you know they supreme court has nine justices but did you know -- the supreme court has nine justicesbut did you know that number is not in the constitution? you know who had no problem with changing the number of court seats? republicans. they have done it with state supreme court's across the country. no they have manipulated their way to a -- now they have manipulated their way to a 6-3 supreme court that is out of step with the entire country. host: mike davis was from the article three project. he was back on the program in april. this is what he had to say in that interview. [video clip] >> we have the first constitutionalist majority in years. now we have a 6-3 republican appointed supreme court. democrats do not like this. they have lost their grip on the supreme court. it is the final backstop to keep democrats from four control in this country -- full control in this country. host: if you want to watch that interview, you can do so online. mike davis is his name if you want to find it online. is a term republicans have used -- " packing the supreme court will destroy our dem

you know they supreme court has nine justices but did you know -- the supreme court has nine justices, but did you know that number is not in the constitution? you know who had no problem with changing the number of court seats? republicans. they have done it with state supreme court's across the country. no they have manipulated their way to a -- now they have manipulated their way to a 6-3 supreme court that is out of step with the entire country. host: mike davis was from the article three project. he was back on the program in april. this is what he had to say in that interview. [video clip] >> we have the first constitutionalist majority in years. now we have a 6-3 republican appointed supreme court. democrats do not like this. they have lost their grip on the supreme court. it is the final backstop to keep democrats from four control in this country -- full control in this country. host: if you want to watch that interview, you can do so online. mike davis is his name if you want to find it online. is a term republicans have used -- " packing the supreme court will destroy our d

and sort of a converging on the supreme court and the people on the court. and robert jackson in particular, someone who was in roosevelt's cabinet as attorney general, was confirmed by the senate through roosevelt appointments to five separate jobs in a very short run of years, became my big project. and for our topic, it matters that jackson was an assistant attorney general in 1937, a principal witness defending the president's court-packing plan and then the solicitor general who argued in defense of new deal laws' constitutionality before the supreme court. so it's the jackson path that brought me into this roosevelt world ask court packing, court reform as a topic. >> jackson was also, of course, part of the nuremberg trials which we can talk about separately. so president roosevelt, give us a little bit about your background both as a reporter and as a -- of the library's collection. one of the key members of fkr's administration -- fdr's administration. >> thank you, paul. i really appreciate being on with you and john. in hi capacity, i supervise ou

the supreme court said that it wanted the lower courts to address these novel issues before the supremeourt addressed them. there are also at least 14 suits in state court and the federal government suit against texas. the courts are addressing the legal issues on an expedited timetable. those cases will work through the lower courts. i'm looking forward to hearing more from our witnesses today about how the supreme court's decision fits with this normal practice. but before i listen to that, i also want to talk about why we're having this hearing right now. the texas heartbeat act was signed into law in may. there are hearings in state and federal courts this week and next about whether courts should grant relief. the abortion providers just asked the supreme court to provide the case or to take the case on the merritts without wanting or waiting for a court of appeals. so why are we having this hearing at the last week of september? it's because the supreme court starts hearing cases next week and this term, the supreme court has agreed to hear a case about a mississippi law on aborti

ruling from a very short period from the early 1970s before that time the supreme court had a god-awful record and provoked jim crow even after the passage of the reconstruction to create equal rights et cetera. the court was moving backwards in the last decade rapidly rapidly backwards away the rest of the nation wants to go, it's the supreme court left us with what we look at. >> thank you this would probably go to berdin or armand, one of the things in the book that struck me talking about affirmative action and i think in the book that you mentioned that president kennedy was the first one to call it affirmative action but affirmative action has been going on forever it was just affirmative action towards white males only for a long period of time. can you speak about that. i've never really heard it explained that way. >> we've talked about the 1970 civil rights about whether affirmative action is moral et cetera as you say affirmative action, in fact 20 years before that it was the greatest affirmative action in the history for white people. within a huge several governme

in republican national committee versus democratic national committee, the supreme court in the shadow docket overturned a district court's injunction that gave wisconsin voters six extra days to receive and mail back absentee ballots, many of which had not been received because state authorities had been overwhelmed by record request for such ballots due to the covid pandemic, so the supreme court did not allow wisconsin voters those six extra days, and it was astounding, because they were trying to use a deadline for returning those ballots that had not even been received, so that was pretty hard to explain in my view, but the supreme court did that. in another case, the court by a 5-4 vote stayed a lower court order that sought to ensure that the distance with a high risk of contracting covid-19 could safely exercise their fundamental right to vote. the district court joined a pair of alabama laws that enabled persons in these situations to be able to vote safely, but the supreme court said, no. the conservative majority stated that relief, forcing high-risk voters to risk their hea

one more call on the supreme court. this is dave from florida says the workings of the court's just about right. caller: pink you for taking my call. -- thank you for taking my call. they would want it 9-0, all justices liberal. all they do is lie that's all they do is -- all they do is whine. they just want it their way. they want the court packed in their favor. unless they get it, they are not happy. i also believe that abortion should not be used as birth control. host: is it the current court makeup that makes it about right in your mind? caller: it depends on the people. the chief, what's his name? justice roberts, he's the swing vote. it in line and keeps it -- i guess fair could come to mind. host: that's dave finishing off this hour. two guests joining us throughout the course of the morning. first up, brookings institution fellow -- senior fellow john hudak. he will talk about how democratic efforts to impose limits on executive power. later on, npr's roben farzad will talk about the state of the u.s. economy.

is the final say. >> present me, will medicine established the right of the supreme court to move on legal matters in the government and not of the constitution and they took on that power and later on deemed worthwhile in terms of balance of powers without that the court would've really been a week system to the other two branches. so it's an interesting example of the court came up with this and said this was a good idea and it became ingrained in our system and today we can think of what it would be like without it. so it really is a great example of how the constitution should be document, it added this element that it never had in the beginning and said that it was a good idea. >> there's a sort of logic and consent to the assertion of the power to engage in judicial review the court has to decide the cases in a decides cases that arise under the constitution, and sometimes a provision of the constitution might be in conflict with the statute in deciding the case may deciding which of those occur today. the esther answer is the constitution in the context of the case and that

biden's commission for supreme court reform had no court reformers on it. which tells you what that commission was all about. and their report, their draft report is just -- it's gobbledy gook. some commissioners believe this while others believe that. it's not designed to advocate. it's not designed to inspire. it's not designed to move the needle. it's not designed to make recommendations. think about it this way. the supreme court is the only way in the country that operates without ethics rules. that could be a reform. but instead of we are looking at ethics reform, the supreme court commission didn't touch t didn't even study it. this reform, this commission was designed to do nothing to give biden cover for doing nothing. they have done their job very well. host: the president's commission on scotus was established by exec executive order in april, 180 days to study the legality of reform proposals. expanding the number of justices. 36 legal scholars, loirs lawyers, and federal judges held more than 17 hours of discussion. their mienl report was due.

and those issues percolating so beginning with the supreme court and the decision they made to hear and the texas abortion case what did they decide and what are they ruling on quick. >> the court decided to allow an unconstitutional taking of women's rights to go forward until they can get around to make a decision on the merits. the court decided at the challenge on november 1st that's just oral argument and reverting the alarm what it required it to be while they waited for those arguments they did a lot of bounty hunting scheme. but on december 1st hearing a whole different challenge to roe v w wade coming out of mississippi. i don't know what they will do but there is a chance they will put those cases together sometime in june and the texas law will be the goal and tell them. on —- untold that but it is very likely they will do texas and mississippi at the same time next year. host: what are they deciding? how do they decide those quick. >> there are two different kinds of problems one is the frontal attack on roe v wade and women's right to choose those that the supreme

one more call on the supreme court. is is dave from florida says the workings of the court's just about right. caller: pink you for taking my call. -- thank you for taking my call. they would want it 9-0, all justices liberal. all they do is lie that's all they do is -- all they do is whine. they just want it their way. they want the court packed in their favor. unless they get it, they are not happy. i also believe that abortion should not be used as birth control. host: is it the current court makeup that makes it about right in your mind? caller: it depends on the people. the chief, what's his name? justice roberts, he's the swing vote. it in line and keeps it -- i guess fair could come to mind. host: that's dave finishing off this hour. two guests joining us throughout the course of the morning. first up, brookings institution fellow -- senior fellow john hudak. he will talk about how democratic efforts to impose limits on executive power. later on, npr's roben farzad will talk about the state of the u.s. economy. he

the supreme court justices are required to follow. his low hanging fruit on the reform tree and having the ethics requirements so that i don't know, the man who are accused of sexual harassment should not be in charge or should have recused himself when women's rights issues, front of them, that could be a reform an incentive looking at ethics reform the supreme court did even ask or study it so again this reform of the commission was designed, they should do nothing to give biden cover for doing nothing and then they've done their job very well. >> executive order in april 180 days to dispenser the legalities of the perform in front proposals but expanding the number of justices and 36 legals callers and former bipartisan just as of more than 17 hours of discussion as we stand on the report is due next month. let me get to the skull, cindy illinois republican. >> good morning, on the make a comment and then alaska question i had an abortion, in my 20s in africa my 20s, i am 67 now and i plate entered pray every day ofd my life for th

for instance in 2013 the supreme court issued the decision in shelby county versus holder,ot essentially nullifying key provision of voting rights act section five. prior to the court's ruling in shelby, section five required the localities with a track record of disenfranchising voters of color through tactics as brutal as poll taxes and literacy tests to seek federal approval for changes in the voting rules. this is known as preclearance supreme court weakened another section of the voting rights act with his decision versus the democratic national committee. with these wrongful rulings thert supreme court has fueled state led efforts to suppress voters, particularly voters of color. in fact, justice elena wrote her dissent and i quote, and the last decade the supreme court has treated no statute worse than the voting rights act of 1965. it is time for congress to uphold our constitutionalot obligation and restore the voting rights act to his full potential. credits will be joined together today to introduce a bill that would not only restore the protections of voting rights act but st

at the supreme court. adam liptak, covers the place where some of the most important history has been made in this country. he is the new york times reporter of the supreme court, adam liptak, is a graduate of harvard college in yale law school, he is one of those reporters whose career turned here or there, could have become one of the people, he is now covering at the supreme court, and today, adam liptak, has the lead story in the new york times, not because the supreme court did something, today, not because the supreme court issued an historic, life-changing ruling today. but, adam liptak has the mainstream new york times today, because of what the supreme court might do. here is the first sentence, of the new york times lead story on page one, in that upper right corner today, a transform supreme court, returns to the bench on monday to start a momentous term, in which it will consider eliminating the constitutional right to abortion. vastly expanding gun rights and further chipping away at the wall

the supreme court found that. but as it continued on up to 2013, there is no question the burden was quite significant. preclearance for those states meant preclearance of everything. if you moved a polling place, if you move within a school for where you voted you had to get that pre-cleared by the federal government, and each of those opportunities as the federal -- federal government would view it, it's an opportunity to bend your states election system to the will of those in the justice department and even president obama's inspector general found that the voting section was hiring those from the radical left, they were predominant, even back then, and you heard the commitment -- you could expected to get worse. so the place where the questions will be judged, it's not an objective set of a professional career lawyers. these are literally the most rabid left-wing partisan lawyers you could find in the federal government. >> thank you, ranking member grassley. miss wiser, in the shelby county decision, the sup

in republican national committee versus democratic national committee, the supreme court in the shadow docket overturned a district court's injunction that gave wisconsin voters six extra days to receive and mail back absentee ballots, many of which had not been received because state authorities had been overwhelmed by record request for such ballots due to the covid pandemic, so the supreme court did not allow wisconsin voters those six extra days, and it was astounding, because they were trying to use a deadline for returning those ballots that had not even been received, so that was pretty hard to explain in my view, but the supreme court did that. in another case, the court by a 5-4 vote stayed a lower court order that sought to ensure that the distance with a high risk of contracting covid-19 could safely exercise their fundamental right to vote. the district court joined a pair of alabama laws that enabled persons in these situations to be able to vote safely, but the supreme court said, no. the conservative majority stated that relief, forcing high-risk voters to risk their hea

there are a lot of interesting issues related to recusal and ethics in the supreme court. the lower court judges have a code of ethics and recusal practices that are different than the supreme court. in many cases, the supreme court just kind of self polices on those grounds and there is an interesting wall street journal investigation into lower court judges who should have recused because of a conflict of interest in a case and did not and mostly that was financial interest and given that they have a stricter policy, i think it is interesting to think about how that would apply to the supreme court. we don't know of any reason why justices recuse in these particular cases that we are talking about this term, but i think a lot of times the public's focus on the supreme court substantive rulings but there are issues of process and ethical practices that i think warrant more attention in the supreme court. host: mr. malcolm, your response as well? guest: i don't have anything particular to add. justice sotomayor made a statement that she is pro-choice and that is hardly a su

wade is one that no member of the supreme court, not any member would buy today. it's simply that they ducked the issue last time. the second big argument that texas made is that basically the united states has no business going to court in order to get this law reviewed, even though nobody else apparently is able to review it. the united states has no stake in this, and that also didn't fly very well. one of their really bizarre arguments was that the united states government is there to protect and encourage interstate commerce. this law actually doesn't hurt interstate commerce. it forces women to flee texas to go to places like oklahoma, so it encourages interstate commerce. that was one of the more bizarre arguments that basically said the united states has no business protecting the supremacy of federal law. their third argument was, well, maybe the united states has some business here, but it shouldn't be so in the state of texas. the judge basically said, well, who should they be suing if not the state of texas? and the attorney for the state of texas said,

he essentially called out the supreme court.ll of his colleagues, the country at large generally by saying nobody would want to be so wanting in timbre that the purpose was to separate flaxen whites for equal reasons but specifically separate out black people. he went through all the ways that that separation that is both unfair, discriminatory and so economically alienating for african-americans. even though this did not have the same kind of national attention that civil rights cases had. the country, refusing to enforce black rights was no question in their mind that the supreme court would go along with a challenge to this law. only harlan would dissent. his dissent had an unusual power. he had by then been dissenting for 13 years in cases involving equal rights for african-americans. he spoke with an unusually eloquent and powerful voice about the first principles that underline the law. his dissent included a number of memorable phrases including the constitutional -- constitution is colorblind. there is no caste here. the

there are a lot of interesting issues related to recusal and ethics in the supreme court. e lower court judges have a code of ethics and recusal practices that are different than the supreme court. in many cases, the supreme court just kind of self polices on those grounds and there is an interesting wall street journal investigation into lower court judges who should have recused because of a conflict of interest in a case and did not and mostly that was financial interest and given that they have a stricter policy, i think it is interesting to think about how that would apply to the supreme court. we don't know of any reason why justices recuse in these particular cases that we are talking about this term, but i think a lot of times the public's focus on the supreme court substantive rulings but there are issues of process and ethical practices that i think warrant more attention in the supreme court. host: mr. malcolm, your response as well? guest: i don't have anything particular to add. justice sotomayor made a statement that she is pro-choice and that is hardly a surp

there was a supreme court justice who refused to talks--talk to or the in the presence of justice brandeis because he was jewish. it has not always been friendly. you have been on the court 28 years. people don't yell and scream at each other. stephen: they are not rude to each other. it is a professional job. you do your best professionally and if you want people to listen to you, the best you can do is think through this problem. listen. to where the other person is coming from. and see what you can contribute to that thought. david: sometimes the dissents are tough on the majority opinion. nobody takes that personally question mark -- ? stephen: i used to get that question a lot. more when scully out was on the court. i tried to answer because i did not him to. i would say i know you are not aiming the question at me. i get it. but what you don't understand is that some people suffer from a disease. it is called good writer's disease. if a good writer finds a felicitous phrase, he will not give it up. it's like a good comedian, you can't give up that joke. he is a very good writer, he h

this event with the foundation and commemorate the milestone of justice thomases 30 years in the supreme court. justice thomas is now the longest serving justice on the court and at the young age of 73 if he serves for seven more years he will be the longest-serving in supreme court history. [applause] >> we are kicking off the celebration of the justices jurisprudence with a very special award presentation by the center's namesake the former ambassador and white house counsel. in honor of justice thomases 30 years in his role as one of the leading jurists of the 20th and 21st century, this year the center is awarding for the first time the kind of annual award named after the justice to honor his ongoing legacy. the first principles award will be given out each year in october to an individual that is showing an exemplary dedication to the principled application of the rule of law, humility and strength and character. the award is inscribed with the 2,001 speech be not afraid that embodies the justices approach to life and the law, the warning to never surrender to the understandably attracti

by a vote of 8-1, the supreme court affirmed the third circuit's judgment that brandy's punishment was unconstitutional, but it did not affirm the third circuit's categorical rule. in an opinion by justice stephen breyer, the court opted to provide only general guidelines for how lower courts should approach off-campus speech cases in the future. first, the court declined to foreclosure the application of tinker off campus speech in every instance, holding that the reasons justifying tinker do not, quote, always disappear when a school regulates speech that takes place off campus. some circumstances potentially calling for regulation of off-campus speech might include bullying classmates, threats aimed at teachers or other students, cheating or otherwise breaking the rules on school assignments, and breaches of school security devices. then in the crux of the opinion, the court identified three features of off-campus speech that in the court's words diminished the strength of the unique educational characteristics that might call for special first amendment leeway to regulate speech. t

it was not until we made it up here to the supreme court and i think that's because the supreme courtry symbolic. it was intentional for the marchers to end up here. they wanted to underscore just how important the supreme court's role is in the abortion discussion and it's no coincidence that the counterprotesters decided to meet the other group here at the foot of the supreme court and not earlier when we spent a few hours down at the freedom plaza and really didn't hear from any counterprotesters at all while we were down there. >> can you give me a sense of how many as compared to the size of this crowd? i know it's often hard to do. i'm terrible at doing this but if you were to look at the number of counterprotesters, is it like a hundred, 10% of the crowd we're seeing? what do you think? >> reporter: if you can see right behind me, right over here over my right shoulder. there's about, i would say, like 200 counterprotesters right now. you can see the people in the blue shirts over there, the signs saying, i am pro-life. and look across the street. those are the abortion activis

the supreme court ruling in the shelby county case , in which the supreme court of the united states said, quote, "dual government does not have a -- the federal government does not have a general right to review and veto state enactments before they go into effect in ." in fact, the founding fathers considered and expressly rejected giving the federal government power to provide what they refer to as a "negative," or a veto over any and all state laws. so we don't advocate for pre-clearance even in areas surrounding our constitutional rights and the constitutional rights belonging to individuals. if the laws passed by a state happen to violate the constitution, we do, of course, have a procedure in place for challenging those. they go to the federal judiciary. the parties can litigate those, after, of course, the constitutional arguments are are made to the legislative body considering them. if they fail there, they can raise them with the judiciary after they become law and so we've got to be very careful that we don't neglect this principle of federalism in our lawmaking processes

the supreme court says it doesn't really matter. you still have to narrowly tailor thanks even if you be might have used it in some cases. the court then suggested lower courts need to look skeptically at that asserted state interest. california said away might need it to investigate charities. the court said you have to be careful about that. you can't just do that in this broad fashion. the idea that it is making it more convenient for you isn't enough. strauf veins won't do it. so, with that you put real teeth into the exacting scrutiny standard and says now that it is really none of the government's business who you give money to, what organizations you support or belong to. it memoranda become the state's business if they have a legitimate investigation going on that requires them to actually get that information. but they can't generally say they need it or want it. i will crows by getting to the point mentioned earlier. this goes to that greater relationship between people and the state. the state's position is like we are jus

i think the supreme court is unlikely to take another case. they basically told lower courts, don't make a categorical rule. like the third circuit did. work this out case by case. but in fact, we just filed an amicus brief, cato, individual rights in education in a 10th circuit case on a similar issue also about snapchat, and this was one where someone made a stupid holocaust joke and apologized to the local jewish community, and was penitent but nonetheless was expelled. again, the courts are going to have to draw the line of how offensive does something have to be, and does it matter if students like through their parents or through outsides school realm can be sufficiently disciplined without the school needing to step in. >> i should have mentioned i got punished in high school wearing a shirt with profanity on it. strongly considered making a federal case on it but did not. sam, can you cue up the next one, or i'll go to you first from the internets. >> we do not yet have any internets questions. >> we don't have any internets questions.

until the supreme court allowed his become a non-entity. it is not just plea-bargaining that takes jury out of the equation. that was a death nail. the court has undercut the jury in other ways as well. lemons on what the jury was told -- limits on what is told to the jury on the consequences of a case. even without the information jurors still have a pretty good idea what a punishment would be. they can acquit if they think it is too much. while a large proportion of the community has the idea of the going rate for a crime the rate of acquittal is higher. detroit, d.c., bronx have higher rates of acquittal. if you ask for a prosecutor to decide what is happening those cases they will call it jury notification and derided as something unlawful. it is exactly the role juries should be playing. if you cannot take your case to a jury because the threat is too great you are losing that check. there is a third thing that losing the jury does and how it operates and how we lose this operation on the check on government. jury trials take time. that

it was the current state of the supreme court. there was an article today saying a justice, a conservative justice has retired to create perhaps a better balance on the court. and people are approaching that question and are talking about this here. do you see a way back to parity on the supreme court anytime soon? is there a remedy? >> the supreme court of the united states is at the top of one of the three branches of the federal government. it is a powerful law giving institution, just like the presidency, just like the congress. it is political, just like the presidency, just like the congress. a lot of people have this sentimental unrealistic notion that the court is above politics and of course members of the court tell the public that. they tried to make the public believe that. they are articulately, they articulate that you. the chief justice during his confirmation hearing talked about well, the justices are merelyumpires . players. ridiculous. similarly ridiculous are the statements made by theliberal of the supreme cour

if the texas case gets to the supreme court, i think that puts the supreme court in a difficult position. states cannot ban abortion before viability and that is what the texas law does. but if the supreme court says yes, they can, then that undercuts the federal government's argument against the texas law. so will they hold the texas case until they decide the mississippi case? i don't know. i mean, technically speaking abortion is not the issue right now in texas. the issue is can a state come up with a law that deprives someone of a constitutional right and then say i'm sorry, you can't come into court and challenge it. so, you know, i suppose in theory the court could take this case before it decides mississippi. it does seem pretty likely that it is coming back there. in one sense it is already there, there is already a challenge to the law that was brought in the state that is now the people opposing the law are asking the supreme court to take it now even before it gets through the 5th ser cut. circuit. but i don't know what the supreme court will do. i think that it presents a di