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Slate's Jurisprudence: The Year In Law

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Slate's Jurisprudence: The Year In Law

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Slate's Jurisprudence: The Year In Law

Slate's Jurisprudence: The Year In Law

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Farai Chideya talks with Slate legal analyst Dahlia Lithwick about the year in law, including the controversies over President Bush's power to conduct wiretaps and detain suspects without access to courts in the so-called "war on terror."

FARAI CHIDEYA, host:

2005 has been a remarkable year in the law. Normally, the judicial branch of government plays a quieter role than the other two, but not this year. From the changes in the Supreme Court to reining in the White House on the war terror, it's time to review some of the year's major legal stories. And who better to do that than Dahlia Lithwick, legal analyst for the online magazine Slate and for DAY TO DAY.

Hi, Dahlia.

DAHLIA LITHWICK (Slate): Hi, Farai.

CHIDEYA: So let's start with what you think were some of the major legal themes and trends this year?

LITHWICK: Well, I think one of the themes to really watch and think about is the sort of slow dissolution of the relationship between Congress and the president on legal issues. If you think about it, as recently as last March, Congress and the president were in lockstep intervening in the Terri Schiavo case to try to keep her alive over the wishes of her husband and the courts. Now flash forward to this winter, where we see a real, I think, severe disintegration in that relationship in terms of presidential powers, the refusal to reauthorize key provision of the Patriot Act, refusal to grant the president the power to torture that he seeks and this recent scandal about presidential surveillance of Americans, all of which, I think, is leading the Congress to say, `Hey, we don't agree with what the president thinks his powers are in wartime.' I think that's a key theme to watch.

Another theme that's emerged this year is this sort of prevalence of the courtroom as a place to resolve religious disputes. I'm thinking of the two big Ten Commandment cases in the US Supreme Court and the intelligent design case that just wrapped up in Dover, Pennsylvania.

CHIDEYA: Talk a little bit more about the war on terror. President Bush seemed to get a lot of leeway from the courts in the wake of 9/11, but that began to change this year.

LITHWICK: Yeah, I think there's a real pushing back in terms of both the questions about presidential power to just unilaterally set policy from things like torture that we talked about to the Guantanamo trials, labeling people enemy combatants and locking them up like Jose Padilla. All of those things are cases where there was once a sense that, `Yes, the president needs certain powers to fight the war on terror.' Increasingly, not just Congress but the courts are pushing back. And I think the best example of that is the scuffle that's going on right now between the 4th Circuit Court of Appeals and the executive branch about Jose Padilla. The 4th Circuit delivered a very clear slap to the president last week when it said, `We're not going to grant your wishes in the Padilla case until you tell us what is it that you were doing here all these years, incarcerating this guy. Now you say that you just want to release him and try him for fairly minor crimes. What's really going on?'

CHIDEYA: And what about the highest court in the land, the Supreme Court? Big changes in personnel.

LITHWICK: That's right. I mean, you know, certainly the year will be remembered somewhat for the big cases--the Ten Commandments case, the medicinal marijuana case, the Napster case--but the big story this year in the Supreme Court was the death of Chief Justice William H. Rehnquist, the retirement of Sandra Day O'Connor and the replacements--the John Roberts nomination and confirmation that went quite smoothly, the Harriet Miers nomination that went anything but and now the Alito nomination. And how that plays out is going to be really the big legal story in the coming months.

CHIDEYA: Looking forward to 2006, what legal stories will you be watching the most closely?

LITHWICK: You know, it's interesting. The thing that I feel like we won't be watching is a great, big, scandalous, criminal Hollywood trial. What we will be watching, I think, is more skirmishes in the war on terror. The big story, of course, will be the Alito confirmation hearings in the coming weeks. What the fate of abortion is in this country is going to become very, very interesting.

And I think the question that everybody is probably asking, if they watch the Supreme Court is, where is this states' rights revolution going to go? Is it going to continue as it did under Chief Justice Rehnquist, or is John Roberts going to take it a different way? I think either way, the big story this coming year is going to be is the Supreme Court going to kind of stay the course or is it going to dramatically shift with the new justices seated on the bench.

CHIDEYA: Opinion and analysis from Dahlia Lithwick, who covers the courts for the online magazine Slate.

Thanks, Dahlia.

LITHWICK: My pleasure, Farai.

CHIDEYA: Stay with us on DAY TO DAY from NPR News.

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