Major Decisions Anticipated From Supreme Court

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The Supreme Court, with new justice Sonia Sotomayor, posed for a group portrait in September. Mark Wilson/Getty Images hide caption

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Supreme Court

The Supreme Court, with new justice Sonia Sotomayor, posed for a group portrait in September.

Mark Wilson/Getty Images

The Supreme Court opened its new term Monday with new justice Sonia Sotomayor. Supreme Court reporter David Savage and Dahlia Lithwick, senior editor for Slate, focus on four cases and the key decisions the court faces in a new term.

The Court will hear a variety of cases this term, and decide on some heady issues. In McDonald v. Chicago, justices will consider whether state and local gun control laws may be challenged under the second amendment. In the past, the amendment has not been applied to state laws.

The second case Savage and Lithwick offer insight on is U.S. v. Stevens. It involves animal cruelty, and pits defenders of free speech against animal rights activists.

Related cases Graham v. Florida and Sullivan v. Florida raise the question of whether it is cruel and unusual to sentence juveniles to life in prison without the possibility of parole, for crimes in which no one dies.

And in the case known as the "Cross in the Desert" case, or Salazar v. Buono, the separation between church and state is up for debate.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

The Supreme Court opened its new term today, the first Monday in October. There is a new justice, Sonia Sotomayor replaces David Souter and about 80 cases will be argued and decided between now and June. For most of this hour, we'll focus on a few cases that involve gun rights, separation of church and state that's the so called Cross in the Desert case, campaign finance which focuses on "Hillary: The Movie" and a question, are animal snuff films protected under the first amendment?

Is it cruel and unusual to sentence juveniles to life without the possibility of parole? Two of our regular Supreme Court watchers, David Savage and Dahlia Lithwick join us. And we want to hear from you. If you have questions about these cases, if they affect you? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our Web site at npr.org. Click on TALK OF THE NATION.

Later being gay in Iraq has always been taboo, now it is dangerous. New York magazine's Matt McAllester on the gay pogrom in Baghdad.

But first, the Supreme Court's new session. David Savage covers the court for the Los Angeles Times and the Chicago Tribune. He is with us here in Studio 3A, hello David.

Mr. DAVID SAVAGE (Reporter, Los Angeles Times): Hello Neal.

CONAN: And Dahlia Lithwick is Slate's legal correspondent and senior editor. She joins us from the studios of the University of Virginia in Charlottesville. And Dahlia, nice to have you back as well.

Ms. DAHLIA LITHWICK (Senior Editor, Legal Correspondent, Slate): Hi, there Neal.

CONAN: And David, before we get to the new cases, let's return to an old one. Last diestrum the court punted a major campaign finance case, decided to re-hear arguments that revolved around, "Hillary: The Movie" and McCain-Feingold law that restricts some kinds of political advertising.

Mr. SAVAGE: This could be potentially a big deal. We don't know whether they will decide it small or decide it big. Chances are big, since they decided to carry it over and re-argue it. The issue basically is to corporations have a free speech right to spend as much money as they want to endorse or oppose candidates. For basically 100 years the federal government has restricted corporate involvement in national politics. Since the Taft-Hartley Act in the late '40s, the court has said corporations and unions cannot spend money directly to say, let's oppose Senator so and so because he is not good for business.

But there has been a rule that sort of growing on the part of the conservative wing of the Supreme Court is to all of these is a first amendment free speech violation. That in the Buckley case in the mid '70s, the court said individuals can spend as much money as they want on politics. And now the issue is, does the same rule apply to corporations. Can corporations spend freely in national political races?

CONAN: And Dahlia, this re-hearing also gave us a preview of the new court. Associate Justice Sotomayor was confirmed and sworn in, in time to participate in this case and proved not to be shy.

LITHWICK: Well, everybody was waiting for her to talk. Everyone was sort of watching their stopwatch to see when she would jump in and, I think she did the appropriate and decorous thing. She waited about 31 minutes before asking a question and then the question she asked tended to be the Sotomayor we saw at her hearings - very lawyerly, very narrow, you know, about isn't there a narrower way to decide this case. She did have one brief comment about the wisdom of conferring, upon corporations, personhood under the constitution.

It felt a little bit like a thumb in the eye of Clarence Thomas. But it was sort of a throwaway line. I think for the most part, she impressed everyone as being kind of the John Roberts umpire figure that they just very, very narrow, very lawyerly, very sober but very well prepared.

CONAN: And, of course, it's have been said all throughout her hearings and confirmation process that she does not shift the ideological balance of the Supreme Court, a moderate liberal, which most believe Sonia Sotomayor to be replaces a moderate liberal David Souter. Nevertheless, it will affect the chemistry of the court. And Dahlia, any idea what impact she is going to have?

LITHWICK: Hard to know right now. Certainly, I think enough of the justices gave interviews to C-SPAN, suggesting that wow, everything changes this is crazy, it's all too much. They are pretty open about how disorienting it is for them to have a new member. And now might be a good time to just flag for your listeners that now we're looking down the barrel of John Paul Stevens' possible retirement. At least that's what the scuttlebutt is. So, they may get to do it all over again next summer.

I'll say one key difference, I think, between Sotomayor and Souter, if you put aside their politics - which are slightly different, I think.

CONAN: Mm-hmm.

LITHWICK: One key difference is that on the Court of Appeals she was pretty well known for being willing to mix it up, being quite aggressive, quite verbal, quite bold and also really willing to try to use her powers of persuasion to get other judges to go along with her. Those are not really characteristics we associate with Souter, who was always sort of much more like an island at the high court.

CONAN: And David, also a former prosecutor, she worked in the District Attorney's office in Manhattan under a legend there, Robert Morgenthau and that comes up in terms of a case called Graham versus Florida and Sullivan versus Florida, which raised the question of whether it's cruel and unusual to sentence juveniles to life imprison without the possibility for parole, for crimes in which there was nobody dead, did not involve murder or a crime leading to murder.

Mr. SAVAGE: You know, Neal, I think her prosecutorial background will affect her in a number of cases, search and seizer-type cases. When she was on the Court Of Appeals she was much more skeptical than some of the traditional liberals about keeping out evidence. It's the kind of thing a prosecutor would really be burned by, you know, you got some evidence and you can't use it. However, she also was somebody who, in a number of drug cases, thought these sentences were too severe, too harsh.

I have a feeling, in this case, this is the question of whether a state can send a 13-year-old or 16-yaer-old to life imprison without the possibility of parole. My guess is that Sonia Sotomayor is going to be more on the liberal side of that - that that, particularly for a New Yorker, these are cases from -most of them are from Florida - is going to seem like a pretty harsh punishment. So, I think she will be more with the liberals on the punishment question, but I think there will be a lot of other criminal cases where she will be more with the conservative.

CONAN: Well, Dahlia Lithwick, there are not all that many, 109 if my memory serves me, in cases like this in the country. What is the constitutional issue here?

LITHWICK: The constitutional issue really gets flagged a couple of years back, Neal. As you'll remember, the Supreme Court, in a pretty contentious decision with Anthony Kennedy voting with the liberals, determined that it was unconstitutional under the 8th amendment, cruel and unusual, to execute folks who were juveniles when they committed their crime. And the analysis got a lot of people all fired up. But the analysis had sort of two pieces to it. The big piece was all this cognitive psychology data that shows that teenagers are just not like adults: they don't understand risk. They're willing to do crazy things. Their brains are not formed. And so they can't be held accountable to the extent that you can give them the sort of ultimate punishment that you can give an adult. But there was a sort of gloss over the Kennedy opinion that had a lot to do with international norms, what other people do, what other countries do; the fact that the United States really was an outlier in its willingness to execute juveniles. So, this case really builds upon that president and says look, if it's unconstitutional to execute someone for crimes committed when they were juvenile, how can it possibly be constitutional to put them in jail and throw away the key without any possibility that they can ever get out.

Everybody's eyes are, of course, going to be on Anthony Kennedy again, because I think, as David pointed out correctly, probably Sotomayor will tilt leftward on this. And then the question is, the same Anthony Kennedy who said I just can't bring myself to execute someone for crimes they committed when they were 16, is he willing to give them life without parole.

So, that's the constitutional question. But again, we're hearing a lot of muttering about the fact the United States is one of really only a handful of countries - and as David points out, Florida really only one of sort of a small minority of states that had most of the juveniles in prison with life without parole.

CONAN: And some people would see incrementalism here, and that the next step is to say wait a minute, even if it does involve a murder, you can't sentence a juvenile to life without parole.

Mr. SAVAGE: Well, that's the problem from the prosecution point of view, and that's what they're going to argue. The court, I should say, has never basically used the Eighth Amendment, cruel and unusual, to limit prison terms.

I mean, all the big decisions have been limiting the death penalty, and so that's the threshold that we've got to sort of cross here. Are we going to…

CONAN: That prison is, by its nature, cruel and unusual somehow.

Mr. SAVAGE: That's right, that a prison term can be cruel and unusual punishment if - and what they're arguing here - it's a juvenile, no one was killed in the crime, and it's life in prison without the possibility of parole.

And so you're right to say, Neal, if the court buys this, then the prosecutors are going to say, okay, well, what about the juvenile who's involved in a crime where someone is killed? Is that cruel and unusual?

CONAN: Felony murder and then murder itself.

Mr. SAVAGE: Absolutely.

CONAN: Right. Let's get some callers in on the conversation. Our guests are Dahlia Lithwick of Slate and David Savage of the Los Angeles Times and the Chicago Tribune. We're previewing the new Supreme Court term, which began today, 800-989-8255. Email is talk@npr.org. And let's go to Jeremy(ph), Jeremy with us from Wilmington, North Carolina.

JEREMY (Caller): Hello?

CONAN: Jeremy, you're on the air. Go ahead, please.

JEREMY: Hi. I want to commend on the Second Amendment case.

CONAN: This is McDonald versus Chicago.

JEREMY: Yes, sir. Well, I'd like to say that I believe the Second Amendment should apply to every state, just as the First Amendment does. I see no difference.

CONAN: You see no difference, and David briefly, because we're going to have to continue this over the break, but briefly, the McDonald versus Chicago, I think it was last year, the Supreme Court decided a case about the District of Columbia's ban on handguns and said that was against the Constitution. However, the District of Columbia is a federal enclave. It doesn't get any representation in the United States Congress for that reason, and the court did not say whether this applied to the several states.

Mr. SAVAGE: Right. It's a simple question with a lot of history behind it that until the 20th century, most of the parts of the Bill of Rights were said to only limit the national government, and that's the question here. Does the Second Amendment, like the old Bill of Rights, only limit the national government, or does it also apply to states and municipalities?

CONAN: And as I understand it, in the 19th century, the court issued a number of decisions which said no, it does not apply to the states.

Mr. SAVAGE: That's right. Well, remember the First Amendment begins with the word: Congress shall make no laws respecting… And so the thought was, for most of American history, the Bill of Rights, the First Amendment, the Second Amendment, Fourth, only applied to the national government.

The Second Amendment got lost along the wayside because there weren't any Second Amendment cases, and so now the court's got to try to decide: Are we going to bring the Second Amendment into line with all the other parts of the Bill of Rights and applies to all government at all levels?

CONAN: And Dahlia Lithwick, this in terms of the gun people, this is incrementalism on their behalf. They've got the District of Columbia. This is the next step.

LITHWICK: This was the obvious next step, and it was a question that was expressly reserved in the Miller decision by the Supreme Court. The court just did not want to go there. Now they have to go there.

CONAN: Stay with us if you will, and Jeremy, thank you very much for the call, appreciate it.

JEREMY: No problem.

CONAN: We're talking with Dahlia Lithwick of Slate magazine and contributing editor to Newsweek, as well, with us from Charlottesville, Virginia, today; and David Savage, with us here in Studio 3A, he covers the Supreme Court for the Los Angeles Times and the Chicago Tribune.

We're talking about a few cases that will be argued and decided by the new Supreme Court this term, which begins today, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. We're discussing the new term of the Supreme Court, how some coming decision may affect you. If you have questions about the cases, 800-989-8255. Email is talk@npr.org.

David Savage is with us. He's for the Los Angeles Times, along with us also Dahlia Lithwick of Slate.com, and David, I wanted to ask you about something you write. We just were talking earlier, just before the break, about the gun case in this term, the case about gun bans in Chicago, and there is an issue here that is quite interesting not just simply extending this decision from the District of Columbia, a federal enclave, to the states, but something called the privileges clause, and tell us about that.

Mr. SAVAGE: Yes, there's one aspect of this case that actually has liberal constitutional scholars and conservatives on the same side in this issue. After the Civil War, Congress passed and added the 14th Amendment. It said: No state shall abridge the privileges or immunities of a citizen of the United States.

And that was their way of extending all the fundamental rights, like the Bill of Rights, say those are a matter of you as a U.S. citizen, your privileges, your immunities.

The Supreme Court, a few years later, basically wrote that provision out of the Constitution and said it really didn't mean anything. It only meant national rights. And it's been dead - it's been essentially a dead letter ever since then. And a lot of liberal scholars have thought that's - there's a whole series of privileges of U.S. citizenship that you could be made part of the Constitution, and they've argued for reviving the privileges or immunities clause, and a lot of conservatives in the gun-rights case say the Second Amendment right to bear was one of those privileges of U.S. citizenship.

So in this case, the court is actually going to consider whether the right to bear arms is one of the privileges of U.S. citizenship.

CONAN: And what might be some of the other implications of that, Dahlia Lithwick?

LITHWICK: Well, the implications are vast. I mean, we really - one of the things that's so tricky about this case, and David sort of highlights nicely, one of the really most curious things about this when it came down is the Heller decision in D.C., is that sort of liberal academics got on board with conservatives and gun-rights people, and they all kind of came together and said look, if we're for a robust reading of the Bill of Rights, let's read the Second Amendment robustly. And really, I think the tipping point in this case came when a lot of progressive scholars started to say - they were calling it the embarrassing Second Amendment, the notion that this is a right only conferred upon militias.

So when they started saying no, this is an individual right, this is a robust, individual right, the whole world kind of fell on its ear, and the court sort of followed that lead of the academics and said okay, it's a robust, individual right. But that didn't solve this problem of what is a reasonable regulation, and that's the can of worms that pops open now.

CONAN: Okay.

LITHWICK: We know that it's subject to reasonable regulation. The question is, and this was not a question that was answered in any meaningful way in the Heller decision that came out of the District of Columbia, what is a reasonable regulation?

There was a very funny, throw-away line where Justice Scalia said: Clearly, you wouldn't want people bringing guns into the courthouse. So we know that he sort of wants to be safe at his job, but it really does raise these questions that are very, very hard to answer about where you're going to do that very, very complicated line-drawing about what are reasonable regulations of a right that, even if it's an individual right, obviously isn't absolute.

CONAN: David?

Mr. SAVAGE: Well, before we leave privileges, it is a very hard question to answer because you don't know if the court opens up that door. But there was a case about 10 or 12 years ago. It's the only time I remember the court cited it. It was a welfare case from California.

California had a law that basically said if you move from Oklahoma to California, for your first year there, you got the Oklahoma level of benefits, not the California benefits. And John Stevens wrote an opinion and said one of the privileges of U.S. citizenship is that you can travel state to state, and the day you arrive as a newcomer, you're a full-fledged resident. There's no second-tier residence.

You have a right to be treated as a full-fledged resident of your state. And that's kind of thing that if they revive the privileges or immunities clause, it could show up in a lot of cases down the road.

CONAN: Let's go next to Pam, Pam with us from Cincinnati.

PAM (Caller): Hi, yes, well, I have two comments. First of all, with the Eighth Amendment case, I actually teach high school kids, and I've asked them about the Supreme Court's ruling thus far, and they completely disagree with the cruel and unusual piece with execution, which I think is interesting.

But secondly, isn't there an issue with the Second Amendment applying then to all of the states with the 10th Amendment and reserved powers?

CONAN: The 10th Amendment says: Anything that we don't specifically award to the federal government in this Constitution and its amendment goes to the states. I'm paraphrasing here, and the Constitution is an awkward thing to paraphrase, but Dahlia Lithwick, have I got that roughly right?

LITHWICK: I think that's right.

PAM: Yeah because there are those powers then reserved to the state, and I just kind of wondered if the federal government then rules on the Second Amendment to apply broadly to the states, it just - it seems like that ruling, in and of itself, will take away a lot of those state powers to regulate their own gun laws.

CONAN: That's interesting. David's smiling. I didn't know this came under state's rights. Is that going to be one of the arguments?

Mr. SAVAGE: Well, I'm sure Chicago will cite it. This is one of those fun cases where, you know, the 10th Amendment has always been seen, mostly as a sort of conservatives arguing that the federal government shouldn't regulate this. Leave us alone. The states have some powers of their own. This is a case where sure, Chicago could say - under the 10th Amendment, there were a lot of things left to the states. One of them is the safety and security of their own citizens. They think the city is safer with fewer handguns; therefore, you ought to allow the city to prohibit hand guns. I'm sure they will cite it. I don't know that it'll be a winner.

CONAN: Thanks very much for the call, Pam. It sounds like you run an interesting class there in Cincinnati.

(Soundbite of laughter)

PAM: Thank you. All right, bye-bye.

CONAN: Bye-bye, and well, this is a strange-bedfellows case. Let's talk about another case in which usually naturally allies are divided, and that involves a dispute between cruel and unusual treatment of animals and people's free-speech rights. And this is a case called U.S. versus Stevens, distributor of films, which involve pit bull fighting and animals being crushed, its critics say tortured, to death on film and whether they could be sold for profit. And Dahlia Lithwick, this has animal rights advocates on one side and free speech advocates on the other.

LITHWICK: Yeah, this is one of those cases, Neal, that gets a lot of press just because of the utter grossness of the underlying facts. And as you point out, the utter grossness is that there's apparently some fetish phenomenon of watching women in very high-heeled shoes do something called crush videos, where they crush little, tiny, baby animals with their feet.

I never knew this existed until this case came up, but apparently in an attempt to sort of do away with the crush-video phenomenon in 1999, Congress passed a statute that was going to make the interstate commercial trafficking in depictions of such animal cruelty illegal.

Now, the question is whether this is way, way, way too sweeping under the First Amendment. The statute itself has an exception for items for films that have, quote, serious religious, political, scientific, educational, journalistic, historical or artistic value; but really the question is: Can Congress go ahead and do away with a whole class of speech the same way we've said there's no First Amendment protection for, say, child pornography? Is this tantamount to child pornography in that it has no redeeming value whatsoever?

CONAN: David, are we going to have a Supreme Court justice say I know it when I see it?

Mr. SAVAGE: You know, this is one that I don't know what the court's going to do with it. I don't feel like I have a sense. We've not had a lot of big free speech cases, and I don't know how, you know, John Roberts of Sam Alito will react to this.

There is a very strong body of law that says if it's, you know, something involves expression or speech, the government simply can't regulate it and ban it because they don't like the content. On the other hand, this is horrendous. I went to the Humane Society one day. They had a series of these videos, and they are really awful. The law, as Dahlia said, was passed to try to end this kind of trafficking.

It is the case that all the 50 states have laws against animal cruelty. Dog fighting is illegal; cock fighting is illegal. The idea was - there's this underground market in dog-fighting videos that they wanted to do away with, and I must say, I don't have a good instinct. The argument is tomorrow. I'll be interested to see how the justices approach this, whether they think this goes too far, no free speech protection, or on the other hand, hey, this is a video, and the government can't make a video a crime.

CONAN: Let's get some more callers in on the conversation. Let's go next to Richard(ph), Richard with us from Caldwell in Idaho.

RICHARD (Caller): Yeah, thank you very much for having me on.

CONAN: Go ahead, please.

RICHARD: I just had a comment about the corporate-personhood case. I think they're - at least I hope that the Supreme Court denies constitutional rights to corporations as opposed to expands those rights.

CONAN: Corporations' rights. They are treated, at least in tax law, and this is one their geniuses, Dahlia Lithwick, as individuals.

LITHWICK: Right. I mean, this was the - this is the core fight, as David said, that was going on here. And one of the very, very interesting things that we saw happening in the last couple of years of the Roberts court is a very fundamental split between two of the four conservatives, and two of the four conservatives on the court.

And by that I mean Justice Scalia and - Justice Antonin Scalia and Clarence Thomas are unequivocal, unequivocal on this question that they think that this part of McCain-Feingold is completely unconstitutional and that corporations have the right to speak like anyone else and that this is, in fact, core constitutional speech. It goes to the most important First Amendment right, which is to talk about politics and elections.

On the other hand, Chief Justice John Roberts and Sam Alito have had this wait-and-see approach. And we - it's not only in this case that we've seen this play out. Several times over the last couple of years, we've, in fact, heard Antonin Scalia accuse his colleague, accuse John Roberts of what's he's called, quote, "faux judicial restraint," of taking it slow, taking it easy, not being willing to do the dirty work of overturning precedents.

This case, if Citizens United go to the way it looks like it's going to go, it would require overturning two precedents. So there's this really interesting tension - I think it's almost the most interesting, unreported story about the Supreme Court right now - between these two branches of conservatives on the court. And so really, this question of how robust is this constitutional right to personhood in corporations, and I should just add that Alito and Roberts have very much waited on this issue. They've said we want to wait until this question is squarely before us. They've had an opportunity to address it. They haven't taken it. But I think this dynamic of Alito and Roberts sort of trying to determine how far they want to go is probably the most interesting piece over at the Roberts court right now.

CONAN: And here's an email on this point from Dave. How do they give corporations rights under the Constitution? They are creatures of statutes, so they can be limited by statute. No? David?

Mr. SAVAGE: Pretty good argument. It's the one the solicitor general uses in this case. There is an easy way out in this case, or a simple middle course, which is to say this was a nonprofit, ideological corporation. This is not, you know, what used to be General Motors, a company that made a lot of money and could pour money into - I think that's one of the things that really irks the conservatives in this case, is that you have a lot of groups that, like - the previous case was Wisconsin Right to Life. It was a small group that only existed - it was not a classic profit-making corporation. It was an incorporated, ideological group. Same thing with this group, Citizens United, that put out this movie.

And so I think one possibility is to say we're going to exempt these nonprofit ideological corporations and reserve the question about what if it really is the pharmaceutical industry or the insurance industry…

CONAN: (unintelligible)

Mr. SAVAGE: That's right, groups with a lot of money - because what the court's in danger of saying is that this corporation applies to all. You start with a tiny corporation that really has no profit. And they hand down some decision that says corporations have a free speech right, then it's everybody. Then, you're talking about the big-money corporations. So, I think there's a possibility they'll stick with some narrow, middle-ground rule.

CONAN: Richard, thanks very much for the call. We're talking about the upcoming Supreme Court session with David Savage and Dahlia Lithwick. You're listening to TALK OF THE NATION from NPR News.

And there's another interesting case we've not mentioned yet: Salazar v. Bono. This is the cross in the desert case. It involves the separation of church and state. A cross was erected on federal land. And Dahlia, the way I understand it, there was an end-run. That land was donated to the Veterans of Foreign Wars, I think, so that they could get around the fact that you're not supposed to use federal, public land for religious ceremonies.

LITHWICK: That's right. One part of this case that's very interesting is that once this case sort of blew up and it became clear there was going to be a big mess around it, the government tried to give one acre of land back to the Veterans of Foreign Wars and say, okay, you take the acre that the cross is on, and we've now sidestepped the constitutional question.

And that is certainly one of the issues in this case. You know, the court's jurisprudence on these public crosses is just a mess. It's such an unmitigated disaster, Neal. And it's very, very hard to determine what the current jurisprudence is about these public, religious symbols that may or may not be purely religious, they have a historic meaning.

This cross has been there in the Mojave Desert since 1974. It was erected by a private group, the Veterans of Foreign Wars. It's a small cross compared to some of the crosses we've fought about before, but the jurisprudence is all over the place. And this case comes to the court in addition to this question of can the court just sort of slice and dice the land and give it away?

This very, very complicated question about standing, and that is to say who is the offended viewer of the cross, and how offended does he have to be, and how do we measure that offense? It's a very, very complicated question. In this particular case, the guy who objects to the cross is himself a Roman Catholic. His principal objection is that the government wouldn't let the Buddhists put up a monument to their religion. So it really becomes very, very weird and squirrelly. And this question of not just, you know, is this government establishment of religion, but who gets to come into the courthouse and complain about it?

CONAN: And this would affect, presumably, Merry Christmas lights on city hall and (unintelligible) outside the courthouse, David?

Mr. SAVAGE: Yes. This is another one of these I-know-it-when-I-see-it situations. You remember about four years ago, the last case - they had two cases involving the Ten Commandments, and they actually split the difference. They said Texas could have a plaque with the Ten Commandments sitting near the capital, amongst some other monuments, but Kentucky could not put the Ten Commandments in each of its courthouses.

And Justice Breyer, who was the middle vote, said the second one, they were really trying to make a religious statement. The other one, that granite monument had been out there forever, and nobody had even noticed it. So it's a very much…

CONAN: Not totally they started (unintelligible)…

Mr. SAVAGE: (unintelligible), yes. Same thing with this cross out in the Mojave Desert. Nobody really - no one would've known. You could've lived in Southern California your whole life and not known this cross was way out in the Mojave Desert until it was litigated. I think there are five conservatives on the court now who would like to say the government should be able to have more leeway to put religious symbols and displays on public land. I'm not sure, though, this is the case to do it. It seems like it's a real mess, and they may end up with some narrow ruling or something, as Dahlia suggested, they may focus just on the standing question.

CONAN: Well, I'm sure we will have both of you back at various times over the next several months as the Supreme Court winnows its way through these and other cases, about the 74 others - we've only talked about a few - and issues its decisions over the course of time.

David Savage covers the Supreme Court for the Los Angeles Times in the Chicago Tribune. Thanks very much for your time, David.

Mr. SAVAGE: Good to be here, Neal.

CONAN: Dahlia Lithwick is a senior editor at Slate and joined us today from a studio on the campus at the University of Virginia and Charlottesville. Thank you, Dahlia.

LITHWICK: Thank you so much, Neal.

CONAN: Coming up, a way of brutal attacks on gay men in Iraq, and the New Yorkers who set up an underground railroad to rescue them.

Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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