As Supreme Court Break Nears, Big Cases Remain Monday is the final day before the Supreme Court's summer vacation, and three big cases are on the docket. One of them is the New Haven firefighters case, a job discrimination lawsuit. Supreme Court nominee Sonia Sotomayor was one of the appellate judges who reviewed the case, which has become a key point of discussion going into her confirmation hearings. Dahlia Lithwick, legal analyst for Slate.com, talks to host Guy Raz about the high court's big finale.
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As Supreme Court Break Nears, Big Cases Remain

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As Supreme Court Break Nears, Big Cases Remain

As Supreme Court Break Nears, Big Cases Remain

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GUY RAZ, host:

Tomorrow, the Supreme Court meets for one final time before the justices go on summer vacation. When they return in the fall, they'll probably have a new colleague, Sonia Sotomayor who was nominated to replace retiring Justice David Souter. But before they break, the justices will release the last three decisions of this term. And here to fill us in on what to expect is Dahlia Lithwick, legal analyst for slate.com. Welcome.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate.com): Thank you for having me.

RAZ: So let's start with a case that coincidentally involves Judge Sotomayor. She was an appellate judge on a discrimination case that was brought by firefighters in New Haven, which was then appealed to the Supreme Court.

Ms. LITHWICK: That's right, and it's shaping up to be one of the most important cases of the term, in fact, possibly because of all the implications of race and affirmative action and discrimination that are brought up by Sotomayor's nomination itself.

The case happened when the city of New Haven had a promotion exam for its firefighters. And in 2003, African-American firefighters did so much worse on the test than white firefighters that it looked like it was going to violate Title VII of the Civil Rights Act. New Haven was afraid of a Title VII suit being brought by the African-American firefighters, so they scuttled all the test results.

Then a lawsuit was brought by the white and one Hispanic firefighters who did well on the exam essentially saying this was discrimination on the basis of race any way you sliced it.

The district court in New Haven said - they threw out the lawsuit. The Second Circuit Court of Appeals, a panel on which Sotomayor sat, agreed with the district court that the firefighters just didn't have a claim here, and the Supreme Court agreed to hear it.

This case really comes down to these fundamental issues of: Is discrimination against white firefighters the same as discrimination against black firefighters, and for all sorts of complicated reasons, it really resonates with the conversation we're having about race in this country right now.

RAZ: In another politically sensitive case, this time, it involves an anti-Hillary Clinton film made during the presidential campaign last year. What's the story here?

Ms. LITHWICK: Well, this is yet another challenge to the campaign finance laws, and the Roberts court has been chipping away at them for years.

This was a particularly unflattering movie about Hillary Clinton called "Hillary Clinton: The Movie," and it really was pretty much a long infomercial about how awful she was. The SEC wanted to regulate it under McCain-Feingold. They said it was, quote, "electioneering communication that was pretty much like a Swift boat ad, and they could regulate it."

The moviemakers challenged that, and they said this movie is a lot more like "The Federalist Papers," important, protected, political speech, than electioneering, and that's the issue that the court will decide tomorrow.

RAZ: And the third case to be decided tomorrow, Dahlia?

Ms. LITHWICK: This is a question about whether states have the authority to investigate discriminatory lending practices by national banks or whether that's the sole province of federal regulators.

RAZ: Dahlia, you've been covering this Supreme Court term quite closely for the Washington Post and Slate. Were there any surprises for you in this session?

Ms. LITHWICK: Probably the big surprises all came last week. Everybody expected the Voting Rights Act case to be just a blockbusting five-four decision in which the conservatives on the court essentially gutted Section 5 of the Voting Rights Act, which is called the crown jewels of the civil rights legislation.

They didn't do that. They voted eight to one to actually keep the act intact. They - instead of getting to this broad constitutional question about the constitutionality of the act, they just decided on this very, very narrow statutory ground with a warning to Congress that they better fix the Voting Rights Act in the future.

The same thing happened with the strip-search case last week. Everybody thought this was going to be a seven to two case, saying schools have the right to strip search 13-year-old girls if they're looking for Advil. That was not what we saw. Last week, the Supreme Court, eight to one again, came down saying, no, this was an unconstitutional strip search.

So I think the big thing we're seeing is that cases that were argued very passionately at oral argument, where the justices seemed quite decided, are not how the term is ending up.

RAZ: Dahlia Lithwick prowls the Halls of Justice for slate.com. Dahlia, thanks very much, and we hope to talk to you again in a few weeks when Judge Sotomayor's confirmation hearings begin.

Ms. LITHWICK: It's my pleasure, and I'm looking forward to it.

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