Supreme Court Back In Session

The Supreme Court is back in session today. Kathryn Kolbert, of People For The American Way, is joined by Allyson Ho, a former Supreme Court clerk, to offer a preview of the upcoming court docket.

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MICHEL MARTIN, host:

I'm Michel Martin and this is Tell Me More from NPR News. Coming up, our weekly peek into the pages of The Washington Post Sunday Magazine takes us from the South Side of Chicago to Harvard Law School and the campaign for the White House. A profile of the woman who might be this country's next first lady. That's in just a few minutes.

But first, the Supreme Court is back in session today. In the last term, the justices took on a whole host of hot-button issues: gun rights, the death penalty, Guantanamo detainees. So what does this term have in store? Joining us for a preview of the upcoming Supreme Court docket is Kathryn Kolbert. She's the president of People For The American Way. Also with us is Allyson Ho. She's a partner in the law firm of Morgan, Lewis & Bockius LLP. She's a former clerk for Supreme Court Justice Sandra Day O'Connor. She's also a member of the Federalist Society. Thank you both so much for joining us.

Ms. KATHRYN KOLBERT (President, People For The American Way): Well, thank you. It's great to be here.

Ms. ALLYSON HO (Partner, Morgan, Lewis & Bockius LLP Law Firm; Former Supreme Court Clerk; Member, Federalist Society): It's great to be here, Michel.

MARTIN: Thank you. And of course, one of the cases that's been picking the interests of many, for obvious reasons, is the so-called "fleeting expletives" case involving Cher, Nicole Richie and Bono. I'm not pretending this is the most important thing before the court but obviously it's something that a lot of us as broadcasters are interested in. Katie, what's the - it's the first major broadcast indecency case in thirty years. What's the question before the court?

Ms. KOLBERT: Well, the question is whether or not a broadcaster can be held liable for publishing indecency or broadcasting indecency when an individual merely does a - what they call a fleeting expletive. If I said, for example - and I'm not going to say it - but this is an F-ing, just wonderful day to be - I'm so excited to be here, it's just great, whether you can be held liable if I had sworn at that moment.

And you know, my view is free speech is really important. And people use different kinds of words on air. Some of them have been held indecent when used in a continual basis. But the FCC here has really come down very hard on broadcasters in ways that they can't control the outcome of what's on. And so unless every broadcaster really goes to a delay system, which to me inhibits their ability to broadcast in a very formal way, we would - they would be held liable for things that they can't control, and I think that's horrible.

MARTIN: Allyson, what's your take?

Ms. HO: Sure. Michel, I think one thing to keep in mind about the case is that one issue is likely to be whether the FCC, which had recently changed its policy to go after what Kathryn calls fleeting expletives or curse words, whether the FCC has given a reasonable justification for the change in policy. So it's actually possible that the justices won't reach the First Amendment issue in that case and it could come down to a sort of less exciting and more prosaic examination of whether the agency had a reason for changing the policy as it did.

MARTIN: And Allyson, let's stick with you for a second. There are some consumer-oriented cases involving drug makers and tobacco companies. What's the question in these cases - in this case?

Ms. HO: Sure. There are two big - what's called preemption cases. And preemption is just the constitutional rule that where you have a conflict between federal law and state law, federal law trumps. And those two cases, one case involves prescription drug labeling, and the other case involves terms used in cigarette advertising. And so without getting into, you know, a lot of the legal jargon with the cases, the basic issue there is whether federal regulations have set sort of a floor on regulation or whether they've set a floor and a ceiling so that there's just not room for state tort law to come in and change or supplement those regulations.

MARTIN: Kathryn?

Ms. KOLBERT: Well, I think only a lawyer could describe these cases in that way.

(Soundbite of laughter)

Ms. KOLBERT: And let me just say what's at issue is something much, much, much more serious. Let's go to the facts here. In the preemption case involving drugs, here was a woman. She went into her doctor's office. She was complaining of migraine headaches. She was injected with a drug, and she lost her arm to gangrene. Now, that's a serious harm. And what's at issue in this court right now is whether the Supreme Court, who is more and more conservative, continues to slam the courthouse door on consumers who are harmed by drugs and medical devices.

The Supreme Court last term slammed the door on consumers who are harmed by medical devices. They have an opportunity to do so again for drugs. And basically, they are using a federal doctrine, a procedural doctrine that really makes it much, much more difficult for people who are harmed by drugs and medical devices and a variety of other things because they say the federal law, the FDA, has absolute authority to regulate in that area.

MARTIN: I understand your point, Kathryn. But it's interesting that these cases, although they clearly address some very important issues for individuals and also for groups in society, it doesn't sort of push our buttons in the way that some of the cases in the last term did. It doesn't - issues around race and fairness and so - so actually, I wanted to ask Allyson first. Is this deliberate? Can the court keep its collective head down, as it were, perhaps to avoid being an issue in the presidential election?

Ms. HO: That's an interesting question, Michel. And some have speculated in that direction, but the way that the court takes cases, it sort of takes cases as they come to the court, and so it's not likely that it's sort of any deliberate plan on the part of the court to keep its head low during election year.

But you're absolutely right that this term doesn't have really the hot-button issues that last term did, although there are certainly big cases waiting in the wings involving the Voting Rights Act and enemy combatants the court watches are keeping their eyes on.

MARTIN: Kathryn, is it your - I know your group wants to make the court an issue.

Ms. KOLBERT: Absolutely.

MARTIN: You've been sort of very aggressive about trying to bring cases to the attention of the public, to impress upon the public how important the court is. Why is that?

Ms. KOLBERT: Well, you know, I think that this court has moved to a more and more conservative place in the last couple of years. Since Chief Justice Roberts joined the court and Alito joined the court, Justice Kennedy, who is, you know, basically, centrous(ph) conservative has become the swing vote, and the loss of Justice O'Connor has moderated his views to become more and more conservative.

And you know, the Supreme Court is on the bailout this year. We see a possibility of one to three justices leaving the court in the next four years. If John McCain becomes president, he has the potential of replacing the more moderate justices with ultra-conservatives and it'll be more of the same of George Bush judges. And let me just say this. The lower federal courts have been dominated by George Bush appointees so that the Supreme Court getting five firm, ultra-conservative votes will mean the loss of a whole range of issues that all of us take for granted, whether it be - whether men and women receive equal pay, whether women and families have access to reproductive choice, whether there's equal opportunity in schools, whether we - you know, the air we breathe, the water we drink, are all at issue in the Supreme Court.

MARTIN: Allyson, I assume you consider yourself a conservative. That would be fair to say, right?

Ms. HO: That would be fair to say. Yes.

MARTIN: So how do you, as a conservative, view this question? And just to clarify for folks what we're talking about. Justice Stevens turns 89 in December. There are four justices in their seventies: Justice Ginsberg, Scalia, Kennedy and Breyer. And so there is, of course, speculation, as there has been every year for the last couple of years, that perhaps someone will seek to retire. What's your take on this?

Ms. HO: That's exactly right, Michel. And first, let me say that while I suspect Kathryn and I may disagree about some things, I think we both agree that elections have consequences and that the courts are important. I agree with Kathryn that in this election Americans have a pretty clear choice between two different approaches to the role of courts and thus to the kinds of judges that would be appointed under a President Obama or a President McCain.

Senator Obama has said that he would appoint judges according to what's in the judges' hearts, and he voted against both the chief justice and Justice Alito. Senator McCain has said that he would appoint judges in the mold of the chief justice and Justice Alito, and has said that he would appoint judges like them to the federal bench. So I think it's important for voters to become informed and to vote their consciousness in terms of the judges they prefer.

MARTIN: All right. Well, thank you both so much. We have to leave it there. More to come. Allyson Ho is a partner in the law firm of Morgan, Lewis & Bockius LLP. She's also a member of the Federalist Society. She's a former clerk for Supreme Court Justice Sandra Day O'Connor. She was kind enough to join us from WBEZ in Chicago. Kathryn Kolbert is the president of People For The American Way. She joined us in our studios in Washington. Thank you both so much.

Ms. KOLBERT: Thank you, Michel.

Ms. HO: Thank you so much.

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