President Trump, Teddy Roosevelt, Congress discussed on Overnight re-air of day's programming
But what would I say the politics? It's complicated. I did work for Senator Kennedy when stage Mike career, and we jointly confirmed people with Republicans we had a staff person Senator Thurmond did they always worked together that was a different time. But. I don't see in politics when you're in the Senate or on the staff, are you Republican democrat who's popular will this make my boss, more popular, less popular, where are the votes. See that in the in the supreme court, no zero. And you'll say what about Bush gore? I'll explain that to you. But I need an hour. I haven't even know that if I could bring you around, but I would do my best. I think no. But. You say, well, what about ideology? Are you Adam Smith free enterprise? Are you a Maoist troublemaker what? Well, I don't think that has a role, but that's hard to say though, if I find myself writing something or deciding something and thinking, but this is what he's good for the country in general, those idiological terms. I know I'm doing the wrong thing. And so does everybody else. But there's yet a still a different thing. And that is. I did I was raised in San Francisco. My father who's watch. I have here where for the school department. I grew up with the San Francisco public schools. I went to localize school. Went to Stanford. I've had to life. I've had and everyone in a profession after a certain time develops view now not specific us, necessarily, but general involve jurisprudential views. What's this document, the constitution really about what's the country life? What's law, really like? And even if you don't have specific answers, you could write down you do have attitudes. And not everyone is the same. Some like myself probably put more emphasis on purposes values consequence. Others like Nino school e-even we got on with very well. We got very well. But he'll put more weight on text, I'll pay attention to text, and he'll pay attention to consequences. But it's a question of degree. And so over time, I think but happens. I mean that was something I wondered. You know, what I came the December lived in Boston. I've seen a lot of disagreement. But nothing like when I came here. Why doesn't everybody agree with me so reasonable and then after time after time I thought, well, you know, president to appoint and think that person points always going to agree with them are for a big surprise. But at the level of general philosophy general outlook there more often. Not always I mean teddy Roosevelt appointed Oliver Wendell Holmes within three months on a big antitrust case Holmes was on the other side Roosevelt didn't like in Roosevelt's that I could appoint judge with more backbone out of a banana. But by and large, so I tended to move towards the conclusion, this is obvious a big country. People have all kinds of different views every race every religion. I mean, my mother used to say every point of view, so crazy there isn't somebody here who doesn't and she said they all live in Los Angeles. But nonetheless. Nonetheless, the miracle of this document and the miracle of the country, and it's only partly achieved. The we get these three hundred thirty million people live together without murdering each other and resolving their disputes even Biegman's underlaw instead of in the streets, and the more you're in my job, the more you sitting chair, you think that is a miracle. And it's one of the things we have to offer. It's one of the things we have to off. And of course, we have to work on. And that's what I say to the students. I hope you're gonna participate in politics. In the country. In the civic organizations exist document won't work unless you do. So you see it's complicated. But if as you read in the paper, the only thing that's written about a handful of cases that are the most controversial because they have a political social content, and when they say is they didn't use forty years ago. This judge appointed by this president that judge appointed by the other. I worry I worry that people will not understand that normally almost half are cases are unanimous that the five fours or usually about five ten maybe twenty percent, not always the same five not always the same bore. And it's that that I worry about most in terms of thinking the court is to political. And it's that which I'm talking to the students about and, but Sandra O'Connor did was go to work founding is civic. So they know something about how our government works. And that I think is the most important thing. Confirmation process. It is what it is. But. Teaching twelfth grade civics which Jerry Brown probably took. I'm sure and you probably did I did. And I did but not everybody does. Now their hair you went into the peace. Why doesn't everybody, and that's what I tell the students print court Justice Steven Brier last night with Bill press. I believe it strongly you and your fellow justices made some news today. Justice by accepting important cases, dealing with basic civil rights and whether those nineteen sixty four Civil Rights Act applies to people of sexual orientation, not just as sex sex discrimination protection protects gays and lesbians in the workplace. I want to ask you about. What that means about the process of the court. Secondly. But I do you have any general comment about those cases? No, okay. I just thought try. Okay. But so this does get to the question to ask about the little bit about the process the philosophy and the practice of the court in the time that we have in the process, how do you decide which cases to take? And how many cases do you take? Well, we only take federal vocations federal law. That's congress in this document constitution and most law, which she below no in the country's state law almost all of it. Criminal law, mostly state, family law almost all state education towards business. You name it. It's state Federal's little all right? But there's still a lot of cases by the time. They have their trials haven't settled the case they should settle. But if they can't settle them they go to trial and finally they may appeal, and they're probably a eighty or one hundred thousand cases with federal issues in the top pellet courts every year and of those eight thousand or so seven to eight thousand we'll ask us to hear it, and we'll hear about seventy eighty and so what really happens is that we have law clerks for five four us, and they pool most of them and so a seven five or seventy five hundred or so is about one hundred fifty a week divided by thirty is about five. So each of them works on five should I do it. You say, hey, I'd rather have a human being called a law Farkas very talented, by the way and goes through those. Scrawl petitions because at scrawl petition, maybe right? And sometimes it is than to have me pretend to do it. Because of that number. I'd be pretending. So I like that. So what you wanna know is when I read those memos to ten pages. How do I select the small stack which are the ones I'm going to suggest we discuss and the answer was given by president Taft when he became chief Justice. He said we are not there to correct mistakes of lower courts. There are too many or maybe media make the mistake. You know, what are you there for them? Well, he said the primary job almost exclusively. And it still is is to create a uniform federal law. That is when in fact, all the lower court judges who considered this federal question these words in the statute or the application of the statute of the constitution, come to the same conclusion. What need for us? They're good. Judges do. But if they're divided well, then the law isn't uniform. And so we'll probably take it not definitely the probably and that's easier to find, you know, and they're only a few now there are a few others. I mean, if some if a court holds the statute of congress unconstitutional, we'll take it almost certainly. And sometimes there's just some major case for the country needs an answer. We think we're going to provide a veteran, sir. We'd sometimes drew and sometimes not. But for the most part, you see what I'm doing that stack is divisions of opinion. And then anyone of us can have discussed on Friday any case. And we discuss out of those one hundred fifty maybe ten maybe twelve and we'll go around the table our conference room where we're alone will say few things not much and therefore votes, we take it. If not we don't fire or something want to discuss it further or write something to my colleagues all hold it over and eventually four votes or not. That's it's really mechanical much more than people think it's onto the next thing. And of course, you see that suppose we should've taken a case that we should should've taken it. But we didn't. What will happen? What will happen to the issue in that case? Yeah. It'll come back in another case. And by the way, if it never comes back. Hey, I guess the country didn't need as you said that if we take one, and we shouldn't have Caceres jurisdictional issue in it or some kind of an issue. Everybody starts not really the one. We wanted to hear that can cause a problem. So I look in this papers when they write about like what you said. But I'm not looking to see whether they think it was good battery different that they took the case. I'm looking to see if I say what case that would be bad. And I don't generally in deciding these cases the process goes along we in the media, I think put so much attention on the arguments trying to read you or Justice or the chief chief by questions, you might ask. Are we putting too much stock in the argument? Yes. Much much. I mean, once we granted case people start writing briefs, I don't know why they're called breathes. But regardless you have a petitioner it's blue and the respondents Radnor about sixty pages each and a yellow one of about thirty pages from the petitioner, and the government might follow gray, brief governments always gray. And then you can follow one curia light green for the petitioner dark green for the respondent. And usually they're about ten to twenty. There could be a hundred hundreds pretty tough. But I'll read all those briefs. Now, I grant you that if there are thirty or forty Mike is begin to see if it's repetitive, which it is and I'll look through, but I look irrelevant, and I give them to my law clerks h three sets, I do twelve cents an oral argument period is usually for twelve and. They'll write a memo and I'll read their memo, and we'll discuss it and all that happened before the orchids. So so the oral argument is really for us to ask questions, and it's very hard for the lawyers for the lawyers because you know, they aren't sure what it's going to be. And and one judge starts nod and the others frowning and my God. So it's very hard. Now. What is a really good question. A good question is I don't know the answer when I ask. But I think the lawyer can help me out, and I believe that it's relevant to the decision in the case. Now, usually that's what.