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CNN Special Report: Supreme Power: Inside the Highest Court in the Land. Aired 10-11a ET
Aired November 27, 2022 - 10:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[10:00:38]
ANNOUNCER: The following is a CNN Special Report.
FAREED ZAKARIA, CNN ANCHOR: May 2nd of this year, an idyllic spring morning, no hint of what is to come that night. The nine justices of the Supreme Court attend a memorial service for one of their own, the late John Paul Stevens. The end of the court's term is just weeks away.
JIM SCIUTTO, CNN ANCHOR: A whole host of consequential decisions to come.
ZAKARIA: A bitterly divided country awaits a momentous decision.
JAKE TAPPER, CNN ANCHOR: Is this the end of Roe v. Wade?
UNIDENTIFIED MALE: Of law and of life.
ZAKARIA: At the services, the judges look collegial. They call themselves as happy family. Beneath the surface, there is much more to this story.
NINA TOTENBERG, NPR LEGAL AFFAIR CORRESPONDENT: They not only aren't getting along with each other. They don't like each other.
UNIDENTIFIED PROTESTERS: You don't care if people die.
ZAKARIA: It is a court at war with itself.
UNIDENTIFIED PROTESTERS: It's a lie.
ZAKARIA: And in the center stands Chief Justice John Roberts.
JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: John Roberts is someone who is used to winning.
ZAKARIA: He's very much a judicial conservative.
BISKUPIC: Not a fan of Roe vs. Wade.
ZAKARIA: But the chief is said to be keenly aware that abolishing Roe could tear America apart.
NOAH FELDMAN, HARVARD LAW SCHOOL: He cared more about preserving the legitimacy of the Supreme Court.
ZAKARIA: Which meant saving Roe.
UNIDENTIFIED PROTESTERS: Abort the court.
BISKUPIC: He wasn't going to let go.
UNIDENTIFIED PROTESTERS: Abortion bans have got to go.
ZAKARIA: Months earlier.
UNIDENTIFIED PROTESTER: Abortion justice.
ZAKARIA: Oral arguments in the case of "Dobbs versus Jackson Women's Health Center." At issue, a Mississippi law that would limit but not eliminate the right to an abortion but five justices want to abolish it all together.
BISKUPIC: The conservatives to his right wanted to go all out against Roe v. Wade.
JUSTICE SAMUEL ALITO, U.S. SUPREME COURT: The fetus has an interest in having a life.
BISKUPIC: I thought it was stunning.
ZAKARIA: To save Roe, Roberts must change one vote.
FELDMAN: There was really only one desperate hope but all came down to Kavanaugh.
ZAKARIA: Justice Brett Kavanaugh.
BISKUPIC: Brett Kavanaugh has at times gone with the chief.
FELDMAN: Prior to his confirmation hearings, Justice Kavanaugh was widely thought of as somebody who likes to be in the middle.
ZAKARIA: That was prior to the hearings.
SEN. LINDSEY GRAHAM (R-SC): I hope the American people can see through this sham.
ZAKARIA: The fight over Kavanaugh's nomination was ugly.
WOLF BLITZER, CNN ANCHOR: A nomination in turmoil.
JUSTICE BRETT KAVANAUGH, U.S. SUPREME COURT: This has destroyed my family.
BLITZER: Physical and sexual assault.
KAVANAUGH: I've never sexually assaulted anyone.
TOTENBERG: It was just a train wreck.
KAVANAUGH: So help me God.
ZAKARIA: Some even thought that damaging hearings might affect Kavanaugh's vote on Roe.
FELDMAN: He would have enraged conservatives by not overturning Roe v. Wade. Right now those are his only friends.
ZAKARIA: Yet as the spring wore on, there appeared to be a chance Kavanaugh might flip.
FELDMAN: A lot of chatter in conservative circles he might be about to go along with Chief Justice Roberts.
ZAKARIA: Then the stakes rose higher. In late April, the "Wall Street Journal" fired a warning shot straight at Roberts and Kavanaugh.
BISKUPIC: The "Wall Street Journal" editorial page was very wired into the conservative side of this court.
ZAKARIA: It called the Roberts' effort to save Roe a ferocious lobbying campaign.
BISKUPIC: Don't be bullied. Don't be persuaded by John Roberts.
ZAKARIA: Yet even by May 2nd, there was still a chance of turning the vote around.
BISKUPIC: I thought there might be some ambivalence there.
FELDMAN: Chief Justice Roberts bent over backwards.
ZAKARIA: But the chief's desperate mission would not last the night.
UNIDENTIFIED PROTESTERS: Ho, ho, sexist fascists got to go.
The Roberts' effort ended at 8:32 p.m. in one dramatic moment with a key stroke "Politico" published Samuel Alito's draft opinion abolishing Roe vs. Wade.
[10:05:04]
JOHN BERMAN, CNN ANCHOR: The stunning news from the Supreme Court.
DON LEMON, CNN ANCHOR: Unprecedented leak of this major draft opinion.
TOTENBERG: It was like a bomb went off.
BISKUPIC: It was such a breach of their secrecy.
ZAKARIA (on-camera): First time in history.
TOTENBERG: There has never been a leak like this.
ZAKARIA (voice-over): John Roberts had lost his fight.
UNIDENTIFIED PROTESTERS: My body, my choice. UNIDENTIFIED PROTESTERS: We will abolish abortion.
ZAKARIA: June 24th, the final decision. A shock but not a surprise.
ANNOUNCER: This is CNN Breaking News.
JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: The Supreme Court has overturned Roe v. Wade.
ALISYN CAMEROTA, CNN ANCHOR: And ended the constitutional right to an abortion.
ZAKARIA: There was unbridled joy.
UNIDENTIFIED FEMALE: This is a historic day.
UNIDENTIFIED PROTESTER: Ho, ho, Roe v. Wade has got to go.
ZAKARIA: On the other side of the great American divide, the deepest despair.
UNIDENTIFIED FEMALE: I am absolutely terrified. I'm so beyond livid.
UNIDENTIFIED PROTESTERS: My body, my choice.
UNIDENTIFIED PROTESTERS: No justice, no peace.
BISKUPIC: Everything is on the table now. Everything is on the table.
ZAKARIA (on-camera): I'm Fareed Zakaria.
The republic endures and this is the symbol of its faith. That description of the Supreme Court came from Chief Justice Charles Evans Hughes in 1932. His words eloquent and precisely right. This country has long seen its highest court as the pinnacle of democracy. America's greatest glory has been judicial independence. Judges who stood apart from politics trusted to make big decisions based solely on the law.
Now, that foundational idea, that faith, may be just one more casualty of America's deep political divide. 75 percent of Americans, three quarters, tell Gallup they do not have full confidence in the Supreme Court. It is the lowest number ever recorded.
Why? What happened? This is the story of how we got here.
FELDMAN: The current Supreme Court committed an act of institutional suicide.
UNIDENTIFIED PROTESTERS: Burn it down.
FELDMAN: By overturning Roe v. Wade.
ZAKARIA (voice-over): After the most dramatic Supreme Court ruling in decades, there was rage. Even violence. Americans had a message for their highest court. UNIDENTIFIED PROTESTERS: We won't go back.
ZAKARIA: Across the country, tens of thousands took to the streets.
REP. MAXINE WATERS (D-CA): You ain't seen nothing yet.
ZAKARIA: The constitutional scholar Noah Feldman says America now sees a court poisoned by politics.
UNIDENTIFIED PROTESTERS: (EXPLETIVE DELETED) the Supreme Court.
FELDMAN: The current court is taking all of its weight and putting it behind popular conservative positions, and the reason that's so scary from the standpoint of the United States is that we don't have another institution whose job it is to protect the most vulnerable, to protect the rule of law.
ZAKARIA: Feldman is a liberal.
UNIDENTIFIED MALE: So help you God.
ZAKARIA: Who testified in favor of Donald Trump's impeachment.
FELDMAN: President Trump has committed impeachable high crimes and misdemeanors.
ZAKARIA: Yet he also supported the nomination of Amy Coney Barrett.
FELDMAN: She is a first class lawyer. I believe we need the smartest and best people. The right way to think about the Supreme Court is not to ask, is it liberal? Is it conservative? It's to ask what is the role that it fundamentally plays in preserving constitutional governance?
UNIDENTIFIED PROTESTERS: We the people.
ZAKARIA: Many Americans question that role.
UNIDENTIFIED FEMALE: These are live images, folks, at the doors of the Supreme Court.
ZAKARIA: This crowd was trying to force its way inside the court to stop the swearing in of Justice Brett Kavanaugh.
BISKUPIC: There's an adage about what the Supreme Court has. It doesn't have the power of the purse. It doesn't have the power of the sword. What it has is public respect.
ZAKARIA: As a reporter, Joan Biskupic has seen radical changes over her 30 years of watching the court.
BISKUPIC: People believe that the Dobbs ruling was politically motivated and why would they not? Former President Donald Trump ran on a platform that included appointing only justices who would reverse Roe v. Wade.
ZAKARIA: Trump was open about it. He wanted justices with a bias.
[10:10:04]
DONALD TRUMP, FORMER PRESIDENT: I will appoint judges that will be pro-life, yes. Highly, highly respected judges.
ZAKARIA: Republicans were nervous that Trump would not appoint true conservatives.
SEN. TED CRUZ (R-TX): He will not invest the capital to confirm a conservative.
ZAKARIA: To mollify the right, he released a list of right-wing judges.
TRUMP: What we did, and I just have it, we just took a list of judges --
BISKUPIC: Can he deliver the kinds of candidates we want for the Supreme Court? When he releases that, it immediately gives him credibility among establishment Republicans.
ZAKARIA: But Donald Trump had nothing to do with choosing the names on his list.
BISKUPIC: That list was of course generated primarily by the Federalist Society.
ZAKARIA: The Federalist Society, the most powerful legal conservative group in the country. Every one of the conservative justices has strong ties to it.
BISKUPIC: I thought it was stunning. The presidential candidate would take a list of judges from the Federalist Society and use those judges as part of a campaign?
JIM ACOSTA, CNN ANCHOR: So we'll see the president and the Supreme Court justice.
ZAKARIA: The president who chose three Supreme Court justices.
UNIDENTIFIED MALE: Congratulations.
ZAKARIA: Who transformed the court for a generation, outsourced crucial decisions to this man.
LEONARD LEO, CO-CHAIRMAN, THE FEDERALIST SOCIETY: He had an idea. What do you think of having me put out a list of people who I would pick from for the U.S. Supreme Court? I said about to suggest to him names of people who would be appropriate.
ZAKARIA: Leonard Leo has long been the power behind the Federalist Society. Amassing hundreds of millions of dollars to nurture a network of conservative judges.
BERMAN: $1.6 billion from just one donor. ZAKARIA: Leo hit the jackpot earlier this year with a record-breaking
donation for another conservative group he controls.
ROSEMARY CHURCH, CNN INTERNATIONAL ANCHOR: The largest single donor contribution that's ever been reported.
ZAKARIA: Leo told "The Washington Post" he doesn't like to talk about money.
LEO: I don't engage in that conversation because, one, I'm not particularly knowledgeable about a lot of it but secondly because it's just not what I do.
ZAKARIA: All of this is important because Leonard Leo, a man elected by no one, a man few Americans have even heard of, played a powerful role in choosing the most conservative court in a century.
TRUMP: Here they come.
ZAKARIA: One example of Leo's clout, Justice Neil Gorsuch.
UNIDENTIFIED MALE: Was this the choice you advised President Trump to make?
LEO: Well, my job was just to give him a list of great people and to tell him everything I could about each of them. I was ultimately his decision.
MIKA BRZEZINSKI, MSNBC ANCHOR: Was he on the list?
LEO: Neil Gorsuch?
BRZEZINSKI: Yes.
LEO: Yes, absolutely.
TRUMP: And Leonard, you are fantastic.
CARRIE SEVERINO, PRESIDENT, JUDICIAL CRISIS NETWORK: The ability of Trump to have that outstanding list of nominees to choose from has everything to do with the success of the Federalist Society in creating a movement.
ZAKARIA: Carrie Severino works with Leonard Leo.
SEVERINO: He's someone I absolutely work with very closely.
ZAKARIA: She has led the public relations fight to push through conservative nominees.
UNIDENTIFIED FEMALE: Never a whisper of misconduct. It doesn't add up. Confirm Kavanaugh.
SEVERINO: What we're really seeing is the left losing that stranglehold on the court and being very frustrated that there are Republican nominees who aren't as easily swayed to the middle as they were before.
ZAKARIA: The Federalist Society began back in 1982 with a few chapters on law school campuses.
FELDMAN: The Federalist Society was born out of a perception by conservatives and that liberal constitutional ideas had become the main stream within American legal thinking.
ZAKARIA: Which was true, so conservatives embraced the society.
BISKUPIC: Very moneyed interest are pouring funds into the Federalist Society.
ZAKARIA: Then in 1987 a seismic event turned the Federalist Society into a conservative juggernaut. Ronald Reagan nominated one of its founding member to the Supreme Court, Judge Robert Bork.
BISKUPIC: The Bork battle was such a big defining moment in America.
UNIDENTIFIED MALE: And we're starting with Justice Rehnquist.
ZAKARIA: Back then confirmation hearings were usually brief and tamed affairs.
FELDMAN: If you were a competent judge capable of being a functioning justice, you would get confirmed.
SEVERINO: The Bork confirmation changed that.
UNIDENTIFIED PROTESTER: Judge Bork should be immediately confirmed.
ZAKARIA: The right thought Bork would be a shoe-in. He was a distinguished scholar and an appeals court judge.
SEVERINO: So well respected and thought of in the legal academy, there'd be no problem getting him confirmed.
ZAKARIA: The left saw him as a far-right extremist.
[10:15:02]
FELDMAN: Liberals were appropriately worried about what Robert Bork would do if he got on the Supreme Court.
ZAKARIA: Among his views, he was against the 1964 Civil Rights Act.
SEN. TED KENNEDY (D-MA): Blacks would sit at segregated lunch counters.
ZAKARIA: Ted Kennedy led the charge against Bork.
KENNEDY: Robert Bork's America is a land in which women would be forced into back alley abortions.
UNIDENTIFIED MALE: The women's groups frankly are afraid. They're afraid of you. ZAKARIA: One incendiary example of why, Bork had upheld a mandatory
sterilization order for women who wanted to work at a chemical plant.
JUDGE ROBERT BORK, FORMER SUPREME COURT JUSTICE NOMINEE: I supposed the five women who chose to stay on the job -- on that job with higher pay and chose sterilization, I supposed that they were glad to have the choice.
SEN. JOE BIDEN (D-DE): Those in favor of the Bork nomination will vote aye. Those opposed will vote no.
ZAKARIA: A young Joe Biden, then chairman of the Senate Judiciary Committee, called for a vote.
UNIDENTIFIED FEMALE: Mr. Bird?
UNIDENTIFIED MALE: No.
UNIDENTIFIED FEMALE: Mr. Metzenbaum?
UNIDENTIFIED MALE: No.
ZAKARIA: The no's won. Republicans were furious.
SEN. JOHN DANFORTH (R-MO): Let this trashing go on and let this good man be characterized as some sort of Frankenstein's monster without raising a voice against it. All of us are accomplices.
TOTENBERG: Those hearings became sort of the battle cry of the Republican Party after that.
ZAKARIA: Nina Totenberg has been a Supreme Court reporter for 50 years.
TOTENBERG: Republicans definitely believe that Democrats started this. Now that they did this to Bork, we're going to Bork everybody else.
ZAKARIA: A young senator from Kentucky had the last word.
SEN. MITCH MCCONNELL (R-KY): So to Robert Bork, you fought the good fight. You happen to be the one who set the new Senate standard that will be applied in my judgment by a majority of the Senate prospectively. Unfortunately, it got set over your dead body so to speak.
BISKUPIC: He essentially said you will rue the day.
ZAKARIA: And he was right.
JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: This is a circus. This is a national disgrace. It is a high-tech lynching for uppity blacks.
ZAKARIA: The circus hearing has become a repeated ritual.
KAVANAUGH: That is a farce.
SEN. ORRIN HATCH (R-UT): I think it would be the greatest travesty I've ever seen in the nomination process.
ZAKARIA: The more corrosive the hearings grew, the more America's trust in the court collapsed.
How did we get here? To really understand the roots of it, we need to go still further back to what may just be the most consequential moment in Supreme Court history.
The early 1950s, the post-war boom. But for many, the American dream was only available if you were white. Segregation had an iron grip on the south.
UNIDENTIFIED MALE: We had absolutely no intention of integrating in the South.
ZAKARIA: For the Brown family of Topeka Kansas, separate but equal meant their daughter could not attend her neighborhood school. The Supreme Court heard the case of "Brown versus the Board of Education." Like America itself, the court was bitterly divided over separate but equal.
UNIDENTIFIED MALE: Separate educational facilities are inherently unequal.
ZAKARIA: A new chief justice was determined to change that. Earl Warren knew that a ruling in favor of "Brown" would not be enforceable unless it was unanimous.
TOTENBERG: Chief Justice Warren was a great master of trying to bring the court together.
ZAKARIA: He argued and cajoled for months. Finally he got every judge to agree. The court ruled for "Brown" 9-0.
UNIDENTIFIED MALE: Since May 17th, 1954, America has never been quite the same.
UNIDENTIFIED MALE: It was to me the Magna Carta. It was the second Emancipation.
ZAKARIA: It was the beginning of the Warren court. A revolutionary judicial era that would change the fabric of American life.
BISKUPIC: The court under Earl Warren just opened up America in so many different ways.
ZAKARIA: It was in a sense today's court in reverse.
TOTENBERG: Conservatives used to castigate the liberal Warren court as being activist.
ZAKARIA: It issued dozens of rulings that enraged conservatives.
UNIDENTIFIED MALE: History-making decisions.
ZAKARIA: Some enhanced the rights of criminal defendants. BISKUPIC: The Miranda decision, you have a right to a lawyer, you have
a right to have a lawyer present when you're questioned.
ZAKARIA: There were also privacy rulings.
[10:20:02]
On the right to use contraception. And to interracial marriages. All of it led to a collective shout from conservatives.
UNIDENTIFIED PROTESTERS: Impeach Earl Warren.
ZAKARIA: Impeach Earl Warren. When Earl Warren finally retired in 1969, conservatives believed they might finally get their chance to change the court. But it would be another 40 years. A long, political battle, for power and money, before the right would get the court it dreamed of.
(COMMERCIAL BREAK)
SCIUTTO: A bombshell decision by the U.S. Supreme Court.
FREDRICKA WHITFIELD, CNN ANCHOR: The court could target other landmark precedent.
PAMELA BROWN, CNN ANCHOR: The Supreme Court's most life-changing ruling in decades.
ZAKARIA: 2022 has been a year of high drama at the Supreme Court.
SCHNEIDER: Made possible by a conservative supermajority.
BRIANNA KEILAR, CNN ANCHOR: The conservative majority of justices.
CAMEROTA: Reverses nearly 50 years --
UNIDENTIFIED FEMALE: -- of interpreting the Constitution.
UNIDENTIFIED MALE: The Supreme Court in the last two years --
ZAKARIA: But America has been here before.
FRANKLIN D. ROOSEVELT, 32ND PRESIDENT OF THE UNITED STATES: We want a Supreme Court which will do justice under the Constitution. Not over it.
ZAKARIA: The epic knockdown constitutional brawl.
UNIDENTIFIED MALE: The political bombshell that divides the nation.
UNIDENTIFIED MALE: The attacks of the Supreme Court.
ZAKARIA: Of the 1930s. Hard-right Supreme Court justices.
ROOSEVELT: We cannot yield to the personal judgement of a few men fearful of the future. ZAKARIA: Challenged the overwhelming majority of Americans.
UNIDENTIFIED MALE: The NRA.
UNIDENTIFIED MALE: The rallies around the blue eagle.
UNIDENTIFIED MALE: New deal suffered massive damage from the Supreme Court.
ZAKARIA: Killing popular, bipartisan laws like no court before. Laws meant to save a nation from collapse.
UNIDENTIFIED MALE: Millions of abled and willing Americans bewildered and jobless.
[10:25:02]
UNIDENTIFIED MALE: $30 billion in stock value vanished.
UNIDENTIFIED MALE: Grim, bleak, hopeless and helpless.
ZAKARIA: The conservative justices were known as the "Four Horsemen of the Apocalypse."
UNIDENTIFIED MALE: Die-hard conservatives among the Supreme Court --
UNIDENTIFIED MALE: Struck down the Agricultural Adjustment Act and Municipal Bankruptcy Act.
UNIDENTIFIED MALE: The New York Minimum Wage Law.
UNIDENTIFIED MALE: Theirs is the last word.
ZAKARIA: And their story carries warnings for today.
ROOSEVELT: If we would make democracy succeed, we must act now.
UNIDENTIFIED MALE: It was the beginning of the worst calamity the United States economy had ever known.
ZAKARIA: It was the height of the Great Depression.
UNIDENTIFIED MALE: Banks closed, millions were put out of work.
ZAKARIA: The stock market had plummeted 90 percent.
UNIDENTIFIED MALE: Despair, a sense of helplessness, a sense of hopelessness.
ZAKARIA: A quarter of the country was unemployed.
UNIDENTIFIED MALE: Makes his bid to become dictator of America. Can't happen here, the saying goes. But it seems to be.
ZAKARIA: And political extremism was threatening democracy.
UNIDENTIFIED MALE: Communists became violent, taking advantage of the depression, general unemployment.
TOTENBERG: This whole country was in danger of going under.
ROOSEVELT: This is a call to arms. To restore America to its own people.
UNIDENTIFIED MALE: A frightened people turns hopefully toward a new national leader. His campaign promise, a new deal.
ZAKARIA: A nation that needed saving.
UNIDENTIFIED MALE: The inauguration of Franklin Delano Roosevelt.
ZAKARIA: Elected Franklin Delano Roosevelt in a landslide.
ROOSEVELT: This nation is asking for action.
ZAKARIA: Hoping his activist government policies would rescue the country.
ROOSEVELT: The only thing we have to fear is fear itself.
ZAKARIA: In his first 100 days, he delivered.
UNIDENTIFIED MALE: Bill after bill poised into Congress.
UNIDENTIFIED MALE: Fifteen bills with far-reaching significance.
ZAKARIA: With the most ambitious legislative agenda in history, the New Deal.
ROOSEVELT: We can put people back to work.
ZAKARIA: Creating vast federal programs to get Americans back on their feet.
ROOSEVELT: You people must have faith. Together, we cannot fail.
TOTENBERG: They were going to try almost everything and anything to try to get this country stood up again and working. And they did.
ZAKARIA: But the president had a big problem. The Supreme Court was killing his laws at a record pace. Ten times more often than previous courts.
UNIDENTIFIED MALE: Vital pieces of New Deal legislation are unconstitutional.
FELDMAN: The Supreme Court of the United States was controlled by a conservative indeed libertarian property-protecting majority.
ZAKARIA: The court had killed almost any law that tried to regulate the economy. Like minimum wage laws.
UNIDENTIFIED MALE: Half a million children are working as low-paid day laborers. ZAKARIA: Even child labor laws.
UNIDENTIFIED MALE: The formation of the entire New Deal program are rocked.
ZAKARIA: In 1935 --
UNIDENTIFIED MALE: In quick succession, the Supreme Court invalidated law after law.
ZAKARIA: The court dealt three huge blows to the New Deal in one day.
FELDMAN: Major pieces of legislation passed by an overwhelming majority of Congress as the solution to the depression.
ZAKARIA: Americans were livid with the court. Hanging justices in effigy. One justice referred to the Great Depression as a temporary inconvenience.
TOTENBERG: This is a conservative majority that really didn't care about the little guy.
UNIDENTIFIED MALE: It's Roosevelt again.
UNIDENTIFIED MALE: Roosevelt takes every state in the union.
UNIDENTIFIED MALE: By the largest majority in history.
ZAKARIA: In 1936, the nation responded.
ROOSEVELT: I will faithfully execute --
ZAKARIA: Re-electing FDR with more than 60 percent of the vote.
ROOSEVELT: We can now march forward all of us together.
ZAKARIA: But the New Deal still appeared to be doomed.
ROOSEVELT: We must take action to save the Constitution from the court.
ZAKARIA: So Roosevelt declared war on the court.
UNIDENTIFIED MALE: He tried to enlarge the court with justices of his own choosing.
ZAKARIA: Shocking Congress with a bombshell bill.
UNIDENTIFIED MALE: Opponents denounce it as court packing.
ZAKARIA: That would add as many as six new justices chosen by him.
BISKUPIC: What he proposed is for every justice who is over age 70, and it was the older justices who were causing him so much trouble, he would be able to appoint a new justice.
UNIDENTIFIED MALE: I am opposed to packing the court.
UNIDENTIFIED MALE: The seizure of unlimited, unchecked power.
[10:30:02]
ZAKARIA: There was bipartisan outrage over the bill.
UNIDENTIFIED MALE: This is the road to autocracy.
ZAKARIA: Even accusations of fascism.
UNIDENTIFIED MALE: He horrified a lot of people, some of them calling him a dictator.
ZAKARIA: But the president's plan was perfectly constitutional.
FELDMAN: The Constitution actually never says that there have to be nine justices.
ZAKARIA: The number of justices have changed many times. Starting at six in 1789. Then five, reaching 10 at one point, before settling on nine. The court was very weak in the early days of the republic. Some of its rulings were openly defied.
FELDMAN: President Andrew Jackson, after an opinion he didn't like, is reputed to have said, Chief Justice Marshall has made his decision, now let him enforce it. And then Jackson just ignored the Supreme Court.
ZAKARIA: But over the years, the court had gained enormous power. And now it was using that power to block progress at FDR.
ROOSEVELT: We have only just begun to fight.
ZAKARIA: The president and Congress --
UNIDENTIFIED MALE: The greatest political sweep in history.
ZAKARIA: Despite their overwhelming election victories --
UNIDENTIFIED MALE: The stock market crashed.
ZAKARIA: -- could do virtually nothing to fight the depression.
UNIDENTIFIED MALE: From 61 percent of the American public came a definite answer.
ZAKARIA: The clash over court packing riveted the nation.
UNIDENTIFIED MALE: It is the duty of every citizen to concern himself with this question.
UNIDENTIFIED MALE: Let's not tamper with it.
UNIDENTIFIED FEMALE: By all means let us make this change.
ZAKARIA: It was the greatest political drama of the era.
UNIDENTIFIED MALE: The Supreme Court captures the headline.
UNIDENTIFIED MALE: Thousands of letters and telegrams poured into Congress from all over the country.
TOTENBERG: It was one of the great legislative battles of all time. The majority leader had a heart attack and died in the middle of it.
UNIDENTIFIED MALE: I believe the people are entitled to new judges and should have them now.
ZAKARIA: FDR's plan seemed almost certain to pass Congress.
ROOSEVELT: Great majorities have approved what we are trying to do.
ZAKARIA: And the court would soon number 15 justices. Then suddenly, the Supreme Court blinked.
UNIDENTIFIED MALE: The Supreme Court upholds the Wagner Act.
ZAKARIA: It completely changed its view in three seismic cases. Upholding the Minimum Wage Law. An important labor law. And the Social Security Act.
UNIDENTIFIED MALE: Holding the balance of power at 61, the youngest doctor.
ZAKARIA: The court's swing vote, Justice Owen Roberts, who had sided with the conservatives, swung over to the liberals. With the New Deal laws upheld, court packing seemed unnecessary.
UNIDENTIFIED MALE: The senate of the United States gave the most popular president of the 20th Century his worst political defeat.
ZAKARIA: And was soundly defeated in Congress.
FELDMAN: It was a switch by one justice that saved the court from being packed. And observers call that the switch in time that saved nine.
ZAKARIA: Is there a justice on today's court that could have a similar change of heart? And move the court closer to the views of most Americans? Possibly court insiders say, but don't count on it.
TOTENBERG: In their view, the last half century of law handed down from the Supreme Court has been magnificently wrong, and they want to make it magnificently right.
(END VIDEOTAPE)
(COMMERCIAL BREAK)
[10:38:22]
(BEGIN VIDEOTAPE) POPPY HARLOW, CNN ANCHOR: The Supreme Court overturning Roe vs. Wade and restricting state's ability to legislate guns.
SUNLEN SERFATY, CNN WASHINGTON CORRESPONDENT: Eroding the barrier between church and state.
ZAKARIA (voice-over): For those shocked by the Supreme Court's last term, court watchers have a piece of advice -- strap yourself in.
TOTENBERG: It's going to be a very bumpy ride.
FELDMAN: Fundamental rights are back on the table.
ZAKARIA: More bombshells could be coming. And more rights could disappear. In his concurring opinion overturning Roe v. Wade, Justice Clarence Thomas signaled his desire to keep going.
BISKUPIC: Clarence Thomas wrote so many other things should be up for grabs.
ZAKARIA: He called on the court to reconsider the right to contraception, gay marriage, even same-sex intimacy. Liberals may not like it, but there is a certain logic to the Thomas argument. Like Roe, those rights were all based on what previous courts saw as a constitutional right to privacy. Strike down that foundation, and the other rights fall with it. In a separate concurrence, Justice Kavanaugh said the court was not opening the door to eliminating other rights.
FELDMAN: He bent over backwards to say this is only about abortion.
ZAKARIA: Kavanaugh was trying to reassure the American people, but Thomas' logic is clear, and we know that this court does not mind overturning long-established laws and Supreme Court precedence.
[10:40:00]
FELDMAN: A good example here would be the Newark state gun law more than a century old.
ZAKARIA: It doesn't end there. America's long standing system of governance is under fire. For nearly 100 years, Congress has passed sweeping laws empowering federal agencies, like the EPA, the FDA, and others, to create rules that keep Americans safe.
FELDMAN: Agencies have expertise. It's up to the agency to interpret ambiguous statutes in the light of the agency's expert knowledge.
ZAKARIA: But last term, the Supreme Court said, not so fast. The court struck down a rule from the Environmental Protection Agency aimed at reducing carbon emissions from power plants. The rule could have helped blunt the ravages of global warming.
UNIDENTIFIED FEMALE: The United States, ravaged by wildfires.
TAPPER: The worst drought in centuries. BLITZER: Flooding of biblical proportions.
ZAKARIA: If the court keeps ruling in this direction, it could strike down thousands of other regulations created by federal agencies under broad congressional statutes. Basic rules that protect consumers, patients, workers, could all be upended. Congress would have to pass hundreds of new laws to address every possible application of its intentions. That will never happen, of course, which hands even more power to the justices.
FELDMAN: The court effectively said to the rest of the political system, we are the last word, we are in charge.
ZAKARIA: And then there's the biggest case you've never heard of.
BROWN: A legal theory headed to the Supreme Court.
ZAKARIA: That worries scholars from across the political spectrum.
BROWN: It could literally upend democracy.
ZAKARIA: This term, the Supreme Court will rule on the so-called Independent State Legislature Theory. Partisan state legislatures may soon have complete control over federal elections.
PAUL BEGALA, DEMOCRATIC STRATEGIST: That's dictatorship. That's madness.
ZAKARIA: The theory isn't new. It dates back more than 20 years. To another monumental case.
UNIDENTIFIED FEMALE: Nine justices, as divided as this nation.
ZAKARIA: Bush versus Gore saw five conservative justices essentially hand the presidency over to George W. Bush.
UNIDENTIFIED MALE: Please raise your right hand and repeat after me.
ZAKARIA: Most of the justices seemed unconvinced by the court's own decision. They suggested the opinion was limited just to this one unusual case. Even after voting with the majority, Justice Antonin Scalia called the opinion -- pardon my language but I am quoting here -- a piece of shit.
BISKUPIC: The opinion itself was only cited one time by a Supreme Court justice.
ZAKARIA: That is, until 2020.
TRUMP: We're going to defeat sleepy Joe Biden.
ZAKARIA: As Donald Trump faced off against Biden, Republicans began dusting off an obscure argument from the once pariah case "Bush v. Gore." The independent state legislature theory.
Chief Justice Rehnquist claimed the Constitution gave state legislatures complete control over presidential elections. Today, some Republicans want that unchecked power over all federal elections.
(On-camera): To put it very simply, state legislatures can do whatever they want, and state courts, even the state's Supreme Court has no authority to say what you're doing violates the state constitution.
BISKUPIC: And what makes this so poignant is that right now in America, most of the state legislatures are controlled by Republicans.
ZAKARIA (voice-over): Six of Rehnquist's fellow justices rejected the theory. But this court has seen four conservatives already voice some support. If the theory stands, election experts predict chaos in any close contest, with legislatures questioning the results and maybe even selecting their own electors.
FELDMAN: Imagine it's 2024. The presidential election is so close that it all comes down to one state, let's say Pennsylvania.
ZAKARIA: Pennsylvania's voters choose the Democrat. But the Republican dominated legislature claims fraud and awards the state to their candidate.
FELDMAN: So now the president of the United States is going to be the Republican candidate.
ZAKARIA: Even though they actually lost the election. Democrats appeal to the highest court in the land.
FELDMAN: And the Supreme Court of the United States, using the Independent State Legislature Theory, says we don't care that the Pennsylvania legislature has violated its own law and violated its own constitution, because it's up to the legislature to say how the president is going to be selected.
[10:45:09]
ZAKARIA: The Republican enters the White House. The loser becomes the winner.
FELDMAN: That would be a constitutional travesty.
ZAKARIA: Not everyone agrees the theory can lead to a stolen election.
ELIZA SWEREN-BECKER, COUNSEL, BRENNAN CENTER: Federal law prohibits state legislatures from overturning the results of elections.
ZAKARIA: The federal government could rein in a runaway state legislature, but who can predict what this Supreme Court would decide? With a supermajority anchored by three of its youngest and most ideological members, this court does have the chance to rewrite life in America.
BISKUPIC: These people will affect our lives, our children's lives, probably our grandchildren's lives.
ZAKARIA: As with the last term's abortion decision, the future may rest in the hands of one justice in particular. FELDMAN: Justice Kavanaugh, for better or worse, is now the swing justice on all of those basic issues. The question is, what will Justice Kavanaugh do?
ZAKARIA: We won't have to wait long to find out.
(END VIDEOTAPE)
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[10:50:46]
ZAKARIA: And now for my final thoughts. The power of the first branch of American government, Congress, comes from its ability to tax and spend. A formidable strength. The power of the president, the second branch, crucially includes his or her role as commander-in-chief of the armed forces. The power of the third branch, by contrast, is simply its symbolic authority.
The Supreme Court cannot enforce any of its own rulings. It relies on the other branches and the public to accept them. That is why the legitimacy of the court is so important. And that is why actions that make the court seem more partisan, more radical, more out of tune with the country are so dangerous.
The court's approval rating, one rough measure of legitimacy, has been declining for decades. But it went down sharply after Bush v. Gore. That was a nakedly partisan ruling in which conservatives who had for long championed states' rights, suddenly discovered that the federal government had a crucial role in the 2000 election.
But it was just a highly visible example. The court has been becoming more ideologically predictable, that is politically partisan, in recent years. Judges appointed by Republicans now almost always rule in ways that Republicans want them to. And ditto for judges appointed by Democrats. It's all part of the hyper polarization of American life.
But it's also partly because of the strange way that America's highest court is structured. It might surprise you to know that no other major democracy gives members of its highest court life tenure. Most Western countries have fixed terms or mandatory retirement ages. Sixty-eight in Germany, 75 in Britain, 75 in Canada. Germany gives its constitutional court judges a 12-year term as do some other democracies.
The American system of selection is also extraordinarily political. In many European countries there are panels of experts that play a large role in sending forward nominees or vetting them. The composition of the committees is often designed to be bipartisan and involving legal experts. For example, France's High Counsel of the Judiciary is mostly made up of elected judges, with a few appointed by other bodies.
Britain has a somewhat similar selection process. And it's rare to reject the advice of these bodies. Some European Supreme Courts are required to rule by consensus rather than majority vote. And they often take pains not to air political divisions. In Italy, Belgium and France, for example, the high court justices do not public dissents in order to maintain the court's image of impartiality.
The most egregious aspect of the American judicial system is surely the one that is now close to unique. Life tenure. It raises the stakes sky high. Judges can wield their power longer than most dictators. Some stay on the court for decades. Clarence Thomas, for example, has been on the Supreme Court for 31 years. And he is still just 74 years old.
The prize is to find young judges to perpetuate their rule for as long as possible. For an aspiring judge, ideological rigidity and lockstep consistency are now the most prized signals to their party that they should get the nod. And a middle aged, middle of the road, extremely distinguished ideologically moderate judge, in other words, a judge with perfect judicial temperament, doesn't stand a chance.
And of course, there is the uncomfortable question of mental deterioration, which is sure something worth considering when judges could be ruling into their 80s and beyond on highly consequential matters involving new technologies, complex economic systems and legal theories.
[10:55:01]
The Supreme Court of the United States has moved in a direction that has weakened its own legitimacy. It might be an occasion to begin a national conversation on what reforms could be put in place to make it less partisan, less divisive, and more trusted by the vast majority of citizens. After all, that is the only way its rulings would be truly accepted in a diverse democracy of 330 million people.
I'm Fareed Zakaria.
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