All language subtitles for Deadlocked.How.America.Shaped.the.Supreme.Court.S01E03.1080p.WEB.h264-EDITH

I give you, then,
a great Republican,

and a great patriot:

Patrick J. Buchanan!

This, my friends...

This is Radical Feminism...

the agenda that Clinton and
Clinton would impose on America.

Abortion on demand,

a litmus test for
the Supreme Court,

homosexual rights...

Roe
v. Wade has got to go!

There is a
religious war going on

in this country.

We're
here, we're queer...

It
is a cultural war

as critical to the kind
of nation we shall be

as the Cold War itself,

for this war is for
the soul of America.

And in that struggle
for the soul of America,

Clinton and Clinton
are on the other side,

and George Bush is on our side!

The role of the Supreme Court
is to protect the fabric of the

Constitution and
the Bill of Rights,

and it should be a stabilizing
force in most cases,

but it has, at times, been a
radical force in our country,

because it stood up for the
rights of ordinary people

when they were being
abused by our government.

I am going to continue to put
judges on the bench who know

that their role is
to interpret the law,

not legislate from
the federal bench,

and we are making dramatic
moves in that direction.

Tense music

curious theme music

Part of
the role of the Court is that it

is gonna protect people
who may be vulnerable

in the political process.

I assure
you, I have no agenda.

My only agenda is
to be a good judge.

There's no difference between a
white snake and a black snake;

they'll both bite.

My approach, I believe,
is neither liberal

nor conservative.

My colleagues and I want to
be the most trusted people

in America.

I think
we all feel strongly in this

country about our
privacy; I do.

I believe the Constitution
protects the right to privacy.

Are you a gang rapist?

No.

Life's challenges place
hurdles every day,

and one of the wonderful parts
of the courage of America

is that we overcome them.

Do you affirm that the
testimony you're about to give

before the committee will be
the truth, the whole truth,

and nothing but the
truth, so help you God?

I do.

Ominous music

energetic percussion

We're getting
ready to do it now.

Ladies and gentlemen,

the President of the
United States of America,

William Jefferson Clinton!

This was a time for
President Clinton...

and for the Democratic Party...

when the ideology of judges
was not the paramount concern.

President Clinton had a lot
of other things to worry about

at the time he was
making these nominations,

and so he didn't want to
pick big political fights.

I did not anticipate

having the opportunity
to make an appointment

at this early stage, so
we don't have a big bank

of potential nominees.

I'll go to work on it tomorrow.

It took Bill Clinton a long
time to settle on naming

Ruth Ginsburg.

It was several months.

If confirmed...
and that seems likely...

she'll join Sandra Day
O'Connor as the second woman on

the Supreme Court.

What's appealing to many members
of Congress is her moderate

views, which will likely mean a
quick confirmation to the Court.

Clinton's looking
for safe picks,

but Ruth Bader Ginsburg
is actually an interesting

figure here.

She had spent her time in the
'70s effectively doing for

Feminism what Thurgood Marshall
had done for civil rights in the

'50s, and so she was very much
a pick out of that tradition and

someone who could be counted
on to champion those causes

on the Court.

She was
60 at the time.

Whereas most of the Civil
Rights community heralded her

accomplishments,

there were some raised
eyebrows about whether

this was the most strategic
choice that President Clinton

could make, when presidents
Reagan and George H.W. Bush

had been appointing very
young people to the Court.

When Ruth Bader Ginsburg... the
notorious RBG... was nominated,

Liberal groups and, actually,
women's groups were not so

thrilled about it, some of them,
because she was viewed as so

moderate.

Ginsburg is the
first High Court nominee by a

Democratic president
in more than 26 years,

and would be the first
Jewish justice since 1969.

My approach, I believe,
is neither liberal

nor conservative.

She sails through her
confirmation hearings;

there's very little
opposition to her,

even from Conservatives.

A near-unanimous
vote of confidence today for

Ruth Bader Ginsburg.

The Senate voted 96 to three
to confirm her to serve on

the Supreme Court.

When Justice Ginsburg
joined the Court,

she really appreciated the
support of Justice O'Connor.

When Justice Ginsburg wrote
her very first opinion,

Justice O'Connor sent her a
reassuring note from the bench.

She said, "Whenever
you have any doubts,

just do it."

That was Justice O'Connor's
philosophy of life.

And she said,
"You've done it here,

this is your first opinion,
and it's a good one."

And even though Justice
O'Connor dissented,

she wanted to give that support.

Justice Harry Blackmun
announced his retirement from

the Supreme Court today.

We are very close... it's
a very intimate group...

and it's like a
family member leaving.

Stephen Breyer had been the
runner-up for the seat that went

to Ginsburg, so President
Clinton named him.

Who's faster, the
Judiciary or the Executive?

No, no, he's mighty fast.

Mighty fast.

Judiciary lasts longer!

That's...

He was
confirmed by a wide margin.

By vote of
87 ayes, nine nays,

the nomination is confirmed.

For 11 years, between Stephen
Breyer's appointment and

John Roberts'
appointment in 2005,

there were no
vacancies on the Court;

that's an astonishingly
long period!

The longest period since,
I believe, the 1820s.

So, you know, these people got
to know each other awfully well.

There was a pragmatic center on
the Supreme Court in the 1990s.

It united Chief Justice
Rehnquist with Justices

O'Connor, and Kennedy,
and Justice Breyer,

the great pragmatist who was
constantly reaching across the

aisle and trying to come up
with moderate compromises.

Justice Breyer referred to
Justice Kennedy and O'Connor

as the "grown-ups," and he
contrasted them with the more

fire-breathing Conservatives
like Justice Thomas,

who was Justice Breyer's
good friend... they got along

very well.

But in all sorts of cases,
the Court was able to forge

moderate compromises.

Don't forget, for a
lot of years in there,

it was "Who knows what
Justice Kennedy's gonna do?

Who knows what Justice
O'Connor is gonna do?"

And Justice Brennan used to
famously tell his clerks,

"What's the most important
constitutional rule you

can know? What is it?

Five.

That's it.

It's not anything else other
than getting to five votes."

It was actually a kind
of fun court to cover,

because it was
more of a mystery;

you didn't know the outcome when
you were going into the case.

And that just makes the whole
Court much more like the country

a moderate-right court that
sometimes did liberal things.

One of the hallmarks of the
period was a revival of the

Court's interest in
states' rights within

the federal system.

The legal
scholarship referred to it as

the "Federalism Revolution."

In the 1990s, there was a series
of cases that the Court issued

where it pushed back on broad
federal power that had existed

since the New Deal.

For example, the Court
invalidated portions of the

Violence Against Women Act,

and also portions of the
Gun-Free School Zone Act.

The breadth of powers of the
federal government were somewhat

reduced by these cases,

and the powers of the states
to act and regulate were

commensurably increased.

There was a sense on the
Rehnquist Court of moving the

law in a conservative direction,

but doing so with
respect for precedent,

with respect to the
political process.

In the mid-'70s, when I
clerked for Justice Rehnquist,

he was clearly the most
conservative justice on the

Court, and he had certain
issues that he was

very, very focused on.

One of them was
criminal procedure...

things like Miranda and
the Exclusionary Rule...

and a number of things
that the Warren Court

had put in place that
Conservatives at that time

looked at and said,
"Where did this come from?

Where is this in
the Constitution?"

Good morning!

Good morning, Mister
Justice! Congratulations!

Thank you, thank you.

What's interesting
about Justice Rehnquist is that,

in many ways, when
he became the Chief,

he became a more
pragmatic justice.

When we were clerking, if he
thought he'd had a chance to get

the Miranda rule... that says
warnings when you are in custody

and arrested... if he had
a chance then to get that

reversed, my hunch is he
would have gone for it.

My feeling... like most
everybody else's, I think...

is "Don't fix anything
that's not broken,"

and so far as I know,
there's nothing broken.

- I'll see you all later!
- Thank you.

Well, they had a chance
in the Dickerson case,

and he wrote the
opinion that said, "No,

we're not gonna reverse Miranda,

'cause Miranda's been
around for a long time,

and it's working okay, and
we don't need to upset the

expectations."

I've always regarded
Miranda as fairly debatable,

but cases like Brown versus
the Board of Education,

Gideon, others,
they were changes,

but I think certainly
changes for the better.

And I think almost
all of the, uh...

decisions of the Warren Court...
with very few exceptions...

have been accepted and become
part of constitutional law.

Last year, our court was
urged to overrule the Miranda

decision; we declined to do so.

What he stands for
to me is the idea that a justice

can have a very strong
judicial philosophy

while also maintaining

a strong sense of
institutional integrity.

Can also shape and move
the direction of the Court,

but not undermine trust

in it

because there is such an
important piece in his thinking

about respect for
the institution.

Justice Ruth
Bader Ginsburg used to say that

out of all of the Chiefs
that she worked with,

"My Chief" was her favorite
she called him "My Chief,"

and she loved him!

She loved the fact the he would
always reward her 'cause she was

so fast.

Justice Ginsburg was
a force of nature,

and she always insisted on
getting out what she called her

"homework assignments"...
her draft opinions...

more quickly than all
the other justices.

Chief Justice Rehnquist
was viewed by Liberals and

Conservatives as a
model administrator,

extremely fair, and he was
considered a very successful

Chief as a result.

The time when I was a law clerk,

there were kind of personal
antagonisms on the Court,

which had... you know, I don't
know really the root of them,

uh, but there was ill feeling.

I don't think there's any ill
feeling on our court today.

I think we not just have
a civil relationship,

but a cordial relationship
with one another.

The Court is
inherently taking on cases that

don't have easy answers.

They take cases for
one of two reasons;

it's either because the lower
courts have disagreed on some

quite-important
issue of federal law.

The other reason is that there's
some issue that is just so

important that the Court decides
it has to be the one to decide

it, and a great example
of that is Bush v. Gore,

where we didn't know
who the president was.

Voters looking for
a clear distinction between

George W. Bush and Al Gore may
want to judge them by their

likely picks for the
US Supreme Court.

I will protect and defend
a woman's right to choose!

The voters will know I'll put
competent judges on the bench,

people who will strictly
interpret the Constitution,

and will not use the bench
to write social policy.

The presidential election
turns out to be one of the most

closely-contested
in American history.

Tense music

We call Florida
in the Al Gore column.

The Bush campaign is now
contesting the projected victory

for Al Gore.

All right, we're officially
saying that Florida is too close

to call.

Voter counters are being
called back to work to count

absentee ballots.

It's clear on election night
that the 25 electoral votes of

Florida will decide it all,
and the race dwindles down to

something like a
few hundred votes.

Right at the time
of the election,

the Gore people had lawyers in
Florida before the sun came up

the next day,

and the Bush people were
trying to get caught up.

There's litigation going
all over the place...

absentee ballots, military
ballots, recounts...

We have people who are not
supervisor of election employees

handling ballots, we have people
shuffling ballots around like

they're playing cards...

That's absolutely false.

Everybody was
trained, as you see,

and you should go out
there yourselves...

your cameras work
with long lenses.

It is a very calm process.

Nothing like that is
happening whatsoever.

Soft tense music

We'll go ahead and proceed

in the order, again,
that I first mentioned.

And so, Ms. Berkowitz,
thank you very much.

I understand you're
from West Palm Beach?

- Yes, I am.
- Thank you for being with us.

There was not one...
while I was there,

in a good 45-minutes time...
there was not one inspector that

offered to assist any of these
voters that were turned away.

Throughout the day, we started
getting phone calls from, uh,

voters saying that they
had been turned away at the

different precincts.

We had many calls from students
from Bethune-Cookman College,

where they were sent
from from one poll to...

one polling precinct to
another polling precinct,

pretty much given
the run-around.

You have an
election in the state where the

two frontrunners are divided
by a little over 500 votes.

It matters that Florida
conducted routine purges where

they regularly got things wrong
and eliminated lawful voters

from the rolls,

who often times showed
up and didn't know that

they were no longer
registered to vote.

It matters that they had these
lists of people who had similar

names as those who committed
felonies but were lawful voters

who could not vote because now,
they were on these lists where

they were considered felons.

Things seemed
to be going off the rails.

A month had gone by
and we didn't know who

the president was.

What to do? What do to?

Plunging right into the middle
of the presidential election

controversy, the Supreme Court
today agreed to hear the case

brought by George Bush to try
to stop the Florida recount.

Bush is asking the
High Court to the overturn

Friday's decision by the Florida
State Supreme Court ordering a

hand-count of thousands of
ballots... ballots Gore says

have never been counted; Bush
says have been counted two,

three, maybe four times.

Count every vote!

Every vote counts!

Count every vote!

Every vote counts!

How many times?

How many times?

I'm here because I
believe in Al Gore,

but I think it's bigger
than Gore and Bush;

I think it's a matter
of our democracy.

I can't imagine the Supreme
Court wanting to go down in

history as just allowing
this to go on and on.

You know, there's gotta be some
supreme power to stop this.

We're very gratified for the
opportunity to be here before

the United States Supreme Court.

We're very pleased that the
Supreme Court took this case.

We petitioned the Supreme Court
to take the case on Friday

night, they took the
case on Saturday,

set it for arguments today.

The justices had prepared
exceedingly well,

they're aware of
what the issues are,

and they know how important it
is to decide something soon.

I would be literally shocked if
the Supreme Court thought it was

in the interest of this nation
for them to interfere in a

State Court issue that has been
appropriately handled by the

Florida Supreme Court.

I would beg of them

to find their way clear

to allow for the
votes to be counted.

I don't think the justices care
that it's Bush versus Gore,

or if it were Gore versus Bush.

What they care about's how to
interpret the Constitution.

What are the enduring
values that are gonna stand

a generation from now?

I don't remember Brett
Kavanaugh at all.

I do remember John Roberts.

I remember asking John Roberts
for a little advice with respect

to one of the arguments
that I was making;

I think he spent about an
hour talking to me about it.

His name doesn't appear on
the Supreme Court briefs,

nor does Kavanaugh,
nor does Barrett.

But the number of Republican
lawyers who participated in one

way or the other or
appeared on television

talking about this issue that
was the center of attention

of the whole world, in a sense,

it's not surprising that there
were lots of people on one side

and lots of people
on the other side.

Soft tense music

A sharply-divided United States
Supreme Court appears to have

ended the five-week
presidential election drama

in favor of Texas
Governor George W. Bush.

In a blistering dissent,
Justice John Paul Stevens wrote,

"The identity of the
loser is perfectly clear.

It is the Nation's confidence
in the judge as an impartial

guardian of the rule of law."

Not only did the Court
decide the election,

but they decided it on a novel
theory of equal protection that,

in that same decision, they
told us would not apply

to future cases.

It opened the Court to
charges that this was not a

legally-principled decision;
that this was just an assertion

of what was, in
effect, political power

by Republican-appointed justices
to put a Republican into

the White House.

Whether the country or
Gore agreed with it or not,

there was not a question that
night about whether or not it

would be followed, and the thing
that worries me now is if we had

another Bush v. Gore,
would the country go along?

There's been some suggestion by
poll-takers that that trend down

for the Judicial Branch began
with the Bush/Gore decision,

and that could be

something that triggered
public re-examination.

Do you think people thought
it was too political,

or the Court had
become too political?

Is that...

I... I'm not sure, but I
suppose that's part of it,

yes.

And of course, any time you're
deciding a case involving a

presidential election, it's
awfully close to politics.

Justice Kennedy
and Justice Thomas,

we welcome you to
the hearing today.

Mr. Serrano?

Thank
you, Mister Chairman.

Very rarely does a person...
a member of Congress,

a representative
of the people...

have an opportunity to speak
to Supreme Court justices

in a public forum,

and I just felt it necessary
that there was a statement that

I had to make, but I do this
with the utmost respect.

I have always looked at you
in a way... and still do...

much different from the way I
look at any other body in our

government.

But then, this past year,
you went and broke my heart

by getting involved in
a political decision.

I... I think, um...

you are very much
entitled to criticize;

I think anyone is.

And I think accepting
that criticism

comes with the turf.

I can assure you

that, having been at the
Court now for almost a decade,

I have yet to hear the first
political conversation.

And I heard none during
the consideration of that.

I think... I hope, I
trust, I'm confident...

that over the next few years,
as the legal community,

the academic profession, um...

the people in political life
know about this decision,

understand that this
was in the courts,

we did not bring it there, that
it involved a constitutional

issue of the gravest importance,
decided four to three by a state

court on a federal issue,

that is was our responsibility
to take the case.

Ultimately, the power

and the prestige and
the respect of the Court

depends on trust.

My colleagues and I want to
be the most trusted people

in America.

Everyday Americans, many of
whom had never really thought

much about the US Supreme Court
or its impact on our lives,

realized the tremendous
power that this court has,

and certainly, to everyday
outside observers,

it appeared that these justices
were picking sides in a

political dispute, rather
than interpreting what the

Constitution means and
what it should mean

in something as important
as a presidential election.

Congratulations.

band playing fanfare

band playing "Hail to the Chief"

After Bush v. Gore,

the Court kind of
came back together.

If you're a Supreme
Court justice,

you know you're stuck with
these other eight people

pretty much for the rest of
your life, and they have always,

in the past, kind of
found a way to get along.

I think it had some very quiet
terms almost deliberately after

that so it could stay out of the
public eye and stay out of the

public consciousness, and let
the aftershocks of Bush v.

Gore kind of dissipate before
it got back into the business of

making
people angry again.

Soft curious music

As long as there was a Justice
O'Connor or a Justice Kennedy on

the Court,

the Conservative majority
was always vulnerable

to one or two cases each year in
which that Centrist person would

go over and vote
with the Liberals.

It was because of
Justice Kennedy that the Court

went down the road to
recognizing LGBT rights.

In 2003, the Supreme Court gets
this case Lawrence versus Texas,

which is really a direct assault
on an earlier decision called

Bowers versus Hardwick.

Both cases involve
homosexual sodomy.

Bowers versus
Hardwick is decided in 1986.

The Court essentially says,
"There is no fundamental right

to privacy that would encompass
a right to engage in homosexual

conduct, even in the
confines of your home."

We thought
about it and we said,

"Look, the Court has changed;

there's new,
more-sympathetic justices."

And the thing about this system
when they take cases on a

discretionary basis is

if they don't have an
interest in overruling Bowers,

they're not gonna take the case.

When they granted the case,

that's when we knew that he had
a very high degree of chance

that we were gonna
make history here.

Mr. Smith.

Mister Chief Justice,
and may it please the Court.

The state of Texas in this case
claims the right to criminally

punish any unmarried adult
couple for engaging in any form

of consensual sexual intimacy
that the state happens to

disapprove of.

It further claims that there's
no constitutional problem raised

by a law the criminalizes forms
of sexual intimacy only for

same-sex couples and not for
anyone else in the state,

who has the right to make a
free choice to engage in the

identical conduct.

There was enormous pressure
from knowing that this was going

to be the Brown versus
Board of Education

of this group of
people if we won.

Usually, you don't get to be
there when the Court hands down

a decision, but this was
the last day of the term,

and they were clearly down
to their last few cases,

so we knew to go.

All the people from the Gay
Rights Movement are in this

room, and the
Chief Justice said,

"Justice Kennedy is gonna
deliver the opinion in Lawrence

versus Texas."

Bowers was
not correct when it was decided,

and it is not correct today.

It ought not to remain
binding precedent.

Bowers versus Hardwick should
be... and now is... overruled.

And this wave of
emotion sweeps through the room.

People were crying and

It was not the sort of
thing that happens in the

Supreme Court
courtroom very often.

It's a great day for all
Americans because the Court has

now recognized that all
Americans are shielded from

government intrusion into the
bedroom and from their choices

of sexual partners,
sexual intimacy.

We're glad not only that this
ruling lets us get on with our

lives, but that it opens the
door for gay people all across

the country to be
treated equally.

It's like the Fourth of July
and the Gay Pride rolled into

one with this decision!

And paving
the way, some feel,

for the legalization of same-sex
marriage in this country.

The justices take their
decisions very seriously.

Justice Kennedy, he described
the loneliness of being alone

with the red brief
and the blue brief,

and making these decisions
that affect millions.

And that humility,
that deliberation,

really taking time to make up
your mind and being open to the

possibility of changing your
mind was characteristic of

Justice Kennedy.

Justice Kennedy has

an unshakeable
commitment to liberty.

And Justice Kennedy's most
famous line in any Supreme Court

"At
the heart of liberty

is the right to define your
own conception of meaning,

of the universe, and the
mystery of human life."

Jointly, Justice Kennedy and
Justice O'Connor were the middle

of the Court

during many of the
Rehnquist years.

Surprising news from the
United States Supreme Court:

Justice Sandra Day O'Connor
has announced her retirement.

When Justice O'Connor retired,
it was the Kennedy Court,

and the phrase was:

"It's Justice Kennedy's world

and we're all just
living in it."

band playing fanfare

The main thing for George W.
Bush in nominating justices to

the Supreme Court was not
to make the same mistake his

father did,

and his father's mistake...
in George W. Bush's view...

was choosing David Souter.

After his first few years, he
turned out to be a very solid

and consistent vote for the
Liberal wing of the Court,

and so the mantra
for Conservatives was

"No more Souters."

Supreme Court nominee John
Roberts stepped into the

spotlight today at the White
House and on Capitol Hill.

Roberts, who worked
for both President Reagan and

the first President Bush, later
launched a successful private

law career, during which he
argued 39 cases before the

Supreme Court.

John Roberts
was very well known to the

Washington DC legal community.

He had been a Supreme
Court law clerk...

for Rehnquist, actually.

And he had been down to Palm
Beach County with the young

Republican lawyers working for
candidate George Bush in the

2000 election, in the aftermath.

He was put on the DC Circuit
Federal Appeals Court,

and certainly, people assumed
he might well rise to the

Supreme Court one day.

He's an accidental
chief justice because,

right on the eve of his
nomination hearings,

Chief Justice Rehnquist
died of cancer.

Chief Justice Rehnquist
had been sick for a while,

but when the 2004 term ends

without any announcement
from him that he's retiring,

I think the general assumption
was that he was gonna be

on the Court at least
a few more years.

Indeed, it's because Rehnquist
doesn't announce his retirement

that Justice O'Connor does.

And then right before Roberts'
confirmation hearings are set to

start in September of 2005,

Rehnquist dies from
complications of thyroid cancer.

The White House quickly moves
Roberts into Rehnquist's slot.

I am honored and humbled by the
confidence that the President

has shown in me.

There's been
46 presidents, I think.

There have only been
17 chief justices.

The chief justice
is at the pinnacle,

so it's not only his own... or
her own... personal opinions

about how cases
should be decided,

but how that decision will play
in the long term in connection

with the institution
of the Court,

and the importance of public
respect for the institution.

I would say it
was a slightly-controversial

nomination because

various memos came to light from
when he had worked as a young

lawyer in the Reagan
Administration.

You wrote that violations of
Section 2 of the Voting Rights

Act... and I quote... "Should
not be made too easy to prove,

since they provide a basis for
the most intrusive interference

imaginable by federal courts
into state and local processes."

Democrats yesterday
focused much of their fire on

memos Roberts wrote when
he worked in the Reagan

Administration in the
early and mid-1980s.

The memos opposed strengthening
the Voting Rights Act,

and opposed a variety
of measures to equalize

opportunities for
women and minorities.

Why, at that point, did you
want to make Section 2 cases

so difficult to prove?

Senator, you keep referring
to what I supported and what I

wanted to do.

I was a 26-year-old
staff lawyer;

it was my first job as a
lawyer after my clerkships.

I was not shaping
administration policy.

The administration policy was
shaped by the Attorney General

on whose staff I served.

When I examined Judge
Roberts' record and his work

in the White House,

he seems to have consistently
sided with those who were

dismissive of efforts to
eradicate the remnants of racial

discrimination in our
political process.

These memos, long buried
in the Reagan archives,

came to light during
the nomination,

and provided the only real
opposition to his nomination.

If I am confirmed,

I will confront every
case with an open mind,

I will fully and fairly analyze
the legal arguments that

are presented,

I will be open to the considered
views of my colleagues

on the bench,

and I will decide every
case based on the record,

according to the rule of law,

without fear or favor,

to the best of my ability.

And I will remember that it's my
job to call balls and strikes,

and not to pitch or bat.

Soft tense music

The nomination of
John G. Roberts Jr. of Maryland

to be Chief Justice of the
United States is confirmed.

That opened up
the spot for replacing

Justice O'Connor.

When Justice O'Connor retires,
the second nominee to replace

her once John Roberts is
moved over to Rehnquist's seat

is Harriet Miers, who is
killed not by Progressives,

but by Conservatives, who
are worried that she's not

conservative enough.

What do you think her chances
of being confirmed are?

I think they're probably pretty
high because...

and this should give the
President some pause...

they're pretty high because
the Democrats seem to like her.

Yeah.

And I think
that oughta give

him reason to think that
maybe he made a mistake.

It's that mentality that just
helps to ramp up the perception

really, on both sides... that
the Court has been politicized,

that the Court can be accused
of acting in ways that smack

increasingly of political
power and not judicial power.

President Bush nominated Samuel
Alito to the US Supreme Court

today.

He's been a federal
appeals judge since 1990.

If confirmed this time, he'd
replace Justice Sandra Day

O'Connor, who's retiring
from the High Court.

The previous choice,
Harriet Miers,

withdrew last week after strong
opposition from Conservatives.

- Judge, thank you very much.
- Thank you, Senator.

I enjoyed speaking with you.

The appointment of Justice
Alito was far more significant

than the appointment of
Chief Justice Roberts,

'cause it shifted the
balance of the Court.

Thank you!

I
talked to him about privacy;

he believed Griswold
was settled law.

I asked him, "Was
Roe settled law?"

And then, he retreated
and said, uh,

"That case might
come before me."

Thank you very much, um,

Mister Chairman.

Welcome, Judge Alito.

I'm one that believes that your
appointment on the Supreme Court

is the pivotal appointment.

And because you replace
Sandra Day O'Connor,

and because she was the
fifth vote on 148 cases,

you well could be a very
key and decisive vote.

And so, during these hearings,
I think it's fair for us

to try to determine whether your
legal reasoning is within the

mainstream of American
legal thought,

and whether you're
going to follow the law,

regardless of your personal
views about the law.

Let me come now to the
statement you made in

1985 that the Constitution
does not provide a basis for a

woman's right to an abortion.

Do you agree with
that statement today,

Judge Alito?

Well, that was a correct
statement of what I thought in

1985 from my vantage
point in 1985,

and that was as a line attorney
in the Department of Justice in

the Reagan Administration.

Today, if the issue were to come
before me... if I am fortunate

enough to be confirmed and the
issue were to come before me...

then I would have to approach
the question with an open mind.

The ayes are
58, the nays are 42.

The President's nomination
of Samuel A. Alito Jr.

Of New Jersey to be an
associate justice of the

Supreme Court of the
United States is confirmed.

When Roberts and
Alito join the Court,

it's not just what they bring in
terms of their own ideological

interests, but it's important
to remember who they replaced.

So Roberts replaces Rehnquist.

Rehnquist, he saw a lot of his
Conservative vision realized

while he was on the Court, but
he was constrained by the folks

he had around him, one of
whom was Sandra Day O'Connor.

And so, O'Connor being
replaced by Alito,

it allows Justice Thomas and
Justice Scalia to pull the

Court, and pull the Conservative
bloc closer to them.

Soft tense music

In 1997, there's a case called
"Printz versus the United

States," and this is a
case about the Brady Bill's

background checks.

Clarence Thomas writes
a concurring opinion,

in which he says, "I know
we're not taking up the Second

Amendment issue today,
but I hope that,

in the future, this Court will
recognize the importance of the

Second Amendment as
an individual right."

In 1997, they don't have
enough votes on the Court

for that view.

But by the time Roberts replaces
Rehnquist and Alito replaces

O'Connor, they're in a
position where they're able to

effectively revolutionize
our understanding

of the Second Amendment.

Perhaps unbelievably,
the Supreme Court has never

upheld an individual right
to own a gun in America.

That may be about to change.

The Court has agreed
to hear the case of Dick Heller,

who's challenging the
31-year-old ban on owning

handguns in the
District of Columbia.

For much
of our history,

the Second Amendment
wasn't really litigated.

There were very few
federal gun laws,

so it's not as if there were
a lot of challenges and people

said, "Well, the Second
Amendment doesn't apply here" or

"This is fine."

There just were not a lot
of cases addressing it.

The Second
Amendment, for over 200 years,

had been understood to protect
basically state militias from

being disarmed by the
federal government.

The only really big Supreme
Court case for the first 150

years of American history

was United States
versus Miller in 1939.

This is an individual who is
indicted for violating a federal

law requiring you to
register your firearms,

and he said, "No, this law
violates my Second Amendment

rights!"

And the Supreme Court said, "No,
the Second Amendment is about a

militia, and there's no evidence
that your gun ownership had any

relationship to service in
a well-regulated militia,

so you lose," and it was a
unanimous and short opinion.

In the 1980s, among various
goals and projects of the

Conservative Legal Movement is

reimagining what the Second
Amendment is about in a way that

aligns more with what the
NRA has begun to advocate.

It's not about state militias,
it's about individual rights to

keep and carry guns for
self-defense purposes.

It's a petition in support
of the Second Amendment,

because I feel like our freedoms
are being taken away one by one.

Former Chief Justice
Warren Burger famously described

the transformation in the
public's understanding of the

Second Amendment in this
pretty memorable way:

This has been the subject of
one of the greatest pieces of

fraud... I repeat
the word "fraud"...

on the American public

by special interest groups

that I have ever
seen in my lifetime.

When John Ashcroft is
the Attorney General,

he issues a memo in 2001 that
basically announces that it is

now the position of the
Department of Justice that the

Second Amendment protects
an individual right

to keep and bear arms.

Emboldened
by Ashcroft's move,

the NRA says it will now
challenge gun laws already on

the books, including the
strictest of them all:

the District of Columbia's
virtual ban on handguns.

Heller was definitely
the big case of the term.

The question was whether
that DC law violated

the Second Amendment.

If it
is limited to state militias,

why would they say "The
right of the people?"

Justice Stevens felt
very strongly that the settled

understanding of the Second
Amendment was the correct one,

and he did something quite
unusual after the provisional

votes were cast in conference.

He said, "We're gonna try to
get our dissent drafted and

circulated before Justice Scalia
circulates his majority opinion,

and I think we might be
able to pick up a vote."

And so, we got to work writing
an unbelievably fast

dissent.

And then, we waited,
and we waited.

But the potential memo
saying "I've changed my mind,

I'd like to join your dissent"
just never materialized.

It was a
five-to-four ruling,

Justices Alito,
Kennedy, Roberts,

Scalia, and Thomas
in the majority.

The decision is a huge
victory for advocates of gun

rights, and for Dick
Heller of Washington DC,

who challenged the city's
strict ban on handguns.

And I'm very happy that now,
I'm able to defend myself and my

household in my own home.

Justice Stevens
and Justice Breyer both wrote

dissents.

They were both fantastically
brilliant justices and did good

jobs on the dissent, although
I thought they were both wrong.

Justice Scalia walked through
the text very carefully,

the historical antecedent
of the Second Amendment,

contemporaneous understandings
of the Second Amendment by legal

scholars at the time
it was ratified,

and reached the conclusion
that it was meant to protect an

individual right.

You start with the text;
where the text is clear,

you...

you're bound.

It's not up to you
to decide, "Oh,

what broad purposes
did they have in mind?

Oh, they wanted a, you
know, a happy society.

What would make a
happy society today?

Oh, well, then we'll do that!"

That's... that's
no way. I mean...

I hate to tell you the actual
quote that you started to give.

"When the text is clear,
you follow the text."

That's the first half.

I think I read somewhere that
the person who started with that

quote... which you used...

is Portalis, who wrote
the French Civil Code.

And he
started by saying,

"When the text is clear,
you follow the text.

But when the text isn't clear,

you"... and it's never
clear, believe me...

"you look to...

"When it's not clear, you look
to the values and purposes that

lie beneath."

That's true of
the French system.

And it's true of
the American system.

Senator Obama, you used
to be a professor of law.

When you look at what makes a
great Supreme Court justice,

it's not just the particular
issue and how they ruled,

but it's their
conception of the Court.

And part of the role of the
Court is that it is gonna

protect people who may be
vulnerable in the political

process... the
outsider, the minority,

those who are vulnerable, those
who don't have a lot of clout.

The 2008 election
was, in many ways,

a referendum on the George
W. Bush presidency...

a sense that it'd gone
off the rails with Iraq,

with the handling of Katrina,

with a variety of issues.

The one that put it, I
think, in the clearest relief

was the 2008
financial meltdown...

a sense that the pro-business
policies of the Bush

Administration had finally
come home to roost.

They weren't solely
to blame for this...

there had been changes made in
the Clinton Administration too

but the election very much came
to be a fight over that one

issue, which was dominating
the headlines during the final

stretches of the campaign.

Exciting music

And CNN can now project
that Barack Obama,

47 years old, will become
the President-Elect

of the United States.

It is my great personal honor

to present the 44th President
of these United States,

Barack Obama!

When President
Obama was sworn in,

my mom said, "I wish
your dad could see this."

And I told her, "He sees it.

He's watching."

uplifting music

George W. Bush didn't have a
Supreme Court appointment until

his second term.

Barack Obama has one
almost right away.

President Obama's first two
nominations were important,

of course, but didn't
fundamentally change the balance

on the Court.

Justice Sotomayor he nominated
to replace Justice Souter...

I have decided to nominate
an inspiring woman,

who I believe will
make a great justice,

Judge Sonia Sotomayor.

President Obama had every
reason to think that she would

get big bi-partisan support
as Stephen Breyer had,

as Ruth Bader Ginsburg had...

but she got fewer than
10 Republican votes

for her confirmation.

And the same thing
happened with Elena Kagan.

I think she got only five
or seven Republican votes.

We've reached this point
of political polarization

that has

obviously dramatically affected
the confirmation process,

and it's hard to imagine that
going away any time soon.

The Court, in
terms of Obama's nominees,

isn't ideologically changing;
it's a kind of consistent

center-right-with-some-liberal-
outcomes court,

where there are still
justices up for grabs.

And so, you get decisions
like Obergefell,

the decision written
by Justice Kennedy

in which the Court decided that
the Constitution protected the

right of individuals to marry
the person of their choice,

whatever their gender.

All Americans
have the right to marry.

A historic day at
the Supreme Court;

justices find equal treatment
under the law for same-sex

couples.

It will now be the law
everywhere in the United States.

The Supreme Court ruled five to
four today that same-sex couples

have the right to marry, and the
remaining 14 states have to drop

their bans on the practice.

Tender music

I think it's really hard to put
Justice Kennedy's philosphy into

any one sentence; he really
is such a different justice

depending on the case.

In one set of cases, he is
leading the charge to expand

protections for
same-sex couples,

for same-sex partners.

In another set of cases, he's
agreeing with paring back the

Voting Rights Act.

It's not that he's a Moderate,

it's that, if you average out
how far to the left he is on

some issues and how far to
the right he is on others,

he ends up in the
middle overall.

But it's a different Kennedy
depending upon which set of

cases we're talking about.

Today, the US
Supreme Court announced that

they're gonna hear a challenge
to the Voting Rights Act...

to the central part of it.

The lead plaintiff in the case
is Shelby County, Alabama,

just outside Birmingham.

Soft tense music

In the Civil Rights
legal community,

we regard the Voting Rights Act
as maybe the most consequential

and successful civil
rights statute.

It's got many different
components that are designed to

protect the rights of Black
people and language minorities

to participate equally
in the political process,

but perhaps the most unique
aspect of it was contained in

Section 5.

It essentially required the
jurisdictions that had records

of discrimination in voting to
ask permission from the federal

government in order to

make any changes to
their voting laws.

And this process
was called "pre-clearance;"

you had to get the voting
change pre-cleared.

"Explain to us what his impact
will be on your Black population

or your Latino population.

Convince us that it's
not retrogressive."

And that was the single thing
that was most important in

changing the balance of power
just so that everybody got a

fair voice in these states of
the old Confederacy that had,

for decades and decades, had
almost no Black people voting in

them at all.

And the Voting Rights Act had
overwhelming support every time

the statute was reauthorized.

President Nixon today
signed into the law the bill

which extends the 1965
Voting Rights Act.

I'm very
pleased to sign today H.R.6219,

which extends the provisions of
the Voting Rights Act of 1965.

I am
pleased today to sign the

legislation extending the
Voting Rights Act of 1965.

Uplifting music

The Pledge of Allegiance
today will be offered by the

gentlewoman from
Michigan, Ms. Kilpatrick.

The last time
the Voting Rights Act was

reauthorized was in 2006.

Congress, over the
course of a year,

held multiple
hearings to determine,

"Do we need to continue
this pre-clearance process?"

There's no doubt in the minds
of every fair-minded observer

that if Section 5
is not reauthorized,

the state of Alabama and many
of its political subdivisions

will attempt rapidly to reverse

or to undermine the gains
African Americans have made

under the Voting Rights Act
in the last few decades.

There were tens of thousands of
pages of evidence gathered by

Congress in 2006

to show, in Congress' judgement,
that the risk of discrimination

in voting in the states that
were covered by Section 5

remained very serious.

But the sad fact
is, the sad truth is

discrimination still exists!

And that's why we still
need the Voting Rights Act,

and we must not go
back to the dark past!

Those in favor will vote "Aye."

Those opposed will say "No."

The yeas are 390,
the nays are 33.

The resolution has
passed the House.

Thank you, good
morning, welcome.

Today, we renew a bill that
helped bring a community on the

margins into the life
of American democracy.

My administration will
vigorously enforce the

provisions of this law, and
we will defend it in court.

soft tense music

Though Shelby County was a
county in Alabama that was

one of those jurisdictions that
needed to submit any voting

changes to the federal
government before that those

could go into effect,

that county sued the
federal government.

The challenge in Shelby County
was whether the most recent

extension of the provisions
of the Voting Rights Act

were lawful.

There are two laws
that work together; Section 4 is

the law that says which states
are covered by the pre-clearance

obligation, and there
was a whole formula.

And the argument that was made
was that that formula is too old

and that, you know, now that
Black people are voting in much

greater numbers in the South,

the fact that they weren't able
to vote in 1965 isn't a good

enough reason to have Alabama,
Georgia, Mississippi, Texas

still have to go up
and get pre-clearance.

The Shelby
County versus Holder case came

before the DC Circuit.

I was on a panel with
two other judges.

In the 15th Amendment, Congress
is given broad power to regulate

elections to make certain
that they're free of racism.

So both Judge Tatel and I
thought that Congress was acting

well within its
authority to do that.

And ultimately, that got
appealed to the Supreme Court.

The argument
sharply divided the justices.

The Court's Conservative
majority appeared poised to

strike down at least
part of the act,

and eliminate the current
federal oversight of voting

in the South.

We ask for some recognition
that... that we and these other

covered jurisdictions have made
great strides over the last

48 years.

General,
is it the government's

submission that the citizens in
the South are more racist than

citizens in the North?

It is not,

and I do not know the
answer to that, Your Honor,

but I do think it
was reasonable for...

Well, which is it:

it is not and you don't know
the answer answer to it?

I... I...

It's not our submission.

As an objective matter,
I don't know the answer

to that question.

Whenever
a society adopts racial

entitlements, it is very
difficult to get out of them

through the normal
political processes.

I don't think there is
anything to be gained

by any senator

to vote against
continuation of this act.

And I am fairly confident
it will be re-enacted in

perpetuity, unless
a court can say,

"It does not comport
with the Constitution."

soft tense music

Roberts, writing for the
majority in Shelby County,

held that this provision
of the Voting Rights Act

unconstitutional.

The decision by the Court
today is a game-changer,

and leaves virtually unprotected
minority voters in communities

all over this country.

As Chief
Justice John Roberts said,

"Nearly 50 years later, things
have changed dramatically."

Ruth Ginsburg, in her
dissenting opinion,

characterized Roberts'
opinion as someone thinking,

"In the pouring rain, I don't
need an umbrella anymore 'cause

I'm not getting wet," and
throwing the umbrella away.

The great
man who led the march from Selma

to Montgomery

and there called for the
passage of the Voting Rights Act

foresaw progress,
even in Alabama.

"The arc of the moral
universe is long," he said.

"But it bends toward justice,

if there is a
steadfast commitment

to see the task

through

to completion."

That commitment
has been disserved

by today's decision.

Soft tense music

The minute that
the Supreme Court invalidated

the pre-clearance regime meant
that a lot of discriminatory

laws could now go into effect

without the federal government
having the authority or power to

stop them.

So we're living in a vastly
different world post-Shelby.

Within hours, officials from
southern jurisdictions were

exclaiming their excitement at
their freedom now to pass any

voting law they wanted.

We have been faced, as
voting rights advocates,

with a deluge of
anti-voter bills

every legislative cycle.

We have rolled back the clock

to the pre-1965 period.

The Court played a huge role in
the 1960s of holding America to

this ideal of democracy,

and we still fell short, right?

Democracy is always
a work in progress.

They continue to have a very
important role as we move into a

period where I
think we're facing

a different kind of
crisis for democracy,

which is whether or not
people will continue to play

by the rules.

It's campaign season... we're
right in the middle of it...

and one of the most
important issues now is this:

Who will Americans trust
to nominate the next

Supreme Court justice?

It is time

to show the whole world

that America is back,
bigger and better

and stronger

than ever before!

We are going to appoint justices

of the United
States Supreme Court

who will uphold our laws

and our Constitution!

dark tense music