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guest: the rehnquist court, not too many differences. most important would be that justice alito has replaced justice o'connor. to the hughes court. chief justice hughes was a brilliant lawyer and had to deal with some very broad economic and social legislation from the new deal. there may be perils with what happens in 2012 and what happened during the 1930's when chief justice hughes was presiding. host: some have said this could be a defining legacy for the chief justice. guest: this is the most important challenge to broadbased economic legislation in 75 years, over 75 years since chief justice hughes was presiding. in the mid 1930's, the court first struck down broad base legislation and found a constitutional. that legacy continues -- has continued for the next 75 years. chief justice roberts is facing a similar challenge that chief justice hughes did in 1935, 1936, 1937. host: what impact could this have on the roberts court? guest: this will be a defining moments, to be sure. i think the court realizes the gravity. they are givin

there was a time in the late '90s where the rehnquist court was interested in striking down federal lawss they exceeded the government's power under the commerce clause. the roberts' court isn't as interested. this he have issues and agendas but this balance between federal and state governments doesn't seem to be high on their agenda as much as rehnquist court. >> see you a lot this week. i'll see you tomorrow. breaking it down. all this stuff. we'll see you on "nightly news." you're busy. >> mandates and meltdown. we will talk politics but first, white house soup of the day, a little flexibility here. chicken corn chowder. you're watching a special edition of "the daily rundown." we'll be right back. c'mon dad! i'm here to unleash my inner cowboy. instead i got heartburn. [ horse neighs ] hold up partner. prilosec isn't for fast relief. try alka-seltzer. it kills heartburn fast. yeehaw! >> the dedication and determination of these two world statesmen have born proof peace has come to israel and to egypt. [ applause ] >> daily flashback to this day in 1979 when histories with made on th

supreme court in a decision by justice rehnquist said that this was still constitutional. but there might be cases where congress was going too far. well, of course, just as in the takings clause cases we don't know what goes too far means. since then there's really been no development in the case law on this issue. and keep in mind that in that case in dole we were talking about 5%, i believe it was of the federal highway funds. i believe the total amount of $4.5 million. now we're talking about a tremendous amount of money as we saw. in fact, medicaid funding to states is usually federal health care funding in general is usually the largest single block of any state's budget. and the states are told that they must comply with the requirements or they lose all of the funding. not just the incremental increase that might be caused by the new requirements but all of their funding. as you saw the bill required -- the new act requires states to expand eligibility and then it requires people to sign up for health insurance which they can do by signing up for medicaid. the stat

chief justice rehnquist and sandra day o'connor or even scalia and kennedy, lito not quite as clear,'t seem as concerned about the scope of the federal power. >> it seems to me that alito has never overturned a law. >> he's very pro federal government. i think alito may be the strongest justice in the room in terms of going with the federal position. for me it comes down to whether they want to ep teach a lesson about conservatism in the court or in the government as a whole. they will try to restrain this and say that the government is getting out of control. it looks like a montrocity to us but god speed we will go through this. >> this three days of arguments, the supreme court that roberts, in particular, is concerned about protecting the reputation of the supreme court. particularly this is a message to the conservatives not happy with the mandate saying, look, they are allowed to do this. they want to make sure everyone realizes they had their day in court. >> everyone is getting a chance to have their arguments heard. there are more than 125 briefs filed in the case. it would

and then we have the rehnquist revolution, and begins to chip away at congress' power to enact legislation under the commerce clause. another case involving 2000, called the united states versus morrison, the violence against women act, which is also seen as a key part of the rehnquist revolution. i want to say with all due respect if this was a revolution, it was a pitiful revolution. by the time we get to the medical marijuana case, the court basically back pedals and says fiif it's a federal drug l, you can enact it under the federal commerce clause. i don't think anything in this case will endanger the federal rights act, and what's happening in the affordable care act case is can i be forced to buy something by the federal government. i'm not in the market, but i will be drawn in. if you go back to the civil rights cases, the way they justify the civil rights acts, the barbecue or heart of atlanta hotel are interstate commerce, because they are taking travelers out of state. people are already in the market and they can be regulated. here the basic point that plaintiffs are making som

and remember william rehnquist did that in the bill clinton impeachment trial, and when he was later asked what it had amounted to, he said i did nothing in particular, and i did it very well. [laughter] so the duties of the chief justice are undefined. and much about the supreme court initially was undefined. so it really had to create itself. and it's done so not in a straight line progression, but it's done so through its cases, the cases that in the early years it had to decide because it had very little discretion over what to hear, and the cases these days that it chooses to decide. and even that was a choice by the supreme court. you know, most appellate courts today in this country they have to take what comes. and so they act sort of as courts of review, courts of appeal, courts of error correction. and that was the supreme court's initial fate or so it seemed, but william howard taft, the capstone after his presidency was becoming chief justice of the united states, and he sized this up, and he thought the court would greatly benefit from the ability to write its own ticket

there was a period there with chief justice rehnquist and justice o'connor when we had gone, we had a long run together and you get comfortable with that and then it changes. and now it's changing again. >> it's a new court. when i was trying jury cases, usually 12, if a juror had to be replaced because one was ill or something, it was just a different dynamic. it was a different jury. the same way here, this will be a very different court. and it's stressful for us because we so admire our colleagues, wonder oh, will it ever be the same? i have deteriorate admiration for the system. the system works. >> i think it's healthy for the court to have members with different backgrounds. i saw a television program recently when somebody said there should always be someone who had served in the armed forces on the court. i think there should always be someone who has had practical experience in litigation and i think experience in other branches of the government such as the legislatures would be very, very helpful. >> i think that the experiences that i have brought to the job are going to

. >> i thought the problem in lopez tt cheap justice rehnquist was dealing with was that the national sovereign had presumed to regulate in a non- economic area. an area dealing with criminal conduct, possession of a gun within 1,000 feet of a school. the fear that animated that opinion was a powerful concern. that national sovereign was invading the state. i am not sure you can make the same argument in quite the same way with respect to the individual. i'm not sure i understand how you get around that issue. >> we are on the same page. obviously they are concerned about the federal government about the federal government asserting state like police powers. the court has told us because it denying the federal government is designed to ensure individual liberty. they have said that in every federalism and separation of powers case. the reason is not because of some state legislature in georgia, but that the citizens should be subcted to a regime far away. i do not disagree that the problem was them asserting the police power. i do not think it is much of a leap to say the reason they

and remember william rehnquist did that in the bill clinton impeachment child -- trial. when asked what it amounted to be delighted nothing in particular and do it very well. duties of the chief justice are undefined. much about the supreme court initially was and defiant. it really had to create itself and it is done so not in a straight wine progression but it is done through its cases. the cases that in the early years had to the side because it had very little discretion over what to hear and it chooses to be side. even that was the choice by the supreme court. most appellate courts in this country have to take what comes. they act sort of as courts of review. courts of appeal. courts of error -- that was the supreme court's initial fate or so it seemed but william howard taft, the capstone after his presidency, he sized this up and he thought the court would benefit from the ability to create his own pocket and not have to take every case that came along. so under his leadership, his urging, congress passed in 1929 what was known as the judge's bill because all the

starting under chief justice rehnquist and continuing under chief justice roberts you don't see thatpretty much what you see is what you get. yes, it is true that sometimes we're surprised by the justices' votes after hearing their comments at oral argument. most of the time and it's not all the time but most of the time the questions that the justices ask at oral argument are very good predictors of how they are going to vote. and based on that, based on what we saw today, i think this law is in grave, grave trouble. >> let me ask you one follow-up on that, jeffrey. what if the four liberal justices all vote to uphold the law, and the chief justice roberts agrees with them because you were suggesting earlier that the questions he was asking of clement and verilli seemed to suggest that he was open to that. it would be a 5-4 decision in favor of up holding the law. >> that's exactly right. and i think that is what they are hoping for in the obama administration. the people who heard that argument, and you know, i haven't spoken to any one else, i just rushed out here. but i am certai

two others are no longer on the court rehnquist and o'connor.hink he is going to be the most difficult vote. i think it is imaginable that the other eight could vote to uphold it. i say that is the most likely scenario. i think it is almost unimaginab unimaginable, if you are asking me to make a prediction -- this is not about what i want but as a professional what i think would happen -- i think it is almost unimaginable that there would be ever more than five votes to invalidate. i think there are four pretty likely votes to uphold the law. those would be justices kagan and brayer and ginsberg and sotomayor. so i think the opponents have to fill an inside straight, work from thomas and lose their most likely vote and they have to work out from there and get the other four. that would be justices kennedy, alito, scalia and roberts. host: professor presser, who do you fear could be voting that this individual mandate is constitutional? guest: i think i agree pretty much with akil's analysis. if we look at each of the justices that he didn't ment

there is a strong argument that says chief justice roberts, his otherhero is john marshall william rehnquist and the estate e-mail of the court first and he cares about his legacy. he does care that he not look like the guy who did bush v. gore part 2, that said based on his questions yesterday, i am a little less certain of that proposition than i was. >> dahlia lithwick from slate magazine, thank you for coming in. great to see you. we are very excited to welcome in studio next governor eliot spitzer here on current tv and the full court press. thanks, dahlia. good to see you. >> my pleasure. ♪ >> this is the bill courtpress show. and that's going to deliver a lot of flavor. [ cannon ] a good thick rocky head -- ♪ >> heard around the country and seen on current tv. this is the bill press show. >>> it's 23 minutes after the hour this is the full court press. your new morning show on current tv. proud to be here and excited to be here with all of you and thank you for joining us. also, very excited to welcome a good friend in the studio this morning from new york governor eliot spitzer. we w