Original Broadcaster Captioning (Enhanced). Treat it as a searchable index of what was broadcast, not a quotation record.
00:00:01LYNDON JOHNSON. MR. CARO TALKS ABOUT HIS
00:00:04RESEARCH AND WRITING PROCESS ON
00:00:06THE LBJ SERIES, VOTING RIGHTS
00:00:08ACT, THE CIVIL RIGHTS ACT,
00:00:12IMMIGRATION REFORM.
00:00:13HE DID IT ALL, AND THEN HE DID
00:00:17VIETNAM, WHICH WAS JUST
00:00:22HORRIBLE. SO, AS I SAY, VIETNAM IS THE
00:00:25HARDEST PART TO WRITE. OF.
00:00:28GOOD QUESTION.
00:00:31YOU KNOW, IT'S VERY I'M WRITING
00:00:36IT NOW.
00:00:39AND IT'S VERY.
00:00:43REALLY DEPRESSING. PULITZER PRIZE WINNING
00:00:46BESTSELLING BIOGRAPHER ROBERT CARO.
00:00:48SUNDAY NIGHT AT 8 P.M. EASTERN ON C-SPAN'S Q&A.
00:00:52YOU CAN LISTEN TO Q&A AND ALL OF
00:00:55OUR PODCASTS ON OUR FREE C-SPAN
00:00:57NOW APP OR WHEREVER YOU GET YOUR PODCASTS.
00:01:01WELCOME TO THE ROBERT H. JACKSON CENTER.
00:01:05MY NAME IS KRISTIN MCMAHON AND I
00:01:07HAVE THE PRIVILEGE OF SERVING AS THE PRESIDENT OF THE CENTER.
00:01:11THE ROBERT H. JACKSON CENTER IS A NONPROFIT,
00:01:15NONPARTISAN AND A REGISTERED 5A1C3. AND BECAUSE EDUCATION WAS SUCH A
00:01:19CRITICAL PART OF ROBERT H. JACKSON'S SUCCESS, WE DO NOT
00:01:22CHARGE FOR ANY OF OUR PROGRAMS, EVENTS OR TOURS.
00:01:27OUR SUCCESS AND SUSTAINABILITY
00:01:29IS 100% RELIANT ON PHILANTHROPY. AND YOU CAN LEARN MORE ABOUT HOW
00:01:33TO SUPPORT OUR PROGRAMS, OUR MISSION AND OUR WORK ON OUR WEBSITE.
00:01:37ROBERT H. JACKSON.ORG.
00:01:41THE CENTER IS CELEBRATING ITS 25TH ANNIVERSARY THIS YEAR AND
00:01:44SO OUR PROGRAM THEME IS 25 YEARS OF ASKING QUESTIONS.
00:01:48AND WE'D LIKE TO THANK SOUTHERN CHAUTAUQUA FEDERAL CREDIT UNION
00:01:51FOR SPONSORING THIS PROGRAM SERIES.
00:01:54ONE OF THE FUNDAMENTAL PRECEPTS OF THE CENTER IS THAT WE DO NOT
00:01:57TELL YOU WHAT TO THINK. WE GIVE YOU ACCESS TO EXPERTS
00:02:02AND INFORMATION AND THE TOOLS TO
00:02:04HELP YOU DETERMINE HOW YOU THINK ABOUT THINGS.
00:02:08TO ANALYZE THOSE THOUGHTS AND THEN TAKE THEM OUT INTO THE
00:02:12WORLD AND DO SOMETHING WITH THEM.
00:02:14ALL OF OUR 2026 PROGRAMS LEAN INTO THIS DEEPLY.
00:02:18AND TODAY'S PROGRAM EXPLORES THE
00:02:20HEALTH OF DEMOCRACY CURRENTLY
00:02:23ITS CHALLENGES, ITS RESOLVE,
00:02:25TENSE, AND WHAT ALL OF US CAN DO TO HELP KEEP IT HEALTHY.
00:02:29UNDER THE TITLE OF A REPUBLIC, IF YOU CAN KEEP IT.
00:02:33WHEN BENJAMIN FRANKLIN WAS ASKED
00:02:35AS HE EMERGED FROM THE
00:02:38CONSTITUTIONAL CONVENTION IN 1787, WHAT KIND OF GOVERNMENT HAD BEEN CREATED.
00:02:42HE REPORTEDLY REPLIED, A
00:02:46REPUBLIC, IF YOU CAN KEEP IT.
00:02:48AND THAT CONDITIONAL, IF STILL
00:02:50FEELS URGENT TODAY.
00:02:54ASSOCIATE JUSTICE ROBERT H. JACKSON THOUGHT OFTEN ABOUT
00:02:57THOSE CONDITIONS. JACKSON KNEW EXECUTIVE POWER
00:03:01FROM THE INSIDE.
00:03:02HE HAD SERVED AS SOLICITOR
00:03:05GENERAL, AS ATTORNEY GENERAL, AND AS AN ASSOCIATE JUSTICE OF
00:03:09THE U.S. SUPREME COURT. THE ONLY PERSON IN U.S. HISTORY
00:03:13TO HAVE SAT IN ALL THREE OF THOSE CHAIRS. HE ALSO OBSERVED EXECUTIVE POWER
00:03:18FROM THE OUTSIDE AND HELPED CREATE THE MODERN DAY
00:03:21ACCOUNTABILITY SYSTEM. WHEN HE STEPPED AWAY FROM THE
00:03:25COURT FOR 15 MONTHS TO SERVE AS
00:03:27THE CHIEF OF COUNSEL AT THE INTERNATIONAL MILITARY TRIBUNAL
00:03:31AT NUREMBERG, THE BREADTH OF HIS
00:03:33EXPERIENCE GAVE HIM A WIDER LENS THROUGH WHICH, TO VIEW THIS QUESTION.
00:03:37IN HIS LANDMARK OCCURRENCE IN
00:03:40YOUNGSTOWN SHEET AND TUBE COMPANY VERSUS SAWYER
00:03:43COLLOQUIALLY REFERRED TO AS THE
00:03:46STEEL SEIZURE CASE, JACKSON LAID DOWN WHAT REMAINS THE MOST
00:03:50INFAMOUS ANNUAL FRAMEWORK FOR UNDERSTANDING PRESIDENTIAL POWER
00:03:53IN CONSTITUTIONAL LAW. AND THERE HE WROTE THAT THE
00:03:56PURPOSE OF THE CONSTITUTION WAS
00:03:59NOT ONLY TO GRANT POWER, BUT TO KEEP IT FROM GETTING OUT OF HAND.
00:04:03AND WHAT WAS AT STAKE, HE CAUTIONED, WAS NOTHING LESS THAN
00:04:07THE EQUILIBRIUM ESTABLISHED BY OUR CONSTITUTIONAL SYSTEM.
00:04:11JACKSON WAS EQUALLY CLEAR ABOUT WHAT STOOD BETWEEN THE CITIZEN
00:04:15AND AN OVERREACHING EXECUTIVE, AND THAT IS THE COURT'S.
00:04:18IN A SERIES OF LECTURES PUBLISHED AFTER HIS DEATH,
00:04:21TITLED THE SUPREME COURT IN THE
00:04:23AMERICAN SYSTEM OF GOVERNMENT,
00:04:25HE WROTE THAT THE TASK OF A JUSTICE WAS TO MAINTAIN THE
00:04:29SYSTEM OF BALANCE UPON WHICH FREE GOVERNMENT IS BASED, AND
00:04:33THAT THE COURT WAS THE MOST ATTACHED, DISPASSIONATE AND
00:04:37TRUSTWORTHY CUSTODIAN. THE AMERICAN SYSTEM AFFORDS FOR
00:04:40TRANSLATING ABSTRACT
00:04:42CONSTITUTIONAL DOCTRINES INTO CONCRETE COMMANDS.
00:04:46I SHOULD MENTION. HOWEVER, HE DID NOT THINK THE
00:04:49COURT WAS ALL KNOWING AND HE FAMOUSLY QUOTED QUIPPED THAT THE
00:04:53SUPREME COURT IS NOT FINAL BECAUSE THEY ARE INFALLIBLE.
00:04:57BUT THEY ARE INFALLIBLE BECAUSE THEY ARE FINAL.
00:05:01WHAT THEN, WOULD JACKSON MAKE OF FRANKLIN'S CHALLENGE?
00:05:05HE ANSWERED IT IN A SENSE IN YOUNGSTOWN, WHICH WILL BE PART
00:05:07OF OUR DISCUSSION TODAY. SO WE ARE THRILLED TO HAVE
00:05:11JOINED US TODAY. PETER COHEN, AND WHO IS THE
00:05:15AUTHOR OF THE BOOK IN THE SUPREME COURT'S OWN WORDS.
00:05:18IT ASKS US TO HEAR THE COURT
00:05:20SPEAK IN ITS OWN LANGUAGE FROM ITS OWN CASES ABOUT THE FIRST
00:05:24PRINCIPLES THAT CONSTRAIN PRESIDENTIAL POWER AND PRESERVE THE REPUBLIC.
00:05:28FRANKLIN'S CONDITION INS ARE
00:05:31STILL OPEN, AND JACKSON'S ANSWER WAS CLEAR THE KEEPING OF THIS
00:05:36REPUBLIC DEPENDS ON WHETHER WE
00:05:37HOLD THOSE PRINCIPLES FAST.
00:05:40PETER C COHEN IS A SEASONED ATTORNEY WITH OVER 40 YEARS OF
00:05:44FIRST CHAIR CIVIL LITIGATION,
00:05:46LEGAL WRITING, EDITING AND
00:05:48APPELLATE ADVOCACY EXPERIENCE, DURING WHICH HE DEVELOPED DEEP
00:05:52EXPERTISE IN THE JURISPRUDENCE OF THE U.S. SUPREME COURT.
00:05:55OVER THOSE DECADES, MR. COHEN
00:05:57STUDIED AND APPLIED HUNDREDS OF SUPREME COURT DECISIONS ACROSS A
00:06:01WIDE RANGE OF LEGAL SUBJECTS.
00:06:03HE WROTE AND EDITED MORE THAN A THOUSAND BRIEFS FILED IN COURTS
00:06:06AT EVERY LEVEL OF THE JUDICIARY, MANY OF WHICH REQUIRED
00:06:10DISTILLING COMPLEX RULINGS INTO PERSUASIVE ARGUMENTS FOR JUDGES,
00:06:14CLIENTS AND COLLEAGUES. MR. COHEN ALSO SERVED AS AN
00:06:17ADJUNCT PROFESSOR OF LAW TEACHING LANDMARK SUPREME COURT
00:06:21DECISIONS TO BOTH AMERICAN AND INTERNATIONAL STUDENTS IN THESE
00:06:24COURSES EXPLORED CONSTITUTIONAL FOUNDATIONS, SEPARATIONS OF
00:06:28POWER, DUE PROCESS, THE RULE OF
00:06:29LAW, JUDICIAL REVIEW AND PIVOTAL
00:06:32CASES ADDRESSING PRESIDENTIAL AUTHORITY.
00:06:34MANY OF WHICH FORM THE HEART OF HIS BOOK. HIS TEACHING EXPERIENCE
00:06:39UNDERSCORED HOW COMPLEX CONSTITUTIONAL CONCEPTS CAN
00:06:42BECOME ACCESSIBLE WHEN PRESENTED
00:06:45WITH CLARITY, STRUCTURE AND HISTORICAL CONTEXT.
00:06:49MOTIVATE IT BY GROWING CONCERNS OVER THE EROSION OF DEMOCRATIC NORMS.
00:06:51MR. COHEN RESOLVED TO DIRECT THE FULL MEASURE OF HIS LEGAL
00:06:55TRAINING, CIVIC COMMITMENT AND SCHOLARLY DISCIPLINE TOWARD A
00:06:58SINGLE, ACCESSIBLE WORK, ONE THAT EXAMINES HOW THE SUPREME
00:07:02COURT HAS HAS HISTORICALLY SERVED AS A CONSTITUTIONAL CHECK
00:07:06ON PRESIDENTIAL POWER. PETER, THANK YOU SO MUCH FOR JOINING ME.
00:07:09IN CONVERSATION TODAY. THANK YOU SO MUCH FOR HAVING ME. IT'S AN HONOR TO BE AT THE JACKSON CENTER.
00:07:13I ALWAYS LIKE TO START WITH A FOUNDATIONAL QUESTION, AND IT'S
00:07:17USUALLY ABOUT WHAT PROMPTED YOU TO DO THIS.
00:07:21SO YOUR BOOK IS ENTITLED IN THE
00:07:23SUPREME COURT'S OWN WORDS.
00:07:25SO WHY WAS IT IMPORTANT TO YOU TO LET THE COURT SPEAK FOR
00:07:29ITSELF? SO THE BOOK WAS WRITTEN ESSENTIALLY FOR THREE REASONS.
00:07:34THE FIRST IS THAT I WANTED TO DO
00:07:36A DEEP DIVE ON SUPREME COURT
00:07:40JURISPRUDENCE ON THE QUESTION OF LIMITING EXECUTIVE POWER.
00:07:43IT'S AN ISSUE THAT'S BEEN IN THE
00:07:45NEWS, NOT JUST IN THE LAST 10 OR
00:07:4715 YEARS, BUT IN THE LAST 80 TO 100 YEARS.
00:07:51GIVEN THE EXPANSE OF EXECUTIVE
00:07:54POWER THROUGH THE 20TH CENTURY AND THEN INTO THE 21ST CENTURY.
00:07:57I THOUGHT THAT THE BEST WAY TO
00:07:59DO THAT WAS TO GET OUT OF SORT
00:08:01OF THE CONTEMPORARY ANALYSIS OF
00:08:05THAT AND TO DO A DEEP DIVE INTO
00:08:09THE CONSTITUTIONAL HISTORY OF RESTRAINTS THAT ARE PUT UPON THE
00:08:13PRESIDENTS. AND THAT'S EXACTLY WHAT THE BOOK DOES.
00:08:16IT GOES FROM 1803 TO 2024, AND
00:08:18IT CURATES THE LANDMARK
00:08:20DECISIONS BY THE SUPREME COURT
00:08:23WHERE THE SUPREME COURT ESSENTIALLY REINED IN A
00:08:26PRESIDENT WHEN A PRESIDENT IS
00:08:29ACTING OUTSIDE OF EITHER CONSTITUTIONAL OR STATUTORY
00:08:32AUTHORIZATION. SO THAT WAS THE FIRST REASON FOR
00:08:35WRITING THE BOOK, IS I THOUGHT
00:08:37THAT IN ORDER TO UNDERSTAND WHAT IS GOING ON TODAY, IN THE LAST
00:08:4050, 80 YEARS, IT'S BETTER TO
00:08:41TAKE SORT OF A WIDER LENS ON THE SUBJECT.
00:08:46THE SECOND REASON WHY I WROTE THE BOOK WAS TO REMIND THE
00:08:50SUPREME COURT OF ITS INSTITUTIONAL ROLE THROUGHOUT
00:08:54AMERICAN HISTORY. AND IN FACT, THE BOOK IS DEDICATED TO BOTH CURRENT AND
00:08:59FUTURE SUPREME COURT JUSTICES TO
00:09:01REMIND THE COURT, THIS IS WHAT
00:09:03YOU'VE SAID THROUGH ALMOST 240
00:09:07YEARS OF JURISPRUDENCE.
00:09:10ON THE QUESTION OF PRESIDENT POWER, EXECUTIVE POWER, THE
00:09:14EXPANSION OF IT, THE LIMITATIONS ON IT, THE FULFILLMENT OF THE
00:09:18FRAMERS, VISION FOR AN ENERGETIC
00:09:23PRESIDENT, BUT ONE LIMITED TO
00:09:25HIS OR HER APPROPRIATE SPHERE OF
00:09:28DUTY AS THE SUPREME COURT FAMOUSLY SAID IN A CASE IN THE
00:09:321860S. SO THE SECOND REASON WAS TO REMIND THE CURRENT SUPREME COURT
00:09:35OF THE HISTORY OR INSTITUTIONAL ROLE.
00:09:40THE THIRD REASON, AND THIS IS WHY THE BOOK WAS TITLED THE WAY
00:09:42IT WAS, IS TO MAKE SUPREME COURT
00:09:46DECISIONS MORE ACCESSIBLE TO PEOPLE, PARTICULARLY
00:09:50NON-LAWYERS. MANY PEOPLE ARE AFRAID TO READ SUPREME COURT DECISIONS.
00:09:53MANY LAWYERS ARE AFRAID TO READ SUPREME COURT DECISIONS.
00:09:56BUT IT'S IMPORTANT THAT WE READ THE COURT'S OPINIONS FOR
00:10:01OURSELVES AND NOT HAVE IT BE
00:10:03FILTERED THROUGH VARIOUS MEDIA. THE PROLIFERATION OF SOCIAL
00:10:07MEDIA AND INTERNET ANALYSIS OF
00:10:10SUPREME COURTS CAN SOMETIMES BE WANTING.
00:10:14SO ANOTHER REASON FOR THE BOOK WAS TO MAKE SUPREME COURT
00:10:16DECISIONS MORE ACCESSIBLE SO
00:10:18THAT PEOPLE CAN DECIDE FOR
00:10:21THEMSELVES WHETHER THE SUPREME COURT'S DECISIONS ARE GOOD OR NOT.
00:10:24SO THOSE ARE THE THREE REASONS WHY THE BOOK WAS WRITTEN. THAT'S GREAT. AND THAT ACTUALLY LEADS ME VERY
00:10:28NICELY INTO MY NEXT QUESTION, WHICH IS SORT OF A COMBINATION
00:10:32OF YOU'VE PRACTICED LAW FOR A LONG TIME. YOU HAVE TAUGHT THE LAW AS WELL.
00:10:36HOW DID THAT SHAPE WHAT YOU WERE
00:10:38DOING WITH THIS BOOK AND FOR THE NON-LAWYERS IN THE AUDIENCE? HOW SHOULD THEY BE THINKING
00:10:42ABOUT SUPREME COURT DECISIONS AND WHAT WHAT SHOULD THEY TAKE AWAY FROM THE BOOK?
00:10:46SO IT'S IMPORTANT. AND JUSTICE JACKSON MADE THIS
00:10:50POINT IN HIS STILL SEIZURE
00:10:54CONCURRENCE THAT IT'S IMPORTANT
00:10:57TO SEPARATE THE CONSTITUTIONAL OFFICE OF THE PRESIDENCY FROM
00:11:00ITS TEMPORARY OCCUPANT.
00:11:02MANY TIMES PEOPLE WILL DECIDE
00:11:06WHETHER WHAT A PRESIDENT DOES IS CONSTITUTIONAL OR NOT, WHETHER
00:11:09OR NOT IT'S BEEN AUTHORIZED BY CONGRESS OR NOT, DEPENDING UPON
00:11:13WHETHER OR NOT WE LIKE THE PRESIDENT OR WHETHER WE AGREE
00:11:16WITH HIS POLICIES OR NOT.
00:11:18JUSTICE JACKSON WAS VERY CLEAR
00:11:20IN HIS CONCURRING OPINION THAT THAT IS NOT THE WAY TO TO
00:11:26IMPLEMENT THE RULE OF LAW. HE QUOTED CHIEF JUSTICE MARSHALL, ONE OF THE FAMOUS
00:11:30CHIEF JUSTICES IN THE IN THE 19
00:11:33CENTURY, BY SAYING THAT THIS IS
00:11:35A CONSTITUTION WE ARE EXPOUNDING NOT PERSONALITIES.
00:11:41AND NOT POLITICAL PARTIES AND NOT PARTIZANSHIP.
00:11:45SO ONE THING THAT I TOOK AWAY FROM BOTH MY PRACTICE AS WELL AS
00:11:48TEACHING CONSTITUTES AND LAW IS
00:11:50TO BE REALLY CLEAR ON SEPARATING
00:11:53THE OFFICE FROM THE PERSON.
00:11:57AND I THINK THAT MAKES PARTICULAR SENSE TODAY. I THINK JUSTICE JACKSON WOULD
00:12:01PARTICULARLY MAKE THAT POINT TODAY AND THAT WE OUGHT TO LOOK
00:12:05UPON THE EXPANSION AND THE
00:12:08LIMITATIONS OF EXECUTIVE POWER,
00:12:09OF LOOKING AT THE HISTORIC UNDERSTANDING OF THE OFFICE,
00:12:13WHAT THE FRAMERS INTENDED OF THE
00:12:17PRESIDENCY TO BE, AND NOT NECESSARILY WHETHER WE, LIKE THE
00:12:21PRESIDENT AND OR HIS POLICIES. SO THAT WAS THE BIGGEST TAKEAWAY
00:12:25IN MY PRACTICE AS WELL AS TEACHING LAW TO BE ABLE TO
00:12:28SEPARATE CONSTITUTION AND LAW FROM THE PERSON WHO OCCUPIES THE
00:12:32OFFICE. THANK YOU.
00:12:34YOU STRUCTURE THE BOOK THE BOOK
00:12:36AROUND FIVE FORMS OF PRESIDENTIAL OVERREACH.
00:12:40I'M NOT GOING TO TRY AND DO THIS FROM MEMORY. I DID ACTUALLY WRITE THEM DOWN.
00:12:43SO THE PRETENDER MONARCH, THE
00:12:44JAILER, THE MILITARY RULER, THE
00:12:47LAWMAKER AND THE LAWBREAKER. HOW DID YOU ARRIVE AT THAT
00:12:51STRUCTURE AND WAS THERE ANYTHING THAT SURPRISED YOU WHILE YOU
00:12:53WERE WRITING IT? SO IT WAS THE RESEARCH OF
00:12:57SUPREME COURT DECISIONS ITSELF
00:12:59THAT ALLOWED THE BOOK TO SORT OF
00:13:04ORGANICALLY BE DISTRIBUTED,
00:13:06ACCORDING TO THOSE CATEGORIES.
00:13:10AND FOR EXAMPLE, THE PRESIDENT
00:13:12BEING A MILITARY RULER, THE
00:13:15SUPREME COURT HAS AN EXTENSIVE
00:13:17NUMBER OF DECISIONS ON WHAT ARE
00:13:21THE CONSTITUTIONAL RULES BEFORE
00:13:23A PRESIDENT COULD DEPLOY
00:13:28MILITARY FORCE UPON A CIVILIAN IN POPULATION.
00:13:31AND THAT PARTICULAR CHAPTER OF
00:13:33THE BOOK TRACES HOW THE SUPREME COURT WAS VERY DEFERENTIAL TO
00:13:37THE PRESIDENT IN THE EARLY 19TH CENTURY.
00:13:40BUT IT WASN'T UNTIL THE MILLIGAN CASE IN THE 1860S, A CIVIL WAR
00:13:45CASE WHERE THE SUPREME COURT
00:13:47BEGAN TO LAY OUT CONSTITUTION
00:13:49REQUIREMENTS BEFORE A PRESIDENT
00:13:51CAN DEPLOY MILITARY FORCE UPON A CIVILIAN POPULATION.
00:13:55JUSTICE JACKSON TOOK UP THAT
00:13:57BATON BOTH IN HIS DISSENT IN
00:14:01KOREMATSU, AS WELL AS THE CONCURRENCE IN THE STEEL SEIZURE
00:14:03CASE, WHERE HE SAID THAT JUST
00:14:06BECAUSE THE PRESIDENT DEPLOYS TROOPS OR JUST BECAUSE THE
00:14:09MILITARY DECIDES THAT SOMETHING IS NECESSARY, THAT THAT DOESN'T
00:14:13SUSPEND THE CONSTITUTION.
00:14:16AND I AND JUSTICE JACKSON WAS VERY FIRM ABOUT THAT.
00:14:19AND SO THAT CHAPTER OF THE BOOK SORT OF TRACES THE SUPREME
00:14:23COURT'S INITIAL DEFERENCE TO THE
00:14:28PRESIDENT IN THE FIRST HALF OF THE 19TH CENTURY, WHERE THE
00:14:31PRESIDENT BASICALLY COULD DEPLOY MILITARY TROOPS UPON A CIVILIAN
00:14:35POPULATION AND AT WILL UNTIL THE
00:14:391860S TO THE PRESENT TIME WITH A SUPREME COURT HAS ARTICULATED
00:14:43THESE STANDARDS. SO THAT PARTICULAR CHAPTER OF
00:14:46THE BOOK TRIES TO TRY TO TRACE
00:14:49THOSE SUPREME COURT DECISIONS ON THE CHAPTER REGARDING THE PRESIDENT AS LAWBREAKER.
00:14:54THIS WAS THE RELATIONSHIP BETWEEN THE PRESIDENT AND THE
00:14:58CRIMINAL JUSTICE SYSTEM, WHICH
00:14:59STARTED WITH AARON BURR, ONE OF
00:15:02THE COUNTRY'S EARLY VICE
00:15:06PRESIDENTS, WHO PRESIDENT
00:15:08JEFFERSON CHARGED WITH ESPIONAGE
00:15:11AND OTHER KINDS OF OTHER KINDS OF CRIMES.
00:15:14WHERE PRESIDENT JEFFERSON WAS SERVED WITH A CRIMINAL SUBPOENA
00:15:17AND HE DIDN'T WANT TO COMPLY WITH IT, SAYING THAT THE PRESIDENT IS ABOVE THAT KIND OF
00:15:21THING. AND CHIEF JUSTICE MARSHALL, AT THE TIME WROTE AN OPINION WHICH
00:15:27SET THE TREND OF WHEN THE
00:15:29PRESIDENT NEEDS TO COMPLY WITH
00:15:32THE CRIMINAL JUSTICE PROCESS.
00:15:34AND THAT WENT ALL THE WAY TO
00:15:37RICHARD NIXON DURING THE 1970S WITH THE WATERGATE SCANDAL, WHEN
00:15:41HE WAS SERVED WITH A SUBPOENA TO
00:15:43PROVIDE TAPES OF SECRET RECORDED
00:15:46CONVERSATIONS IN THE OVAL OFFICE.
00:15:48IT WENT TO BILL CLINTON WHEN HE
00:15:50WAS SUED CIVILLY BY PAULA JONES
00:15:52FOR ACTUALLY COMMITTED OR
00:15:55ALLEGEDLY COMMITTED BEFORE HE WAS PRESIDENT, ALL THE WAY UP TO
00:15:59THE PRESENT TIME IN 2024, WHEN THE SUPREME COURT FOR THE FIRST
00:16:02TIME IN ITS HISTORY, GRAPPLED WITH THE QUESTION OF WHEN DOES A
00:16:07PRESIDENT ABSOLUTELY OR QUALIFY
00:16:10FINALLY, IMMUNE FROM THE CRIMINAL PROCESS, GIVEN
00:16:14DECISIONS THAT HE'S MADE. SO THAT PARTICULAR CHAPTER SORT
00:16:17OF TRACES THE SUPREME COURT.
00:16:23I JURISPRUDENCE ON THAT PARTICULAR ISSUE IN TERMS OF
00:16:27SURPRISES, I WOULD SAY ON THE
00:16:29CHAPTER OF THE PRESIDENT AS LAWBREAKER.
00:16:32WHAT SURPRISED ME WAS THAT THE
00:16:36INTERACTION BETWEEN THE PRESIDENT AND THE CRIMINAL JUSTICE SYSTEM BEGAN SO EARLY IN
00:16:39THIS COUNTRY'S HISTORY WITH
00:16:42PRESIDENT JEFFERSON, WHO WAS THE THIRD PRESIDENT OF THE UNITED STATES.
00:16:45AND CHIEF JUSTICE MARSHALL SAID THE PRECEDENT THAT FUTURE
00:16:50SUPREME COURTS WOULD USE IN ORDER TO SET THE STANDARDS WHEN
00:16:52A PRESIDENT NEEDS TO COMPLY WITH THE CRIMINAL JUSTICE SYSTEM.
00:16:56SO THAT WAS ONE BIG SURPRISE THAT I FOUND IN THE RESEARCH
00:17:00THAT IS SURPRISING. I WOULDN'T HAVE THOUGHT QUITE THAT EARLY. ALL RIGHT.
00:17:03SO WE'VE MENTIONED JACKSON'S STILL SEIZURE CONCURRENCE A COUPLE OF TIMES.
00:17:07I THINK IT WOULD BE HELPFUL, ESPECIALLY FOR THE NON-LAWYERS IN THE AUDIENCE IF YOU COULD
00:17:10VERY QUICKLY BREAK DOWN WHAT IS
00:17:13IT IN JACKSON'S CONCURRENCE AND
00:17:15WHAT ARE YOUR THOUGHTS AS TO WHY
00:17:17IT CONTINUES TO ENDURE TODAY? THE LAST PART FIRST, IT ENDURES
00:17:22TODAY BECAUSE IT MADE SO MUCH COMMON SENSE.
00:17:24SO I THE STEEL SEIZURE CASE WAS
00:17:28HARRY TRUMAN WAS RUNNING A WAR,
00:17:30THE KOREAN WAR. AND IN THE 1950S, IT WAS
00:17:34CHALLENGING FOR A PRESIDENT TO RUN A WAR WITHOUT STEEL.
00:17:37AND THE STEEL WORKERS OF AMERICA
00:17:39WAS THREATENING TO GO ON STRIKE. PRESIDENT TRUMAN SET UP A
00:17:43MEDIATION PROCESS TO TRY TO GET IT MEDIATED. IT DIDN'T WORK.
00:17:46SO HE ORDERED HIS SECRETARY OF
00:17:48COMMERCE TO ISSUE ORDERS THAT WOULD ULTIMATELY PRIVATIZE THE
00:17:52STEEL MILLS OF THE UNITED STATES OR PRESERVE THE UNITED STATES
00:17:55ORDERING THE SEIZURE OF PRIVATE PROPERTY.
00:17:59AND THE SUPREME COURT, SIX OF THE JUSTICES AGREED THAT THAT
00:18:03WAS A VIOLATION OF THE CONSTITUTION.
00:18:05EACH SET OUT THEIR OWN ANALYSIS.
00:18:09JUSTICE BLACK WROTE THE MAJORITY
00:18:13OPINION, AND HE WAS A TEXTUALIST.
00:18:15SO HE SAID PRESIDENT TRUMAN DID NOT HAVE THE AUTHORITY TO PRIVATIZE THE STEEL MILLS BASED
00:18:19SOLELY UPON THE WORDING OF THE CONSTITUTION.
00:18:23JUSTICE FRANKFURTER WAS A TRADITIONALIST.
00:18:25HE WOULD LOOK HE WOULD APPROACH
00:18:27THE ANSWER, OR HE APPROACHED
00:18:30ANSWERING THAT QUESTION BY LOOKING WHAT HAS BEEN THE
00:18:33TRADITION OF A PRESIDENT NATIONALIZING PRIVATE INDUSTRY?
00:18:38JUSTICE JACKSON TOOK A DIFFERENT ROUTE.
00:18:40HE LOOKED AT AND HE WROTE THAT
00:18:42CONCURRENCE AFTER HIS NUREMBERG
00:18:45EXPERIENCE, WHERE HE SAW THE
00:18:47COMPLETE OR RADICAL ACTION OF
00:18:50LEGISLATIVE AUTHORITY AND THE
00:18:54AGGRANDIZEMENT OF EXECUTIVE POWER. THINK OF THAT COMBINATION.
00:18:58AND HE SAW THAT UP FRONT WITH
00:19:00THE RISE OF HITLER AND THE RISE
00:19:04OF OF THE PEOPLE AROUND HITLER.
00:19:07AND HE ALSO SAW IT IN CONJUNCTION WITH HIS
00:19:09INTERACTIONS WITH HIS SOVIET COUNTERPARTS DURING THE NUREMBERG TRIAL.
00:19:13SO HE SAW TOTALITARIANISM UP CLOSE AND PERSONAL.
00:19:16SO WHEN IT CAME TIME FOR HIS CONCURRENCE IN THE STEEL SALE,
00:19:19IN THE STEEL SEIZURE CASE, HE
00:19:21WAS VERY MUCH MORE OF A CONGRESS GUY.
00:19:25BEFORE HE WENT TO NUREMBERG, HE
00:19:27WAS ALL ABOUT EXECUTIVE POWER. HE WAS FDR, HIS LAWYER, AND HIS
00:19:31SOLICITOR GENERAL AS ATTORNEY GENERAL.
00:19:34HE ARGUED FOR THE EXPORT MANSION OF EXECUTIVE POWER.
00:19:37HE SUCCESSFULLY ARGUED THE CONSTITUTIONALITY OF THE SOCIAL
00:19:40SECURITY, A PROGRAM THAT STILL EXISTS TODAY.
00:19:43HE SUCCESSFULLY ARGUED BEFORE THE SUPREME COURT THE
00:19:48CONSTITUTIONALITY OF THE WAGE, OUR LAWS AND OTHER INTRUSIONS OF
00:19:51THE EXECUTIVE BRANCH INTO PRIVATE INDUSTRY.
00:19:55HE WAS AN EXECUTIVE POWER GUY AFTER NUREMBERG.
00:19:59HE BECAME MUCH MORE PARLIAMENTARY IN NATURE.
00:20:01SO IN THE CONCURRENCE, HE SAW
00:20:04PRESIDENTIAL POWER IN
00:20:06CONJUNCTION WITH CONGRESSIONAL POWER. HE SAW IT AS FLUID BETWEEN THE
00:20:11PRESIDENT AND THE CONGRESS, AND HE SAW IT FLUID IN THREE DIFFERENT WAYS.
00:20:15FIRST, IF CONGRESS EXPRESSLY OR
00:20:19IMPLIEDLY AUTHORIZES A PRESIDENT'S ACTION, THEN THE
00:20:22PRESIDENT IS ACTING AT IN HIS
00:20:24STRONGEST WAY BECAUSE HE HAS THE
00:20:26AUTHORITY OF CONGRESS TO DO WHAT
00:20:28HE WANTS TO DO. THAT WOULD BE THE FIRST CATEGORY.
00:20:32THAT'S THE STRONGEST PART OF EXECUTIVE POWER.
00:20:35THE SECOND CATEGORY HE CREATED WAS, WELL, WHAT IF CONGRESS IS
00:20:40COMPLETELY SILENT ON THE SUBJECT? WHAT DOES PRESIDENTIAL POWER LOOK LIKE?
00:20:44THEN AND JUSTICE JACKSON SAYS, WELL, THEN IT DEPENDS UPON WHETHER OR NOT THERE'S AN
00:20:49INDEPENDENT PROVISION OF THE CONSTITUTION THAT GIVES THE PRESIDENT THE POWER TO DO WHAT
00:20:52HE WANTS TO DO. THEN THERE'S THE THIRD CATEGORY.
00:20:57AND THAT IS WHERE CONGRESS IS EITHER EXPRESSLY OR IMPLIEDLY
00:21:01STATED ITS OPPOSITION TO WHAT THE PRESIDENT IS DOING.
00:21:04AND THAT'S WHERE JUSTICE JACKSON
00:21:08BELIEVED THE PRESIDENT TRUMAN'S
00:21:11ACTION IN SEIZING THE STEEL
00:21:13MILLS FELL INTO BECAUSE CONGRESS
00:21:15SEVERAL TIMES DEALT WITH THE
00:21:18QUESTION OF WHEN A PRESIDENT CAN
00:21:21NATIONALIZE INDUSTRY AND VOTED IT DOWN ALMOST EVERY SINGLE TIME.
00:21:24WELL, JUST THE JACKSON SAID THIS FALLS INTO THE THIRD CATEGORY.
00:21:28WELL, FIRST, IN THE FIRST CATEGORY THAT THE PRESIDENT DID
00:21:32NOT HAVE THE AUTHORITY BY CONGRESS. BUT SECONDLY, CONGRESS WAS
00:21:34ALREADY ON RECORD AS NOT AGREEING WITH THIS IDEA.
00:21:39SO THOSE ARE THE THREE CATEGORIES THAT JUSTICE JACKSON
00:21:42CREATED TO DETERMINE WHETHER OR NOT EXECUTIVE POWER IS
00:21:47CONSTITUTE OR STATUTORY AUTHORIZED. AND THAT FRAMEWORK HAS BEEN USED
00:21:51IN SEVERAL CASES AFTER THE YOUNGSTOWN CASE, THE STEEL SEE,
00:21:55THE STEEL SEIZURE CASE AND HAS BEEN LOOKED UPON, EVEN THOUGH IT
00:21:58WAS A CONCURRING OPINION. IT WASN'T THE LAW OF THE CASE.
00:22:02JUSTICE BLACK'S DECISION WAS THE
00:22:04LAW OF THE CASE, BUT IT WAS
00:22:06JUSTICE JACKSON'S CONCURRING
00:22:08FRAMEWORK THAT HAS SET THE TONE FOR THE SUPREME COURT, ANALYZING
00:22:12WHETHER WHAT A PRESIDENT DOES IS
00:22:15EITHER CONSTITUTIONAL OR IT'S AUTHORIZED BY CONGRESS. I THINK ONE OF THE THINGS I FIND
00:22:19MOST INTERESTING ABOUT THAT OPINION IS THAT IT WAS AN OPINION OF ONE KNOW.
00:22:24NOBODY ELSE SIGNED ON TO IT. NONE OF THE OTHER JUSTICES SAID, WE AGREE WITH THIS ANALYSIS.
00:22:28RIGHT. AND YET IT IS THE PREVAILING IT
00:22:30IS AND CONCURRING OPINIONS ARE NOT SUPPOSED TO WORK THAT WAY.
00:22:34CONCURRING OPINIONS. THERE'S THREE KINDS OF OPINIONS.
00:22:37THE COURT CAN ISSUE AS A MAJORITY, WHICH IS THE LAW OF THE CASE.
00:22:41THAT'S THE LAW. CONCURRING OPINIONS WHERE THE JUSTICE AGREES WITH THE RESULT.
00:22:45BUT FOR A DIFFERENT REASON OR A DIFFERENT APPROACH.
00:22:49AND THEN, OF COURSE, DISSENTING OPINIONS WHERE THE JUSTICE SAYS
00:22:51I NEITHER AGREE WITH THE RESULT NOR THE WAY YOU GOT THERE.
00:22:55IT IS RARE. I CAN'T THINK OF ANOTHER CASE
00:22:59WHERE A CONCURRING OPINION, WHICH IS NOT THE LAW OF THE
00:23:01CASE, ESSENTIALLY BECAME THE LAW OF THE CASE.
00:23:04AND THE FRAMEWORK THAT WAS USED FOR FUTURE SUPREME COURTS TO
00:23:08ANALYZE EXECUTIVE POWER. ONE OF THE OTHER THINGS, TOO,
00:23:10JUST FROM A HISTORIC NOTE, IS THAT SOME OF THE ARGUMENTS THAT
00:23:14WERE BEING OFFERED IN THE STEEL SEIZURE CASE, THEY HAD GONE BACK
00:23:18TO SOME OF JACKSON'S ARGUMENTS WHEN HE WAS SOLICITOR GENERAL
00:23:20AND ATTORNEY GENERAL.
00:23:22AND JACKSON WAS PRETTY FLOORED
00:23:24BY THAT APPROACH BECAUSE IN HIS MIND, THE TWO CIRCUMSTANCES WERE
00:23:28SO VASTLY DIFFERENT. AND THAT PROMPTED HIM TO
00:23:31ACTUALLY WRITE A BOOK ABOUT HIS EXPERIENCE IN IN FDR AS
00:23:36ADMINISTRATION CALLED THAT MAN, WHICH WAS PUBLISHED WELL AFTER HIS DEATH.
00:23:39BUT IT'S HE WAS JUST SO SURPRISED BY THOSE ARGUMENTS.
00:23:43AND THEN LOOKED AROUND AND REALIZED HE WAS THE ONLY ONE
00:23:46STILL ALIVE. FROM THOSE EARLIER DISCUSSIONS. AND SO HE DECIDED TO MEMORIALIZE
00:23:51THOSE. YOU STARTED TALKING ABOUT THIS A LITTLE BIT, BUT I WANT TO DIG IN
00:23:54A LITTLE DEEPER. AND I THINK WE HAVE TO TAKE JACKSON'S LIFE IN TWO PARTS, AS
00:23:57YOU HAVE HAVE LAID OUT.
00:23:59SO JACKSON WAS A SELF-DESCRIBED
00:24:01COUNTRY LAWYER AND THEN AS
00:24:03SOLICITOR GENERAL, ATTORNEY GENERAL AND SUPREME COURT
00:24:07JUSTICE, AS YOU MENTIONED,
00:24:10TENDED TO FOLLOW FDR AS LEAD.
00:24:12AND SO WHERE FDR WANTED TO GO,
00:24:14JACKSON WAS IN GENERAL IN FAVOR
00:24:16OF THAT. AND I CAN SAY THAT'S TOTALLY TRUE.
00:24:21BUT IN GENERAL, HOW DO YOU THINK HIS TIME INSIDE THE
00:24:26ADMINISTRATION SHAPED HIS CONCURRING OPINION HERE?
00:24:30AND DO YOU THINK THAT GIVES IT MORE CREDIBILITY OR MAKES IT MORE SURPRISING?
00:24:35I THINK IT GIVES IT MORE CREDIBILITY BECAUSE YOU'RE
00:24:38RIGHT, WHEN HE WAS SOLICITOR
00:24:41GENERAL AND ATTORNEY GENERAL, AS I SAID BEFORE, HE WAS FDR AS
00:24:46LAWYER. AND FDR FELT THAT THE BEST WAY
00:24:48TO GET OUT OF THE GREAT
00:24:50DEPRESSION, WHICH WAS A CALAMITY
00:24:52IN THIS COUNTRY, MILLIONS OF PEOPLE OUT OF WORK, THOUSANDS OF
00:24:56BANKS FAILED. MILLIONS OF PEOPLE LOST THEIR
00:25:01SAVINGS. AND IT WAS A CRISIS.
00:25:07AND FDR CAME IN THINKING THAT
00:25:09THE BEST WAY TO TRY TO DIG OURSELVES OUT OF THE GREAT
00:25:13DEPRESSION WAS AN EXPANSION OF
00:25:14EXECUTIVE POWER IN ALL SORTS OF
00:25:18INDUSTRIES, SETTING PRICES IN
00:25:22INDUSTRY INCREASE DEREGULATION
00:25:25IN TERMS OF VARIOUS INDUSTRIES AND THE LIKE.
00:25:28AND TO GIVE THE PRESIDENT MORE POWER TO DO SO RATHER THAN TO
00:25:32CONGRESS, BECAUSE PRESIDENTS CAN MOVE FAST OTHER THAN THE
00:25:34CONGRESS CAN. AND JUSTICE JACKSON IS A GOOD
00:25:38EXAMPLE OF, YOU KNOW, WHERE YOU STAND ON A MATTER OF DEPENDS ON WHERE YOU SIT.
00:25:42BECAUSE IN HIS TRUE POSITION AND
00:25:44AS IT AS SOLICITOR GENERAL AND ATTORNEY GENERAL, HE ARGUED IN
00:25:50FAVOR OF OF THE EXPANSION OF EXECUTIVE POWER.
00:25:52SO WHEN IT CAME TIME SO WHEN HE WENT TO NUREMBERG, HE WAS AN
00:25:58EXECUTIVE GUY. THEN HE SAW IN NUREMBERG THE
00:26:02EXCESSES THAT CAN OCCUR WHEN
00:26:04EXECUTIVE POWER TAKES OVER AND LEGISLATIVE POWER GOES AWAY,
00:26:08BOTH WITH THE GERMANS AND THE RUSSIANS.
00:26:12AND IT CHANGED HIM. HE MADE IT CLEAR THAT IT CHANGED HIM.
00:26:15AND SO WHEN HE WHEN IT CAME TIME
00:26:18FOR THE YOUNGSTOWN CONCURRENCE,
00:26:21HE CLEARLY HAD BOTH MINDSETS IN
00:26:25IN HIS MIND WHAT HIS ROLE WAS
00:26:29DURING THE TIME HE WAS SOLICITOR GENERAL AND ATTORNEY GENERAL AND
00:26:34ARGUING IN FAVOR OF THE
00:26:34EXPANSION OF POWER OF EXECUTIVE POWER.
00:26:38BUT NUREMBERG TEMPERED TO HIM
00:26:40AND REALIZED THAT CONGRESS PLAYS
00:26:45A PREEMINENT ROLE AND THAT THAT IS HARD.
00:26:48WHAT FUELED HIS THREE PART FRAMEWORK FOR EXAMINING EXECUTIVE POWER.
00:26:52AS I SAID BEFORE, IT WAS A FLUID, HE SAW IT AS FLUID.
00:26:58IT WAS VERY DIFFERENT, BUT IN A WAY WITH THE OTHER JUSTICES WERE
00:27:02THINKING VERY FLUID. IF CONGRESS ACTS AND GIVES THE PRESIDENT'S POWER, THEN THE
00:27:07PRESIDENT IS AT THE APEX OF HIS POWER.
00:27:09BUT IF CONGRESS IS SILENT, WELL, THEN WITH DEPENDS, IS THERE A
00:27:13PROVISION OF THE CONSTITUTION WHICH GIVES THE PRESIDENT THE POWER? AND, OF COURSE, IF CONGRESS IS
00:27:17ON RECORD, AS OPPOSING WHAT THE PRESIDENT'S DO, THAT'S THE LOWEST EBB.
00:27:21THAT'S WHAT HE SAID. THAT'S WHERE THE PRESIDENT IS AT HIS LOWEST EBB.
00:27:25AND IT'S PRESUMPTIVELY UNCONSTITUTIONAL.
00:27:27SO THERE'S NO QUESTION THAT HE
00:27:31CONTRASTED HIS POSITIONS THAT HE
00:27:34TOOK BEFORE NUREMBERG WITH AFTER NUREMBERG.
00:27:36WHAT HE ALSO DID, WHICH COLORED
00:27:38HIS JUDGMENT, IS THAT HE WAS ONE OF THE FEW JUSTICES AT THE TIME
00:27:42THAT TOOK INTO ACCOUNT INTERNATIONAL EXPERIENCE IN THE
00:27:46CONCURRING. AND IN SOME OF HIS OTHER OPINIONS.
00:27:48HE TOOK INTO ACCOUNT THE RISE OF
00:27:51TOTALITARIANISM IN GERMANY, IN RUSSIA. HE TALKED ABOUT HOW FRANCE,
00:27:56DURING THE TIME AND GREAT BRITAIN DURING THE TIME THAT THEY WERE EMPIRES, HOW THEY
00:28:01NEVERTHELESS KEPT ALIVE THE LEGISLATIVE IMPULSE AND THAT IT
00:28:03DIDN'T ALL BECOME EXECUTIVE POWER.
00:28:07SO HE WAS AN INTERNATIONALIST AND INCORPORATED THAT INTO HIS
00:28:10ANALYSIS, WHICH SEPARATED HIM FROM SOME OF THE OTHER JUSTICES.
00:28:14I ALSO FIND THIS PARTICULAR OPINION, ONE OF HIS MOST
00:28:17PRAGMATIC AND FOR A JURIST WHO
00:28:19HAD THAT KIND OF REPUTATION TO
00:28:21SAY THAT IS IS LIKE SAYING SOMETHING FAIRLY STRONG AND THAT
00:28:25HE WAS REALLY CONSERVATIVE. HOW DOES THIS LIVE IN THE WORLD PRACTICALLY?
00:28:29HOW CAN WE GIVE PEOPLE GUIDANCE TO LIVE THIS AND MOVE THIS FORWARD?
00:28:34DO YOU THINK THAT SO YOU QUOTE
00:28:36SOMETHING IN YOUR BOOK, THE
00:28:39ACCRETION OF DANGEROUS POWER DOES NOT COME IN A DAY.
00:28:43IT COMES SLOWLY FROM UNCHECKED
00:28:45DISREGARD OF CONSTITU TIONAL RESTRICTIONS.
00:28:48SO HOW DOES THAT RESONATE TODAY? AND HOW AND DO YOU THINK THAT'S
00:28:52WHY SUBSEQUENT COURTS HAVE RETURNED TO THIS OPINION SO
00:28:56OFTEN? YES.
00:28:58AND JACKSON WAS IMPLIEDLY
00:29:03REFERRING TO HITLER BECAUSE
00:29:06HITLER TOOK CONTROL OR THE GERMAN GOVERNMENT ALLOWED HIM TO
00:29:09TAKE CONTROL IN 1933.
00:29:13HE DIDN'T GO TO WAR UNTIL 1939.
00:29:16AND SO HITLER USED THOSE YEARS
00:29:20TO BASICALLY IN LARGE EXECUTIVE
00:29:23POWER BEYOND ALL CONSTITUTIONAL CONSTRAINT, WHILE ERADICATING
00:29:28LEGISLATIVE ANY LEGISLATIVE ROLE.
00:29:30AND AND THAT JUDICIAL ROLE AND JUDICIAL ROLE.
00:29:34SO HE WAS CLEARLY, YOU KNOW,
00:29:36MAKING REFERENCE TO THAT.
00:29:39I THINK IT PLAYED.
00:29:41IT PLAYS AN ENORMOUS ROLE TODAY
00:29:43BECAUSE AND IN THE LAST 20 TO 30
00:29:46YEARS AND AGAIN, TAKING OBJECTS INTO QUEUE OF LOOKING MORE
00:29:50INTERNATIONALLY, WE KNOW THAT IN THE LAST 20, 30, 40 YEARS, MANY
00:29:55COUPS, MANY TAKEOVER OF GOVERNMENTS DOESN'T HAPPEN IN A DAY.
00:29:58IT CAN AND IT HAPPENS WHERE
00:30:00WHERE TANKS ARE THRUSTED INTO
00:30:04DEMOCRACIES AND THEY TAKE OVER A MILITARY COUP IN THAT KIND OF THING.
00:30:07AND THAT'S STILL HAPPENS. AND IT HAS HAPPENED. BUT THERE'S JUST AS MANY
00:30:12EXAMPLES WHERE IT'S A DAY BY DAY
00:30:16ACCRETION OF POWER TO THE
00:30:19EXECUTIVE AND IT DOESN'T HAPPEN IN A DAY.
00:30:22AND SOMETIMES IT DOESN'T HAPPEN IN FIVE YEARS OR TEN YEARS.
00:30:25IT HAPPENS OVER TIME AND IT'S
00:30:28USUALLY A COMBINATION OF AN
00:30:30EXECUTIVE WHO WANTS TO HAVE THAT
00:30:32POWER IN COMBINATION WITH THE
00:30:34LEGISLATIVE BRANCH, WHICH IS NOT PERFORMING A CHECK ON THE
00:30:38PRESIDENT AS WELL AS A JUDICIAL CHECK AS WELL.
00:30:42JACKSON KNEW THAT THE FRAMERS IN
00:30:46OUR SYSTEM SAW CONGRESS AS THE
00:30:48MAIN STRUCTURAL CHECK ON THE
00:30:51PRESIDENT, NOT THE JUDICIARY. BACK AT THE TIME OF THE
00:30:55RATIFYING NATION OF THE CONSTITUTION, THE JUDICIAL
00:30:57BRANCH IS ALEXANDER HAMILTON FAMOUSLY FAMOUSLY SAID IS THE
00:31:01WEAKEST BRANCH OF THE THREE BRANCHES. IT HAS NO ARMY. IT HAS NO BUDGET.
00:31:05AND MANY OF THE FRAMERS THOUGHT THAT IT WAS CONGRESS THAT WOULD
00:31:08ACT AS THE STRUCTURE CHECK UPON
00:31:12THE PRESIDENT.
00:31:13AND SO IN THE LAST 15, 20 YEARS,
00:31:17AN ARGUMENT CAN BE MADE THAT CONGRESS IS NOT PERFORMING THAT
00:31:21KIND OF STRUCTURAL CHECK. AND I THINK OF JUSTICE JACKSON
00:31:25WAS AROUND TODAY. HE WOULD POINT THAT OUT, THAT
00:31:27IT'S A DANGEROUS SITUATION WHEN
00:31:29THE EXECUTIVE WHO ALWAYS WANTS MORE POWER. THE HISTORY OF PRESIDENTS IS THE
00:31:34HISTORY OF AN EXPANSION OF POWER. FDR IS JUST ONE EXAMPLE, AND
00:31:38IT'S ON DEMOCRATS AND REPUBLICAN SIDE. IT'S A NONPARTISAN ISSUE.
00:31:42ALL PRESIDENTS TRY TO EXPAND THEIR POWER, AND IT'S UP TO THE
00:31:46OTHER TWO BRANCHES TO REIN THEM IN. AND THE FRAMERS THOUGHT THE
00:31:51CONGRESS WOULD DO IT THE MOST. WHEN THE SUPREME COURT TOOK ON
00:31:54THE POWER OF JUDICIAL REVIEW
00:31:55BACK IN CHIEF JUSTICE MARSHALL'S DAYS, IN THE FAMOUS CASE OF
00:32:00MARBURY VERSUS MADISON, THEN
00:32:02THAT IS WHAT LAUNCHED THE
00:32:04JUDICIAL BRANCH AS BEING ONE OF
00:32:06THE MORE GREATER STRUCTURE CHECKS UPON THE PRESIDENT
00:32:09BECAUSE THE JUDICIAL BRANCH HAS THE POWER TO DECLARE ACTS OF THE
00:32:13PRESIDENT AND THE CONGRESS. BUT ACTS OF THE PRESIDENT TO BE
00:32:17UNCONSTITUTIONAL. SO JUSTICE JACKSON, IF HE WERE
00:32:20HERE TODAY, I THINK WOULD POINT
00:32:22OUT HOW HITLER ROSE TO POWER
00:32:24BECAUSE OF THE COMBINATION OF A OF A REDUCTION IN LEGISLATIVE
00:32:28AUTHORITY AND JUDICIAL AUTHORITY AND A GREAT EXPANSION OF
00:32:32EXECUTIVE POWER. AND I THINK HE'D BE ALARMED,
00:32:36PARTICULARLY IF CONGRESS IS NOT
00:32:38PERFORMING THE STRUCTURAL CHECK
00:32:40THAT THAT THE FRAMERS INTENDED CONGRESS TO PLAY.
00:32:44BEFORE WE DISCUSS A LITTLE BIT ABOUT TODAY, I WANT TO DIP A LITTLE BIT FURTHER BACK INTO
00:32:48HISTORY EVEN. AND YOU'VE MENTIONED THE CIVIL WAR ERA CASE A COUPLE OF TIMES,
00:32:51EX PARTE MILLIGAN. AND THIS IS A CASE THAT THE
00:32:57COURT IN THE 40S AND 50S, AS THEY'RE NAVIGATING WORLD WAR TWO
00:32:59AND KOREA, AS YOU MENTIONED, ARE
00:33:01STILL CITING QUITE OFTEN.
00:33:04WHY, WHY, WHY?
00:33:06SO IN THE MILLIGAN CASE IS A
00:33:10CASE THAT INVOLVED ABRAHAM LINCOLN, ONE OF THE MORE
00:33:13ARGUABLY BELOVED PRESIDENTS OF
00:33:17THE COUNTRY. IF YOU ASKED SOMEONE TO NAME THE TOP FIVE PRESIDENT IN AMERICAN
00:33:22HISTORY, PROBABLY MOST PEOPLE WOULD SAY ABRAHAM LINCOLN IS IN THE TOP FIVE.
00:33:25MR. MILLIGAN LIVED IN INDIANA.
00:33:29THERE WAS A CIVIL WAR GOING ON. THE GREATEST CRISIS A COUNTRY COULD EVER HAVE.
00:33:34HALF A MILLION AMERICANS LOST THEIR LIVES. 11 STATES SUCCEEDED FROM THE UNION.
00:33:39THERE'S NO GREATER CRISIS. A COUNTRY CAN EXPERIENCE THAN WHAT PRESIDENT LINCOLN
00:33:43EXPERIENCED. AND HE SUSPENDED THE RIGHT OF
00:33:47HABEAS CORPUS, WHICH IS A FANCY WORD FOR THAT.
00:33:51IF THE PRESIDENT IMPRISONS YOU,
00:33:53YOU HAVE A RIGHT TO CONTEST THAT
00:33:55IMPRISONMENT IN FEDERAL COURT. THERE IS A CONSTITUTIONAL
00:33:58PROVISION THAT ALLOWS THE PRESIDENT TO SUSPEND IT DURING TIMES OF REBELLION.
00:34:02BUT THE ISSUE IN MILLIGAN WAS
00:34:04THAT HE WAS A RESIDENT OF
00:34:06INDIANA, HAD ALLEGIANCE TO NO SIDE.
00:34:09HE JUST WANTED TO LIVE HIS LIFE.
00:34:11HE WASN'T A SOLDIER. HE DIDN'T TAKE SIDES.
00:34:15HE WAS NEVERTHELESS, ARREST AIDED BY THE MILITARY
00:34:19AUTHORITIES IN INDIANA.
00:34:21HE WAS CONVICTED OF A OF A CONTRIVED CRIME AND HE WAS
00:34:25SENTENCED TO DEATH. THIS WAS THE SITUATION AND THE
00:34:29CASE WENT TO PRESIDENT LINCOLN AND PRESIDENT LINCOLN AFFIRMED
00:34:32THE DECISION OF THE MILITARY THAT MR. MILLIGAN BE HUNG.
00:34:36THIS CASE WENT TO THE SUPREME COURT AND THE SUPREME COURT
00:34:42FAMOUS LEE FREED, MR. MILLIGAN
00:34:46AND IT'S MAJOR POINT IN THE MILLIGAN CASE WAS THAT ABRAHAM
00:34:50LINCOLN AND THE EXECUTIVE BRANCH
00:34:52STILL NEED TO FOLLOW THE FIFTH
00:34:55AMENDMENT RIGHT TO TRIAL BY JURY.
00:34:58MR. MILLIGAN WAS NOT A MILITARY PERSON. HE SHOULD NOT HAVE EVER BEEN
00:35:02SUBJECTED TO MARTIAL LAW OR TO MILITARY COMMISSIONS.
00:35:06HE WAS JUST A MAN GOING ABOUT A CIVILIAN, GOING ABOUT HIS LIFE.
00:35:08AND THE MILLIGAN CASE WAS SAYING
00:35:11THAT EVEN THOUGH WE HAVE A
00:35:13NATIONAL EMERGENCY, A NATIONAL
00:35:15CRISIS AND THERE'S NO GREATER ONE THAN A CIVIL WAR, THE
00:35:19CONSTITUTION STILL MATTERS. THE PRESIDENT OF THE UNITED
00:35:23STATES STILL NEEDS TO COMPLY WITH THE CONSTITUTION OF THE UNITED STATES.
00:35:27PARTICULARLY DURING EMERGENCIES
00:35:32AND MR. MILLIGAN WAS FREED AS A
00:35:34RESULT AND WAS ENTITLED TO A
00:35:37TRIAL BY A JURY, WHICH IS GUARANTEED BY THE FIFTH AMENDMENT.
00:35:41AND THIS IS ESSENTIALLY FOUND
00:35:43ITS WAY NOT JUST IN TO JUSTICE
00:35:47JACKSON'S CONCURRENCE, BUT A
00:35:49MAJOR THEME THROUGHOUT THE JURISPRUDENCE OF THE SUPREME
00:35:52COURT EVER SINCE THE 1860S, THAT EVEN IN TIMES OF TRUE
00:35:57EMERGENCIES, THE CONSTITUTION IS NOT SUSPENDED.
00:36:00THE PRESIDENT CANNOT SUSPEND THE CONSTITUTION.
00:36:04JUSTICE JACKSON, IN BOTH THE KOREMATSU DISSENT AND AS WELL AS
00:36:08IN THE IN THE YOUNGSTOWN CONCURRENCE, SAID THAT THE
00:36:10MILITARY HAS THEIR ROLE TO PLAY.
00:36:13THE COUNTRY NEEDS THE MILITARY.
00:36:16BUT THAT DOESN'T MEAN THAT THE JUDICIAL AUTHORITIES OR THE PRESIDENT JUST ROLLS OVER ANY
00:36:21TIME. THE MILITARY SAYS THAT SOMETHING IS NEEDED TO BE DONE, THE
00:36:25CONSTITUTION STILL MATTERS. SO THE MILLIGAN CASE, AS WELL AS
00:36:28THE YOUNGSTOWN CONCURRENCE, WERE
00:36:30THE TWO MAJOR INSPIRATIONS FOR
00:36:32THE BOOK BECAUSE IT SET THE TONE
00:36:34OF OF THE SUPREME COURT
00:36:36FULFILLING ITS ROLE OF RAIN ING
00:36:39IN A PRESIDENT WHEN A PRESIDENT IS ACTING CONTRARY TO THE
00:36:43CONSTITUTION, EVEN DURING TIMES OF EMERGENCY.
00:36:47WELL, THE ONE OF THE OTHER THINGS THAT WAS COMING TO MIND AS I WAS READING THIS BOOK TO
00:36:51WERE THE DISCUSSIONS WE'RE HAVING CONTEMPORANEOUSLY ABOUT
00:36:54THE SEEMING POLITICIZATION OF
00:36:56THE SUPREME COURT AND HOW IT,
00:36:58YOU KNOW, THE COMMENTARY TODAY
00:37:00IS IT'S NEVER BEEN SO POLITICAL. AND MY ARGUMENT IS THE SUPREME
00:37:03COURT HAS ALWAYS BEEN A POLITICAL BODY. THAT IS IT IS THAT IS JUST PART
00:37:06OF ITS HISTORY. AND ESPECIALLY IF WE THINK BACK
00:37:10TO JACKSON'S ERA ON THE COURT,
00:37:12THERE WAS SO INTENSE POLITICAL PRESSURE THERE.
00:37:15IF WE START, YOU KNOW, IN THE 30S, AS FDR IS TRYING TO FIGURE
00:37:19OUT HOW TO WORK WITH A COURT THAT'S HOSTILE TO THE NEW DEAL AND WHAT HE MAY DO ABOUT THAT
00:37:23AND MOVING INTO HIS COURT PACKING IDEA AND THEN YOU EVEN
00:37:27HAVE VERY PUBLIC DISCUSSION AND DISAGREEMENTS BETWEEN SUPREME
00:37:30COURT JUSTICES THEMSELVES. AND I'M THINKING, OF COURSE, OF
00:37:33JACKSON AND HUGO BLACK AND AND THINGS LIKE THAT.
00:37:36SO DO YOU THINK THAT AFFECTS THE COURT'S AUTHORITY?
00:37:40AND IF SO, HOW? AND THEN DO YOU SEE PARALLELS WITH TODAY?
00:37:46SO I WOULD SAY YES, IT DOES AFFECT THE CREDIBILITY OF THE
00:37:50COURT. IN FACT, WE JUST SAW IT RECENTLY.
00:37:53JUSTICE SOTOMAYOR MADE A COMMENT ABOUT JUSTICE KAVANAUGH THAT SHE
00:37:56HAD TO PULL BACK AND APOLOGIZE FOR. TO HER CREDIT, SHE REALIZED SHE
00:37:59WENT TOO FAR AND MADE A MORE PERSONAL COMMENT AND REALIZED
00:38:03THAT THAT'S THAT'S CONTRARY TO THE COLLEGIAL ASPECT OF THE COURT.
00:38:07YOU'RE RIGHT.
00:38:09JACKSON WAS HE AT THE FIRST
00:38:14COUPLE OF YEARS HE WAS ON THE SUPREME COURT. HE THOUGHT ABOUT POTENTIALLY
00:38:18RESIGNING BECAUSE HE THOUGHT
00:38:19THAT THAT SEVERAL OF THE JUSTICES, INCLUDING BLACK AND
00:38:24DOUGLAS, MADE DECISIONS NOT ON THE BASIS OF LAW, BUT MORE ON
00:38:27THE BASIS OF POLITICAL EXPEDIENCY. JUSTICE JACKSON WAS A LAW GUY.
00:38:31HE WAS AN APPELLATE LAWYER.
00:38:35AND HE BELIEVED VERY MUCH IN THE RULE OF LAW DOMESTICALLY AND INTERNATIONALLY.
00:38:38AND SO HE THOUGHT THAT THE SUPREME COURT WAS TOO POLITICAL.
00:38:42AND SOME OF THE SOME OF THAT POLITICS DID SPILL OUT INTO THE
00:38:46PUBLIC. AND IN THE LIGHT.
00:38:48BUT, YES, THE SUPREME COURT HAS
00:38:50ALWAYS BEEN A POLITICAL BODY AND
00:38:55WE'RE SEEING THAT PLAYED OUT TODAY. I THINK IT'S UP TO THE CHIEF
00:38:58JUSTICE TO TRY TO REIN THAT IN. IT'S PART OF THE JOB OF THE CHIEF JUSTICE.
00:39:01I DO THINK, THOUGH, AT THE END OF THE DAY, WHILE THERE ARE
00:39:05DIFFERENCES AMONG THE JUSTICES, JUST LIKE THERE WERE IN
00:39:08JACKSON'S DAY, THAT AT THE END OF THE DAY, WHEN YOU READ THE
00:39:12VARIOUS OPINIONS BY THE COURT, THE MAJORITY CONCURRING DISSENTING OPINIONS.
00:39:16I THINK THAT THERE IS A GENUINE ATTEMPT BY THE JUSTICES TO TRY
00:39:20TO GET THE LAW RIGHT.
00:39:22I DO THINK THAT THAT'S THE CASE.
00:39:24IT'S NOT TO SAY THAT POLITICS DOESN'T POTENTIALLY PLAY A ROLE.
00:39:28I WOULD SAY THAT THE SUPREME COURT, THE JUDICIAL BRANCH GENERALLY IS PROBABLY THE LEAST
00:39:32POLITICAL BRANCH COMPARED TO THE
00:39:35OTHER TWO POLITICAL BRANCHES, WHICH ARE DELIBERATELY POLITICAL.
00:39:38THE JUDICIAL BRANCH IS SUPPOSED TO BE ABOVE IT ALL. IT'S WHY THE FRAMERS GAVE THEM
00:39:42LIFETIME TENURE TO BE ABOVE
00:39:47POLITIC AND THE LIKE. BUT ANY TIME YOU PUT TWO PEOPLE
00:39:49MORE THAN TWO OR MORE PEOPLE IN THE SAME ROOM, THERE'S BOUND TO
00:39:53BE POLITICS. BUT I DO THINK THAT THERE IS AN EFFORT ON THE PART OF THE
00:39:57JUSTICES TO BE COLLEGIAL AND TO FIGHT IT OUT, SO TO SPEAK, IN
00:40:00THEIR OPINION, WRITING AND IN THEIR DECISION MAKING, BUT NOT
00:40:04NECESSARILY PERSONAL. THERE WAS SOME PERSONAL ASPECTS WITH JACKSON.
00:40:06HE DID NOT CARE FOR FOR JUSTICE
00:40:10BLACK AND FELT THAT THAT MANY OF THE DECISIONS WERE POLITICALLY
00:40:14BASED. SO THEY MAY HAVE THEIR PERSONAL VIEWS OF EACH OTHER, BUT AT THE
00:40:17END OF THE DAY, I THINK THEY DO TRY TO FIGHT IT OUT ON THE LAW IN THEIR OPINIONS.
00:40:21YOU MENTIONED EARLIER THE TRUMP
00:40:23VERSUS UNITED STATES CASE AND IN
00:40:26THAT PARTICULAR OPINION, BOTH THE MAJORITY OPINION AND THE
00:40:30DISSENTING OPINION QUOTE FROM YOUNGSTOWN.
00:40:33SO REALLY, JUST TO GIVE THAT SENSE OF HOW UNIVERSAL THIS
00:40:37OPINION REALLY IS, WHAT WHAT SHOULD WE TAKE AWAY FROM THAT
00:40:41THAT DOES THAT STRENGTHEN THE YOUNGSTOWN OPINION?
00:40:43DOES IT DILUTED IT?
00:40:45WHAT WHAT WHAT, IF ANYTHING,
00:40:48SHOULD WE READ INTO THE FACT THAT BOTH SIDES ARE ESSENTIALLY
00:40:51USING THE SAME LANGUAGE TO JUSTIFY THEIR POSITIONS?
00:40:54I THINK IT GOES TO THE MAJESTY,
00:40:59IF I MAY, OF OF JUDGES WILL
00:41:01ALWAYS ACCEPT THAT OF JUSTICE JACKSON'S CONCURRING.
00:41:04IF YOU'VE GOT BOTH SIDES OF A CASE AND IN THE PRESIDENTIAL
00:41:07IMMUNITY CASE,.
00:41:112024 HIGHLY RECOMMEND THAT YOU TAKE THE TIME AND READ CHIEF
00:41:15JUSTICE ROBERTS OPINION AND READ THE TWO DISSENTING OPINIONS.
00:41:20SOTOMAYOR AND JACKSON AND SEE
00:41:22THE JUSTICES FIGHTING IT OUT ON PAPER.
00:41:26WHO KNOWS WHAT HAPPENS WHEN THEY'RE ALL TOGETHER?
00:41:29THERE'S NO CAMERAS IN THE ROOM WHEN THEY'RE ALL TOGETHER
00:41:31DELIBERATING AND VOTING. BUT THERE'S CERTAINLY FIGHTING
00:41:35IT OUT IN THEIR OPINIONS. AND WHEN YOU HAVE TWO SIDES THAT
00:41:38ARE SO TOTALLY DIVIDED, BUT YET CITING JUSTICE JACKSON'S
00:41:44CONCURRING OPINION IN THE YOUNGSTOWN CASE, IT SHOWS THE
00:41:46MAJESTY OF THE OPINION AND AND THE LIKE.
00:41:50I'M NOT SURPRISED BY IT BECAUSE
00:41:54SOMETIMES APPROACHES TO DECIDING
00:41:57LEGAL QUESTIONS CAN BEGIN WITH SAME APPROACHES, BUT THEY LEAD
00:42:00TO DIFFERENT CONCLUSIONS. SO I'M NOT NECESSARILY SURPRISED
00:42:03BY THAT. BUT THE FACT THAT BOTH SIDES IN
00:42:07A STRONGLY HEATED CASE IS CITING
00:42:11JUSTICE JACKSON FOR THEIR OWN VIEWPOINT, I THINK SHOWS THE
00:42:15UNIVERSAL CITY OF HIS OPINION. MM HMM. AND IN FACT, JUSTICE JACKSON'S
00:42:19DISSENT USES THE PHRASE THE COURT HAS NOW DECLARED FOR THE
00:42:23FIRST TIME IN HISTORY THAT THE MOST POWERFUL OFFICIAL IN THE
00:42:26UNITED STATES CAN BECOME A LAW
00:42:28UNTO HIMSELF, WHICH I, WHEN I
00:42:32WAS READING THE DISSENT THE FIRST TIME, I WAS THINKING, IS
00:42:36THAT ECHOING JACKSON? IS THAT.
00:42:38AND DO I FIND THAT COMFORTING?
00:42:40DO I FIND THAT ALARMING THING? SO I'M TURNING THAT QUESTION TO
00:42:45YOU. HOW DO YOU THINK ABOUT THAT? WELL, SO THE PRESIDENTIAL
00:42:51IMMUNITY CASE AGAIN, 2024. SO THROUGHOUT THE HISTORY OF THE
00:42:55UNITED STATES, THE QUESTION OF
00:42:57WHETHER THE PRESIDENT COULD BE
00:42:59CRIMINALLY PROSECUTED FOR ACTS TAKEN AS PRESIDENT DIDN'T RISE
00:43:03TO THE SUPREME COURT UNTIL
00:43:06ALMOST 240 YEARS AFTER THE
00:43:09CONSTITUTION WAS RATIFIED. BECAUSE IT'S NEVER HAPPENED
00:43:13BEFORE. I MEAN, THIS WAS THE FIRST TIME
00:43:15THAT A PRESIDENT WAS INDICTED
00:43:18FOR ALLEGED CRIMINAL ACTS WHILE
00:43:23PRESIDENT. AND SO THAT ISSUE HAD NEVER BEEN
00:43:25LOOKED AT BEFORE.
00:43:28AND AND SO IT'S HIGHLY RECOMMEND
00:43:31THAT THOSE OPINIONS BE READ IN
00:43:35CHIEF JUSTICE ROBERTS TRIED HIS
00:43:37BEST TO SORT OF LOOK AT THE
00:43:41HISTORY OF THE INTERACTION. AS I SAID BEFORE, THE PRESIDENT AND THE CRIMINAL JUSTICE SYSTEM
00:43:45AND ESSENTIALLY THE DECISION CAME DOWN.
00:43:47THE MAJORITY DECISION CAME DOWN
00:43:49TO THREE DIFFERENT THINGS.
00:43:52AND I THINK IT'S A MISTAKE FOR PEOPLE TO CONCLUDE THAT THE
00:43:56SUPREME COURT'S MAJORITY DECISION IN THE CASE SAYS THAT
00:43:59THE PRESIDENT CAN DO WHATEVER HE WANTS AND GET AWAY WITH ANY CRIMES.
00:44:03THAT'S NOT EXACTLY WHAT THEY HELD. WHAT THEY HELD WAS THAT IF THE
00:44:07PRESIDENT IS TAKES AN ACTION
00:44:09THAT IS EXPRESSLY AND
00:44:12EXCLUSIVELY, EXCLUSIVELY GIVEN
00:44:14TO THE PRESIDENT IN ARTICLE TWO OF THE CONSTITUTION, THE OTHER
00:44:18TWO BRANCHES CAN'T TOUCH IT IN CREW, INCLUDING THE CRIMINAL LAW.
00:44:22SO THAT IF THE PRESIDENT TAKES
00:44:24AN ACTION EXCLU LUCIDLY GIVEN TO
00:44:27HIM BY ARTICLE TWO AND EXCEPT PRESSLEY, GIVEN THE OTHER TWO
00:44:31BRANCHES CAN'T TOUCH IT, INCLUDING CRIMINAL LAW.
00:44:35THEN THE SECOND CATEGORY SORRY,
00:44:36WAS WHAT IF THE PRESIDENT
00:44:39ENGAGES IN AN ACTION THAT ISN'T
00:44:41NECESSARILY PART OF THE CORE FUNCTION OF A PRESIDENT?
00:44:43BUT IT'S KIND OF ON THE OUTER PERIMETER OF WHAT A PRESIDENT
00:44:49DOES. THE COURT DID SAY THAT SUCH
00:44:51ACTIONS ARE PRESUMPTIVELY
00:44:53CONSTITUTION CONSTITUTIONAL.
00:44:55BUT THE THE LAYING OUT OF THAT
00:44:57ASPECT OF IT NEEDS TO AWAIT FUTURE CASES.
00:45:01THEN THE THIRD PART OF THE
00:45:03MAJORITY OPINION WAS THAT IF THE
00:45:06PRESIDENT TRULY ENGAGES IN A
00:45:08PRIVATE ACTION ON CONNECTED TO THE PRESIDENCY AND UNCONNECTED
00:45:12WITH HIS OFFICIAL ACTIONS AS
00:45:14PRESIDENT, THE PRESIDENT CAN BE CRIMINALLY CHARGED.
00:45:17SO, FOR EXAMPLE, IF THE THE FAMOUS EXAMPLE THAT OUR CURRENT
00:45:21PRESIDENT GAVE WHERE IF HE WALKED OUT ON FIFTH AVENUE AND
00:45:24SHOT SOMEONE, COULD HE BE
00:45:27PROSECUTED FOR THAT? I BELIEVE EVEN THE MAJORITY IN THE PRESIDENTIAL IMMUNITY CASE
00:45:31WOULD SAY YES. THE DISSENTERS JUSTICE SOTOMAYOR
00:45:35AND JUSTICE JACKSON REALLY TOOK ISSUE WITH IT.
00:45:37AND YOU CAN SEE THE THE
00:45:40ARGUMENTS WRITTEN ON THE PAGE
00:45:43WHERE THEY BELIEVED AT THE END OF THE DAY, THE PRESIDENT IS NOT
00:45:46ABOVE THE LAW. AND WHAT THE MAJORITY IS SAYING
00:45:49IS THAT EVEN IF WITH WITH THE DISSENTERS, THEY'RE SAYING IS THAT EVEN IF THE PRESIDENT
00:45:55ENGAGES IN AN ACTION THAT IS AUTHORIZED BY THE CONSTITUTION
00:45:58OR IS AUTHORIZED BY A STATUTE OF CONGRESS, BUT NEVERTHELESS
00:46:02COMMITS A CRIME IN THE PROCESS THAT THE OF THE ONLY WAY TO
00:46:05UPHOLD THE IDEA THAT THE PRESIDENT IS NOT ABOVE THE LAW
00:46:09IS TO BE ABLE TO ALLOW THE CRIMINAL JUSTICE SYSTEM TO DEAL
00:46:12WITH THAT MATTER.
00:46:14SO I HIGHLY RECOMMEND THE 2024 DECISION.
00:46:17I SAID EARLIER TO READ SUPREME
00:46:19COURT JUSTICES FOR YOURSELF AND
00:46:21NOT ALLOW THE MEDIA OR DIFFERENT
00:46:25PARTS OF THE MEDIA TO FILTER IT FOR YOU. THE PRESIDENTIAL IMMUNITY CASE
00:46:30OF 2024 IS A GOOD EXAMPLE OF THAT. SO YOU CAN COME TO YOUR OWN
00:46:34CONCLUSIONS ABOUT WHETHER THE DISSENT WAS CORRECT.
00:46:37THE MAJORITY WENT TOO FAR OR THAT THE MAJORITY WHO VIGOROUSLY
00:46:41CRITICIZED THE DISSENTERS WERE SAYING THAT IF THE DISSENTERS
00:46:44HAD THEIR WAY, IT WOULD POTENTIALLY CRIPPLE THE ABILITY
00:46:48OF THE PRESIDENT TO BE ABLE TO EXECUTE HIS ARTICLE TWO FUNCTIONS.
00:46:52SO SO YOU REALLY GOOD CASE WHERE YOU SEE THAT THEY'RE FIGHTING IT
00:46:56OUT. WHAT CHANGES DO YOU THINK WOULD
00:46:59BE NECESSARY TO JACKSON'S FRAMEWORK AS WE'RE TALKING ABOUT
00:47:03MORE MODERN CRIMES LIKE CYBER
00:47:05WARFARE OR ECO SIDE OR THINGS ALONG THAT LINE?
00:47:09DOES THE FRAMEWORK STILL HOLD FOR THOSE MODERN DAY THINGS THAT
00:47:14WOULD NEVER HAVE BEEN CONTEMPLATED IN JACKSON'S TIME? I WOULD SAY YES.
00:47:18I THINK THAT JESSE JACKSON'S
00:47:21CONCURRING VISION WOULD APPLY AGAIN.
00:47:26HE GOT HE WAS VERY PRACTICAL AND
00:47:29VERY PRAGMATIC AND SAW THE
00:47:31PRESIDENTIAL POWER IN IN JUXTAPOSED TO CONGRESSIONAL
00:47:35POWER, SO THAT IF CONGRESS SPOKE
00:47:38ON THE SUBJECT AND GAVE THE
00:47:40PRESIDENT EXPRESSIVE AUTHORITY
00:47:42TO DO SOMETHING, ASSUMING IT'S CONSTITUTIONAL, BECAUSE SOME
00:47:46TIMES CONGRESS CAN PASS ON POWERS TO THE PRESIDENT THAT ARE
00:47:50HELD UNCONSTITUTIONAL. IN FACT, THAT'S WAS FDR.
00:47:53HIS MAIN OBJECTION AND WHAT INSPIRED HIM TO DO THE COURT
00:47:57PACKING PLAN IN 1937. BUT IF CONGRESS AUTHORIZES THE
00:48:02PRESIDENT TO ENGAGE IN CERTAIN
00:48:05ACTION OR WHATEVER, EVEN IN UNDERSTANDING THE MODERN
00:48:09SENSIBILITIES OF THAT, THE MODERN TECHNOLOGICAL SENSIBILITIES OF THAT, THAT PART
00:48:12OF THE FRAMEWORK WOULD STILL HOLD. THE SECOND PART HAS CONGRESS
00:48:16SPOKEN ON THE SUBJECT? ARE THEY TOTALLY SILENT ON THE MATTER?
00:48:19I THINK THE FRAMEWORK STILL APPLIES. IS THERE A PROVISION OF THE
00:48:23CONSTITUTION, PARTICULARLY IN ARTICLE TWO, WHICH CREATED THE EXECUTIVE BRANCH?
00:48:27IS THERE ANYTHING IN ARTICLE TWO THAT GIVES THE PRESIDENT THE POWER TO DO THAT?
00:48:31AND THEN THIRDLY, IF CONGRESS IS
00:48:33ON RECORD AS OPPOSING THE ACTION
00:48:37TAKEN BY THE PRESIDENT, THE PRESIDENT'S POWER IS AT ITS
00:48:40LOWEST EBB AND IS PRESUMPTIVELY UNCONSTITUTIONAL.
00:48:44AND THERE'S BEEN SEVERAL EXAMPLES OF THAT IN THE POST-9-11 WORLD.
00:48:48IF I CAN QUICKLY GIVE ONE, AFTER 911.
00:48:51THE EXECUTIVE BRANCH LED BY
00:48:55GEORGE BUSH, CREATED MILITARY COMMISSIONS SO THAT COMBATANTS
00:48:58WHO WERE CAPTURED IN AFGHANISTAN
00:49:00AND ELSEWHERE IN THE MIDDLE EAST COULD BE TRIED BY MILITARY
00:49:04COMMISSIONS. BUT WHAT PRESIDENT BUSH DID WITH
00:49:06HIS DEFENSE DEPARTMENT IS THAT
00:49:09HE CREATED MILITARY COMMISSIONS
00:49:11THAT WERE NOT AUTHORIZED BY CONGRESS.
00:49:13CONGRESS HAD STATUTES ON THE BOOKS WHICH CREATED MILITARY
00:49:17COMMISSIONS. BUT PRESIDENT BUSH DIDN'T FEEL THEY WENT FAR WHEN A FAR ENOUGH.
00:49:21SO HE CREATED HIS OWN AS COMMANDER IN CHIEF.
00:49:24WELL, THAT CASE TWO CASES WENT
00:49:26UP TO THE SUPREME COURT IN THE 26 TIMEFRAME.
00:49:30THE ONE IS HAMDAN, WHICH IS DISCUSSED IN THE BOOK WHERE THE
00:49:34SUPREME COURT SAID THAT THE PRESIDENT CANNOT UNILATERALLY
00:49:36CREATE MILITARY COMMISSIONS.
00:49:38AND PARTICULARLY IN A SITUATION WHERE CONGRESS HAS SPOKEN ON THE
00:49:42SUBJECT, CONGRESS HAS CREATED MILITARY COMMISSIONS. IF YOU DON'T THINK THEY'RE
00:49:46STRONG ENOUGH, GO TO CONGRESS AND GET MORE AUTHORIZATION SO
00:49:51THAT FRAMEWORK APPLIES TO POST
00:49:55911 ISSUES. SO I WOULD SAY THAT THE
00:49:57FRAMEWORK HOLDS THE DETAILS OF
00:50:00IT ARE CLEARLY THINGS THAT
00:50:04JUSTICES IN THE 1940S AND 50S COULD NOT HAVE ENVISIONED. BUT I DO THINK THAT THE
00:50:08FRAMEWORK WOULD HOLD. SO YOUR BOOK IS WRITTEN BOTH AS
00:50:13A TRIBUTE TO THE COURT'S BEST MOMENTS OF INSTITUTIONAL COURAGE
00:50:17AND AS A REMINDER, AS YOU MENTIONED AT THE BEGINNING, TO
00:50:20CURRENT AND FUTURE JUSTICES, ARE
00:50:24THERE. WELL, LET ME START WITH THE FUNDAMENTAL QUESTION. WHAT, IN YOUR VIEW, DOES
00:50:27INSTITUTIONAL COURAGE MEAN IN THIS?
00:50:29AND ARE THERE INSTANCES THAT GIVE YOU HOPE?
00:50:35YES. INSTITUTIONAL COURAGE IS THE
00:50:37SUPREME COURT AND THE JUDICIAL BRANCH LIVING UP TO THE VISION
00:50:42OF CERTAINLY ALEXANDER HAMILTON,
00:50:46WHO WAS THE MAJOR PROPONENT FOR JUDICIAL REVIEW, JUDICIAL
00:50:48REVIEW, THE POWER OF THE
00:50:51JUDICIAL BRANCH TO DECLARE ACTIONS TAKEN BY THE OTHER TWO
00:50:54BRANCHES TO BE UNCONSTITUTIONAL WAS NEVER WRITTEN INTO THE CONSTITUTION.
00:50:58IT'S NOT AN ARTICLE THREE POWER,
00:50:59BUT IT WAS MUCH DISCUSSED AT THE CONSTITUTIONAL CONVENTION IN 1787.
00:51:03THERE WAS JUST NO RESOLUTION OF IT. AND PLUS THEY WERE RUNNING OUT OF STEAM. THEY ALL WANTED TO GO HOME.
00:51:09BUT JUDICIAL REVIEW WAS WELL KNOWN AT THE TIME. AND IT WASN'T UNTIL CHIEF
00:51:13JUSTICE MARSHALL IN MARBURY VERSUS MADISON TOOK THAT POWER
00:51:15FOR THE JUDICIAL BRANCH OF OF
00:51:18GOVERNMENT THAT WAS AN ACT OF
00:51:20INSTITUTIONAL COURAGE. AND THERE HAVE BEEN MANY
00:51:24INSTANCES AND THE BOOK DESCRIBES MANY OF THESE CASES WHERE THE
00:51:28SUPREME COURT SHOWED INSTITUTIONAL COVERAGE, COURAGE
00:51:30OF RISING TO THE OCCASION,
00:51:34APPLYING JUDICIAL REVIEW AND NEGATING, RULING THAT WHAT A
00:51:37PRESIDENT HAS DONE IS EITHER UNCONSTITUTIONAL OR IT'S
00:51:41UNAUTHORIZED BY CONGRESS. SO AND THIS IS ONE OF THE
00:51:44REASONS WHY I WROTE THE BOOK WAS TO REMIND THE CURRENT SUPREME
00:51:47COURT, THIS IS WHAT YOU'VE DONE INSTITUTIONALLY. YOU'VE SHOWN COURAGE IN THE PAST
00:51:53AND YOU NESS, AND YOU NEED TO SHOW COURAGE GOING FORWARD. WHAT WAS THE SECOND PART OF THAT
00:51:57QUESTION? IS THERE A CASE OR AN OCCURRENCE
00:52:01THAT GIVES YOU HOPE IN THIS INSTANCE? YES, I WOULD SAY THE MILLIGAN
00:52:06CASE, THE YOUNGSTOWN CASE, THE
00:52:09SERIES OF CASES AFTER 911.
00:52:13ANOTHER SITUATION WHERE THE COUNTRY WAS FACING AN EMERGENCY.
00:52:16THIS COUNTRY HAD BEEN ATTACKED
00:52:19AND 3000 PEOPLE LOST THEIR LIVES.
00:52:22AND CONGRESS PROVIDED TO THE
00:52:26PRESIDENT, PRESIDENT BUSH, AND SUCCEEDING PRESIDENTS WITH MUCH
00:52:29AUTHORITY TO TRY TO DEAL WITH THE TERRORIST NETWORK.
00:52:34THAT THAT BEGAN THAT WAR.
00:52:36BUT AT THE SAME TIME, THE MILITARY COMMISSIONS WOULD BE AN
00:52:40EXAMPLE WHERE PRESIDENT BUSH WENT TOO FAR.
00:52:44EVEN THOUGH THERE WAS AN EMERGENCY, WE WOULD ALL AGREE
00:52:47THE COUNTRY WAS ATTACKED. THE PRESIDENT NEEDED TO TAKE SWIFT ACTION.
00:52:52BUT AT THE SAME TIME, HARKENING
00:52:54BACK TO THE MILLIGAN CASE, HARKENING BACK TO JUSTICE
00:52:58JACKSON'S KOREMATSU DISSENT AND
00:53:01THE YOUNGSTOWN CONCURRENCE, I DO
00:53:04THINK THAT THE SUPREME COURT SHOWED INSTITUTIONAL COURAGE,
00:53:07POST-9-11 BY SAYING, YES, WE HAVE AN EMERGENCY, BUT THE
00:53:09JUDICIAL BRANCH STILL NEEDS TO FULFILL ITS ROLE OF DETERMINING
00:53:13WHETHER THE CONGRESS AND THE PRESIDENT ARE ACTING WITHIN THEIR APPROPRIATE SPHERE OF
00:53:18DUTIES UNDER ARTICLE ONE AND ARTICLE TWO. AND THERE WAS SEVERAL CASES
00:53:21WHERE THE SUPREME COURT ROSE TO
00:53:25THAT OCCASION. WE SAW IT AGAIN MOST RECENTLY
00:53:27WITH THE TARIFF DECISION.
00:53:30REGARDLESS OF HOW PEOPLE MAY
00:53:32FEEL ABOUT THE CURRENT PRESIDENT'S POLICIES ON TARIFFS,
00:53:36SOME PEOPLE AGREE. SOME PEOPLE DON'T AGREE.
00:53:38THE ISSUE BEFORE THE COURT IN
00:53:40THE TARIFFS CASE WAS NOT POLICY. THE QUESTION BEFORE THE COURT
00:53:44WAS AUTHORIZATION. DID THE PRESIDENT HAVE AUTHORITY
00:53:47UNDER THE STATUTE ISSUED THAT HE WAS RELYING UPON?
00:53:51DID HE HAVE THE AUTHORITY TO
00:53:54IMPLEMENT AND HIS THE WIDE RANGE
00:53:56OF TARIFFS THAT HE WAS IMPOSING
00:53:58UPON THE WORLD?
00:54:00AND THE SUPREME COURT, I BELIEVE, WAS A 6 TO 3 DECISION
00:54:04HELD THAT THE PRESIDENT WENT TOO FAR.
00:54:06THAT'S JUSTICE JACKSON.
00:54:08THAT'S HIS CONCURRING OPINION,
00:54:12WHERE THE COURT THAT WOULD
00:54:14PROBABLY FALL INTO CATEGORY
00:54:17THREE, WHERE THE WHERE CONGRESS
00:54:19DID PASS LAWS THAT GIVES THE PRESIDENT SOME POWERS TO IMPOSE
00:54:25TARIFFS IN A SITUATION WHERE THE PRESIDENT DECLARES AN EMERGENCY. BUT NOT THIS ONE.
00:54:29NOT THIS WAY. AND SO, YES.
00:54:31SO I THINK THAT THERE IS
00:54:34INSTITUTIONAL THERE IS, I THINK,
00:54:39EXAMPLES, MANY EXAMPLES WHERE THE SUPREME COURT HAS ROSE TO THE OCCASION. IF I COULD SAY ANOTHER ONE REAL
00:54:42QUICKLY, THE SUPREME COURT, BECAUSE YOU MENTIONED INSTITUTIONAL COURAGE.
00:54:46THE SUPREME COURT SHOWED RARE INSTANCE TO TIONAL HUMILITY WHEN
00:54:49IT PUBLIC VOCALLY APOLOGIZED FOR
00:54:52THE KOREMATSU DECISION.
00:54:53THAT WAS THE DECISION WHERE THE
00:54:58SUPREME COURT HELD THAT THE EXECUTIVE BRANCH HAD THE POWER
00:55:01DURING WARTIME TO SEGREGATE
00:55:03PEOPLE ON THE BASIS OF THEIR
00:55:05NATIONAL ORIGIN AND JUSTICE
00:55:09JACKSON DISSENTED IN THAT. I HIGHLY RECOMMEND THAT YOU READ
00:55:13THAT BECAUSE HE TALKS ABOUT THAT WAS BEFORE HE WENT TO NUREMBERG.
00:55:15THAT WAS BEFORE HE WENT TO NUREMBERG. BUT CHIEF JUSTICE ROBERTS
00:55:19PUBLICLY APOLOGIZED TO THE AMERICAN PEOPLE FOR THAT DECISION.
00:55:23THE ONLY TIME I THINK THE SUPREME COURT HAS EVER APOLOGIZED, MY KNOWLEDGE HERE
00:55:26FOR A DECISION. ALL RIGHT. SO WE'RE GOING TO OPEN IT UP FOR
00:55:29AUDIENCE QUESTIONS AND TO GIVE THEM A MOMENT TO THINK. I HAVE ONE WRAP UP QUESTION FOR
00:55:34YOU. SO BENJAMIN FRANKLIN'S PHRASE
00:55:37AND THE THEME FOR THIS EVENING, A REPUBLIC, IF YOU CAN KEEP IT,
00:55:40FEELS TO ME BOTH A PROMISE, A
00:55:42HOPE AS WELL AS A WARNING.
00:55:44SO AFTER WRITING THIS BOOK, HOW
00:55:47WOULD YOU ANSWER THE QUESTION?
00:55:49WE KEEP A REPUBLIC BY.
00:55:53I WOULD PICK UP THE BATON OF
00:55:55JUSTICE JACKSON, WHOSE LEGACY I
00:55:59THINK ANSWERS THAT QUESTION IN
00:56:03TERMS OF THE RULE OF LAW AND THE SEPARATE OCEAN OF POWERS.
00:56:07THE CONCURRING OPINION IN YOUNGSTOWN TALKED ABOUT THE
00:56:11FRAMERS VISION OF THE WAY TO
00:56:13KEEP A REPUBLIC IS TO STAY FIRM
00:56:17TO THE FRAMERS VISION OF DISPERSED, ARCING POWERS AMONG
00:56:21THREE BRANCHES OF GOVERNMENT.
00:56:23SO THAT NO ONE BRANCH BECOMES TOO POWERFUL.
00:56:26THE FRAMERS UNDERSTOOD THE
00:56:28HISTORY OF DEMOCRACY AND
00:56:30REALIZED, AND JACKSON SAW IT IN
00:56:32GERMANY AND RUSSIA, WHERE IF
00:56:36POWER GETS CONCENTRATED INTO A PARTICULAR BRANCH, THAT CAN BE A
00:56:38ROADMAP TO AUTHORITY ARIANISM
00:56:41AND TO DICTATORSHIP.
00:56:44SO BENJAMIN FRANKLIN'S CALL WAS
00:56:47TO THE GENERATIONS SHOWING OR
00:56:50POINTING OUT OR ADMONISHING THE CHALLENGER OF SELF-GOVERNMENT.
00:56:54JUSTICE JACKSON BROUGHT THAT TO LIFE DURING HIS TENURE ON THE
00:56:58COURT. SPEAKING ABOUT THE SEPARATION OF POWERS.
00:57:01IS THE SECRET SAUCE FOR MAKING
00:57:04MAINTAINING A REPUBLIC AND ALSO THE RULE OF LAW, BOTH
00:57:07DOMESTICALLY AND CERTAINLY INTERNATIONAL.
00:57:09HE FORESAW HIS VISION INTERNATIONALLY WAS THAT RULE OF
00:57:13LAW WOULD DETERMINE THE OUTCOMES
00:57:16OF WARS THAT ULTIMATELY IT'S
00:57:19MORE THAN JUST MORAL CONDEMNATION.
00:57:23BUT LEGAL ACCOUNTABILITY AMONG
00:57:25THOSE WHO START WARS. SO HE HAD THIS INTERNATIONAL
00:57:29VIEW OF THE RULE OF LAW AS WELL. SO THAT'S WHERE I THINK JUSTICE
00:57:32JACKSON'S CONCURRING OPINION AND
00:57:34BENJAMIN FRANKLIN'S ADMONITION TO THE GENERATIONS DOVETAILED
00:57:38WITH ONE ANOTHER. THANK YOU.
00:57:42QUESTIONS.
00:57:44THERE'S ONE VERY MUCH AT THE TOP.
00:57:55THANK YOU, PROFESSOR COHEN, GREG PETERS.
00:57:58AND WITH A QUESTION. LISTENING TO YOUR DESCRIPTION OF
00:58:02CHIEF JUSTICE ROBERTS,
00:58:04PRESIDENTIAL IMMUNITY DECISION
00:58:07AND HOW WE SHOULD READ THAT WITH
00:58:10THREE LAYERS, BASICALLY THREE FACTORS.
00:58:12AND IT'S A SAME TIME EARLIER IN THE CONVERSATION, OF COURSE,
00:58:16DISCUSSING THE OPINION OF
00:58:20JUSTICE JACKSON, THE CONCURRING OPINION.
00:58:23THERE WERE THREE LAYERS OF HOW
00:58:25WE SHOULD ANALYZE AND DETERMINE.
00:58:29DO YOU SEE THAT AS JUST A COINCIDENCE OR IS THAT SOMETHING
00:58:33THAT MAY HAVE BEEN AN OVERLAY? I SEE IT AS A COINCIDENCE.
00:58:37JUSTICE JACKSON'S THREE PART FRAMEWORK IS ON THE GENERAL
00:58:41QUESTION OF HOW THE SUPREME COURT SHOULD EVALUATE EXECUTIVE
00:58:47POWER, PARTICULARLY IN SITUATIONS WHERE PRESIDENTS WANT
00:58:49TO EXPAND THEIR POWER.
00:58:51SO I SEE HIS THREE PART ANALYSIS
00:58:55FROM HIS CONCURRING OPINION AS SORT OF A GENERAL FRAMEWORK FOR
00:58:57EVALUATING EXECUTIVE POWER.
00:58:59CHIEF JUSTICE ROBERTS, IN THE PRESIDENTIAL IMMUNITY CASE
00:59:04SEPARATED IT OUT IN THREE DIFFERENT LAYERS, BUT I DON'T THINK NECESSARILY HE WAS TRYING
00:59:08TO PARALLEL JUSTICE JACKSON'S
00:59:12ANALYSIS AS WELL. I THINK THAT IF YOU READ CHIEF
00:59:16JUSTICE ROBERTS OPINION IN THE PRESIDENTIAL IMMUNITY CASE,
00:59:19THAT'S JUST HOW HIS ANALYSIS
00:59:21ULTIMATELY UNFOLDED. SO I WOULDN'T NECESSARILY SEE
00:59:24THAT HE WAS TRYING TO PARALLEL JUSTICE JACKSON'S FRAMEWORK.
00:59:27THANK YOU.
00:59:40YES, I'M WONDERING SOMETHING I WONDERED ABOUT FOR QUITE A LONG TIME. THE FIRST TIME I HEARD IT WHEN
00:59:44ANDREW JACKSON WAS TOLD THAT HE COULD NOT ENACT THE INDIAN
00:59:48REMOVAL ACT AND HE DID IT ANYWAYS. I MEAN, AND IT WENT ON FOR YEARS.
00:59:52THE WHOLE TRAIL OF TEARS AND ALL THAT. SO WHEN THAT HAPPENS, WHAT
00:59:58HAPPENS? I MEAN, THE PRESIDENT SAID, YOU CAN'T DO THAT AND HE DOES IT ANYWAYS.
01:00:02AND THE WHOLE QUESTION, THE WHOLE COUNTRY WATCHES IT HAPPEN. THEN WHAT HAPPENS?
01:00:06SO YOUR QUESTION IS A GOOD ONE AND IT RAISES THE LARGER
01:00:09QUESTION ESSENTIALLY, OF WHAT
01:00:11HAPPENS IF A PRESIDENT DISREGARDS A DECISION OF A
01:00:13SUPREME COURT THAT HAPPENED IN
01:00:18THE 1830S WITH PRESIDENT ANDREW JACKSON, THE SUPREME COURT RULED
01:00:22IN A CASE INVOLVING THE CHEROKEE
01:00:24NATION THAT THE FEDERAL GOVERNMENT AND THE STATE OF
01:00:27GEORGIA COULD NOT ENACT LAWS THAT IMPACTED THEIR LIVES
01:00:31BECAUSE THEY WERE AN INDEPENDENT NATION.
01:00:36PRESIDENT JACKSON DID NOT LIKE THAT DECISION, AND HE IS
01:00:40FAMOUSLY REPORTED IT'S NEVER BEEN PROVEN, BUT HE'S FAMOUSLY
01:00:43REPORTED AS SAYING THAT CHIEF
01:00:45JUSTICE MARSHALL, WHO WAS A
01:00:48CHIEF JUSTICE BY THEN FOR LIKE 25 YEARS. SO CHIEF JUSTICE MARSHALL HAS
01:00:52MADE HIS DECISION. NOW, LET HIM GO ENFORCE IT,
01:00:56WHICH WAS JACKSON'S WAY OF POINTING OUT THAT THE SUPREME
01:00:58COURT, THE JUDICIAL BRANCH
01:01:00GENERALLY IS, AS ALEXANDER OR HAMILTON SAID, THE WEAKEST OF
01:01:05THE THREE BRANCHES. THEY CANNOT ENFORCE THEIR OWN
01:01:09DECISIONS. THEY DEPEND THE JUDICIAL BRANCH. THE SUPREME COURT PRIMARILY
01:01:13DEPENDS UPON THE CONGRESS AND THE PRESIDENT TO ENFORCE ITS
01:01:17DECISIONS. NOW, WE HAVE HAD 240 YEAR
01:01:20HISTORY SINCE THE RATIFICATION
01:01:22OF THE CONSTITUTION, NEARLY 240 YEARS.
01:01:26THIS COUNTRY IS 40 UNIT THAT WE
01:01:28HAVE A CULTURE OF COMPLIANCE FOR
01:01:33NEARLY 240 YEARS WHERE WE HAVE
01:01:37ACCEPTED, INCLUDING PRESIDENTS
01:01:40HAVE ACCEPTED THAT DECISIONS AND ORDERS OF THE JUDICIAL BRANCH OF
01:01:43GOVERNMENT MUST BE RESPECTED. AND SO I'M HAPPY TO REPORT THAT
01:01:47MY RESEARCH SHOWS IN RESEARCHING
01:01:49THE BOOK THAT THERE THAT MOST
01:01:53PRESIDENTS HAVE VASTLY COMPLIED WITH SUPREME COURT DECISIONS.
01:01:57BUT THERE HAVE BEEN CLOSE CALLS.
01:01:59PRESIDENT JACKSON WAS THE MOST GRAPHIC EXAMPLE OF A PRESIDENT
01:02:04DISREGARD GUARDING THE DECISION OF THE SUPREME COURT, WHICH LED TO THE TRAIL OF TEARS, WHICH WAS
01:02:08A TRAGEDY.
01:02:10WE'VE HAD OTHER INSTANCES WHERE
01:02:12THE PRESIDENTS HAVE BEEN TEMPTED.
01:02:15AN EXAMPLE WOULD BE PRESIDENT RICHARD NIXON IN THE 1970S, WHEN
01:02:18THE SUPREME COURT RULED THAT HE
01:02:20HAD TO PRODUCE THE TAPES OF THE
01:02:25SECRET RECORDINGS IN THE WHITE HOUSE.
01:02:27THE PRESIDENT HAD ARGUED THAT THE EXECUTIVE BRANCH IS
01:02:31HERMETICALLY SEALED FROM THE OTHER BRANCHES AND CAN DO
01:02:35WHATEVER HE WANTS. SUPREME COURT UNANIMOUSLY DISAGREE WITH THAT.
01:02:38RICHARD NIXON COMPLIED WITH THE DECISION. WHAT WOULD HAVE HAPPENED IF HE
01:02:43SAID NO? AND I'M STAYING HERE IN THE WHITE HOUSE, I'M NOT GOING TO
01:02:46RESIGN. BUT HE DID COMPLY WITH THE DECISION. AND THEN ABOUT TEN DAYS LATER,
01:02:50HE RESIGNED THE PRESIDENCY.
01:02:53DWIGHT EISENHOWER WOULD BE ANOTHER EXAMPLE. THE BROWN VERSUS BOARD OF
01:02:57EDUCATION CASE, WHERE THE SUPREME COURT RULED WITH JUSTICE
01:03:01JACKSON VOTING, THAT THE PUBLIC
01:03:05SCHOOLS, THAT THE SEGREGATION OF THE PUBLIC SCHOOLS ON THE BASIS
01:03:08OF RACE IS UNCONSTITUTIONAL.
01:03:10PRESIDENT EISENHOWER REPORTEDLY WAS NOT A GREAT FAN OF THAT
01:03:14DECISION. HE WAS A MORE CONSERVATIVE PRESIDENT.
01:03:17BUT HE'S THE ONE THAT SENT OUT THE TROOPS TO VARIOUS SOUTHERN
01:03:22CITIES TO MAKE SURE THAT BLACK STUDENTS COULD ATTEND SCHOOLS. HE DID MAY NOT HAVE AGREED WITH
01:03:26THE DECISION, BUT HE COMPLIED WITH IT. WE'RE EVEN SEEING THAT PLAYED OUT TODAY.
01:03:30I WOULD ARGUE PRESIDENT TRUMP
01:03:33CLEARLY WAS NOT ENAMORED WITH THE SUPREME COURT'S RECENT
01:03:37DECISION INVALIDATING HIS TARIFFS, BUT HE IS COMPLYING WITH IT.
01:03:41NOW, THIS. THE CURRENT PRESIDENT IS TRYING
01:03:44TO JUSTIFY THE TARIFFS BASED UPON OTHER LAWS, BUT HE IS
01:03:48COMPLYING WITH THE SUPREME COURT'S DECISION UNDER THE
01:03:50PARTICULAR LAW THAT WAS AT ISSUE IN THAT CASE.
01:03:54SO, YES, THERE HAVE BEEN INSTANCES WHERE PRESIDENTS HAVE
01:03:58DISREGARD DID SUPREME COURT DECISIONS. THEY'VE BEEN FEW AND FAR
01:04:02BETWEEN. AND THIS COUNTRY, ONE OF THE ONE
01:04:06OF THE POINTS OF PRIDE THAT THIS COUNTRY SHOULD TAKE IS THAT FOR
01:04:09240 YEARS, WE HAVE DEVELOPED A
01:04:12CULTURE OF COMPLIANCE, INCLUDING
01:04:14BY OUR PRESIDENTS. IT'S INGRAINED IN OUR SYSTEM
01:04:18THAT DECISIONS AND ORDERS BY THE JUDICIAL BRANCH ARE TO BE COMPLIED WITH.
01:04:22IT'S NOT TO SAY THAT THAT MAY NOT BE THE CASE IN THE FUTURE.
01:04:25AND IF SO, IT WOULD LEAD TO A
01:04:28CONSTITUTIONAL CRISIS. BUT THE HISTORY OF THIS COUNTRY
01:04:31HAS GENERALLY BEEN A HISTORY OF COMPLIANCE.
01:04:34BUT YOUR QUESTION IS A GOOD ONE BECAUSE IT POINTS OUT THE
01:04:37JUDICIAL BRANCH CAN ENFORCE ITS OWN DECISIONS. IT RELIES UPON THE TWO POLITICAL
01:04:41BRANCHES TO DO IT.
01:04:47AND ALSO, WHILE WE'RE MOVING THROUGH THE NEXT QUESTION, IT ALSO BRINGS UP AN INTERESTING
01:04:51PARALLEL TO TRUMAN'S TIME THAT THERE WERE LAWS ON THE BOOKS AT
01:04:54THE TIME THAT WOULD HAVE ALLOWED HIM FROM THE UNION PERSPECTIVE
01:04:57TO DO WHAT HE WAS TRYING TO DO BY SEIZING THE STEEL MILLS.
01:05:01HE JUST DIDN'T LIKE THOSE LAWS. RIGHT. SO THAT'S NOT WHAT HE USED AS HIS JUSTIFICATION.
01:05:04AND SO THIS THIS IDEA OF, WELL,
01:05:08THERE ARE LAWS THAT EXIST IF THE PRESIDENT CHOOSES NOT TO USE
01:05:11THOSE AS THE JUSTIFICATION THAT
01:05:13SHAPES THE COURT'S ANALYSIS,
01:05:15THAT ACTION, THINK ABOUT ANY OR
01:05:22ALL OF THE THREE BRANCHES OF GOVERNMENT.
01:05:24I WANT TO ASK A QUESTION USING A
01:05:28WORD THAT I'VE HEARD MORE IN THE
01:05:30LAST FEW YEARS THAN IN MY ENTIRE LIFE.
01:05:33ARE WE LIVING IN UNPRECEDENTED
01:05:37TIMES? IT'S A GOOD QUESTION.
01:05:39AND I KNOW THAT MANY PEOPLE THINK ABOUT THAT.
01:05:43I THINK THAT YOUR ANSWER TO THAT
01:05:46QUESTION DEPENDS UPON YOUR APPROACH.
01:05:49IF YOU LOOK SOLELY AT
01:05:51CONTEMPORARY ANALYSIS.
01:05:55YOU MIGHT BE VERY CONCERNED ABOUT THE FUTURE DIRECTION OF
01:05:59THE COUNTRY. ONE REASON WHY I WROTE THE BOOK
01:06:03IS BECAUSE I DIDN'T WANT TO LIMIT MYSELF TO SOLELY
01:06:05CONTEMPORARY CIRCUMSTANCE AS I
01:06:08WANTED TO GO DEEPER INTO HISTORY.
01:06:10AND WHEN WE DO THAT, THIS IS
01:06:12WHAT WE FIND AFTER THE NATION'S
01:06:15BIRTH IN THE 1790S, CONGRESS
01:06:18PASSED SEDITION LAWS WHICH
01:06:21OUTLAWED DISSENT, AS PRESIDENT
01:06:24JEFFERSON ARGUE, INCLUDING WITH
01:06:26AARON BURR, USED THE CRIMINAL
01:06:28JUSTICE PROCESS TO GO AFTER HIS ENEMIES.
01:06:32THIS WAS RIGHT AFTER THE COUNTRY BEGAN.
01:06:34IF YOU FAST FORWARD TO THE
01:06:381860S, THIS COUNTRY HAD, AS I
01:06:40SAID BEFORE, THE GREATEST CRISIS A COUNTRY COULD EVER HAVE, A CIVIL WAR.
01:06:44HALF A MILLION AMERICANS DEAD, 11 STATES EXCEEDING FROM THE UNION.
01:06:49AND IF EVER THERE WAS A TIME WHEN PEOPLE THOUGHT THAT THE
01:06:52AMERICAN EXPERIMENT WAS GOING TO DIE, IT WOULD HAVE BEEN DURING THE CIVIL WAR.
01:06:56THEN IF YOU FAST FORWARD TO THE
01:06:59GREAT DEPRESSION IN THE 1930S,
01:07:03MILLIONS OF PEOPLE LOST THEIR JOBS AND THEIR SAVINGS.
01:07:06BANKS FAILING, LEFT AND RIGHT.
01:07:09PEOPLE ON FOOD LINES.
01:07:11IF EVER THERE WAS A TIME THAT A
01:07:15DICTATOR WOULD RISE, SO DID THE
01:07:17WAY JULIUS CAESAR DID.
01:07:19THAT WOULD HAVE BEEN THE TIME TO DO IT.
01:07:22AND THEN IF YOU FAST FORWARD TO
01:07:24THE 1960S WITH ALL OF THE AP
01:07:27POLITICAL ASSASSINATIONS, RIOTS
01:07:30IN MAJOR CITIES AND THE LIKE, PEOPLE THOUGHT AGAIN THAT THE
01:07:34AMERICAN EXPERIMENT WAS DOOMED.
01:07:36PEOPLE DURING THE TIME OF THEIR
01:07:39LIVES, DURING THEIR CONTEMPORARY LIVES SOMETIMES FEEL THAT THE
01:07:45SITUATION NATION THAT EXISTS IN THE COUNTRY IS EXISTENTIAL.
01:07:49CERTAINLY THAT'S HOW PEOPLE FELT DURING THE CIVIL WAR. HOW THEY FELT DURING THE GREAT DEPRESSION.
01:07:54SOME DURING THE 1960S. BUT HERE WE ARE.
01:07:58HERE WE ARE, 240 YEARS IMPERFECT
01:08:02AS IT HAS BEEN. THE CONSTITUTION IS STILL
01:08:06STANDING AND AND THE LIKE.
01:08:08SO FOR ME, WHEN I WIDEN THE
01:08:12LENS, I REMAIN CAUTIOUSLY OPTIMISTIC THAT WE WILL PROCEED
01:08:18AS A REPUBLIC. THAT'S NOT TO SAY THAT THERE
01:08:21WON'T BE BUMPS ALONG THE ROAD AND THAT THERE HAVEN'T BEEN.
01:08:23BUT ALL PEOPLE DURING THE TIMES THAT I MENTIONED FELT THE
01:08:27EXISTENTIAL THREAT OF THEIR
01:08:29CONTEMPORARY CIRCUMSTANCES AND
01:08:32THE COUNTRY CONTINUED. SO I THINK THAT IF YOU TAKE A
01:08:35DEEPER DIVE INTO AMERICAN HISTORY, I THINK THAT IT COULD
01:08:39POTENTIALLY ASSUAGE WHATEVER
01:08:42ANXIETIES THERE MAY BE ABOUT THE PRESENT TIME.
01:08:46BUT IF YOU LIMIT YOURSELF SOLELY TO WHAT IS GOING ON TODAY AND
01:08:48THE ANALYSIS OF WHAT'S GOING ON
01:08:51TODAY, YOU MIGHT BE QUITE CONCERNED. SO MY SUGGESTION IS BROADEN THE
01:08:57SCOPE, BROADEN THE SCOPE, DISCUSS WASN'T FOUNDED LAST
01:09:01WEEK. WE'VE BEEN AROUND FOR NEARLY 240 YEARS.
01:09:03THERE MUST BE A REASON FOR THAT.
01:09:05BUT NO, BUT THE TRAJECTORY HAS NOT BEEN PERFECT.
01:09:09IT'S BEEN VERY MUCH IMPERFECT. SLAVERY AND THE LIKE.
01:09:12IT'S BEEN VERY MUCH IMPERFECT.
01:09:14AND ALSO TO KEEP IN MIND THE
01:09:16WORDS AT THE BEGINNING OF THE OF THE CONSTITUTION OF THE UNITED
01:09:19STATES IN ORDER TO FORM A MORE PERFECT UNION.
01:09:23THE FRAMERS DIDN'T SAY TO FORM A
01:09:25PERFECT UNION BECAUSE THEY KNOW THAT'S NOT ATTAINABLE.
01:09:28BUT IN ORDER TO FORM A MORE
01:09:29PERFECT UNION, WE ARE ALWAYS, AS
01:09:32A COUNTRY, STRIVING TOWARDS
01:09:35PERFECTION, KNOWING THAT WE'LL NEVER REACH THERE.
01:09:37SO THAT WOULD BE MY ANSWER TO THAT QUESTION.
01:09:40WE TALK A LOT ABOUT THE CYCLES
01:09:43HERE IN TERMS OF PENDULUMS
01:09:45SWINGING AND BECAUSE FOR ALL OF US, IT IS USUALLY THE FIRST TIME
01:09:48WE ARE CONFRONTING THESE ISSUES, IT FEELS UNPRECEDENTED.
01:09:52BUT I'VE ACTUALLY REALLY COME TO HATE THAT WORD. LIKE NOTHING.
01:09:55NOTHING IS UNPRECEDENTED. YOU JUST HAVE TO FIGURE OUT HOW
01:09:57FAR BACK IN HISTORY DO YOU NEED TO GO TO FIND THAT EXAMPLE?
01:10:01IT'S NOT TO SAY, AND THIS IS WHAT FRANKLIN WAS GETTING AT
01:10:05WHEN HE SAID A REPUBLIC, IF YOU CAN KEEP IT, THAT IT'S UP TO
01:10:09EACH GENERATION, EACH SUCCEEDING
01:10:13GENERATION TO REMIND ITSELF OF THE FIRST PRINCIPLES THAT GAVE
01:10:18RISE TO THIS COUNTRY AND WHICH GAVE RISE TO THE FRAMERS VISION
01:10:21FOR THE COUNTRY. SO IT'S NOT TO SAY IT'S A GIMME
01:10:25BECAUSE JAMES MADISON, ALEXANDER
01:10:27HAMILTON, BENJAMIN FRANKLIN, THEY WERE STUDENTS OF HISTORY
01:10:31AND THEY KNOW THAT DEMOCRACIES CAN VANISH.
01:10:33THAT IS WHY JAMES MADISON, BEFORE THE PHILADELPHIA
01:10:37CONVENTION, HUDDLED HIMSELF IN MONTPELIER AND READ EVERY BOOK
01:10:40HE COULD FIND ON THE SUBJECT OF THE SUCCESS AND FAILURES OF
01:10:44REPUBLICS THROUGHOUT HUMAN HISTORY. BECAUSE HE WANTED TO COME TO
01:10:47PHILADELPHIA, PUTTING THOSE SAFEGUARDS IN THE CONSTITUTION
01:10:50TO MAKE SURE THAT WE SURVIVE. BECAUSE HE KNOW HE KNEW AND THE
01:10:54OTHER FRAMERS KNEW THAT DEMOCRACY IS PRECIOUS.
01:10:57IT'S FRAGILE. BUT HERE WE ARE, 240 YEARS
01:10:59LATER, IT'S QUITE AN ACHIEVEMENT.
01:11:02AND SO IF YOU BROADEN THE LENS, I THINK YOU'LL BE A BIT MORE
01:11:06CAUTIOUSLY OPTIMISTIC THAN PERHAPS THE PRESIDENT.
01:11:10A MEDIA OR PRESENT ANALYSIS WOULD SAY.
01:11:13I THINK WE HAVE TIME FOR ONE MORE QUESTION. SORRY, THIS IS A DEEP IN THE
01:11:18WEEDS QUESTION. AND YOU WERE TALKING ABOUT IT
01:11:20COULD THE STEEL SEIZURE CONCURRENCE THAT ENDED UP
01:11:23CARRYING THE DAY? AND I'VE BEEN TRYING TO WRACK MY
01:11:27BRAIN TO THINK OF ANOTHER CONCURRENCE LIKE THAT.
01:11:29AND I'M WONDERING AND I DON'T
01:11:32RECALL THIS, BUT MAYBE YOU OR SOMEONE ELSE HERE DOES, WHETHER
01:11:36THE POWELL OPINION IN UNIVERSITY OF CALIFORNIA, THE BACK WAS A
01:11:41CONCURRENCE. I DON'T REMEMBER.
01:11:42I DON'T KNOW.
01:11:46MAYBE IT WAS I MAY BE WRONG, BUT
01:11:49IT DOESN'T IT DOESN'T CARRY THE
01:11:51DAY THE WAY THE STEEL SEIZURE CONCURRENCE DOES.
01:11:55BUT IT DID CARRY THE DAY FOR A WHILE.
01:11:59IT OCCURRED TO ME IF THAT'S EVEN A GOOD OCCURRENCE AND I'M NOT SURE.
01:12:01WELL, SOME DECISIONS ARE BY PLURALITY.
01:12:05SOMETIMES IT CAN GET WHEN THE WHEN THE SUPREME COURT ON A CASE
01:12:08IS FRACTURED, IT CAN GET VERY CONFUSING.
01:12:10WHAT IS THE GOVERNING LAW OF THIS CASE?
01:12:14A PLURALITY SOMETIMES CAN RESULT
01:12:17WHERE THERE IS A SUFFICIENT NUMBER OF JUSTICES ON A RULE OF
01:12:21LAW, BUT THERE ISN'T A SUFFICIENT NUMBER OF JUSTICES ON
01:12:24THE WAY THEY GOT THERE. I CAN'T RECALL OF BACCY IS ONE
01:12:28OF THOSE CASES. THERE WAS A UNIVERSITY CASE
01:12:30AFFIRMATIVE ACTION IN IN UNIVERSITY ENROLLMENT, IF I
01:12:34RECALL. RIGHT. BUT I WOULD HAVE TO SAY NO, BECAUSE I THINK THAT WE'D BE
01:12:38MORE FAMILIAR WITH THE CONCURRING OPINION IN IN
01:12:42BERKELEY, JUSTICE JACKSON'S CONCURRING OPINION IN YOUNGSTOWN
01:12:45IS FOREVER. AND THERE HAVE BEEN SEVERAL
01:12:48SUPREME COURT DECISIONS AFTER IT
01:12:51THAT EXPLICITLY HAVE CITED JUSTICE JACKSON'S CONCURRING
01:12:55OPINION AS THE AS EITHER THE
01:12:57GOVERNING FRAMEWORK OR THE GUIDELINES TO BE USED IN
01:13:01EXAMINING THE EXPANSION OF EXECUTIVE POWER.
01:13:05PETER, THANK YOU VERY MUCH FOR SHARING YOUR THOUGHTS WITH US THIS EVENING.
01:13:08WE REALLY WE REALLY APPRECIATE IT AND IT'S BEEN A WONDERFUL
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