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Monday, July 1, 2013

Is It Still The Roberts Court?

(Courtesy: U.S. Supreme Court)

(Courtesy: U.S. Supreme Court)

After wrapping up the 2013 Supreme Court term, you’re probably up to your ears in Supreme Court coverage.

So instead of looking back at the major decisions, NPR’s legal affairs correspondent Nina Totenberg joins us to take a look at some of the personalities on the Supreme Court.




It's HERE & NOW. And we have wrapped up the 2013 Supreme Court session, so by now, you're probably up to your ears in Supreme Court coverage. So instead of looking back at the major decisions, we want to look at the court as it stands going forward, the Roberts' court. Joining me now is NPR's legal affairs correspondent Nina Totenberg. Nina, welcome to HERE & NOW.

NINA TOTENBERG, BYLINE: It's my great pleasure.

YOUNG: And, you know, we call this the Roberts court because it's Chief Justice John Roberts. But is it really the Roberts court?

TOTENBERG: Well, it's also the Kennedy court, because in all the 5-4 cases, or almost all the 5-4 cases, Justice Kennedy is the deciding vote - not every single one, but certainly in the very big ones of the term, he often is. And - but it is the Roberts court. He is the chief justice. Now, chief justices can be passive or not very effective. That is not true for John Roberts. He's an extremely effective tactician. I remember when he was confirmed, that one of his friends said to me, you know, he thinks in the long run. He's planning to be there for a quarter of a century, anyway, and he's looking down the road.

And this is a very, very conservative justice who also believes in a certain level of, as he puts it, modesty, meaning don't do it all at once if you can do it one step at a time. So even though it may not seem always as if the decisions that he writes or participates in go as far-reaching as they possibly could be. He's laying the groundwork. And you see you him picking up the groundwork in the next year or two or three in other cases on the same subject.

YOUNG: Give me an example of that.

TOTENBERG: Well, the voting rights case is the best example. He went along with the court's liberals, and he wrote an opinion in - four years ago that said we're going to uphold this law for now, but we're warning you: The formula for deciding which states are covered by the Voting Rights Act is highly - although he didn't use that word, obviously. And, I mean, it was a real shot across the bow. And Congress didn't do anything. He told Congress do this, or we're not going to be able to uphold this law. Congress didn't do anything, and four years later, boom, the boom gets lowered.

YOUNG: But how would you characterize the court, as a whole? I've read some headlines recently saying Justice Roberts pulls the court to the right, but then you see the court's decisions on gay rights in favor of gay marriage. So how would you characterize it?

TOTENBERG: He does pull the court to the right. I mean, after all, in the Defense of Marriage Act case, he was in the minority. He wasn't in the majority. It was Justice Ginsburg, the senior justice, who assigned the opinion to Justice Kennedy. And in the Proposition 8 case, what he said - he didn't decide that states have to get rid of their bans on same-sex marriage. He said the court doesn't belong in this case. This isn't a live controversy, because the party that appealed were proponents of the law.

The state never appealed the lower court decision. And without the state, the enforcement mechanism here, we don't have a case. So, in practice, the ban on same-sex marriage goes away, but only in California. And there were four other justices who wanted to decide the case. They probably would have reached different conclusions. Interestingly, it was - the fifth vote to not decide the California case was Justice Scalia. And you certainly don't think Justice Scalia is a liberal. So he wasn't voting to strike down a ban on same-sex marriage. He was voting to keep the Supreme Court out of the issue.

YOUNG: Talk a little bit more about the justices and what's going on behind the scenes, because we had that moment when Justice Ginsburg, a liberal, was reading her dissents. In at least one case, you saw Alito rolling his eyes and shaking his head. What happens when they go back in the cloakroom? What's going on?

TOTENBERG: There are plenty of people who noticed and people who are not terribly familiar with the court who saw it and thought it was just rude. And you would think that Justice Alito - having had the cameras trained on him in 2010 in the State of the Union address - would have recognized that he's sitting up there, and everybody is looking at him. He sits next to Justice Ginsburg. So she's reading a dissent from one of his opinions, and he's rolling his eyes. If you want to see the perfect model for how to endure that kind of thing, you look at Kennedy.

There is always some faction on the court that thinks that Kennedy's opinion is outrageous, and often, there are very loud dissents from the bench. And when you look at him, it's like he's in another zone. You wouldn't know he's hearing anything critical at all.

YOUNG: Well, the newest kid on the block, so to speak, Justice Kagan, how - what's your sense of how she's fairing?

TOTENBERG: Listen, I think that Elena Kagan is the significant tactician of the future, and you can see that. I think that she and John Roberts are going to be duking it out for the next quarter century. And the determination as to who wins will very likely depend on who sits on the court. And that in turn will be determined significantly - mainly by whatever presidents are elected at the time when vacancies occur.

YOUNG: Justice Kagan, Breyer, Sotomayor, went along with some conservative outcomes, especially in the affirmative action case. What was happening there?

TOTENBERG: Some of this we really don't know. It could be that they decided that, look, affirmative action plans, by and large, will stay as they are for the moment. Although there's language in Justice Kennedy's opinion that suggests that perhaps some of these plans will fall in the future. It's not a certain thing. We don't know whether this was a compromise brokered between Breyer and Kennedy, for example. It sort of has the feel of a Breyer-Kennedy agreement, but it might have been the chief justice. We simply don't know.

YOUNG: So, Nina Totenberg, is there anything that you think was under-covered this term because, especially towards the end, so many big cases, so much coverage.

TOTENBERG: The thing, I think, is - was probably under-covered was the extent to which this is now a very pro-business court, whether the cases involve access to courts, class actions, which have been significantly dismantled. And this year, significant cases in which it limited what consumers, for example, can do in terms of a class action even in arbitration that can they band together. Or do they have to do their - have their complaints one by one, which makes them sort of worthless to do? And in the area of employment law, again, the court sided very consistently with business. And these were, by and large, almost always five to four cases. And it's a conservative court. It is a pro-business court. And because this is an overall picture and less obvious from cases one by one, we, in the press, me included, probably don't cover it enough.

YOUNG: Ms. Nina Totenberg, NPR's legal affairs correspondent, speaking to us about the session that just wrapped up. Thanks so much.

TOTENBERG: Thank you.


And up next, the singing nuns of a cloistered order in Missouri. They are topping the charts. We're back in a minute. HERE & NOW. Transcript provided by NPR, Copyright NPR.

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