High-Profile Cases Fill Supreme Court's Docket

Guests

David Savage, Supreme Court correspondent, Los Angeles Times
Julie Rovner, health policy correspondent, NPR

The Supreme Court faces a momentous term in 2012. The justices recently added two high-profile cases to its docket, agreeing to weigh-in on Arizona's immigration law and a Texas case on redistricting. They previously agreed to hear a challenge to the Obama administration's health care law.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan, in Washington. Over the past month the Supreme Court accepted cases that could affect the presidential election, decide control of the House of Representatives, and settle the tug-of-war between the federal government and the states on immigration.

On top of an already crowded docket, health care, Texas redistricting and immigration could mean the most momentous Supreme Court term in decades. The issues include the future of President Obama's landmark health care law, the Voting Rights Act, and whether states can enact and enforce their own laws on immigration.

All these cases center on the role and reach of the federal government. If you're following these blockbuster cases and have questions, give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, your thoughts on what was accomplished and what was lost in Iraq. You can email us now. The address again, talk@npr.org. But first the Supreme Court. David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune, joins us here in Studio 3A. David, always nice to have you with us.

DAVID SAVAGE: Hi, Neal.

CONAN: And some people are going back to the New Deal and Franklin Delano Roosevelt's tussles with the court to find an equivalent, an equivalent mass of cases.

SAVAGE: Yes, that predates my time, but this is the best term we've had in quite a while, at least the way it looks. 1992, there were a lot of big cases on abortion and civil rights, but I can't think of one since '92 where there's been so many big national issues before the court.

CONAN: And is the court - I mean, these cases come up when these cases come up. It's not deliberate that they're all coming up the same year.

SAVAGE: I think that's correct. They had to resolve the heath care case. The law was passed, it was challenged. One federal appeals court said it's unconstitutional, another said it is constitutional. The court had no choice but to take that case and resolve it, essentially now.

And the immigration cases, you know, these have been percolating along. One state after another - Arizona, Alabama - has passed these laws saying we want to enforce the laws against illegal immigration more aggressively than the federal government is, has. The Obama administration went into court and said you can't do that, this is our job. And so that's the kind of conflict that the court essentially had to resolve too.

CONAN: And one they're going to have to address first comes from Texas. The state legislature, they're getting four new congressional districts, largely because of the dramatic increase in Latino population. They get four new congressional districts. The state legislature drew a map, and in the nature of state legislatures, it's controlled by Republicans, and it favors Republicans.

The courts took a look at it and said, wait a minute, this doesn't accord to the Voting Rights Act.

SAVAGE: Yes, this is a complicated mess, as a lot of redistricting cases are, but you're absolutely right. Texas had 22 Republicans and 10 Democrats in Congress now. They're getting four more seats. The Republicans redrew the map in a way that it looks like it would be 26 Republicans and 10 Democrats. The Voting Rights Act says you can't disadvantage a minority group. The Justice Department, the Obama administration, said this is unfair to Latinos.

Some judges down in Texas said, okay, we're going to redraw the map that's fairer to Latinos. The Texas Republicans came to the Supreme Court and cried foul and said you can't - these judges can't replace our map, and the Supreme Court agreed to step in and resolve that dispute too.

CONAN: Because of the scheduling of the primary, which may have to be moved in any case, but this one's got to be addressed first.

SAVAGE: Yes, that's right. That's why they're moving pretty quickly on this because the election year is coming up, and that was the sort of complicated legal situation: What do you do when the map is still pending pre-clearance? It's not been formally rejected. It's still pending. The judges down in Texas said, well, we've got to do something because if you want to run for Congress, you've got to know where your district is.

So they drew these - as I say, this interim map, and Texas objected. They said until our map is struck down, we want to use it, and we want to use it in this election. The reason both parties care, as you said, is that there are four seats that could switch, depending on which map is used.

CONAN: And depending on your prognostications, four seats one way or the other could mean which party controls the next House of Representatives. There have been a history of interim maps in the state of Texas, though. The courts have intervened there before.

SAVAGE: Yes, this seems to happen about every 10 years. The one thing that's actually - in a big way is different this time is that this is the first time ever, since the Voting Rights Act in '65, where a Democratic administration has been in charge in Washington.

And so all these Southern Republican-led states don't want to go through the Obama administration. They tried to go around the administration, go to this court, as a way to, as I say, get past the Democratic administration. But it sort of backfired because it slowed down the process. The court has not settled this question, and that's why we're in this sort of interim situation where it's still not settled but the election year is coming upon us.

CONAN: There are any number of other big cases but none bigger than health care. Let's bring Julie Rovner into the conversation; she's NPR's health policy correspondent and a familiar voice on this program, as well as every other NPR news program. Julie, always nice to have you on TALK OF THE NATION.

JULIE ROVNER, BYLINE: Always nice to be here.

CONAN: And as David mentioned, four different courts have issued somewhat different opinions on this, and the Supreme Court scheduled, I think, an unprecedented, as far as anybody can tell, unprecedented five-and-a-half hours of argument.

ROVNER: That's right. It's probably going to stretch over two days, in all likelihood, in March, and they're going to look at four different questions that have to do with this law. First of all, first and I guess most important in the minds of most people: Is this mandate constitutional, this requirement for most people to have health insurance starting in the year 2014?

If the mandate is not constitutional, if they decide that Congress overstepped its authority in this requirement, is it severable from the rest of the law, meaning can you take that part out and leave the rest of the law standing? Which, of course, one of the judges, one of the lower court judges, said you could not. Every other judge has said no, you can take it out and leave most of the rest of the law intact.

There's a third piece that the court is looking at that was in this case out of Florida that the judges took, and that has to do with Medicaid. And this was the only court that looked at that issue, this court in Florida, because it was the only place that it was challenged, is the requirement for this very large expansion of Medicaid, which is going to cover about half of the people who are expected to gain coverage as a result of this law, about 16 million people.

Is that coercive to the states to require states to put these, about 16 million additional, mostly able-bodied adults, on Medicaid? Even though, I might add, the federal government's going to be paying the vast, vast majority of the cost of that. Is that too coercive on the states? And I should also add that in every other case in which this has been tried in the lower courts, lower courts have said no. But the Supreme Court has never said this.

And then the last question is: Is it premature to decide all of those other questions? I mean, in fact, one of the appeals courts that looked at this case said it was because they said that the penalty you might have to pay if you don't have health insurance is a tax, and if that is a tax, then there is a law called the Anti-injunction Act that says that you cannot sue until after you've paid the tax, which meant that nobody can take this to court until 2015, which is the first year you would have to pay - anybody would have to pay the tax.

CONAN: So it gives them an opportunity to punt. David, there is that chance. We keep thinking, oh, they're going to be settling all of these vastly important cases on the, you know, federalism. Nevertheless, you can come out with very narrow decisions on all of these issues and punt entirely on health care.

SAVAGE: Yes, it is possible. I think if they're evenly divided on health care and can't come up with a good solution, there is that possibility of punting. I think one of the interesting things about these cases is that the common theme is these are all red-state cases, states' rights cases, with the Obama administration on the other side.

That's why they have this real sort of partisan tone to them. The health care case, also in a big-picture way, Julie, I think is interesting because it's - the part of this dispute about what's the nature of the federal government, it's sort of what drove the Tea Party people last year, which is does the federal government have this broad national power to regulate in a way that's in the public interest, or is the federal government - are there real limits on what the federal government can do, and most of these things should be handled by the states?

There's a common view in Washington and Congress that basically Congress can legislate in the national interest, but there's a lot of people out around the country, particularly in the red states, they really think - Rick Perry's a good spokesman for this view - is that these are states' matters and that the federal government should not be doing this.

A number of the members of the Supreme Court have a sympathy to that view, which is that we need to put limits on what the federal - it doesn't have all power. And so for the court, I think this is one of those big questions that only comes up every 20 years or so, is are we going to limit the role of the federal government in national regulation?

CONAN: Should we read a lot into the fact that the case they accepted - we said four cases came up - the one they took was the case where the court threw out the law as unconstitutional, threw out the individual mandate as unconstitutional?

SAVAGE: I think they took that for a couple good reasons. First of all, it was the biggest case. It was the one with the 26 states. It had the Medicaid issue. I think they thought that was the best case because it was the broadest. It hit all the issues.

And secondly, they do tend to take cases where a lower court declares an act of Congress unconstitutional. So I always thought that's the one they're likely to take. As soon as the court says it's unconstitutional, then the Supreme Court is going to say, okay, that's the case we're going to take.

CONAN: And Julie, we'll be hearing some familiar voices whenever we get to hear the tape, if we ever get to hear the tap.

(SOUNDBITE OF LAUGHTER)

ROVNER: Yeah, they're saying perhaps by the end of that week we might hear the tape.

CONAN: Oh yeah, (unintelligible) be so interesting by then.

ROVNER: I'll still be interested in it by then.

CONAN: I'm sure David will be too.

ROVNER: But yes, Paul Clemente(ph), long-time important Supreme Court lawyer, is going to be arguing for the states, although in fact the states are really only in this case for the Medicaid part. Those who are arguing on the mandate are representing the National Federation of Independent Business. The states were sort of put out of the case on the mandate part.

And one interesting quirk that's going to come up is that there are really two individual plaintiffs who are arguing against the mandate, and one of them has apparently gone bankrupt, perhaps no longer going to be in the case.

CONAN: As we go through that case, the other case, the Texas case, this really touches - some people are saying wait a minute, the Voting Rights Act, 1965, is that still necessary, is that still as important as it once was? The attorney general in a speech this week said, oh yes it is, and that's going to be at the center of that case.

SAVAGE: That's absolutely right. I'd say four or five members of the Supreme Court are of that sort of skeptical view. They almost struck that down a couple years ago, sort of taking the view that this is outdated, we can't continue to have this special treatment for the South.

And Eric Holder was saying in this speech, here's an example of why the Voting Rights Act is needed, that this big growth in Texas was almost all Latino, the state legislature drew the line, it did not give more representation to Latinos. That's a situation where Washington and the Voting Rights Act needs to step in and say stop.

CONAN: We're talking about the momentous term coming up at the Supreme Court with three particularly partisan cases on the docket, on immigration, voting rights and health care. If you're following these blockbuster cases and have questions, give us a call, 800-989-8255. Our email address is talk@npr.org.

David Savage of the Los Angeles Times and the Chicago Tribune is with us, along with Julie Rovner, NPR's health policy correspondent. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. We're talking about the upcoming term at the Supreme Court, a blockbuster, with a number of decisions expected in the middle of a contentious presidential race. Already, pressure is growing on the justices to allow cameras into the courtroom, something they've resisted for years, for the arguments on the health care law.

That's just one case we mentioned. We'll see rulings on states and immigration, redistricting and voting rights, among other issues. If you're following these blockbuster cases and have questions, give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Our guests: David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune; and Julie Rovner, NPR's health policy correspondent. And let's begin with Mark, and Mark's with us from Florissant in Missouri.

MARK: Yes, I think that the - requiring insurance is a good thing, just like seatbelts, driver's license, car seat and driving on the right side of the road.

CONAN: Well, Julie, a lot of people make that argument, that states require you to have automobile insurance if you're going to drive a car. They force you to wear seatbelts; it's against the law not to. What's the difference between buying auto insurance, collision insurance and the individual mandate in the health care law?

ROVNER: Well, there's a couple of different things. One, of course, is that those are state laws, and this is a federal law. In the case of auto insurance, you have the option, if you don't want to buy auto insurance, you don't have to have a car. In the case of health insurance, your choice is buying health insurance or not breathing.

So - and this is the big argument here, you know, the legal argument is this is, you know, they're charging that - this is requiring people to do something, you know, a tax on inactivity. Can you have the opposite? Can you require people to do something? And that is the charge, you know, if they can require people to do this, can they require people to eat broccoli?

And there is - the legal arguments are complicated, but what the Justice Department is arguing is that this is not inactivity, that people - that the opposite of having health insurance is not being inactive, that everybody consumes health care and that if you don't have insurance, you simply consume health care at other people's expense, that the people who truly do not consume health care, people like Christian Scientists or the Amish, are in fact excluded from this mandate, that everybody else at some point is going to consume health care.

If you go into the middle of the street and get run over by a bus, then you're going to be taken to the hospital, and you're going to be - you're going to consume health care, and someone else is going to pay for it. Therefore, you should have to pay for it up front.

CONAN: It's about choice. David Savage, the - not making a choice is a choice, the federal government...

SAVAGE: Yes, that's right. Julie just stated the argument well is that the government really has to argue, and has argued, that health care is different. It's not like buying broccoli or going to a gym or whatever, that there are federal laws that say if you are injured, or you have some medical emergency, a hospital must treat you.

And somebody else is going to pay for that if you can't, and it's usually the taxpayer or the hospital or the other people who are insured. So their argument is health care is different, it's unique. That's why we need everybody to pay because we've already got these laws that say if you are hurt, if you have an emergency, we, the society, are going to pay for you. And in that situation, it's only fair for everybody to contribute and pay something.

CONAN: It is also - and Mark, thanks very much for the call - it is central to the rest of the law, Julie, because if everybody is in the pool, that allows the government to say all right, insurance companies, you cannot exclude anybody, everybody's paying insurance, so that's your part of this deal. In exchange for that, all these new customers, you are going to have to take everybody, even if they're sick.

ROVNER: That's right, well, it's central to that part of the rest of the law. Remember the law is much bigger than just that insurance...

CONAN: As has been pointed out, yes.

(SOUNDBITE OF LAUGHTER)

ROVNER: That's right.

CONAN: So - but that's the essential tradeoff. Is that the part of the if-then-so-what part of the second point that the court's going to be deciding?

ROVNER: Exactly, that's the if-then-so-what. So that's where the law, where the justices will have to decide. If they decide that this mandate is not allowable under either the Commerce Clause or the general welfare clause of the Constitution, and they were to strike it down, what then would have to fall with it? And in all likelihood, the part that you were saying, the part where insurance companies would be required to take all comers because if everyone doesn't have to be in the insurance pool, then the insurance companies would say that only the sick would sign up because the healthy people wouldn't sign up. And they would go broke.

And so in all likelihood, that very popular piece of the law that says insurance companies have to take people with pre-existing conditions would probably fall with it. However, the rest of the law - and there's a big, big chunk, there's nine other titles of this law - most of the rest of the law would in all likelihood remain.

SAVAGE: Julie, if the court were to say the mandate is unconstitutional, do you think the administration would essentially have to go back to Congress and get them to rewrite part of the law for the insurance companies? I've sort of struggled with that question. What happens if they strike down the mandate? Does the law essentially need to be redone by Congress, or can the administration fix it on its own?

ROVNER: It depends. I mean, I think it depends what parts of the law the court were to strike down. It depends who's in Congress and Congress's inclination to want to fix it.

CONAN: We'll have to see.

ROVNER: Yeah.

CONAN: Let's go next to Alice(ph), and Alice is with us from Pacifica, California.

ALICE: Hi, my question is: What is the - would be the implication of sanctuary cities policy if the court were to rule that, you know, states or localities could not basically follow a different policy from the federal, that it's only federal?

CONAN: This is on the immigration decision. There are sanctuary cities or sanctuary towns that have said we will not pursue people who are - who may or may not be here illegally, we're not going to even ask the question. David, this - would they be covered?

SAVAGE: Well, that's an interesting question, sort of looking at it from the other side because as you know, this case arose because of states and cities that want to more strictly enforce the immigration laws, and the administration is saying you can't do that.

It is so that if the Supreme Court were to say you've got to follow the federal lead and that's all, that would seem to suggest that cities and states then can't have sanctuary city policies. I suppose all I could say as the lawyers say, well, that's another case. But it sure seems like it would strengthen the argument that cities can't ignore the federal government and create these sanctuary policies on their own because it would be the same thing. It would be conflicting with the federal immigration policy.

CONAN: There - I don't know if this has ever come up in the law, but obviously a lot of places declared themselves nuclear-free zones or nuclear-free cities, or this is obviously, the federal government says I'm sorry, you can't have your own defense policy, you can't have your own foreign policy. This does not have any standing.

SAVAGE: That's right. And I think where the rub really comes in is if cities go out of their way to prevent or block federal enforcement. If they just say it as a matter of we want to welcome and treat people well, that probably doesn't have any legal effect.

But if they actually try to take steps that in some way block federal enforcement of the immigration laws, that seems like - as I say, if the Supreme Court says you can't do that, cities and states have no authority to adopt immigration policies of their own that differ from the federal policy, it seems like it would create a challenge to some of the sanctuary cities.

CONAN: And it might come up on the marijuana laws, California for example.

SAVAGE: Yes.

(SOUNDBITE OF LAUGHTER)

CONAN: Federalism comes up in all kinds of strange ways. It could be, again, one of the issues in the argument over gay marriage when that comes to the Supreme Court.

SAVAGE: Well, all these, Neal - they almost always come down to sort of who decides. Ruth Ginsberg threw out this great line and said almost every Supreme Court case about what should be done really comes down to who should decide it. And they all come down the question of: Are we going to allow the cities and states to make their own policies, or are we going to federalize this and say there's one national policy, and you and the cities and states must follow it?

CONAN: And in the Republican debates, we've been hearing a lot of arguments, again we should not allow the justices of the Supreme Court, eight of them in one case but nine in most calculations, we should not allow unelected judges to make these decisions, they should be left to the legislatures, whether that's Congress or the states.

SAVAGE: That's been a very popular line, particularly on the right, for a lot of years, and it seems like it's not diminished at all. We haven't, at least in my sense, have not had a liberal activist court for quite a while, but that's still a very powerful argument, that we don't want unelected judges making the political decisions for us, the American people.

CONAN: Alice, thanks very much for the phone call. Let's go next to - this is Ian(ph), Ian with us from Malvern in New York.

IAN: Hello, long-time listeners, first-time caller. I love the show.

CONAN: Hi, thank you.

IAN: Okay. Well, I just wanted to ask a question, but I want to make a comment first. I think that, you know, as a legal immigrant, someone who has went through the process of immigration, I think there's a lot of us legal immigrants who get frustrated, you know, that when we hear talk about, you know, people who come here illegally, and then they're sort of going to be able to jump the queue but not necessarily supporting what Arizona's done, but maybe understanding where it comes from.

But the question I ask is: Is it possible that if, you know, if in of if the law gets struck down, will this sort of give some impetus to the federal government to actually deal with this issue in a more resolute way?

CONAN: Well, that's - boy, there's question. The interesting fact is that we've seen a sharp reduction in the number of people at least coming across the border. That's not the entirety of the problem. Many immigrants are here illegally because they came on a visa and overstayed their visa. But, David Savage, a court cases, sometimes, inspire, you know, get the - the side that loses seems to gain impetus.

SAVAGE: Yes. That's right. There's frequently a backlash question. Let me say it this way. The Obama administration - the issue really is, in this case, in the end, is what do we do about the estimated 11 million people who are here illegally, and most of them are living peacefully and otherwise are the law-abiding people. The administration has what you could call a targeted enforcement policy. They say we want to round up and deport people who are criminals, drug smugglers, people who are any terrorism threat.

That's what they've continued to say. We have a targeted enforcement policy, and those are the people we want to deport. And they've actually deported a record number of people in this administration - 400,000 in the past year, an all-time high. At the same time, they don't want to have, at their doorstep, hundreds of thousands of people picked up by local police who are otherwise law-abiding immigrants. And Arizona and a number of - Alabama really want to do a little more to arrest and detain, and perhaps deport, a lot of illegal immigrants.

And that's really where the rub comes down. The administration really wants a targeted enforcement policy that says we're only going to use our resources to deport bad guys, bad people, people who've done something wrong when they're here, just not illegal immigrants. But they sure have not - this case is not going to settle this question about what do you do about all the millions of illegal immigrants who are living here.

CONAN: That's going to have to be settled, sooner or later, at the ballot box, I would think.

SAVAGE: Do you know the polls are about even on this, Neal?

CONAN: Yeah.

SAVAGE: That the American public is about evenly divided if you say do you favor stronger enforcement or a path to citizenship. The Pew Center has done a lot of research on this recently, and the public is about evenly divided about what they think is the right approach - stronger enforcement or a path to citizenship. A lot of people say I like both. We should - need stronger enforcement and a path to citizenship.

CONAN: Ian, thanks very much for the call. We're talking about the three cases the Supreme Court tacked on to an already crowded docket. Three cases that touch on major political issues, all of which will be decided in a presidential election year. That includes redistricting in Texas. The congressional lines could affect the control of the House of Representatives. It includes President Obama's health care law. That could be thrown out or affirmed in the middle of the presidential election. And it involves, as we were just discussing, the immigration laws in Arizona.

If that's the case they're taking, it affects immigration laws in many other states, too. Our guests are David Savage of the Los Angeles Times and the Chicago Tribune, NPR's Julie Rovner. You're listening to TALK OF THE NATION from NPR News. And Marjorie is on the line from Saint Paul.

MARJORIE: Yes. A question: do the lawyers arguing this case to the Supreme Court accept ideas or arguments from the general public. My idea is that if somebody - if people endure a calamity like Katrina, they expect that the government, which is the taxpayers, are going to step in and help them out and save them. Isn't a car crash or cancer an individual calamity, and why shouldn't that be shared by all of us taxpayers, if being in a hurricane or a fire is shared? And another question is that Justice Thomas' wife is a - has formed an organization that actually opposes President Obama's health care, and Justice Thomas has said he admires and agrees with everything his wife says. Currently, he is not offered to recuse himself from hearing the case. Is there any way that we can compel him to recuse himself?

CONAN: David Savage, Elena Kagan hearing it from the other side that she ought to recuse herself from the health care debate - health care decision as well, but is there any court of appeals?

SAVAGE: No. That's - there is not. This is one these things where the justices get to judge their own situation and whether they stay on the case. I think there's almost no chance that either Justice Thomas or Elena Kagan is going to step aside. There are groups on both sides that think there are good reasons for both of them to step aside. It tends to be the Democrats think Thomas should step aside, and the Republicans think Kagan should step aside, but they're not likely to.

I think on the issue of his wife, I think for an average person, you'd say, gee, if his wife is running some organization that's strongly opposed to the health care plan, wouldn't that suggest he's not impartial? But the rules are that a judge doesn't have to step aside just because his spouse is interested in some cause or is active in some organization. And I think there's no chance Justice Thomas is going to step aside in this case. The case of Elena Kagan, she was the solicitor general on the day that the health care bill was signed into law.

And the solicitor general represents the government and the Supreme Court. But very shortly after, just weeks, she was nominated to the Supreme Court, and she says, took no part in the discussion or the defense of the law, and that's been her policy. She said every issue or case that I got involved in - and there were a lot the first term - she stayed out of those cases. But health care came up just as, essentially, she was getting ready to leave, and so she says I'm going to sit on this case. And I don't think there's any chance she's going to change her mind and step aside.

CONAN: Marjorie, thanks very much for the call. Interestingly, she did recuse herself from the Arizona immigration case, which leaves the possibility of a four-four tie. And, David, as I understand it, that - if that is the decision, it would go back to the decision by the Ninth Circuit Court of Appeals, which said Arizona's law is unconstitutional.

SAVAGE: Yes. A four-four split has the effect of affirming the lower court. The Ninth Circuit said this law - they actually put it on hold. This is a preliminary injunction. They say it cannot go into effect. But, yes, it would have the affect of affirming the decisions that do not allow the law go in - to go into effect. I want to say on the health care, it would be a real disaster, by the way, if there were just eight-member court and there were a four-four split on that one.

CONAN: Mm-hmm.

SAVAGE: Because, remember, then we'd have a situation where in one region of the country the law is unconstitutional, another region of the country it's - it is constitutional. That would be a real mess.

CONAN: And among the other unknowables is the political impact of any of these decisions. Well, I guess, the first one we'll find out about is the Texas redistricting and see how the Supreme Court deals with those congressional lines and who they tend to favor and who might get elected from those new districts in Texas. Julie Rovner, thanks very much for your time today.

ROVNER: You're welcome.

CONAN: And, David Savage, as always, a pleasure to have you here in Studio 3A.

SAVAGE: Thanks, Neal.

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