Issues: Court Decisions and Flag-Burning

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Melissa Block talks live with E.J. Dionne, a columnist for The Washington Post, and senior fellow at the Brookings Institution, and David Brooks, columnist for The New York Times. They'll discuss the Supreme Court decisions on re-districting and war crime tribunals, the defeat of the flag burning amendment, and other political news.


And with that we turn to our regular political commentators, E.J. Dionne of the Washington Post and David Brooks of the New York Times. Welcome back.

Mr. DAVID BROOKS (The New York Times): Thank you.

Mr. E.J. DIONNE (The Washington Post): Good to be here.

BLOCK: We've heard an expression of some desire for bipartisanship from congressmen there in Brian Naylor's report. How likely do you think it is that Congress will actually find a meeting of minds on how to resolve this issue? David Brooks?

Mr. BROOKS: I think it fairly likely. I've been struck by the widespread sense of almost relief that this decision came down, even among Republicans. I think there was a clear sense of the spirit of urgency that the rules need to be damned because we needed to be so aggressive has faded away as 9/11 has faded and there's been a desire, even among Republicans, especially in Congress, to regularize this. To get this in some sort of system. And I feel there's a great deal of relief now that we can get this into some sort of normal mode.

BLOCK: E.J., there are a couple members of the Senate, Republicans Arlen Specter and Lindsey Graham, who have said look, we tried to offer legislative solutions before and we were rebuffed by the White House. Will the administration, do you think, pay a price for that?

Mr. DIONNE: Well, they've already paid a price by being rebuked by the United States Supreme Court. I think the administration has been so concerned with expanding presidential power in all spheres that it forgot that in the war on terror it would be far better to build broad, bipartisan consensus on how to deal with detainees than simply to insist that it can stubbornly do whatever it wants.

It was very striking in the concurrence by Justice Breyer, where he said what I think reflects in part what David said, you know, that this is better. We are better off when Congress plays a role. He said, “The Constitution places its faith in democratic means. Our Court today simply does the same.”

I think there are two possibilities here. One is the bipartisanship that came out in the piece earlier and I think somebody like Lindsey Graham is absolutely crucial to that. I think he's absolutely right that we're better off going with a known legal system like the Uniform Code of Military Justice than creating this new system that no one has confidence in.

But the Republicans, as that statement by the White House suggested, would love to pick a fight with Democrats and cast them as weak. Democrats don't seem ready to play that game at the moment.

BLOCK: E.J., you mentioned Justice Stephen Breyer. He also said in that opinion, Congress has not issued the executive a blank check. And I want to follow up on that a little bit. This question of executive overreaching. Is there a broader lesson, do you think, from this ruling for the Bush administration with other applications, say warrantless wiretapping, other things that they have been accused of going too far on. David Brooks?

Mr. BROOKS: Well I go back to, remember when Denny Hastert threw a fit because the executive branch was investigating Representative Jefferson and that -

BLOCK: Not just investigating, but going into his office.

Mr. BROOKS: But going into his office. And that anger, combined with this, and I know this is obviously much more important, but that anger is real and that anger is bipartisan. Members of Congress are Republicans and Democrats, but they are members of Congress first and foremost and they have felt aggrieved, as the Court obviously has felt aggrieved, that the executive is getting a little too big. And so they are quite happy to reassert their institutional authority and I think they've been talking that way for a couple of years. This will just give them another possibility to do that.

BLOCK: E.J. Dionne?

Mr. DIONNE: Well, I think that what you saw in this five-judge majority is a desire to contain executive power in a broad sense. This was a very tough, strong decision and so it's very likely that if an issue such as warrantless searches came to the Court, I think the same majority of five would hold together.

I think Republicans are torn between what David points to, and he's absolutely right about this frustration in Congress. They're torn between that and the fact that Republicans, looking forward to these elections, looking at themselves being behind in the polls, would still like to pick a fight with Democrats. And so I think Republicans are going to be very torn about which direction they need to go in.

BLOCK: Okay let's talk about another decision in this last flurry that the Supreme Court came out with this week. They upheld most of the Texas Congressional redistricting plan. That plan, of course, designed by Tom Delay, the former House Republican leader. He's now been indicted, he's resigned from Congress, isn't this a real validation of what Tom Delay did in Texas, E.J. Dionne?

Mr. DIONNE: Well, I don't know if it's a validation of what he did, but it's certainly a victory for him and the Republicans. This was a, the Democrats got a small crumb out of this case. They got the ruling that the effort to take 100,000 Hispanics out of one large district in Southwest Texas violated the Voting Rights Act so that district will have to be redrawn, but the Court was not willing to go farther than that. I think what we've seen in the last five or ten years is utterly incoherent, this jurisprudence from the Supreme Court on reapportionment. They can't really figure out where they are on this.

They forced redrawings in some cases. They've said no, we can't intervene in other cases. And there is a danger here even if the court couldn't figure out a good way to say no, you can't have mid-term redistrictings. With the Congress so closely divided and they'll probably get closer after this election, they'll be a big temptation out there on the part of both Republican and Democratic legislatures in states where they control to say, gee, if we redraw lines now me might be able to shift a couple of seats the other way. That's very unfortunate.

BLOCK: David Brooks, do you think we will see a full scale effort at redistricting with each political shift now?

Mr. BROOKS: Yeah, I actually don't think so. I think in the Texas case it took someone like Delay, someone who was hyper-aggressive and really willing to infuriate everyone or at least the other party to push this through. I doubt there are too many Tom Delays floating around the country so I suspect we won't see sort of state by state replication of what we saw in Texas.

I would say that just as a matter of principal that I'm just glad the Court has stayed out of this. As E.J. says, they really have no sense of what they should do here and I do think if we're going to fix redistricting it should be done democratically, electorally, and not by the courts sort of fixing it on their own.

BLOCK: With this end of the first term of John Roberts as Chief Justice, I'm curious about your thoughts on the Roberts Court in its first term as compared, say, with the Court as run by William Rehnquist. E.J. Dionne, what are your thoughts?

Mr. DIONNE: Well you know it's very interesting. About a couple weeks ago I wrote a column praising a speech that Justice Roberts gave at Georgetown Law School and Justice Roberts said the rule of law is strengthened when there is greater coherence and agreement about what the law is, and he called for the deciding cases narrowly.

That's what he declared and I think that's a good principal because it sort of creates more respect for the court, but this has been the most fractured court. If you have ever sat near a printer where you're trying to print out all the decisions they made recently, it takes forever. Why? Because there are all these fractured kind of half majority decisions and you have to put together bits and pieces here.

This seems an even more divided court than it was under Rehnquist. So if Roberts wants to live up to what he said at Georgetown, he's got an awful lot of work to do?

BLOCK: Could just take some time. David Brooks?

Mr. BROOKS: I completely agree with that. The country is segmenting and the court is segmenting. The National Journal columnist Stewart Taylor listed some of the dissents and counter dissents and all the decisions where you've had nine different opinions recently in one of this columns and that's been the case. It hasn't been even five-four, it's been two-two-one and three-two-six, or you know, and so it has been totally incoherent in that sense.

BLOCK: Great, we'll leave it there. Thank you both very much.

Mr. DIONNE: Thank you.

Mr. BROOKS: Thank you.

BLOCK: E.J. Dionne of the Washington Post and Brookings Institution and David Brooks of the New York Times.

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