause and he said look we're not forty eight independent states anymore if we have a war we are interdependent and what happens in the economic life of the 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 in the court

in this moment in this conflict when justice roberts which and it's an idea that really wasn't challenging the meaningful way in the federal courts until this moment our present moment over the health care bill very interesting so it would be fascinating to see if this court i mean there are those who argue that modern day conservatives don't want to just you know go back to the reagan doctrine and they literally want to repeal most of the twentieth century back take us back to nineteen twenty five they have take us back to the thirty five courts striking a. minimum wage law as unconstitutional was you probably know there's a movement of of legal thinkers on the right to call themselves the constitution in exile movement and they believe that the moment the constitution went to exile was right here in one nine hundred thirty seven when justice roberts which yes and would it be ironic if another justice roberts were reflect that. you talk also about how justice roberts that era as 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 is has participated in fact the two of them just created 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 things like that but actually be participating in activist types of abounds and if so does that happen on both conservative side of the liberal side and what's going on with it right now historically it has happened from time to time on both sides and justice douglas for example i'm keen under fire for his partisan political activities he was very interested in becoming president of the united states and did some not so subtle agitation toward that end

having failed in that he thought he might be interested in becoming roosevelt's vice president in nineteen 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 but also i guess you would say to the left of center court also outspoken on these issues so it is not unprecedented but in a minute we have left here is it dangerous to the court were to these individual men so i think it is a i think it is dangerous i think it puts the integrity of the word in the public esteem for the order 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 just a school year of justice thomas show up at a koch brothers or tree when you see justice alito really 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 a vice president biden right up for election two thousand and eight i think. you have a problem here and i think that the court 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 out thanks so much vicki is tonight it's been an honor. to watch this conversation again as well as other conversations the great minds go to our website conversations of great minds dot com. after the break conservatives heather servo lisa we had a press quality and progressive talk show host joe madison join me for our weekly rumble. drives the world the fear mongering used by politicians who made the decision to break through get through it if you had made who can you trust no one.