U.S. Supreme Court Back In Session

During its last session, the U.S. Supreme Court confronted some of the country's most politically-charged issues, including school integration, immigration, and abortion. The high court is now back in session and preparing to take on equally controversial matters. Harvard Law professor Charles Ogletree offers analysis on the Court's new session.

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MICHEL MARTIN, host:

I'm Michel Martin. This is TELL ME MORE from NPR News.

Just ahead, it's one of the high court's most notorious decision, a ruling that blacks had no rights which whites were bound to respect. We'll hear about the man who brought that suit against all odds. That's next.

But first, we want to take a look at the cases before the Supreme Court, which reconvenes today. During its last session, the Supreme Court confronted some of the country's most politically-charged issues, including school integration, immigration, and abortion. This session promises to include some equally controversial matters, including questions about civil rights and human rights.

So we decided it was a good time to check in with Charles Ogletree. He is a professor of Law at Harvard and executive director of the Charles Hamilton Houston Institute for Race and Justice. Professor Ogletree, thank you so much for coming.

Professor CHARLES OGLETREE (Law, Harvard University; Executive Director, Charles Hamilton Houston Institute for Race and Justice): Michel, happy to be with you.

MARTIN: The court made some major decisions by close margins last session, a third of the cases were decided by the narrowest margin possible according to a survey by the Washington Post. Is there any reason to believe that that might change this year?

Prof. OGLETREE: I don't think so. What we saw in the 2006 term that ended June 2007 is that this court is the most divisive we've seen in a very long time; a 5-4 decisions in 24 cases. We see the court probably reversing precedents -that's laws that had been on the book for a long time. And we also see an activist nature of those who believe that the Warren court of the '60s and even the Berger court of the '70s was too liberal, and we see cutbacks in many areas . So I suspect that the trend we saw last year was not a mistake. I think it was a sense of what we have to look forward to.

MARTIN: And, of course, conservatives would say that the court is not activist but merely re-righting the ship.

Prof. OGLETREE: Well, you can say that except when you reverse the precedent. You don't have to do that. When you do that, that's making a major stand. Even Chief Justice Rehnquist, on a number of cases - he didn't always like Miranda, for example, the right of suspects to be given their rights when they are arrested and being interrogated.

But yet, in a major case, trying to overrule Miranda - he thought it had been around a long time, it had established a precidential value, and there's no sense to overrule it even if you disagree with it - respecting with other courts did when it's not so out of bounds. I think what we see is this court saying, we're not just going to reverse things, but we're going to also make a comment on prior decisions that people have been relying upon. And that's very clear. This court, in the affirmative action case, from the voluntary school integration cases.

Both sides, the plurality, which Chief Justice Roberts and Scalia and Thomas and Alito were in, embraced Brown. Were reinforcing Brown versus Board of Education. The dissent said, no, no, no, no, no. What you're doing is you're undermining Brown. So, in a sense, it hears a case - Brown is over 50 years old - 53 years old now - and both sides are claiming that they're embracing Brown, but there are at least at very different decisions and different consequences. So I think a lot happened this past term, and we're up for some more interesting decisions (unintelligible) seventh term.

MARTIN: But not too be argumentative, but some conservatives argue that Brown was activist, that it created a law where it didn't previously exist. And they also argue that previous decisions before the current court was constituted when Sandra Day O' Connor was still sitting and so forth, were activist in a sense that seeing law where it didn't exist for matters like gay rights for example.

Prof. OGLETREE: Let's take a look at that. Let's take a look Brown as an activist position. First of all, the members of the Brown court were from every political persuasion. These weren't liberal Democratic appointments interested in all these issues. It was a unanimous decision. It included people who had upheld all sorts of restrictions on civil rights, but here they took a stand. So it's hard to say that was an activist decision. It was a decision that went against the public's will.

MARTIN: So you're saying that a law can - may not comport with public opinion, but that does not mean that it doesn't comport with the law?

Prof. OGLETREE: That's exactly right. If you look at Brown, for example, I mean, Brown's been there from 1954 to 2007. And it's unlikely to be overruled because everyone agrees what the court did was the right thing, even if they believe sociology - other facts that might have influenced it. Roe versus Wade decided in 1973, I would not be surprised if it's overruled by this court. Some combination of these judges before the 2010, if the right case comes up, so even things that we think were settled, even though there are dispute, I think there are a lot of things that people will now say, let's reexamine those. If that's not activism - I don't know what it is.

MARTIN: Let's talk about some of the issues before the court. One issue the court will take up is the question of the voter IDs, the - it's a case that comes out of Indiana. The state says it's a simple step to eliminate voter fraud - to require voters to produce a photo ID if asked. Others are saying, but this is an onerous rule and potentially discriminatory.

Prof. OGLETREE: I think it's hard to speculate what this Supreme Court would do. But you had state courts already uphold this idea of voter ID. I think this is a response to a post-9/11 world. It has some impact on our views about immigration and who should vote and what votes should be counted. And I think that this court's going to be deeply divided on this issue. One, about how do you protect the right of people to vote. And on the other hand, how do you secure the right to vote so that no one is using improper methods to obtain a vote.

MARTIN: If you would just talk a little bit about this because this issue came up at the - a candidates' forum for Republican presidential candidates, which was held at Morgan State University on Thursday night, and there - six of the Republican contenders presented themselves. And to a person, including Allan Keys, who's African-American, they all said I don't understand the big deal, you know? You have to present a photo ID to board a plane. They're not that hard to get. So how could this be discriminatory?

Prof. OGLETREE: Let's take the Georgia case. The difference between students who went to Morehouse and Spellman, and someone who went to Georgia Tech in terms of IDs and what they actually had, what they could use. There was a strong argument that why should these students who don't have that sort of ID need it. They're students, they're registered, their credentialed - but why could they not vote based on what they have. And I think there's also a question of cost. There are some people who argue that they just don't have the resources. To get an ID is not free.

MARTIN: Someone made the argument it's like a poll tax.

Prof. OGLETREE: That's exactly right.

MARTIN: It's requiring people to pay to vote.

Prof. OGLETREE: One thing that voting should be is an equalizing mechanism for every citizen. That is that there should be no burden - no financial burden, no religious burden, no gender burden. People should be able to vote if they are of age and live in a place where they are properly allowed to do so. And the Supreme Court is going to decide whether or not this is a burden in some way that violets equal protection of the laws or they denied some basic equal protection of the laws. And I think they're going to ultimately say this is a case where we have two different groups - poor and minorities who are disadvantaged - and the right to vote, it's a law that should not be on our books.

MARTIN: The Supreme Court is being asked to look at lethal injection as a method of execution. This is a case coming out of Kentucky. And this was a surprise to me that the court hasn't heard a challenge to a method of executions since 1879. So what are the arguments here that the Supreme Court will be hearing about?

Prof. OGLETREE: There are a lot. I think first is that trying to grapple with the very inconsistent approaches that we're seeing in different states, people being in enormous pain when that is not supposed to be the case during the course of an execution. The other point is that there is no standard in terms of what's the appropriate standard to be used.

And it's not even the states. An individual judge will decide that in California and that becomes the law for the moment. And an individual judge will decide something different in the state of Florida or something similar. And so the Supreme Court is finally saying in this case, in the Baze versus Rees case, that it's going to say whether it's cruel and unusual punishment, where these inmates are put to death with lethal injections. When these particular cocktails, as they call them, this medical formula produces pain and suffering during execution. Some people say, well, you've committed as a heinous offense. You should be in pain. But we have a Constitution that says punishment can neither be cruel nor unusual.

MARTIN: And it has been demonstrated that, in fact, these methods are not pain-free.

Prof. OGLETREE: Right, that's exactly right.

MARTIN: It's been demonstrated over time.

Prof. OGLETREE: Right, and I think that's part of what the Supreme Court's going to examine. But I think this is going to be a deeply divisive case and worrisome. It's going to be hard to convince the majority of the court that any pain is impermissible. The Supreme Court - it didn't say you can't take someone's life, but you have to have a set of guidelines you have to follow, and they have to be followed. You can't execute someone who's mentally retarded - that's a change. You can't execute someone who's under the age of 18 - that's a change.

And so the court is refining what is tolerable, and this is the same thing -where they're trying to figure out what's the appropriate standard. And this is different than all the others. Why? Because it has two different fields in conflict. That's the field of medicine and the field of law. It's like oil and water; they don't mix well. You'll see the court trying to figure out to what extent are we bound by as supposed to informed by the medical evidence.

MARTIN: Are there maybe other cases that are of particular interest to you?

Prof. OGLETREE: There are. There are a couple of cases that are involved -issues about the deportation of inmates. There's also a case about retaliation and the discrimination case involving Cracker Barrel with an African-American manager who lost his job, and there are some procedural issues. And there's also…

MARTIN: Cracker Barrel is a restaurant.

Prof. OGLETREE: Exactly.

MARTIN: It's a chain restaurant.

Prof. OGLETREE: Right. And that's going to come up. I have to say, this is going to be one of the most interesting terms that we have seen. This is the term that will tell us what is the Robert's court. We got a feel for that toward the end of last term. The five-to-four decisions tell us a little bit, but the idea that they're taking up a lot of controversial cases and deciding things as opposed to denying (unintelligible) means that the court is ready to change some things in directions that we may not have seen in a long time. And it means it won't be too long before a Roe versus Wade will come up again, and other cases that have similar broad social implications will go before the Supreme Court.

MARTIN: Charles Ogletree is a professor at Harvard Law School. He is founder and executive director of the Charles Hamilton Houston Institute for Race and Justice. He was kind enough to join us here in our studios in Washington. Professor Ogletree, thank you so much.

Prof. OGLETREE: Always a pleasure, Michel.

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