Five Years Of Subtle Shifts On Supreme Court

Justice John Paul Stevens' impending retirement is the latest development in what has been a seismic shakeup at the Supreme Court. Since 2005, the Court has subtly shifted in everything from ideology to geographic representation.

NPR's legal affairs correspondent Nina Totenberg talks about the future of the Court.

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NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan in Washington.

The nine justices who sit on the U.S. Supreme Court are more than judges; they're icons, part of one of the most venerated and powerful institutions in the nation. But the court is also a human organism that changes every time someone new comes in. He or she changes the chemistry, the politics, the alliances and can introduce new ideologies.

We're focused, at the moment, on the retirement, announced last week, of Justice John Paul Stevens. But if his successor is in place, come the first Monday of next October, that will mean four new justices in the last five years and a court that's very different in many ways - in politics, religious identification and where they're from and how they think.

Today, a guide to the court and its possible future, with our own Nina Totenberg, NPR legal affairs correspondent. Last week, we spoke at length about possible replacements for Justice Stevens, so today, the bigger picture.

We want to talk about the court's ideas, its character, how it operates and how it's changed. Our phone number, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our Web site. Thats at npr.org. Click on TALK OF THE NATION.

Later in the program, Andy Stern joins us to talk about his decision to step down as the head of the Service Employees International Union. But first, Nina Totenberg, nice to have you back on the program.

NINA TOTENBERG: My pleasure.

CONAN: And we always refer to the court by the name of the chief justice - the Warren court, the Berger Court. How significant is it, that among those four new justices, is the chief justice?

TOTENBERG: Well, it's pretty significant because the chief justice, the relatively new chief justice appointed in 2005, John Roberts, is young. He was I think 50 or 51 when he was appointed, and he's the likelihood is that he will be there for several decades to come, that he'll be there as long as Justice John Paul Stevens, who announced his retirement last week.

So and he's a person of enormous skill, great experience with the court. So more than many other nominees to the court, he's familiar with all the rituals and how things are done and I think, in some sense, has settled in more quickly, at the same time that I think he's had more problems than he imagined he would.

CONAN: What do you mean?

TOTENBERG: Well, if you recall, when he first came to the court, he talked a lot about consensus and consensus building, and doing the least amount possible. You know, that the court should recede in importance and defer to the political branches as much as possible.

Well, instead, it's probably a more divided court than it's been in memory - at least in recent memory - with many more five-to-four decisions. And the court has been criticized, not least of all by President Obama at his State of the Union address, for reversing 100 years of campaign finance law in a case that didn't absolutely require the court to that.

They could have reached a narrower conclusion, but they, the five justices, firmly believed that this 100 years of law was wrong and that they would just be eating away at it until they did that. So they went ahead and took the big bite.

So the predictions that he the kind of chief he imagined himself to be - it's not turned out quite that way.

CONAN: He used the analogy in his confirmation hearings - I'm just the umpire, I call balls and strikes. I'm not making new law here. A lot of people look at a change like that law you just referred to and say, wait a minute, a lot of people criticize activism, this was activism.

TOTENBERG: There are a lot of people who say that, and, you know, no less than conservative Judge Richard Posner, who's a very highly respected conservative scholar on the court of appeals based in Chicago, has sort of pooh-poohed the umpire analogy, saying that's just ridiculous. No just can be just an umpire. You have to interpret the law, and the way you interpret it decides how the case is going to come out.

CONAN: Let's see if we can talk about some of the other things that people with the announcement of Justice Stevens' plans to retire, some people look back at the recent history of the court and say, every single justice who's recently been named to the court has been to the right of his predecessor.

TOTENBERG: Well, I think thats true. The person who said that first was none other than John Paul Stevens, who, when he was nominated to the court, was considered sort of a centrist conservative, a moderate conservative.

And although I think it's fair to say that he has gotten more liberal in a couple of areas of the law, he certainly thinks he hasn't changed much at all. And I would have to say I don't think he's changed dramatically, but the court, the composition of the court, has moved so dramatically to the right that he now finds himself as the left wing of the court, the leader of the left wing of the court.

The center became the left. Maybe you could say that about our politics generally, but that is certainly what's happened at the court, and ideas that when I was a young reporter, ideas that I was told routinely by conservatives and liberals alike, ideas that were settled, are no longer settled. They're in play. They're very much in play. All kinds of states' rights issues and, you know, nullification of federal law, as we even talk about these days.

(Soundbite of laughter)

CONAN: You mention that State of the Union message, where President Obama chastised eight members of the Supreme Court who were sitting there in front of him. Last month, Chief Justice Roberts was at the University of Alabama Law School, where he had this to say in reply.

CHIEF JUSTICE JOHN ROBERTS (United States Supreme Court): The image of having the members of one branch of government, standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling. And it does cause you to think whether or not it makes sense for us to be there. To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there.

CONAN: And, well, they weren't expressionless. At least Justice Alito was not expressionless.

TOTENBERG: No, he said not true, when Obama said his thing about the campaign case. But there were - only six of the justices were there.

CONAN: I apologize.

TOTENBERG: But you heard that tape. He sounds pretty ticked, doesn't he? He really sounds ticked.

CONAN: And some have said, well, he didn't seem to be bothered by the cheering when it was George Bush.

TOTENBERG: Well, but more to the point, I think probably, most justices now will not go because this became a thing. It is also true that other presidents, many other presidents, have criticized Supreme Court decisions in their State of the Union addresses, not the least of which was Ronald Reagan, who repeatedly criticized Roe versus Wade and the prayer decisions that call for constitutional amendments to overrule the court.

So you know, this was not a new phenomenon, but in the past, there have been times when only one or two justices - in the last, you know, 30, 40 years -have showed up. Justice Breyer feels very strongly that somebody should be there, that this is the State of the Union is a united government event.

It may be a political event, but it's the sort of symbol of the nation coming together and that somebody from the court should be there, and so I suspect he will always be there, as long as he's on the court, but he may be the only one.

CONAN: But isn't also the fact that this Supreme Court, you have a Democratic majorities, big ones, in the Senate and the House of Representatives, a moderately liberal president. This is the bastion of the Republican Party, the conservatives.

TOTENBERG: You know, they would dispute that. They do not view themselves as Republicans first. They view themselves as justices first and conservative justices at that but not partisans.

Now, you may dispute that, and there are people who do dispute that, but I guarantee you that they really do believe that and that they have an overarching conservative set of principles, which really are the reasons that they were selected to begin with, and they're not about to give those up.

CONAN: We're talking with NPR legal affairs correspondent Nina Totenberg about the big picture on the Supreme Court, which will likely be changing again when Justice John Paul Stevens is replaced, presumably later this year by a new Obama nominee.

We're not talking about who that might be, but about the court and how's it's changed over the last five years. Give us a call, 800-989-8255. Email talk@npr.org.

TOTENBERG: You know, there are many interesting ways in which the court has changed over the last 50 or 60 years that have nothing to do with ideology, but it you know, it used to be, for most of the history of this country, that geography, for example counted enormously for you always wanted to have a balanced court, geographically.

Well, at the moment, it's heavily tilted toward the East Coast. There's only one Westerner on the court, and that's Justice Kennedy from California, and there are a lot of issues that are special and inimical to the West: water issues, land issues.

When both Chief Justice Rehnquist and Justice O'Connor were there, they were Westerners, Arizonan Westerners, and they were very familiar with those issues. There's nobody there really like that, from that area of the country.

CONAN: Wait a minute, you've got three boroughs of the city of New York represented.

(Soundbite of laughter)

TOTENBERG: You've got three boroughs of the city of New York. It is conceivable that when Obama makes his choice that we would have four New Yorkers on the court. There are people who criticize the you know, Justice Stevens was the last person who didn't go to Harvard or Yale to be one of the justices.

It is entirely conceivable that when he leaves, he will be there will be no Protestant on the court, on a court that for generations and for most of the nation's history was majority Protestant or all Protestant because this is a majority Protestant country, even today.

At the moment, there are six Catholics, two Jews and one Protestant, John Paul Stevens. Well, it's entirely possible that we'll have either seven Catholics and two Jews or six Catholics and three Jews. I mean, and this is a majority Protestant country.

CONAN: So long as we don't have a majority of Met fans. Anyway, let's get Bridgette(ph) on the line, Bridgette with us from Stanton in Virginia.

BRIDGETTE (Caller): Hello, it's nice to talk to you. I wanted to approach a subject that you just touched on. You mentioned that they consider themselves justices first. At least two, possibly three, of the Supreme Court justices, are members of Opus Dei, as well as being Catholics.

And as we know, the pope has said that life comes before everything else. And if you're a politician, a judge or whatever, and you vote on a pro-choice issue, you are in danger of either being excommunicated or not being given communion or not being allowed to be a Catholic.

And so, there are several cases, I believe one in Nebraska that's working its way toward the Supreme Court. If you have six Catholics on the court who would have to choose between their religion and rule of law, would people be would it be fair for people to expect for those six justices, possibly seven, to recuse themselves?

CONAN: Bridgette, we're going to have to await a reply until after a short break. I didn't realize your question would be so long and complex, but it's a very good one. So stay with us, if you would. I'm going to put you on hold.

BRIDGETTE: I will stay.

CONAN: All right. We're going to continue with NPR's Nina Totenberg to talk about the Supreme Court. If you'd like to join us, 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. Im Neal Conan in Washington. President Obama now has a second chance to shape the future of the Supreme Court, but the seismic shift in the makeup of the highest court started five years ago.

There's plenty of speculation about who may replace Justice John Paul Stevens. We'll leave that conversation for another day. Today, Nina Totenberg, NPR legal affairs correspondent, joins us to talk about the big picture: the court's ideas, its character, how it operates and how it's changed.

Give us a call, 800-989-8255. Email us, talk@npr.org. And Bridgette was on the line with us, just before the break, asking about the six Catholics on the court, perhaps seven if a Catholic is named to replace Justice Stevens and confirmed by the Senate, and whether that might come into conflict with abortion decisions coming down through or coming up through the court. Nina?

TOTENBERG: Well, first of all, I want to take slight issue with the premise of Bridgette's question. I'm unaware that of the number, if at all, any justices are members of Opus Dei, not that that would necessarily be a bad thing. But I'm really not aware that we know the denominations of the...

CONAN: The orders.

TOTENBERG: The orders, which are associated which the justices associate themselves with. So that's number one.

Number two, there are Catholics, including Justice Kennedy, who was, I suppose you could say, the deciding vote when the core of Roe was upheld, who are clearly against abortion as a policy matter, strongly, but have voted to uphold it as a right, a woman's right to choose.

The late Justice William Brennan always voted a pro-choice record, and he was a devout Catholic who went more than once a week to mass. It is, I suppose, true, just as it is for political figures, that there are members of the clergy who would deny communion to people who voice pro-choice views in their official capacity, but as far as I'm aware, what people do is they go places where they know that's not going to happen to them.

Now, is that desirable? Probably not, but it's interesting to me that when Justice Brennan was confirmed in the 1950s, the whole thrust of his confirmation hearing was whether his first allegiance would be to the Constitution or the pope.

Today, there are people still asking that question, but I really do think that for the most part, the five conservative Catholics, conservative judicial Catholics who are on the court, were picked because their views are conservative.

And perhaps you can argue that their views are conservative as a part of their Catholic approach to life, and I mean that not life as an abortion issue but as a rather encompassing view of how you view the law and the approach to politics. But that's why they were chosen, not because they were Catholics but because they had a certain kind of conservative approach to the law that maybe is associated with conservative Catholicism but not as a religious thing. It's much more as an intellectual thing.

CONAN: Bridgette, thanks very much.

BRIDGETTE: You're welcome, thank you.

CONAN: Bye-bye. Let's see if we can next to Doug(ph), and Doug's with us from Fairport in New York.

DOUG (Caller): Hey, thank you. This is the first time I've been able to get through to this show.

CONAN: Well, congratulations.

DOUG: I have a very strong position that somebody's faith has absolutely nothing to do with whether they are qualified to be on the Supreme Court. I don't care if there's 29 Catholics, three Jews, seven Muslims. It doesn't matter.

TOTENBERG: It certainly shouldn't matter.

DOUG: No, and let me finish. It doesn't matter. What matters is that the person is qualified, certified and can be trusted to uphold the laws, the Constitution and the values that this country holds so dear.

And I'm going to listen to your answer off the air, but I'm going to listen very carefully because I'm not sure I'm going to like it.

TOTENBERG: What's your question?

DOUG: Have a great day.

CONAN: What's your question?

TOTENBERG: What's your question?

DOUG: The question is: Why are we talking about how many Jews and Christians are on the court? Let's talk about who might be nominated and what they might be qualified to do.

CONAN: Well, those qualities that you listed at the end, their being able to be trusted to uphold the Constitution and the values we hold so dear, there are different interpretations of the Constitution that on which good-meaning people can disagree. There are different views of our character as a nation.

TOTENBERG: Well, one of the reasons that I think that this is perhaps not an issue it shouldn't be an issue. But one of the reasons that it is noteworthy is that for a long time, there was a Catholic seat on the court, one, that's it, and one Jewish seat, starting with Brandeis, and pretty much that was it except for a brief period when Cardozo was also on the court.

Then for 24 years after the Nixon administration, there were no Jews on the court. And if you believe and I'm not saying you should but if you believe that our institutions should in some sense reflect who we are not just in our values but in our experiences, as our life experiences, and that encompasses more than just being qualified and being a good person.

It may involve economic situations, religious situations, all kinds of experiences, being a woman, being Hispanic, being Asian, being black. Those people, because of who they are, bring to the court and justices will tell you this themselves they bring to the court an experience that other justices have not had, which is why, at the moment for example, there are only every single justice on that court is a previous appellate court judge. Not one of them has ever run for office.

Not one of them has ever been part of a legislative body that had to craft a legislative compromise, and there I think everybody considers that a void that has not been filled.

And I know Obama complains about it. Justice O'Connor said something about it last week or this week. This is not this is not - I'm not making an original observation here, but if these are experiences that matter when you're interpreting the law.

CONAN: Here's an email question from Sean(ph) in Denver: I worry that the distinction between judicial conservatism and political conservatism gets blurred in much of the news coverage. Has those concepts really become synonymous?

TOTENBERG: Well, part of the problem here is, just to give you an example, for years Republicans accused or conservatives accused liberals of being activists, and now liberals accuse conservatives of being activists.

It's all in the eye of the beholder. And because our politics have become so polarized and so, frankly, poisoned, and because in particular the such an essential part of the Republican Party base are social conservatives, for whom some of the things that the court did involving gay rights, involving abortion, involving school prayer even, are loathed. And that has really galvanized a certain wing of the Republican Party.

These issues have become more and more politicized. And the whole question of court nomination and confirmation has become, as a result - and selection - has become, as a result, much more politicized.

I mean, John Paul Stevens was nominated by President Ford. He was picked specifically because he was qualified, he was very highly regarded and because he had no political connections. And at that point in the history of the Republican Party, I don't even think there was an abortion plank in the platform.

Abortion wasn't he wasn't even asked about abortion. This is 1974. It's after Roe, after all, or '75. It's after Roe. It's two years after Roe. He's not even asked about abortion. And he was confirmed in a matter of days, I think.

Our politics, vis-a-vis judicial nominations and confirmation, have changed dramatically. They probably have changed dramatically for the worse because there's no subtlety here, and distortion is the name of the game for all sides.

CONAN: Does that kind of partisanship and that toxic atmosphere that we talk about on Capitol Hill, just across the street from the court, does that permeate the court itself?

TOTENBERG: I don't think not in the same way, no, because these are people who are very have very intellectually grounded views. Now, there may be times when they think, oh, you're just seeing those facts through, you know, the eyes that you want to see them to reach the result you want to reach. I think that certainly each, you know, you see that in the dissent.

But they do their own work, they have their own views. And nobody is going to get somebody else to do something because of a campaign contribution or because you're nice to me today or tomorrow. It's just not it doesn't happen that way. They have lifetime tenure, remember.

CONAN: Mike(ph) is on the line from Chapel Hill.

MIKE (Caller): Thank you for taking my call. Earlier, you all explained that the court character continues to evolve. So I'm confused over when the term chief justice became sort of inheritable title. Shouldn't that power position go with seniority and experience on the court?

TOTENBERG: No. It's a slot. It's the - you're nominated to be chief justice. And so, when, for example, William Rehnquist was an associate justice, he was named separately to be chief justice...

CONAN: And had a whole nother set of hearing.

TOTENBERG: Had a whole nother set of confirmation hearings and then - and at the same time, Justice Scalia was nominated to fill the Rehnquist seat. If he hadn't been confirmed as chief justice, he would have gone back to being an associate justice.

CONAN: So it's a separate position. Once you are chief justice, you have that title for life.

TOTENBERG: For life, until you retire or die.

TOTENBERG: And John Paul Stevens, because he - was in position of seniority, the senior associate justice?

TOTENBERG: Yes. He was a senior associate justice. So that means that when he assigned opinions when he was in the majority and the chief justice was not -if the chief is in the majority, he assigns the opinion. If he's not in the majority, the senior associate justice in the majority assigns who will write the opinion. That will now, in all likelihood, where there's a closely divided court, be Justice Kennedy.

And it's the first time I know of ever where a so-called swing justice becomes the assigning justice. And, certainly, Justice Kennedy is way, way, way, way, way more conservative than Justice Stevens. So in assigning the opinion, in some sense you determine how the opinion is going to be framed because you know how people view this issue, you know who's going to write a broader opinion, who's going to write a narrower opinion.

CONAN: Is that a carrot? Do you say, you know, hey, vote with me, you get to write the opinion?

TOTENBERG: No. I mean, you certainly - I think there have been chief justices over time who sort of punished people for not voting with them by giving them the dog cases. I know Lewis Powell, at one point, said after he voted in some -he was a swing vote in some criminal case. He said, oh, God, I'm just going to be writing - and if I'm offending anybody here, I'm sorry, this is a quote -I'm going to be writing Indian affairs cases for the rest of my life.

So - but that, of course, didn't turn out to be true. You assign the opinion often to the person who's the weak link also because you want to hold on to that person.

CONAN: Let's go - the weak link, not intellectually but the weak...

TOTENBERG: Weak link in terms of holding your majority.

CONAN: ...who's the most malleable member. Tom(ph) is on the line from St. Louis.

TOM (Caller): Hey, good afternoon. Nina, I would just wanting to get your take on the - Justice Scalia on one hand, if I understand things correctly, he - his life, his experiences doesnt really influence the way he views the law. And then on the other hand, you have Justice Sotomayor who seems to - if I understand things correctly, that her life experiences, they do shape that. They do shape how she views the law. And I was just wanting to know your take, you know, what's valid from those very different views?

TOTENBERG: I'm of the view that everybody's experiences shape how they view the law. If you think - you know, Antonin Scalia is a New Yorker. He is a rough-and-tumble New Yorker. He actually really likes Sonia Sotomayor. They get along great because they sort of understand this kind of pushiness that some other people on the court may find somewhat offensive. He went to parochial schools. You don't think - and she went to parochial schools. They may take different things from that but that experience is in itself a - it contributes to who you are.

The kind of upbringing you have from parents determines what kind of person you are. I - you know, Antonin Scalia has nine children. If you think that the experiences - his experiences with some of those children haven't changed his views, you're crazy. Of course they have. Everybody's children change their views.

TOM: So why does he maintain this stand?

TOTENBERG: He doesnt maintain a stand. He has an intellectual approach to the law in which, to be - to oversimplify it, he says the Constitution says what it means and means what it says. And it means pretty much what the Founders intended it to mean at that time and it doesn't change at all over time. That's different than other people.

CONAN: Tom, thanks very much. We're talking with Nina Totenberg about the Supreme Court. You're listening to TALK OF THE NATION from NPR News.

And let's go to Barb(ph), Barb with us from Ann Arbor.

BARB (Caller): Hi, yes. My question is whether Nina thinks that it's inevitable that the lawsuit that state officials are bringing against the administration for health care plan will its way the Supreme Court. And if so, how the proposed changes toward the more activists might influence what happens.

TOTENBERG: Well, I think it's likely that'll get to the Supreme Court. It only takes four justices to...

CONAN: Justice Breyer said today he expected it to appear before the Supreme Court.

TOTENBERG: Yeah. It's going to - you know, it only takes four justices to hear a case. And when you're having monumental issue like this, it's brought by a bunch of - challenges brought by so many states, I can't imagine the court saying they're not going to hear it.

I wouldn't venture to say how it's going to turn out because, really, the states are making an argument that is contrary to about 60 years, some would say 100 years, of law. But there are aspects of it that may be very - that may be legitimate and may succeed. So I just can't evaluate how it will turn out. This is certainly a court that's more interested in states rights than any court in the past.

But, on the other hand, federal power is something that's a given in modern American life. And if you doubt that, just imagine what - if there's a - if a plague broke out, what kind of powers the federal government would have to mandate immunization shots if necessary. Or, in the case of a terrorist attack, you see how dominant the federal government is, so that all of our licenses, our driver's licenses are different than they were 10 years ago.

The federal government is now - has been accepted for a very long time, is a very powerful thing. And to sort of toy with that is not it's just not a given that the states will succeed either just because these are conservative justices.

CONAN: And we just have a few seconds left, Nina, but we've seen big gun issues come up this term, we've expect, as we were talking, the abortion decisions in the Nebraska case to come up, and perhaps the health care bill. These are amazingly important parts all of our lives.

TOTENBERG: You know, Totonko(ph) once said that, when he came to America, that almost every issue of American life will eventually make its way to the Supreme Court. And it was great observation over 200 years ago, its still a great observation.

CONAN: Nina Totenberg, thank you very much for your time.

TOTENBERG: My pleasure.

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