All language subtitles for Deadlocked.How.America.Shaped.the.Supreme.Court.S01E02.1080p.WEB.h264-EDITH

soft tense music

I left it
all up for you,

so you can show that
to her if you want.

Perfect, thank you.

Our referral sheet
on the counter still?

- Yes, ma'am.
- Thank you.

You're super early
in the pregnancy,

but because we can
see that heartbeat,

it is illegal to continue with
the procedure here in Texas.

So your options are to go to
a clinic outside of the state

- of Texas.
- Oh...

Which would
be your only option.

I honestly don't
know how to feel.

I'm, like, shocked.

My whole life is
gonna change now.

Choo...

I do this to help people...
I am a person of service...

and she needed my help,
and I made her day worse,

and that will live
with me forever.

We deserve better!

You are all an
abomination before God!

Abolish abortion!

God, I pray
that you will forgive us

for the lives that are lost!

The Supreme Court
today delivered one of its most

consequential decisions
in generations,

ending the constitutional
right to an abortion.

The Court overturned
Roe v. Wade.

This is amazing!

This is probably the best day of
American history in my lifetime!

Move aside!

Move to the side!

Ma'am! Ma'am,
move to the side!

It's a blessing; it's
a miracle from God!

It is so wonderful, and I think
we have to worry about the

radical Left.

They're the ones that are gonna
perform an insurrection here at

the Supreme Court.

This shit is not
okay, all right?!

This is not okay!

The
Republicans have been working

toward this day for decades.

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

fanfare

jolly music

Now, this
administration has been in

office for almost three months,

and I know that many are
quite impatient, perhaps...

or might be impatient...

as to why we don't have peace,

why we haven't
stopped inflation,

and why we haven't
stopped the rise in crime

and reestablished
respect for law

with justice and order
throughout this country.

Ominous music

Ladies and gentlemen, I
am very proud tonight to

nominate the 15h Chief
Justice of the United States,

Judge Warren Burger.

President Nixon was perhaps
the first president who had

a very active agenda to
move the Court to the right.

Some of our judges have gone
too far in assuming unto

themselves a mandate
which is not theirs,

and that is to put their
social or economic ideas

into their decisions.

President Nixon was the first
president since Franklin

Roosevelt to campaign
on the Supreme Court.

When Nixon ran, there was
still a lot of opposition

to the decisions of
the Warren Court,

whether it be Brown
or school prayer...

The landmark decision
was based on the First Amendment

to the Constitution.

Or Miranda,
or "One Person, One Vote"...

We held that the
legislatures must

give equal representation
to everyone.

And much of this opposition
was in the South.

I want the federal government

to get its grubby fingers

out

of the education business.

Judge Warren Burger
was confirmed by the Senate

today as the next Chief Justice.

The vote was 74 to three.

Warren Burger, he
was a not-illogical choice;

he had been sitting on the DC
Circuit at the Federal Appeals

Court, and the DC circuit at
that time was quite liberal.

Warren Burger was very much on
the outs with his colleagues,

and he let them have it
in dissenting opinions,

and he got pretty well known as
being one of the more outspoken

Conservatives in
Washington at that time.

Chief Justice
Burger sort of campaigned for

the job of Chief Justice.

He would give speeches and wrote
some opinion pieces in magazines

suggesting that the Warren
Court had acted inappropriately,

especially when it comes
to decisions involving

criminal procedure.

And it seems
clear that he's gonna be his

law-and-order man on the bench.

But Nixon now has a
second seat to play with,

and he makes it very clear
that he wants a southerner.

So many cameras.

soft tense music

A judge of the United States
Supreme Court occupying the

highest post that
we have to give,

with no appeal possible from
the decisions of that court,

ought to be free of every taint

of ethical
misadventure, let's say.

For the second time,
President Nixon today reached

into the South for a nominee to
fill the place on the Supreme

Court vacated by
former Justice Fortas.

G. Harrold Carswell
is the worst possible

nominee!

The Nixon Administration
has vetted him

so incompletely

that it doesn't know
that, at one time,

as a candidate for the Georgia
House of Representatives,

he had championed

white supremacy!

In that speech he said,

quote, "I am a
southerner by ancestry,

birth, training,
inclination, belief,

and practice.

I believe that segregation
of the races is proper,

and the only and correct
way of life in our states.

I yield to no man, as a fellow
candidate or as a fellow

citizen, in the firm, vigorous
belief in the principles of

white supremacy, and I shall
always be so governed."

I have read a summary of what
is attributed to me as a young

candidate some 22 years ago.

Specifically and categorically,
I denounce and reject

the words themselves and the
thoughts that they represent.

The final official vote:

51-45 against President Nixon's
nomination of Florida Judge

G. Harold Carswell.

I don't think this is
necessarily a victory for

anyone, unless it is a
reestablishment of the right of

the Senate to say, "Mr.
President, there are limits

beyond which we will not permit
you to go in your nominating

process."

Nixon plays up the defeat of
these nominees as an act of what

he calls "regional
discrimination."

Judge Carswell,

and before him,
Judge Haynsworth,

had been submitted to vicious
assaults on their intelligence,

on their honesty, and
on their character.

They've been falsely
charged with being racists.

And he kind of
resigns himself to nominating

someone who's not a southerner,
who he thinks can get a fair

hearing.

And so he goes with
Harry Blackmun.

In addition to a recommendation
from his lifelong friend

Chief Justice Warren Burger was
he had never offended anybody;

he really had never taken a
stand on anything very much.

And so he was gonna
get confirmed.

Curious music

This was not such a
newly-constituted Court that it

was going to radically
change things,

so you end up with a number of
decisions that people of a very

conservative bent
were displeased with.

Chief Justice Burger wrote
an opinion in Swann versus

Charlotte-Mecklenburg
County approving bussing.

That was met with
significant backlash.

So there wasn't a sudden break
just because Warren Burger

became the Chief Justice.

Nixon, he then
gets two more vacancies

when Harlan and Black
leave the Court.

President Nixon sends his two
nominations to the US Supreme

Court to the Senate
for confirmation today.

Neither Powell nor Rehnquist
had ever been a judge.

Powell had been a very
successful big business lawyer

in Richmond, Virginia, had
been head of the Virginia

School Board, was
very civic-minded.

Rehnquist was much younger,
much more outspoken.

Do I look magisterial, huh?

I predict in another
couple of minutes,

I will melt, so...

In Nixon's mind, Powell
and Rehnquist will do

a couple things.

Publicly, he says these are
his law-and-order candidates.

Privately, though,
there's also, I think,

the matter of their
stance on civil rights.

He knew Rehnquist as a former
assistant attorney general who

had drafted a constitutional
amendment that would have banned

bussing.

He saw Lewis Powell as the
former head of a school board in

Virginia, who had dragged his
feet on the integration of

schools there.

Melancholy ambient music

I am reminded of what one of
the young partners in my law

"Mr. Powell, this
is a honeymoon.

After you've written
a few dozen opinions,

your picture will be on
the dartboard of every bar

in Virginia!"

One thing that
came to light in Rehnquist's

confirmation hearing was that,
as a law clerk to Justice Robert

Jackson, a memo came to light
that he had written to the

Justice, arguing that
Plessy against Ferguson...

"separate but equal"...

should be reaffirmed,
should not be overturned.

But you see, it was for
Justice Jackson's use

in discussing

the cases

then before the Supreme Court.

It was to be used
by him in conference

with other judges.

So these views were
not Mr. Rehnquist's own?

They were not
Mr. Rehnquist's own.

Okay, so call back if
there are any problems,

and I'm sure our
counselors can help you.

Tense drone

Take a big step back!

Onto the sidewalk!

Everybody move!

So in 1965,
Griswold versus Connecticut came

to the Supreme Court.

The Court had earlier received
a challenge to Connecticut's

contraception ban, and I
don't think they were ready.

And so they dismissed it.

Estelle Griswold, who is the
executive director of Planned

Parenthood of Connecticut,
decides she's going to find a

way for this case
to get to the Court,

and so what she does is she
opens a birth control clinic,

and she begins passing
out fliers like,

"Guess what! You can
get a diaphragm here!

You can get birth
control pills here!

It's a birth control clinic!"

And the police come.

On November 10th,
after 10 days of operation,

the clinic was raided
and closed by police.

And
they arrest her,

and they arrest the medical
director Lee Buxton,

and suddenly, we're in business,
and we have a viable case or

controversy, and it gets all
the way to the Supreme Court.

Well, I think it's very evident
that the law is unenforceable.

I think if you had a policeman
under every bed in the state of

Connecticut, they still
could not prove anything.

In an opinion written by
Justice William O. Douglas,

the Court says that
Connecticut's ban on

contraception violates a
fundamental principle of privacy

that can be divined from
the penumbras of various

other constitutional guarantees,
including the First Amendment,

the Third Amendment,
the Ninth Amendment,

the Fifth Amendment.

None of these protections for
the individual would make sense

absent some right to privacy
in your intimate life,

in your person.

Tender music

It is novel... no one has heard
of it before... and you can see

that there is some
disagreement on the Court.

Justice Goldberg writes,

"We could just do this
with the Ninth Amendment!"

Justice Harlan says,

"The 14th Amendment's
guarantee of liberty

allows us to strike
down this law.

We don't have to
make up privacy."

And in dissent, Justice
Hugo Black is like,

"You're just making this up.

This is basically your own
policy preference that you're

bringing in here."

Douglas is really careful that
this right to privacy is one

that is tethered to the
marital relationship,

so he talks about the sacred
precinct of the marital bedroom

you know, "Would we allow the
police to enter the sacred

precincts of the
marital bedroom,

searching for tell-tale
signs of contraception?"

The answer, of course, is no!

A few years later, the next
iteration of this question comes

up when the Court must take on a
Massachusetts ban that prohibits

the use of contraception
by unmarried people.

In an opinion drafted
by William Brennan,

the Court says, "If the right
to privacy means anything,

it must be the right
of the individual,

whether single or married, to
make so fundamental a decision

affecting the person as whether
to bear or beget a child."

The Court surely knows,
when it decides Eisenstadt,

that

abortion is coming
down the pike.

Soft tense music

Law and judges.

Here are these
women literally five years out

of law school... maybe less...

arguing before
the Supreme Court.

It's an old joke, but
when a man argues against two

beautiful ladies like this,

they're going to
have the last word.

So that happens.

But they make their claim before
the Court that this right to

privacy that was first
identified in Griswold is

capacious enough to include the
right of a woman to terminate

her pregnancy.

I do
feel that it is...

that the Ninth Amendment is
an appropriate place for the

freedom to rest.

I think the 14th Amendment is
equally an appropriate place.

Harry Blackmun, who had
been assigned the majority,

was planning to write an opinion
essentially saying Texas' law

was unconstitutional
because it was vague,

and so it was unfair to penalize
doctors who wouldn't know ahead

of time when they could or
couldn't perform an abortion.

And he circulated some drafts
and memos to that effect,

and the other justices
the liberal justices,

in particular... responded
that this wasn't enough;

they wanted him to go further.

And Blackmun said, "Let's
reargue the case next term.

That way, Powell and
Rehnquist can participate."

And that summer, Blackmun, who
had been general counsel to the

Mayo Clinic, learned abortion
had been legal at the time that

the Constitution was adopted.

And he sort of suggests that
women in the colonial era...

women in the 1700s... actually
had more rights than women do in

1973 to terminate a pregnancy.

And then he later moves into
whether or not the right of

privacy allows for this,
and he says it does.

The Court
split seven to two,

with justices Byron White and
William Rehnquist dissenting.

This was not a
partisan decision.

Three of the four Nixon
appointees voted for the

decision, and five of the
justices in the majority had

been appointed by
Republican presidents.

Good evening.

In a landmark ruling, the
Supreme Court today legalized

abortions.

The majority, in cases
from Texas and Georgia,

said that the decision to end a
pregnancy during the first three

months belongs to the
woman and her doctor,

not the government.

During the second three
months of pregnancy at rule,

the state may regulate
abortion procedures,

but only to ensure the
safety of the mother.

And in the last three months,
whatever state laws say

prevails.

Soft tense music

So as the
Watergate inquiry expands,

it becomes known that Nixon had
actually recorded conversations

inside the Oval Office.

Nixon resists efforts to
have these tapes heard.

He claims that he has what he
says is "executive privilege,"

and so becomes an issue
that finds its way,

as all big issues do,
to the Supreme Court.

Well, it says, "Equal
justice under law,"

so we oughta win, Phil.

The case is styled
"The United States of America

versus Richard M. Nixon," and
it gives a sense of the...

of the stakes here.

Four members of the Court
had been appointed by Nixon;

they owed their status
on the Court to the man.

One
decision, unanimous,

delivered by the Chief
Justice Warren Burger.

The Court said the President's
claim of absolute privilege

would upset the constitutional
balance of a workable

government.

And from that moment on,
the writing's on the wall,

and it's clear Nixon is gonna
be forced from office one way or

another.

I shall resign the Presidency
effective at noon tomorrow.

Congratulations, Mr. President.

Justice John Paul
Stevens was named by President

Ford to replace
William O. Douglas,

one of the most liberal
all-time justices.

John Paul Stevens, he was the
first justice named to the Court

after the Court had
decided Roe against Wade.

Someone got ahold of the
transcript of the hearing to see

what he was asked
about abortion.

It wasn't there; he was not
asked a single question about

abortion.

This really was the quiet years;

you know, abortion
was not a proxy for

all things and everything

and the only litmus test for
justices for a very long time.

The Republican Party and
Democratic Party both had people

who were opposed to and in
favor of access to abortion,

so if you're thinking about
the party politics of abortion,

they would be completely
unrecognizable to someone

thinking from 2022 or even 2010.

Jimmy Carter
coloring books!

Jimmy Carter coloring books!

Just to take the 1976 election,
Jimmy Carter spent most of his

time talking about how abortion
was unfortunate but didn't

support a constitutional
amendment outlawing abortion.

We can have an America

that encourages and takes pride

in our ethnic diversity,
our religious diversity,

our cultural diversity.

He's put together
something like FDR had once

before; he's got the
Blacks, he's got the South,

he's got Labor.

Uh...

Is he going to keep it together

into November?

This is the moment
in which Newsweek declares 1976

"The Year of the Evangelical."

The reborn Christians
in this country,

who are growing in
number and influence...

They are
suddenly everywhere.

Hallelujah

And this Evangelical support
rallies around Carter,

because Carter is
legitimately one of them.

Governor Carter, are
you prepared to take the

constitutional oath?

I am.

Will you place
your left hand on the Bible and

raise your right hand?

Carter believes that whatever
his own religious faith is,

he shouldn't enforce
it on the country,

and that means that,
in a lot of ways,

he is actively supporting
Democratic positions that call

for the liberalization of
American life in a variety of

ways that embrace
feminism, gay rights,

and this is seen by Conservative
Christians as an apostasy...

they've made a huge mistake by
embracing Carter because he has

been a false prophet.

I will pour water

On him who is thirsty

What happened in the 1970s
that's so interesting was that

the Catholics, whose
issue was abortion,

and the Evangelicals,
whose issue was the pending

Equal Rights Amendment and
the so-called "Family Values

Movement," they got together.

Soft tense music

If the Equal Rights
Amendment is ratified,

people will then realize
it's quite a fraud.

These are two groups... the
Catholics and the Evangelicals

who had a long history of

suspicion, one to the other.

They were not natural allies.

Organizers of the
New Right are looking for a way

to rebuild the Republican
Party in the wake of Watergate,

and that meant bringing together
a disparate group of people.

We've got to raise up an army
of men and women in America

who'll call this nation back to
moral sanity and sensibility.

I call that "The
Moral Majority."

White Evangelical Protestants
who were not sure what to think

about abortion were very sure
what to think about the emerging

Gay Rights Movement, and they
were very sure what to think

about the Equal Rights Movement
and the Women's Movement,

which was that all of those
things were terrible and they

were threats to the family.

So New Right organizers and some
of the kind of religious leaders

drew a direct connection
between all of these things.

The fact is that God
created Adam and Eve,

and it was Adam and
Eve, not Adam and Steve.

And some people
like Jerry Falwell,

who hadn't given a sermon about
Roe in the first few years after

it came out, suddenly
make it a central issue.

Because I never really believed
that a Supreme Court of this

country would legalize
abortion on demand.

This was an effective
campaign to say,

"Now we're gonna
politicize Roe."

Jane, there are perhaps 50
million born-again Evangelicals,

long relatively
inactive in politics,

but now beginning to develop
what could become enormous

political clout.

Very quickly, what changed?

I would say that the Madalyn
O'Hair anti-prayer thing in '63,

the abortion ruling in '73,

the murder of eight million
babies since that time,

I would say the IRS attempt to
interfere with Christian schools

the last five years,

and many other governmental
interventions in the Christian

Movement have told us if we
don't stand up and fight,

we're not gonna survive.

Dr. Falwell,
many thanks.

Soft tense music

I feel like that if we don't
get somebody like Mr. Reagan in

the White House soon, we're
in trouble in America.

We're in trouble.

August 3rd, 1980,

when Ronald Reagan opened
his General Election campaign

for the presidency
in, of all places,

Philadelphia, Mississippi,

at the Neshoba County Fair,

the very place where,
16 summers earlier,

the Ku Klux Klan, in collusion
with the local sheriff's office,

abducted, tortured, and murdered

three civil rights workers.

Fanfare

Thank you!

Nancy and I have never
seen anything like this,

because there isn't
anything like this!

And
Reagan, of course,

was the master of symbolism.

He declared this old
segregationist battle cry:

"I believe in states' rights."

soft tense music

When Jimmy
Carter's running for reelection

in 1980, he's facing
strong headwinds;

interest rates are
through the roof,

inflation is high...

You had the taking of
the hostages in Iran...

Carter was in a compromised
position going into that

election.

What would Jimmy Carter
have to do to get all the

born-again Christians
back on his side?

Well, I... I think the Lord
would have to come down and,

uh...

tap him on the shoulder
visibly with us looking.

By the 1980
Presidential Election,

Reagan claimed to have a kind
of conversion to a pro-life

position, but it was
never really central to

his campaign in 1980 until
very, very late in the campaign,

where he is afraid that
they're going to lose

the Evangelical vote.

Now, I know this is a
nonpartisan gathering,

and so I know that
you can't endorse me,

but I only brought that up
because I want you to know that

I endorse you and
what you are doing.

Evangelicals going to
the voting booth in 1980

by and large turned
against one of their own...

a born-again Southern Baptist
Sunday school teacher...

in favor of...

a former Hollywood
actor, divorced,

remarried, and yet,

Ronald Reagan becomes
the political messiah

for Evangelicals in 1980.

Fanfare

President Reagan, when
he was campaigning,

he didn't think he was doing
too well with the female votes,

and he started
making statements.

I am announcing today that
one of the first Supreme Court

vacancies in my administration

will be filled by the most
qualified woman I can possibly

find.

And there he was
faced with what to do.

The Supreme Court held
its first session in 1790,

and since, 101 men
have served on it.

It took 45 years for the first
Catholic to be appointed,

126 years for the first Jew,

177 years for the first...
and only... Black,

and if Judge O'Connor
is confirmed,

it will have taken 191 years
for the Court to get its first

woman.

Is there any
member of the press that doesn't

have a seat?

Someone raised some
point about the press.

I'd like to know if there's
anyone that doesn't have a seat.

As the first woman to be
nominated as a Supreme Court

Justice, I'm
particularly honored,

and I happily share the honor
with millions of American women

of yesterday and of today.

I wonder if you
could share with us,

for just a few minutes,

your personal philosophy
or feeling as to abortion

so the record would be clear.

Okay, Senator, uh, again, let
me preface the comment by saying

that my personal
views and beliefs...

in this area and
in other areas...

have no place in the
resolution of any legal issues

that will come before the Court.

I think these are matters
that, out of necessity,

a judge must attempt to set
aside in resolving the cases to

come before the Court.

Sandra Day O'Connor's
nomination to the Supreme Court

swept through the US Senate
today without a dissenting vote.

It was approved 99 to nothing.

I'm absolutely overjoyed with
the expression of support from

the Senate.

So I look forward to the end of
all of these formal proceedings

and the chance to go to
work over across the street.

Well done.

Edwin Meese spent his
first year as Attorney General

as a super-salesman for
the Reagan Revolution.

Good morning.

Meese has brought his
own people into the Justice

Department that is given good
grades by almost everyone for

keeping up the pressure
to catch drug traffickers

and spies.

What gets Meese in trouble
is his tendency to see court

decisions protecting civil
liberties as an obstacle

to law enforcement.

Do you understand
your rights, sir?

The overall objective of
the Reagan Revolution was

to get the Court to do what

could not be achieved in normal
electoral politics because the

country was not on board

for what these
people wanted to do,

which was basically

to turn back the clock on the

social and cultural revolutions
that had been going on

through the last
couple of decades.

There were sort of
three focuses on

what the new administration
was trying to do.

One of them was

"Can't we do something
about these decisions

that the Warren Court pursued?"

But ultimately, that effort to
go and get cases reversed in the

Supreme Court was
basically not successful.

Soft tense music

The second piece was "Well,
we can at least put judges...

the President can put judges on
the courts who will not be doing

these sorts of things.

We don't want activist judges."

What Ed Meese has done is
assemble a team of young legal

Conservatives who are
extraordinarily able...

some of them he's
named to the bench,

others he has on the staff
of the Justice Department...

and they have reset the agenda
for debate concerning federal

judicial policy.

The third thing is
an effort, really,

to develop a new approach,
and a new philosophy

of judging and legal reasoning.

Originalism is a constitutional
theory that advocates

interpreting the Constitution
according to its original public

meaning,

so that the meaning of the
words were fixed at the time

that provision of the
Constitution was ratified,

and that in order to uncover
the meaning of that provision,

you would try to ask, "What
would the average person who

participated in the ratification
process think this provision

means?"

And so you can contrast
that with something like

living constitutionalism or its
current iterations on the left,

which would see the Constitution
as an evolving document.

Our organization is set up with
a purpose of making sure that

the Constitution of the United
States is a living document!

So when we look at the Eighth
Amendment and we look at its

prohibition on cruel
and unusual punishment,

we don't ask, "What did
people in 1791 think was cruel

and unusual?"

Because it wasn't a lot.

We ask, "What do people today

believe is cruel and
unusual punishment?"

Supreme Court Justice
William Brennan,

in a speech today, appeared to
answer Reagan Administration

criticism of recent
Supreme Court decisions.

Brennan told an audience
at Georgetown University,

"The idea that the Constitution
should be viewed as it was

written 200 years
ago is arrogant."

Said Brennan, "Justices read
the Constitution in the only way

As
20th-century Americans."

Initially, that original intent
idea was aimed squarely at

things that the Warren
Court in particular...

and, to some degree, the
Burger Court... had done.

Where's the Miranda Rule
in the Constitution?

Well, it isn't there,
obviously... not literally.

Where in the Constitution is
there any indication of a right

to abortion?

Where does it say
anything about that?

The promotion of these views
was extremely successful.

One of the ways they were
promoted was with the assistance

of the Federalist Society.

I was not there the weekend the
Federalist Society was created,

but I was in law
school at the time.

It was founded by law students
who felt that they were not in

an environment that was
open to or friendly to

Conservative thought.

Its founders are
law students at the University

of Chicago and Yale Law School.

Within five years, there are
law school chapters all over the

United States, and the
founders were very,

very clear at the outset
that it wasn't just about

a debating society,

it was about credentialing
and building an alternative

Conservative elite.

And that was the
real path to power.

Dan Rather reporting.

Today's top story is:

Warren Burger is out as Chief
Justice of the United States.

Conservatives had
felt that Warren Burger had let

them down; he'd been
a missed opportunity.

He presided over some change,
but not enough to their mind.

And so, when Reagan
goes to replace Burger,

Rehnquist is the natural choice.

They firmly believe that
Rehnquist will finally lead this

Conservative counter-revolution
on the Court,

and Antonin Scalia is seen as
someone who will aid Rehnquist

in this fight.

For somebody who spend his whole

professional life in the law,

getting nominated to the Supreme
Court is the culmination of...

of a dream.

Mr. President, what was
the process which led you to

Judge Scalia?

Did you know him before?

Did people come to
you and recommend him?

What was the process?

I had previously appointed
him.

But surely,
you must think, sir,

that he agrees with you on
such issues as abortion,

affirmative action,
prayer in the schools?

That's the question.

50 years old, Scalia
would be the Court's first

Italian-American.

Born in Trenton, New Jersey,
has a law degree from Harvard.

He was an academic, he
taught at my alma mater,

the University of
Virginia Law School,

and then at the
University of Chicago,

so I think he was keenly aware
of the power of influence that

a dissenter on the
Supreme Court could have,

'cause you're gonna get
an automatic audience.

He'd be like, "I'm not
writing for the public,

I'm not writing for the courts,

I'm writing for
the law students.

I'm writing because this
generation is going to come

along, and they're gonna do the
thing that we're too gutless

to do."

You've written on the
subject of Roe versus Wade,

I believe you have expressed
doubts about that decision,

both on moral grounds as
well as on juris prudence.

I think I may have
criticized the decision,

but I don't recall passing
moral judgment on the...

on the issue.

Today, two senate Democrats
revealed they have asked the FBI

to check on whether Rehnquist
gave Black and Hispanic voters a

hard time when he was
an Arizona official.

His words were,

"You do not know
how to read, do you?

You don't belong in this
line, and you should leave."

As I understand,

your testimony said you
watched... you were a poll

watcher, but a "challenger"
has a different connotation

or activity.

Well, but to be a poll watcher
at that time in Arizona,

I think you had to
be a challenger.

Well, have
you ever personally challenged

any individual in any...

I don't believe so.

Well,
you'd know it, wouldn't you,

- if you did?
- Uh...

In nominating Rehnquist for the
Chief Justice and nominating

Antonin Scalia for the Associate
Justice position that Rehnquist

would vacate, Reagan pulled
off what baseball fans would

recognize as a "double switch."

William Rehnquist told
reporters he was gratified by

the Senate's 65-to-33
confirmation vote last night.

It's an effective move because
it meant that Rehnquist

got all the attention.

So Antonin Scalia, who turns out
to be one of the Court's most

conservative members, sails
through with a unanimous vote.

Soft curious music

Justice Scalia,
he's one of the early faculty

advisors to the
Federalist Society.

The topic of...

And so, when he's appointed
to the Supreme Court,

Scalia brings some of the
founders of the Federalist

Society in as clerks,

and sort of gives this fledgling
organization a credential.

Justice
Scalia, I think it's fair to

say, was the leading spokesman
in the nation for originalism.

I was in the summer between my
first and second year of law

school when Justice Powell
announced he was retiring from

the Court and President Reagan
nominated Judge Robert Bork,

who was a judge on the
Federal Court of Appeals.

No!

Just say no!

We will go all out in seeing
to it that Judge Bork is not

confirmed.

Everyone understood the stakes.

Lewis Powell had retired,
he was the swing vote,

it was clear that the
appointment of Judge Bork could

shift the Court.

I was very
close to Judge Bork.

I admired his
intellect, his writing,

his incredible sense of humor.

He had been a brilliant student,
he'd been Solicitor General of

the United States, he had been a
judge on the United States Court

of Appeals for the DC Circuit,
but it was contentious because

of concern by some
individual senators...

"Well, what kind of a
justice is he going to be,

and how is he going to rule?"

Now, let's talk about
the Griswold case.

He had criticized,
as an academic,

all of the landmark cases of the
Warren Court and Burger Court.

It is easy to
conclude from the public record

of Mr. Bork's published views

that he believes women and
Blacks are second-class citizens

under the Constitution.

In Robert Bork's America,
there is no room at the inn for

Blacks,

and no place in the
Constitution for women,

and in our America, there should
be no seat on the Supreme Court

for Robert Bork.

Does the majority have
the right to tell a couple

that they can't
use birth control?

I have never decided that case.

If it ever comes before me,
I will have to decide it.

All I have done was point out
that the right of privacy,

as defined... or undefined...
by Justice Douglas,

was a free-floating right that
was not derived in a principled

fashion from
constitutional materials.

That's all I've done.

Bork was very
forthcoming about his views.

He was very dismissive
of the right to abortion,

made it quite clear that he
would overturn Roe if he had

a chance.

I don't want to see
the argument made

that there is no
right to privacy,

and the only way to
prevent it being made

is to deny

Judge Bork

membership on the Court.

Are you calling
about the Bork nomination?

Are you for it or against it?

Soft tense music

Senator from Kentucky.

I thank the Chair.

It's my prediction,
Madame President,

this President's gonna
send up another nominee...

philosophical soulmate
of Judge Bork,

if probably not
so well-published,

somebody maybe 10 or
15 years younger...

and we may waltz around
this maypole one more time.

Like many Conservatives,

he saw the Bork nomination

as the first instance

in which Liberals
"Borked" a nominee,

and that turnabout
was fair play.

We may not be able
to pick the nominee,

but we can sure shoot 'em down.

We can sure shoot 'em down.

The yeas are
42, the nays are 58.

The nomination is not confirmed.

We... the big "we" of the civil
and human rights community...

were successful in
blocking his nomination,

resulting eventually in the
appointment of Justice Kennedy.

Judge...
and now, Justice... Kennedy.

Sounds good, doesn't it?

The Constitution of the United
States is the single fact,

the single reality,
the single idea,

the single moral principle

that sets the
United States apart

from other nations, now
and throughout history.

Justice Kennedy... who,
while conservative,

and probably more conservative
than Justice Powell...

turned out to be much more
of a Centrist and a Moderate

certainly than Judge
Bork would have been.

I think the nature of the
hearing process has been

profoundly impacted in
a mostly-negative way

by the Bork hearing.

He told people that he was
excited to be on the Court

'cause it would be an
intellectual feast,

and people made fun of
him for saying that.

Then, he talked about what
the thought about things,

and he's very conservative,
and what he thought wasn't

necessarily what
everybody wanted to hear,

and so that led to

a pulling back on what anybody's
willing to say about anything.

Will preserve, protect, and
defend the Constitution of the

United States.

So help me God.

So help me God.

Congratulations.

Thank you.

Band playing "Hail to the Chief"

Good evening, everyone.

A resignation on Friday, the
weekend to think about it,

tonight a name.

Justice Brennan had
a stroke in July and

retired immediately.

The first President Bush
was really on-the-spot;

he needed to get a name up
there so that somebody could be

sitting when the term began.

No litmus test or standard
dominating my decision

to nominate.

Souter
still lives alone,

in the farmhouse he was raised.

It is not known where
David Souter stands on key

issues like abortion.

You know, he wasn't
vetted for that.

I mean, he had been
a Rhodes Scholar,

Harvard Law School.

Soft tense music

David Souter had never
offended anybody,

had never taken a position
on anything major,

and he'd just been put on the
First Circuit at the Federal

Appeals Court in Boston,
where he had served for

just about two months, but
he had been fully vetted and

confirmed by the
Senate for that,

so it was the easiest
among possible choices and,

you know, that's
another example of how

every vacancy has its own

set of necessities.

Thurgood Marshall
announced his retirement from

the Supreme Court today.

When you
first came to the Court,

you were part of a
Liberal majority.

In the last years you've
served on this Court,

you've written more
and more dissents.

You know, we pick our
law clerks each year,

and one of the questions I asked

prospective law clerks was:

"How do you like writing
dissenting opinions?"

And if they said no,
they didn't get a job.

Do you think President
Bush has any kind of an

obligation

to name a minority
candidate for your job?

I don't think that
that should be a ploy,

and I don't think it should be

used as an excuse,
one way or the other.

An excuse
for what, Justice?

Doing wrong.

I mean for picking the
wrong Negro and saying,

"I'm picking him
because he's a Negro."

I'm opposed to that.

Well, I am very pleased to
announce that I will nominate

Judge Clarence Thomas

to serve as Associate Justice of
the United States Supreme Court.

George H.W. Bush had put
Clarence Thomas on the DC

Circuit at the Federal
Appeals Court in DC,

I think in the knowledge that,
when Thurgood Marshall retired,

it would be incumbent on
any Republican president to

name a Black justice,

and it should be a
Conservative Black justice.

We're talking 1990, and that
would have been a category of

one.

As a child, I could not dare
dream that I would ever see the

Supreme Court, not to
mention be nominated to it.

Indeed, my most vivid childhood
memory of the Supreme Court

was the "Impeach
Earl Warren" signs,

which lined Highway
17 near Savannah.

Unlike Robert Bork, who
had tremendous experience,

Clarence Thomas had
comparatively little.

And so, rather than leaning on
his obvious qualifications as

they had tried with Bork, they
instead lean on his personal

story.

I thank all of those who
have helped me along the way,

and who have helped me to this
point and this moment in my

life, especially
my grandparents,

who are...

especially my grandparents...

my mother,

and the nuns.

Only thing I wanna do is
just give you a copy of the

Constitution, and follow that
and that's all I would ask you

- to do.
- Thank you, Senator.

This is my old copy.

Affirmative action's
a sacred cow,

school bussing's a sacred cow,

minimum wage is apparently
becoming a sacred cow.

Okay?

What I am saying is that
none should be sacred cows.

I never thought I'd be sitting
here talking about the youth of

a nominee to the Supreme Court.

I'm 48; how old are
you, Judge? 42, 3?

Well, I've aged over
the last 10 weeks,

but, uh...

I'm 43.

I'd like first to
introduce my wife Virginia.

Welcome, Mrs. Thomas.

Unlike Bork, where the hearings
were all about the ramifications

of his ideology, Thomas
presented himself as almost

a blank slate.

I'm not asking you to
pre-judge the case,

I'm just asking you whether you
believe that the Constitution

protects a woman's right
to chose to terminate her

pregnancy.

Senator, as I noted yesterday,

and I think we all feel strongly
in this country about our

privacy... I do...

I believe the Constitution
protects the right to privacy.

Roe v. Wade had been handed down
while Thomas was in law school,

and yet he said he
had never debated it

at the time it came down.

You're not suggesting that
there wasn't any discussion

at any time of Roe versus Wade?

I cannot... I...

Senator, I cannot remember
personally engaging in those

discussions.

And so it gave the opposition
no way to latch on,

and instead, all that they were
left with was Clarence Thomas

the man.

Soft tense music

White House officials
began the week confident that

President Bush had 60 Senate
votes in his pocket for the

nomination of Clarence
Thomas to the Supreme Court.

And then,
right before the vote,

the Anita Hill
allegations surface.

The pressure was such

that

I was going to have to
submit to that pressure

in order to

continue

getting good assignments.

Republican Senator
John Danforth says the

accusations are
sleazy, unfounded,

and untrue.

In politics, this is known
as "the October Surprise."

The irony here is that the Bush
Administration had tried to

press his personal story as
the way for him to get through,

and his personal life becomes
fodder for the hearings.

X-rated and extraordinary.

That's the way it's
been all day long,

with millions glued to their
television sets as senators

scrutinize the sexual harassment
charges against Supreme Court

nominee Clarence Thomas... the
most sensational hearings since

Watergate.

He referred to the
size of his own penis

as being larger than normal, and
he also spoke on some occasions

of the pleasures he had given

to women

with oral sex.

I was there.

It was volcanic.

We didn't know, when Judge
Thomas came into the hearing

room, what his MO
was going to be.

He could have said, "I'm so
sorry if I did anything that

offended Anita Hill.

I certainly didn't
mean to cause offense."

As a Black American, as
far as I'm concerned,

it is a high-tech lynching
for uppity Blacks,

who in any way deign to
think for themselves.

The all-male, all-white
Judiciary Committee was like,

"Whoa, we do not wanna
be tangling on this."

And it is a message that unless
you kowtow to an old order,

this is what will happen to you.

You will be lynched,
destroyed, caricatured

by a committee of the US Senate,
rather than hung from a tree.

The yeas are 52,
and the nays are 48.

The nomination of Clarence
Thomas of Georgia to be

Associate Justice of the United
States Supreme Court is hereby

confirmed.

- So help you God.
- So help me God.

Great pleasure.
Congratulations.

You have no
right to be there!

Ready to get to work.

- What about the baby?!
- What about the women?!

- What about the baby?!
- What about the women?!

- What about the baby?!
- What about the women?!

Planned Parenthood versus Casey
looks like the case that's

really going to decimate Roe,

in large part because
the Court has changed.

So it looks like, you
know, lights-out for Roe.

But, interestingly,

Justice Kennedy, who's a Reagan
appointee, Justice O'Connor,

and Justice Souter come together

to form a kind of
plurality to compromise.

Soft tense music

Kennedy then
contacted Blackmun and said,

"I think we should
have a conversation.

I have some news that I think
will make you feel good."

And he said that he and O'Connor
and Souter had been talking

about Roe and Casey, and they
had decided that Roe should not

be overruled, that it should
be modified in some ways,

but that the core of the
decision should remain in place.

Justice Kennedy came in
and talked to me about it,

told me what was happening and
that he was one of the three,

which, as far as I
was concerned, was

a matter of great gratification.

O'Connor was
supposed to be anti-choice,

Kennedy was
supposed to be anti-choice,

Souter was supposed to be,
and all of them defect.

Today,

three Reagan/Bush appointees

stabbed the pro-life
movement in the back,

and affirmed the bloodshed!

That is not just a marker
for when Roe becomes the most

important, the only question,
but this longstanding sense of

grievance on the political
Right and the Conservative legal

movement, that even when we win
the Court and we put all the

pieces on the board, and
these are hard-fought seats,

and we vet these people,
and then they turn around

and betray us.

We reaffirm the
constitutionally-protected

liberty of the woman to decide
to have an abortion before the

fetus attains viability.

So to overrule in the
absence of the most compelling

reason to reexamine a watershed
decision would subvert the

Court's legitimacy beyond
any serious question.

At the heart of
liberty is the right to define

one's own concept of
existence, of meaning,

of the universe,

and of the mystery
of human life.

Dark tense music