retirement since 2009 but for a lot of them retirement has not been kind but chief justice rehnquist, going to do that for one year. a good you that you wanted to as opposed to something else or maybe not. . these are not cartoon characters, they are humans, they have human responses to the situation in which they find themselves and that is how i reach stephen breyer. >> that is a good take and i think you are right about david souter, certainly the exception and i remember in the 90s part of my archival research finding a letter that justice rehnquist is written about how tyler stewart, his health declined seriously after he step down in 1981, succeeded by sandra day o'connor and he always took i remember reading way before he became ill himself in 2005 that he thought leaving the bench especially alone, without his wife at the time contributed to a miserable life, couldn't let it go and stephen breyer is one of the youngest 83-year-olds i know, still has a spring in his step and doesn't seem to have lost what it takes to be a justice so i'm sure it has been a dilemma for him but it

retirement since 2009 but for a lot of them, retirement has not beenwh kind, look at chief justice rehnquist desperately sick in the last year of his life and he surprised everybody sang i'm going to hang out, my doctor tells me i have one more goodyear. if doctor told you you have one more goodyear, would you want to do it in the office as opposed to something else? maybe, maybe not. so these people are not cartoon characters, they are humans and human responses to the situation in which they find themselves and that's how i view stephen breyer. >> that is a good take and you are right about david souter, certainly the exception. i remember the 90s as part of my research finding a letter chief justice had written to somebody how stuart had become, his health declined seriously after he stepped down in 1981 succeeded by connor and he almost took -- i remember reading way before he became ill himself in 2005 that he thought stepping down, leaving the bench especially if you were alone as chief mark without his wife at the time, it contributed to the life, they couldn't let it go and stephen b

judge roberts was nominated for her spot, and chief justice rehnquist died, and then he was nominated for that spot. justice o'connor wound up working for another seven months on the supreme court after she sent that letter. the timing does matter because as we've been talking about, the court sits in these fixed terms. and justice breyer is in the middle of some work. the best thing for the court would be if a new justice could come on in order to be ready for the new term next year. >> eugene, i want to turn to you on the more political piece of this. this is an opportunity for president biden to make what would be a significant generational choice here, right? likely somebody, as we look at these picks, somebody who is younger, who would be on the court for decades to come. and when it comes to the democratic base, we've covered it on this show, there has been in some lanes, in the progressive lane, this push to get justice breyer to do what we anticipate him doing, retiring. groups on the left have said, it is time while democrats have power. and making the choice, when he has fac

beginning with justice rehnquist elevation the chief justice which as we know was coupled with justice scalia's confirmation. not a bad start. and now and again consistent with his focus on the long game. the recent confirmation of every more recent confirmation of every current member of our supreme court his role in the three most recent confirmations as well known. but for him those would not have happened. his courage has been unmatched after the untimely death of justice scalia. our keynote speakers said no to a hasty confirmation. it is too close to an election that will elect a new president. then after the 2016 election, he led the senate through not only the confirmation from neil gorsuch and later brett kavanaugh and amy barrett. but ensured a record number of judicial confirmations including to our critical federal courts of appeal. 30 years ago clarence thomas became a member of the supreme court our keynote speaker voted invade in favor of that confirmation. just as higher young law clerks and justice thomas is known to look for certain qualities in those clerks. a very lo

>> so, nina's reporting goes into this today and alito was under the impression if rehnquist retiredgoing to be named to that position and then what happened was that o'connor retired before chief justice reinquist retired or passed away and when the first opening arose, roberts was named to that position after the myers flub. and then when rehnquist died and that opening became available, too president bush elevated that and got the o'connor seat. according to nina, alito fashions himself to the hard core conservative and thinks he should be the chief justice and that's contributing to the tensions here and sort of by incidents they've seen over recent years. alito gave a screeching appearance a couple of years back that was derided as partisan. he and thomas came out today that thomas' wife is among the public signers of a letter urging cheney and kin singer to be thrown out. they don't care about the optics. in fact, i think they welcome the idea of liberals being upset by some of the rulings they have in store for the end of this term. >> wow. we'll keep watching. thank you so mu

nominee until his second term when he had the opportunity to appointing three, antonin scalia, william rehnquist and kennedy. jonathan turley accused president biden of confirmation bias. while georgetown law's elia shapiro said his pick would be a lesser black woman who would always have an asterisk attached to their name. if anyone should have an asterisk in front of their names, it should know every single one of the 95 white justices that came before thurgood marshall in 1967. talk about exclusionary criteria. white man, white man, white man, white man. conservatives want you to believe the supreme court is a meritocracy. people are chosen for their qualifications, not their issue with roe v. wade. if you were okay with trump and reagan saying he's going to nominate women but you're not okay with joe biden saying he's going to nominate a black woman, you might, you might be a racist. joining me is congressman jones from new york who became the first congressman to call on stephen breyer to retire. when you hear senator wicker and others like him on the right saying this is affirmative action

justice scalia, justice rehnquist have said you do take that kind of thing into account.ers have been more reluctant to do it. so it's in the mix. judy: marcia, but would you say is the main reason he is doing this now? marcia: i am not sure if he knew he was ready to go wholeheartedly, because i think he truly loves the job and the challenges, but he is 83. he is alert, active, involved in many different things, so probably that also is in the mix , that there are other things he wants to do, as well as his family. he has a number of grandchildren, and perhaps he wants to spend more time with them. judy what does the court lose with his departure? marcia: i think they loose somebody who tried to be a consensus maker, someone who, he once told me, listens very hard with the justices in their private conferences for what he called the play in the joints was there some room to bring them closer together? there was one term, the term in which justice scalia died, in which he and three other justices fmed this group that worked very hard to find consensus and were successful

that must have been the rehnquist court. >> it was hugely important. that's the one that said universities can't have strict quotas but can use race as a factor in achieving diversity, and that's the policy that the supreme court has up held and we'll see if that survives next fall. >> again, this is a case where the supreme court with its new strong conservative majority as in roe, some of the gun cases could be moving in a different direction from what is commonly known as i learned from you, starry desigh sis. >> the harvard case was before last term. it's not going to be argued this year either, it will be argued in the fall, the two cases from harvard and usc. >> was the harvard case the asian american. >> the usc is asian american and white students who say the policy was discriminatory. >> great to talk to you. on a monday, we hear from the court. thanks so much, pete. >> you bet. >>> and downhill slide, faith in american democracy is falling across the board. what that means in our new nbc poll, ahead of the midterms as andrea mitchell reports

>> they said that about rehnquist in the 70's when he was the lone dissenter. and i think it goes back to this question of the brennan model versus the scalia and thomas model. one is let's get the right result and try to cobble together five votes. neither scalia or thomas had an interest in that. they were interested in the principal. there wasn't much room for compromising. my sense is that over the long run when you have a coherent view of how to judge a case and you are willing to go back to those principles, i would think that that encourages people to think that way and to kind of realize, and let's not just talk about the barnacles. let's talk about the ship. it's not that it happens overnight, but justice thomas from the very beginning, we were there in the first term. and i think he had the approach that i will be here a long time and he got on very young. still a relatively young man. and he could still be influential for many years to come and i think he will be. and i think having a coherent jurisprudence gives you a long-lasting legacy that goes b

justice scalia, justice rehnquist have said, you do take that kind of thing into account.n more reluctant to do it. so it's in the mix. >> woodruff: so, marcia, what would you say is the main reason he's doing this right now? >> reporter: i'm not sure, knowing him, he was really ready to go wholeheartedly because i think he truly loes the job and loves the challenges, but, you know, he's 83, he is alert, active, involved in many different things, so probably that ao was in the mix that there are other things he wants to do, as well as his family. he has a number of grandchildren and perhaps he wants to spend more time with them. >> woodruff: what does the court lose with his departure? >> i think they lose somebody who truly tried to be a consensus-maker, someone, who, as he once told me, listens very hard when the justices talk in their private conferences for what he called the play in the joints -- was there some room there to bring them together or closer together. and there was one term, the term in which justice scalia died, in which he and three other justices forme

and so i did tell chief justice rehnquist. i said, well, maybe i can do this, you know, but aside from that i haven't i once told him i said well i've discovered. how to get five people on a single result in this court he said what i said you start with nine. now you know if you find yourself. all of a sudden falling back on your own ideology when you're deciding a case. you have a mental check and you think i don't want to do this. i switch course ideologies. no. no you say this is what you write. i'm just quoting. you know, that's why yeah, i'm just holding you you take and then you belong to say that you believe that all of your colleagues also. have that check on themselves. i'm trying to explain the nature of the job. and in the part that you're talking about i said look. nino and i used to debate this fall the time and and in front of college audiences and they came away. i think pretty interesting. it's a very it's it's look judges typically have when deciding a case what these words mean? they typically have the text.

here you have justice scalia joining chief justice rehnquist's opinion.justice thomas writes -- justice scalia does not join. there were many other times were justice kalina or justice thomas was separate and might have joint. here, justice scalia does not join. it is essentially a critique of the substantial effect notion that anything that has a substantial effect on interstate commerce is regular ball under article -- is under article 1, section 8. congress may only regulate commerce among several states, but also anything that has a substantial effect. if taken to its logical extreme, this would give congress a police power over all aspects of american life. that is a theme he has returned to again and again and he returns to in his shorter, separate dissent. he is expressing this concern that if we read the commerce clause power so broadly, and the court has read it since the new deal cases, according to justice thomas, it would give the federal government unlimited power. right away, he is staking out this structural concern about the balance of pow

with his 1973 dissent, joined by justice rehnquist in doe v. bolton wrote as follows, and i quote, with all due respect i dissent. i find nothing in the language or history of the constitution to support the court's judgment. the court simply fashions and announces a new constitutional right for pregnant mothers and with scarcely any reason or authority for its action invests that right with sufficient substance to override most existing state abortion statutes. the upshot that the people in the legislatures of the 50 states are constitutional i had disentitled to weigh the relative importance that can be in existence in the development of a fetus, on the one hand, against the spectrum of possible impacts on the mother on the other hand. as an exercise of power, the court perhaps has authority to do what it does today, but in my view its judgment is an improvident and extravagant power that the constitution extends to this court. the court apparently values the convenience of the pregnant mother more than the continued existence and development