For the first time, the U-S Supreme Court has three women on the bench. As the court opens session on Monday: a preview of the new term and how Justice Elena Kagan could affect the Court’s dynamics.

Guests

  • Jeffrey Rosen President and CEO, The National Constitution Center; professor, George Washington University Law School; legal affairs editor, The New Republic; author of "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor, "Constitution 3.0."
  • Stuart Taylor Author and journalist, senior fellow, The Brookings Institution; contributing editor, National Journal; co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It"
  • Susan Bloch Professor of law at Georgetown University.

Transcript

  • 10:06:54

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. It's the first Monday of October, which means the start of the new term for the Supreme Court. It's also the first day of work for the new Justice Elena Kagan. There are now three women on the bench. Joining me in the studio to talk about what to expect from the court for this term, Jeffrey Rosen of George Washington University, Stuart Taylor of Newsweek and National Journal and Susan Bloch of Georgetown University. Before we begin, I want to apologize for the way I sound. I've just had a voice treatment. As you can clearly tell, it's not fully recovered. But I did want to get back on the air, so I hope you'll bear with me. Good morning to all of you.

  • 10:07:58

    MS. SUSAN BLOCHGood morning, Diane.

  • 10:07:58

    MR. JEFFREY ROSENGood morning.

  • 10:07:59

    MR. STUART TAYLORGood morning, Diane.

  • 10:07:59

    REHMAnd please do join us, 800-433-8850. Send us your e-mail to drshow@wamu.org. Join us on Facebook or Twitter. Jeffrey Rosen, for the first time in the nation's history, we have three women on the court. Tell me what effects you see from that change.

  • 10:08:31

    ROSENIt may not affect the results of cases, but it might indeed affect the way that cases are decided. So there have been lots of studies that it's only in a couple of areas, like sexual harassment or domestic violence, that gender makes a difference in judging. But gender obviously matters the way people perceive a case. So in the privacy cases -- in the strip-search case not long ago -- Justice Ginsburg understood what it was like for a young school girl to be searched in a way that the male justices didn't. In many of these cases this term, it involves privacy and technology. Maybe we won't see these archaic metaphors about how the lady of the house is being exposed in her bath, the way Justice Scalia talked about privacy not long ago. Three women, they'll actually know what it's like to be searched, and they'll speak in a different way as a result.

  • 10:09:17

    REHMSusan Bloch?

  • 10:09:19

    BLOCHNo. I totally agree with Jeffrey. And I think that there have been studies that show that on boards, when you have three women, they're perceived as individuals and not as speaking for the whole gender. So I think it will change the dynamic in the conference room. Also, I think it'll be interesting that the litigants will hopefully get their names straight. Justice Ginsburg noted that in the 20 or so years she was sitting with Justice O'Connor, every single term, at least one litigant misnamed one of the justices.

  • 10:09:56

    REHMAh, interesting.

  • 10:09:58

    BLOCHThey totally mush them together. So, now, with three, perhaps litigants will be a little more careful or smarter or something.

  • 10:10:06

    REHMStuart Taylor?

  • 10:10:08

    TAYLORI think it's certainly a healthy change, and there's certainly nothing wrong with it. For the reasons already given, since I need to be a little contrarian, I'll point out that, yes, Justice Ginsburg knows what it's like for a young woman to be searched -- strip-searched. The others know what it's like for a young man to be strip-searched. The only way the difference between that knowledge would affect the outcome is if you're going to have a rule that makes it easier to strip-search young men than young women, which I'm not sure would be a good idea.

  • 10:10:39

    REHMAll right. Let's talk about the effects of having Elena Kagan on the court. What kind of justice do you expect her to be, Susan Bloch?

  • 10:10:54

    BLOCHWell, I think -- first of all, I have to point out she's a Thurgood Marshall law clerk, and that's the first time that there is one of those on the court. I think she'll be very thoughtful. She's a very skilled -- she's a very pragmatic, skilled person who can bring lots of different ideas together. So, for example, when she was the dean at Harvard, she brought together a very diverse, almost dysfunctional faculty and had them agreeing more. So I think -- I don't think when she steps on the bench today, she'll necessarily change minds immediately. But I think she'll be a force for innovative ways of seeing a case and seeing solutions and just basically bringing people together.

  • 10:11:45

    REHMYou know, there have been lots of comments about various justices, the kinds of questions they asked, the kind of activity they show on the court. What kind of justice might she be in those terms, Jeffrey?

  • 10:12:07

    ROSENShe'll certainly have to vie with Justice Scalia to be the funniest justice. Some people recently counted up all the laughs in the courtroom -- this is what (sounds like) summer associates of law firms have to do -- and they found that Scalia gets the most laughs. But he often has a sort of nasty edge. So she's quite funny as her joke about the Jews at Chinese restaurants in Christmas showed, and we hope she'll be funny. But in addition to being an active questioner, as almost all the justices are, lots of liberals, progressives are hoping that she will write opinions that transform the terms of debate.

  • 10:12:34

    ROSENThere is such hunger nowadays for someone who will respond to Justice Scalia in his own terms and lay out a positive, progressive vision. And we really haven't seen that on the court right now. And Justice Breyer has this wonderful book. He's very pragmatic. Justice Ginsburg, very minimalistic, Justice Sotomayor asks lots of questions but hasn't had a chance to really be very expansive. People are hoping that Kagan will hit the ground running and really offer a positive vision of liberal jurisprudence.

  • 10:13:01

    REHMOf course, she has already recused herself from so many cases. Stuart, how come?

  • 10:13:09

    TAYLORTwenty-four out of the 51 cases they've agreed to hear so far she has recused, and it's simply because she was solicitor general of the United States. That's the executive branch, the administration's lawyer in the Supreme Court. Extraordinary percentage of the Supreme Court's caseload involves federal government interests. So she was involved as solicitor general in lots and lots of those cases. Some of them she would write the brief or present the argument. Some of them she would strategize in the lower court, and so this will be a transitory phenomenon in a year or two. She'll be recused less than others, but we will learn a lot less about her in the next year than people might think, in part because of all these recusals.

  • 10:13:54

    REHMBut what could it mean this year for cases split 4-to-4?

  • 10:14:00

    TAYLORRight. It's -- when there's a 4-4 split, it means the lower court decision stands. It sets no Supreme Court precedence, so it's as though the case had never gone to the Supreme Court in the first place. Now, if you like the lower court decision on, say, a Guantanamo case -- and conservatives tend to like the lower court decisions 'cause they come from the District of Columbia circuit on Guantanamo cases -- that's a plus. If you want the Supreme Court to throw out, say, a conservative-leaning decision from the lower court, it's not a plus. And for that reason, Steve Shapiro of the ACLU told a bunch of reporters last week that some on the liberal side are stalling their cases. I don't mean in any bad way. You know, let's wait until Kagan's, you know, hands are not tied before we take that issue to the Supreme Court.

  • 10:14:49

    REHMSusan Bloch, do you expect that these three women on the court will vote as a block?

  • 10:14:59

    BLOCHNo, I don't think so. I think they are all very individual. They do tend to be on the liberal side so that there will be situations -- many situations probably -- where they will vote similarly. But I don't think it's because they're women. I think it's because they're more liberal, and some of them were Republican appointed justices. On the recusal question, I just wanted to add that there's a bill that's being presented in the Senate that would allow retired justices to fill in when there is a recusal on the Court, so that either you would have Souter -- I mean, sorry -- Souter, Stevens or O'Connor.

  • 10:15:46

    REHMWhy?

  • 10:15:47

    BLOCHO'Connor. Those are the three living retired justices who might fill in to make the ninth vote, so we might have -- if that ever passes, we would...

  • 10:15:57

    TAYLORIt won't.

  • 10:15:57

    BLOCH...have. It won’t.

  • 10:15:59

    BLOCHWell, it's (word?)

  • 10:15:59

    TAYLOR(unintelligible) you just told what -- told us why?

  • 10:16:01

    BLOCHRight.

  • 10:16:02

    TAYLORSouter, Stevens and O'Connor. The Republicans in the Senate know how to count.

  • 10:16:06

    REHMSure. Okay. Jeffrey Rosen, what about President Obama's relationship to the court?

  • 10:16:16

    ROSENIt was a very interesting moment. President Obama was in the courtroom when Justice Kagan was -- took her formal seat in a ceremony. And Chief Justice Roberts said to Obama, you are always welcome here, and that was seen as a signaling that despite the public spat between those men -- first at the State of the Union where President Obama denounced the court with them sitting right in front of them and then a few weeks later, where Roberts countered that the court had felt uncomfortable -- that they were willing to put that aside. They're all pros. Neither is eager for a fight, even though questions like the constitutionality of healthcare and financial reform are bubbling up to the court. And these two pros, these Harvard graduates who came into Washington trying to be conciliators and sometimes are at each others throats, have to work with each other and are determined to do that.

  • 10:17:01

    REHMYou know, there have been complaints that the court has been too partisan. Is the court aware of the danger, Susan?

  • 10:17:14

    BLOCHYes. The court, I think, is very aware and doesn't want to be perceived that way, and I think particularly someone like Chief Justice Roberts, who's basically a very pragmatic person who likes people to get along, he has personally strong views. But I think he sees himself as someone who should keep the court as unpolitical as possible, and I think he's very aware of that. He did clerk for Chief Justice Rehnquist. Rehnquist, too, I think, was very conscious of the role and the perception of the court. So I think Roberts is likely to want to make amends with Obama and bring things back to...

  • 10:18:01

    REHMStuart.

  • 10:18:01

    TAYLORI agree. I'd just like to toss in an interesting point made by -- perhaps among others -- Bob Barnes of Washington Post, Supreme Court reporter, in a long story. He said, we've had liberal-conservative splits and talked about them that way in the Supreme Court for a long time. But a couple of the liberals have always been Republicans. Now, all the Republican appointees -- now, it's partisan. Now, it's Republican-Democrat splits, and that, that's uglier.

  • 10:18:26

    REHMStuart Taylor. He is contributing editor to Newsweek and National Journal. Short break. I'm going to say as little as possible today. I look forward to hearing from you.

  • 10:20:03

    REHMAnd we're back, talking about the current Supreme Court session beginning today. And we'll take your calls shortly, 800-433-8850. Stuart Taylor, what are the major cases to watch this session?

  • 10:20:28

    TAYLORWell, there's a long list. But the short list, I would say, is Snyder vs. Phelps, which is coming for argument this Wednesday, which is a big First Amendment case -- a protest, a really ugly protest, anti-gay protest at military funerals. Somehow, these protesters have figured out how to offend almost everyone else in the country, and there was a lawsuit that came out of it. The father of a dead Marine won a large damage award against these people for trashing his son's funeral. And the lower court threw it out, the appeals court, on the ground that -- it was ugly. It was horrible, but we protect ugly, horrible speech in this country. And that's very interesting because you kind of wonder why the Supreme Court took it.

  • 10:21:14

    TAYLORI think Jeff said earlier when we were talking privately that he expects the First Amendment defense will win in that case, but then why did they take it? Another big First Amendment case involves violent video games and whether the State of California, in this case or other states, can ban the sale to minors. And that's an important bridge because they have banned the sale of pornography to minors, but they've never kind of treated violence, depictions of violence, as something that can cut through the First Amendment. I'll stop there and let my colleagues point to others.

  • 10:21:48

    REHMJeffrey.

  • 10:21:49

    ROSENThere are some very interesting cases involving privacy and technology. The first one, the NASA case, which will be argued on Tuesday, involves the question of whether there's a constitutional right to avoid disclosure of personal matters, a huge question in the age of databases. And this is a case where the government, in 2005, began doing very intrusive background checks on subcontractors who do work with the federal government. So a bunch of Caltech employees sued, and they said they shouldn't have to have questions about their drug use. Their friends shouldn't be interviewed. A lower court agreed with them, said that this violated their right of informational privacy. And the basic question is -- the old right in 1977 merely forbade the disclosure of information -- will that be extended to the collection of information?

  • 10:22:33

    ROSENAnd here the government is saying, you can't disclose, but you should be able to collect. Another related, very interesting privacy case involves FCC versus AT&T. AT&T basically did some work with schools. And it was investigated for fraud. It turned over personal information to the government. Its competitors tried to get that information under the Freedom of Information Act. And a lower court -- this is just remarkable -- said corporations have privacy rights because, like human beings, they face public embarrassment, harassment and stigma. So obviously this question of whether corporations have constitutional and statutory rights was huge in the Citizens United campaign finance case. And the question here is whether that will be extended under the Freedom of Information Act law to include privacy.

  • 10:23:17

    REHMSusan.

  • 10:23:18

    BLOCHThere are a couple of other interesting cases. One is involving an Arizona law where Arizona has tried to basically use the federal law and -- or augment the federal law and makes it illegal to hire illegal aliens. And if they do, under Arizona law now, they can lose their corporate license. So the question is, basically, does the federal law allow states to augment it in that way? And it's an interesting case on -- in its own right, but it's also interesting because it's sort of a prelude to the Arizona law that everyone was talking about where the -- Arizona is trying to kick out illegal aliens, trying to help the federal government.

  • 10:24:01

    BLOCHThe question is does the federal government really allow this kind of help? One other interesting case I want to point out, also coming out of California is the overcrowding of the California prison system. And the federal courts have basically put a limit on the number of inmates that can be in the California system, so California is having to let prisoners out in California, is objecting to the federal intrusion.

  • 10:24:29

    REHMOf these six major cases you've offered, which would you expect to come up first, Susan?

  • 10:24:42

    BLOCHWell, they're scheduled. The military funeral one is going to be argued this week on Wednesday. The violent videos is also scheduled, I think, for November. So they're on the docket. The prison case that I mentioned, I know, is coming up in December. And the others I'm actually not sure about.

  • 10:24:59

    ROSENThe NASA is on Tuesday.

  • 10:25:01

    REHMGo back, Jeffrey, to your view about this anti-gay protest at military funerals.

  • 10:25:09

    ROSENNow, this was not a confident prediction. We were just shooting the breeze before the show started, but...

  • 10:25:12

    REHMSure, I understand.

  • 10:25:14

    TAYLORI'm holding you to it.

  • 10:25:14

    ROSEN...you're going to hold my feet to the fire.

  • 10:25:15

    TAYLORHot fudge sundae.

  • 10:25:15

    REHMYeah, absolutely.

  • 10:25:16

    ROSENIt's an interesting question because there is a strong First Amendment consensus on this court. Remember, just last term, 8-to-1, the court struck down that congressional law banning violent crush videos, which we talked about, Diane...

  • 10:25:29

    REHMUgh.

  • 10:25:29

    ROSEN...and I've never seen you squirm like that. I mean, it was so difficult to talk about.

  • 10:25:33

    REHMTruly.

  • 10:25:34

    ROSENBut only Justice Alito, I think, expressed concern that you could ban purely offensive speech that didn't have some imminent risk of harm. That's the question here. Everyone agrees the speech was horrific. This claim that America had to be punished because of its approval of homosexuality, and therefore you'd protest at the funerals of soldiers. But it wasn't targeted at particular individuals. It was against funerals in general. And it also wasn't in a private space of the kind of that terrible case at Rutgers where the young man was spied on in his dorm room by the camera.

  • 10:26:06

    REHMOh, yes. Oh, yes.

  • 10:26:07

    ROSENThat also involved the intrusion on seclusion privacy tort. And the question here is whether these invasion of privacy rules from the common law, intrusion on seclusion or intentional infliction of emotional distress, can be extended to speech that's very offensive but isn't directed against specific individuals. So I think -- I haven't really counted, so I'm happy to be corrected, Stuart -- but given the strong First Amendment consensus here, it would be a big step to extend this to offensive speech. And I think that the justices who are afraid about constricting offensive speech on campuses, for example, and so forth might be reluctant to take that step.

  • 10:26:39

    REHMSusan.

  • 10:26:41

    BLOCHYou know, Jeffrey, I actually think that the court might very well side with -- or side against the First Amendment in this case because I do think it was -- it's a funeral. It's almost a captive audience situation. It is targeted, not against this particular Matthew Snyder, but it's at his funeral that they're saying, God wants you dead.

  • 10:27:06

    REHMIt's a private gathering.

  • 10:27:07

    BLOCHAnd it -- exactly, and they are...

  • 10:27:09

    ROSENIt's not private. It's not private.

  • 10:27:12

    BLOCHWell, it's a...

  • 10:27:13

    REHMIsn't it private? Isn't a funeral considered private?

  • 10:27:18

    ROSENNot of the kind of these -- privacy torts are tended to be cameras in the home or in secret places. The home is very important. But obviously we can debate whether it's public or private.

  • 10:27:25

    REHMYeah...

  • 10:27:26

    ROSENAnd also whether these are public or private figures, and also whether they're statements of fact -- that's what makes it an interesting case...

  • 10:27:32

    REHMYeah..

  • 10:27:32

    ROSEN...and I certainly won't be confident about this.

  • 10:27:32

    BLOCHI also -- yeah, I also think that there's a number of the people on the court who, while they really applaud the First Amendment and obviously want to uphold it, they're not very happy with the direction of finding the First Amendment sort of squashing tort law, private, you know, private protections. And so I think that there's -- even someone like Scalia, who's a big First Amendment fan, doesn't really like overlaying the libel and defamation laws with too much First Amendment protection. So I think he will draw a line here.

  • 10:28:09

    REHMStuart.

  • 10:28:10

    TAYLORI'm going to reserve prediction so that I can say I disagreed with Jeff no matter how...

  • 10:28:15

    ROSENSounds pretty good.

  • 10:28:16

    TAYLORBut I think there's an interesting background to it in terms of the precedence. The most important or one of the most important precedents that bears on this is called Hustler v. Falwell. Hustler magazine, Larry Flynt, made horrible fantasy statements about Jerry Falwell. They weren't libelous 'cause nobody was supposed to believe them, but they were very hurtful. Falwell sued, won in the lower court. In the late '80s, the Supreme Court came down with a strong First Amendment opinion, saying intentional infliction of emotional stress is something that a public figure is going to have a very hard time suing over. Here, it's intentional infliction of emotional stress. It's somewhat similar, except the person suing is not a public figure, and that makes it a little harder for the First Amendment side to win, I think.

  • 10:29:09

    REHMLet's talk about that violent videos case. What's involved there, Jeffrey?

  • 10:29:16

    ROSENSo this is a California law passed in 2005 that imposes a thousand-dollar fine on stores that sell violent video games to people under 18. And the law defines violent video games as those in which a player includes killing, maiming, dismembering or sexually assaulting an image of a human being in a way that appeals to the deviant or morbid interests of minors. And that odd-sounding phrase comes from an area of the law that's called obscenity for minors, that says that even if you have sexually explicit speech that would be protected for adults, you can ban it for kids if it appeals to the kids' prurient interest.

  • 10:29:50

    ROSENAnd the big doctrinal question is, are you going to extend this quite limited category of obscene speech for minors from sexual speech to violent speech? And that has never been done yet, and there are all sorts of statistics about whether there is a correlation between kids who watch violent video games and those who commit violence. The government concedes, or rather the State of California concedes, that doesn't prove causation. But, generally, the lower court refused to greatly expand this category of obscene speech for minors 'cause it thinks it would sweep up all sorts of other things.

  • 10:30:19

    REHMSo this question that was dealt with last term, in terms of animals, is now being debated regarding humans?

  • 10:30:35

    ROSENNot so much in the sense that -- the question is not the definition of obscenity, but it's, can you ban stuff for kids that you couldn't ban for adults? And the question for animals last term was just -- you know, it was banned for adults and children. And the court struck it down on the grounds that even hunting videos -- I know you don't agree with this. This is one of the cases you were most upset about, Diane -- but the court disagreed with you 8-to-1. Justice Alito agreed with you and said that, you know, the First Amendment prevails. Here, it's also violence, but it's a slightly different question about whether you can restrict stuff for kids that is not sexual but is only violent.

  • 10:31:10

    REHMStuart.

  • 10:31:11

    TAYLORI think this is a sort of case where the first reaction of a lot of us -- at least with me -- is yuck. Ban it.

  • 10:31:17

    REHMExactly.

  • 10:31:18

    TAYLORBan it. And then, the old First Amendment funny bone kicks in, and you think, oh, wait a minute. This is a country founded on the freedom of speech. Now, how far do we have to stretch it? Or how far can we crimp it in order to incorporate this case into a pattern of law that we can live with?

  • 10:31:36

    REHMNow, could three women on the court make a difference here, Susan?

  • 10:31:44

    BLOCHWell, I think that it may make a difference in terms of bringing some new thoughts or some consideration about children into the conference room. But, honestly, I don't think that it will influence the way these women vote or how the guys will vote. At most, it'll bring in a slightly different vantage point.

  • 10:32:09

    REHMAnd what about Justice Kennedy as the swing vote in the past -- likely to be in this kind of case, Stuart?

  • 10:32:20

    TAYLORIn free speech cases, you have to look at Justice Kennedy kind of category by category. Sometimes he's liberal. Sometimes he's conservative. In free speech cases, he tends to be very strong on First Amendment rights, maybe more so than anyone else on the court.

  • 10:32:33

    REHMStuart Taylor of Newsweek and National Journal. You're listening to "The Diane Rehm Show." It's time to open the phones, 800-433-8850. To Orlando, Fla., good morning, Mike. You're on the air.

  • 10:32:55

    MIKEGood morning, Diane. Thank you for taking my call.

  • 10:32:57

    REHMSurely.

  • 10:32:58

    MIKEI am listening with great interest about the discussion regarding women on the court, Protestants on the court, but I have not heard any discussion or extremely limited discussion regarding the fact that we don't have any trial attorneys on the court. The complexities and problems inherent in any trial situation, and we don't have people who have done trials. We've got people who have written briefs, who sit in offices and research, but nobody in the realm -- and particular of criminal defense, with all the constitutional issues that come with that, with all the issues that come with that in trial, we don't have anybody on the court that's been there and done that.

  • 10:33:41

    REHMAll right. Susan.

  • 10:33:43

    BLOCHI agree that that's a serious problem. I think the court should be as diverse as possible, not just with gender and race and stuff, but with experiences. I think that it is unfortunate. I do think it's good that Elena Kagan is bringing in some administrative experience. She's bringing in experience from the executive branch from leading, you know, Harvard Law School, but -- and Sotomayor did have a little more experience in the trenches, but it would be good if there were people who understood the complexity of a trial.

  • 10:34:20

    REHMI want to take this one step further and say publicly I think there ought to be a non-lawyer on the court. I think the Supreme Court ought to represent a great variety of thinking, not just lawyers.

  • 10:34:41

    ROSENWell, I have two nominations. The first would be Justice Rehm, who would reverse violent video game case as her first act...

  • 10:34:47

    REHMThat's true. I would. I will.

  • 10:34:49

    ROSEN...and you would be great. But I agree. And, you know, another nomination would be someone like Senator Al Franken, who is not a lawyer but proved in the Kagan confirmation hearings to have a kind of economic populist sensibility to understand in real terms the effect of huge media mergers like Comcast and NBC. And someone like Franken shows that you do not have to be a lawyer, and it might be a very good thing.

  • 10:35:12

    REHMStuart -- oh, go ahead.

  • 10:35:12

    BLOCHAnd the constitution doesn't require it. I'm sorry.

  • 10:35:14

    ROSENYes.

  • 10:35:14

    REHMPardon me. And the constitution…

  • 10:35:16

    BLOCHThe constitution is silent.

  • 10:35:16

    REHM...does not require it. Stuart.

  • 10:35:17

    TAYLORRight. I think it'd be great to have the right non-lawyer. I don't think it will happen in our lifetime because these days it's about ideology. That's the priority that the president and the senators have, and anything that could slow a person down confirmation-wise tends to become a category of rejection. Some people would say, oh, she's not a lawyer. She doesn't know the stuff. And that's a problem no nominee wants to have.

  • 10:35:47

    BLOCHAlso, I just want to point out that we tend to focus on these big, high-profile sexy cases, but the reality is that they're only about 25 or maybe 30 percent of the docket. The other 70 percent are complex legal questions, and having a lawyer is actually a pretty good thing.

  • 10:36:05

    REHMWould you agree, Jeffrey, with Stuart when he says, not in our lifetime?

  • 10:36:13

    ROSENWell, you see what happened even to Harriet Miers who was a lawyer but didn't fit in to the elite model of the Supreme Court appellate clerkship and so forth, and she was hammered. And it was just people are so hungry on both sides to have reliability and predictability to be able to have a reliable vote, that I think there'd be concerned that a non-lawyer would be too much of a wildcard. And if I were a president -- if I were President Obama, for example -- knowing how polarized the court is, would you really want to take the risk of a Senator Franken because you might just fear that he wouldn't be able to stand up to the others on their own terms?

  • 10:36:47

    ROSENBut it might well be worth the risk, and I think when you think about the greatest justices, they have been risks. Someone like Louis Brandeis, my hero, who was really a populist crusader against the curse of bigness in corporate life and wrote these muckraking pamphlets and was an economic advisor and so forth -- that was risk. He wasn't an appellate judge. I think it would really -- what liberals want is to transform the terms of debate. If they want a Brandeis, then they do have to think outside the box in just the way you're suggesting.

  • 10:37:14

    REHMJeffrey Rosen, he is professor of law at George Washington University. We'll take a short break. We'll be right back.

  • 10:40:03

    REHMAnd we're back. I've asked my guests this morning to read the e-mails because, as I've said earlier, I'm still recovering from my voice treatment. Jeffrey Rosen, you've got one.

  • 10:40:18

    ROSENYes. And it's an interesting one. It's from Larry in Washington, and he asks, "On what basis do corporations have the same rights as human beings? Why should corporations have free speech rights or privacy rights other than protection from proprietary information? I'm baffled by this. There's nothing in the constitution granting corporations rights of any kind." Very good question, and there are two answers.

  • 10:40:39

    ROSENOne has to do with the constitution and the other with federal law. It's true that the constitution doesn't say that corporations have constitutional rights, but in a case called Santa Clara in the late 19th century, the Supreme Court said that corporations are persons. And persons do have constitutional rights, and ever since then, corporations have been able to make contracts, to sue and be sued and so forth. That doesn't mean that their rights are identical to those of human beings. And what made the Citizens United case last term so controversial, is the court very expansively said there was no difference between the free speech rights of corporations and human beings in a way that some found hard to reconcile with precedent.

  • 10:41:15

    ROSENThe second question -- do corporations have privacy rights? -- is the one at issue in this FCC versus AT&T case. And here, there are two laws. One of them, the Administrative Procedure Act, says corporations should be treated like persons, but so should state governments and other governments when it comes to certain forms of lawsuits. But then the other law, the Freedom of Information Act law, said that it's personal information regarding human beings...

  • 10:41:37

    REHMHmm.

  • 10:41:37

    ROSEN...that should be protected from disclosure. And the lower court very expansively ignored that and basically said, there's no difference between corporations and real people when it comes to privacy. So it's just a huge question of how expansively you're willing to interpret these constitutional and statutory sources.

  • 10:41:51

    REHMAll right. Let's take a call from Fenton, Mich. Good morning, Pat. You're on the air.

  • 10:41:59

    PATYes, good morning. I'm pleased to be on the air with you, Diane. I listen to you everyday.

  • 10:42:04

    REHMThank you.

  • 10:42:04

    PATMy question is, did the -- does the panel ever think that people will hold the Supreme Court in the same regard they did prior to Bush v. Gore? The fact that the court is so politicized, the fact that you don't think it's even possible that one Republican and two Democratic appointees could sit in as substitutes when a judge has to recuse themselves, just shows how politicized this court is in how it's not making the public feel that their decisions are based on justice and impartial law.

  • 10:42:44

    REHMSusan.

  • 10:42:45

    BLOCHWell, I think right after Bush v. Gore, many people -- including the dissenters in that case, notably Justice Stevens -- feared that the court would be held in much lower regard after Bush v. Gore. I actually don't think that has happened. I think people still have arguments about Bush v. Gore, but for the most part, I think the court has resurrected itself or maybe never even needed to do that. But -- so I think the court is still held in fairly high regard. I agree it would be better if it looked less political, but they agree with that, too. And I'm -- I believe they're trying to accomplish that.

  • 10:43:28

    TAYLORI agree. And I think people's reactions to the things like Bush versus Gore tend to depend on their politics. Lots of Republicans thought Bush versus Gore was a wonderful thing. Lots of Democrats thought Roe versus Wade was a wonderful thing and so on. But I think the court's stature has withstood a lot of buffeting in this side. I think the danger of a Liberal Republican split is real. But I think one reason the court's reputation seems to be better than that of Congress -- a lot better, for example -- is, well, they may be ideological, but they don't take campaign contributions. That's a plus. You know, they're not -- nobody really thinks they're corrupt in the base sense of that, and they're not on TV much. I think that helps.

  • 10:44:14

    REHMAll right. To Fort Lauderdale, Fla. Good morning, Jason. You're on the air.

  • 10:44:20

    JASONHi, good morning, everyone. And thank you so much for all of your input. My question is regarding the makeup of the court. We began the show discussing the new makeup of the court in the fact that there are now three women sitting on the bench. However, clearly over the last five years, there has been a substantial shift in age of the court. And my question to your guest, Diane, is how that will affect their upcoming decisions?

  • 10:44:48

    REHMJeffrey.

  • 10:44:48

    ROSENWell, this is a great question, especially given all these technology cases. I mean, we finally have a justice, Justice Kagan, who had the chance of growing up playing video games. It may have been Pong. You know, she's closer to my generation than to the video games at issue in California. But you won't have a situation as you did a few years ago when the court heard about internet indecency, and they literally had to have their law clerks show them how to log onto the computer. And certainly far more technologically advanced than the '60s when they were deciding obscenity cases, they would have movie night down in the basement of the court. And the justice would watch movies, and Justice Harlan, who was almost blind, would ask his clerks to narrate as the action unfolded.

  • 10:45:28

    ROSENSo this question of whether -- now that you have justices who are in their 50's, as Kagan and Sotomayor are, will this change the way that they approach the cases? The court has been very cautious about technology and privacy. Last term, in a BlackBerry privacy case, Justice Kennedy said we don't want to move too fast here 'cause we barely understand this technology. We don't want to freeze things in place. But you perhaps won't have the kind of quaint archaic definitions -- the internet, a way of connecting people over the World Wide Web -- you know, these sort of old-style definitions that people are not conversant with these technologies. We'll see less of that. More informality, more citation in Supreme Court opinions to YouTube videos, which we're beginning to see, and just generally, less of a breakdown, a barrier between the court and popular culture in general.

  • 10:46:13

    TAYLORYes. I agree with all that. It also raises the question of whether life tenure is really a good thing. It's there to keep the court independent. That was what the framers thought, but I think the first 10 justices -- research has found -- served an average of eight years. The last 15 or so justices to retire have served an average of more than 25 years. And...

  • 10:46:37

    REHMBut, of course, those earlier justices were older. Were they not?

  • 10:46:43

    TAYLORThey might have been older when appointed. They had a rougher time. They had to ride circuit.

  • 10:46:46

    BLOCHRight.

  • 10:46:47

    BLOCHThey had to travel all over the country.

  • 10:46:48

    REHMRight.

  • 10:46:48

    TAYLORIt's a pretty cushy job now. Lower court judges tend not to serve forever because they really have to work hard. At the Supreme Court, people go on and on and on. And for various reasons that a lot of scholars have put forth, I think, it's not a particularly good thing. But I -- it's one of those not particularly good things that I don't think is going to change.

  • 10:47:11

    REHMAll right. Thanks for calling, Jason. To David who's in Indianapolis. Good morning.

  • 10:47:19

    DAVIDGood morning. I'd like to talk about the violent video game case and the distinction the Court might end up drawing. And with obscenity, the Court seems -- as Judge Posner said in one of the lower courts -- its moral disapproval is sufficient reason. And the court has kind of gotten away -- I mean, the state governments invoke mere moral disapproval as a reason for restrictions in the gay rights cases. With violent video games, it's -- the courts seem to have wanted tangible evidence of harm and not being willing to rely on mere moral disapproval. And do you think that's going to be restricted to obscenity or be eroded and -- I'm talking about adult obscenity, of course -- with child obscenity, it's a different...

  • 10:48:08

    REHMSure, sure. Jeffrey.

  • 10:48:10

    ROSENVery interesting and a smart point. It's true that the court has basically said that a moral disapproval, as you suggest, is no longer a compelling reason for banning speech. And that's going to be the basis, perhaps, for the lower court striking down the California ban on gay marriage, which may come up to the court next year. And the question here is, what are the non-moral, disapproval-like reasons for banning violent video games? The lower court judge, as you suggested, said that the justification that the state offered, that violent video games cause psychological harm to children, is supported by evidence based on correlation rather than causation. And you're unlikely to want the Supreme Court itself to make its own judgment about how tight the evidence has to be. Now, but they could send it back to the lower court and say, yes, if you can actually prove that these violent video games really do cause psychological harm, you can ban them. But even that would be a big expansion of this category.

  • 10:48:59

    REHMSusan.

  • 10:49:00

    BLOCHWell, I think as we saw last year with the animal videos, this court is not inclined to carve out more areas that are unprotected by the First Amendment. They just don't like these categorical, not-protected categories. So I doubt that they are going to be inclined to do that with the video case. Maybe if there's enough evidence that there really is harm produced, they might be willing to go a little farther. But, in general, I think, they're very protective of the First Amendment and don't like these kinds of bans.

  • 10:49:36

    REHMStuart.

  • 10:49:36

    TAYLORI think the caller's question raises an interesting question. Yes. The opinions say moral disapproval is not a good reason to ban speech, and they mean it. But these cases will come with expert witnesses on both sides who say it does or does not cause horrible consequences to the mind or it doesn't hurt their psyche and so forth. And someone who looks at that evidence through a lens of really intense moral disapproval is more likely to favor the side that says, let's ban it because of the expert. I like this expert -- than someone who's a little bit less horrified by it. That's just human nature.

  • 10:50:10

    REHMAll right. To -- let's see, Howard in Forth Worth, Texas. Good morning.

  • 10:50:19

    HOWARDGood morning. I basically had a question involving the violent video game case. As a gamer, I play a lot of games myself, so I have a very strong (unintelligible) with that. However, I also abhor the protest then such that went on at the funeral. And so, you know, I wouldn't want a world where that's perfectly fine. So, I guess, what I'm asking is, even though the two cases are totally different from one another, is it possible that by, say, one ruling in the video game case might have an effect on the other free speech ruling?

  • 10:50:57

    ROSENAgain, another very interesting way of connecting the two cases. And, yes, in terms of the background gestalt of the case. Because both cases raise the question, is there some speech that is so highly offensive, that so violates community standards, that it actually can be banned? And the truth is that this is a society that doesn't agree a lot about what is outrageous beyond explicit sexual conduct. You're shaking your head again, Diane.

  • 10:51:22

    ROSEN'Cause it's just like the violent video game case, like it or not, juries, judges, even wonderful public radio conversations cannot agree about what stuff is beyond the pale. And that's why the courts have been so careful to say, it has to be false. Or it has to be targeted. Or it has to be inside the home. So, basically, the caller suggests there will be some justices who will be more willing to say, well, we've gone too far.

  • 10:51:43

    REHMYeah, yeah...

  • 10:51:43

    ROSENThere are some things that are just outrageous. They violate community standards. They should be banned.

  • 10:51:47

    REHMAnd the moral state.

  • 10:51:47

    ROSENMoral, yes.

  • 10:51:48

    REHMSusan.

  • 10:51:49

    ROSENMoral standards.

  • 10:51:49

    BLOCHI agree. And I think it is a very good question, but I think the court can very well decide that the total ban on violent videos goes too far but still protect the -- what I see is a private funeral captive audience problem where they're targeting -- harassing. It's like -- it's a form of harassment. I'm talking now about the funeral case where that's -- I think the First Amendment doesn't have to protect their right to target this poor man's funeral.

  • 10:52:23

    REHMSusan Bloch, she is professor of law at Georgetown University. And you're listening to "The Diane Rehm Show." Stuart.

  • 10:52:34

    TAYLORAgreed again, so I'll go off on another tangent. I think an interesting background fact in these cases is that it's hard to predict how liberals and conservatives will come down. It's not like an abortion case where you kind of know how they're going to split up because the First Amendment has now become sort of something that doesn't draw a clear cleavage between liberals and conservatives. Back in the '60s, it was kind of a liberal thing to be broad on First Amendment. It was after McCarthy era as Civil Rights protesters were being censored and so forth. Justice Brennan, the great liberal, wrote New York Times versus Sullivan.

  • 10:53:07

    TAYLORLately, it's often about campaign finance restrictions -- the corporate case we talked about lately -- where the First Amendment tends to be something conservatives are more fond of and liberals are less fond of. And in these cases, I'm not sure how it will play out. You might end up with a 5-4 decision where you have Justice Thomas and Ginsburg on one side and Justice Breyer and Roberts on the other side.

  • 10:53:32

    REHMInteresting. All right. To Mike who's in Fort Myers, Fla. Good morning. You're on the air.

  • 10:53:40

    MIKEGood morning. Thank you for taking my call.

  • 10:53:42

    REHMSure.

  • 10:53:42

    MIKEOne of the things that I'd like to hear discussed is -- well, actually I think we're missing the point with the Citizens United case. I think the Supreme Court is supposed to keep the government in its cage, so to speak, and whenever you have the government yielding power against entities, such as corporations, it shouldn't have the power to silence them whenever it comes time for them to defend themselves in the political arena. I think that the -- that if the government is going to wield power against corporations, they should have a right to defend themselves on the public stage by saying, hey, we don't like this such and such candidate. Look what -- you know, because of what he's doing. I think it's a complete conflict of interest for the federal government to try and gag a corporation when they're trying to tax them or regulate them or all these other things. You can't say, we're going to do all this to you. Now, just sit there and take it and be quiet.

  • 10:54:40

    REHMStuart.

  • 10:54:41

    TAYLORThere's a lot to that. Now, corporations were hardly defenseless before this decision. They can lobby. They can do so-called issue advertising. All this decision added to their arsenal is the ability to say, vote for X or vote against Y. But, you know, the idea that that's part of the marketplace of ideas is very important. And one awkward thing for the anti-corporate side here is that, of course, all of the great media companies are corporations. So should they be limited in what they can do? Now, Congress has a special exception for them, but a lot of people would say, wait a minute. General Electric used to own NBC. That's as big a corporation as you can get.

  • 10:55:25

    REHMJeffrey.

  • 10:55:26

    ROSENBe that as it may, ever since the progressive era, ever since 1907, corporate speech has been treated differently in campaigns than other kinds of speech, and for a restrained conservative court to ignore that distinction, strikes a lot of people as not very convincing.

  • 10:55:38

    REHMAll right. And, finally, to Gail in Nashua, N.H. You're on the air.

  • 10:55:46

    GAILHi, Diane. Thank you for taking my call.

  • 10:55:48

    REHMSure.

  • 10:55:49

    GAILIt seems like a good opportunity for me to ask the question of -- you know, for a country that does measure things, you know, and money wise so well and has -- when we talk about what it really has cost the society to not have women representing some of these major decisions, I just don't think they could ever do that, sort of put together a full cost of what it's cost the world and the country. But I guess my main question is, do you think...

  • 10:56:20

    REHMYou're going to have to put it quickly, please.

  • 10:56:23

    GAILOkay. For having women on the court now, do you think, for a country where it's all about the money and people tend to have harsher sentencing for embezzlement and armed robbery versus rape, domestic violence, child abuse, do you think that's going to shift?

  • 10:56:39

    BLOCHWow, that's...

  • 10:56:41

    REHMWith women.

  • 10:56:42

    BLOCHRight. I -- again, I think these women might add some extra dimensions as the dialogue, but I don't think they're going to be at all monolithic.

  • 10:56:53

    REHMI think it's wonderful that there are now three women on the court. We shall see how all this unfolds. Thank you all so much. Thanks for listening. I'm Diane Rehm.

  • 10:57:09

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture and Monique Nazareth. The engineer is Tobey Schreiner. Dorie Anisman answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter.

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