TERRY GROSS, host:
This is FRESH AIR. I'm Terry Gross. The Supreme Court finished its last term with retiring Justice David Souter yesterday. The court rendered a controversial ruling, which proponents of affirmative action say will make it harder for minorities to secure employment and promotion in the public sector.
The ruling, which involved firefighters in New Haven, Connecticut, reversed the ruling of a lower-court panel, which included Judge Sonia Sotomayor, whom President Obama has nominated to replace Justice Souter on the court.
The court also made some important decisions involving searches of school students, campaign-finance law and criminal procedure. For some perspective on the court and the coming confirmation hearings for Judge Sotomayor, we turn to Adam Liptak, the New York Times Supreme Court correspondent.
Liptak is a graduate of Yale Law School. He spent several years in practice, specializing in First Amendment cases, before joining the Times. He spoke to FRESH AIR contributor, Dave Davies.
DAVE DAVIES: Well Adam Liptak, welcome back to FRESH AIR. I thought we'd begin with a case that is perhaps the most widely publicized and most closely watched, and that of course involves the promotional exam for New Haven, Connecticut, firefighters. They gave an exam for promotions and then threw out the exam when it resulted in the promotion of no African-American firefighters.
In this case, the Supreme Court reversed an appeals court ruling that - from a panel that included Sonia Sotomayor. First of all, what was the central legal issue that was debated here?
Mr. ADAM LIPTAK (Supreme Court Correspondent, New York Times): The question in the case really was how do you reconcile two potentially conflicting parts of federal anti-discrimination law? On the one hand, obviously it says that you can't discriminate against particular people on the basis of their race. You can't intentionally discriminate against people because they're black, white or whatever.
But it also says that you shouldn't use hiring or promotion practices that have the effect, unintentional, of a negative impact on one group or the other. And here what you had was a test that did negatively impact black firefighters as a group but also denied white firefighters, and a Hispanic, the potential for promotion. And the court tried to reconcile those two potentially warring mandates and tilted the balance in favor of individuals and, in the process, reshaped anti-discrimination law in a way that's going to affect a lot of employers in a lot of places.
DAVIES: Now there was no evidence before the court here that the test itself had a discernable racial bias, right?
Mr. LIPTAK: The test is under seal. The majority certainly took the view that it was a valid, job-related test. The dissent took some shots at that point of view. It said that a written test is not the best way to figure out who is a firefighting leader in an emergency. But there is no obvious reason to think that it was biased in any way that we know about - except from the results.
DAVIES: All right. And just to clarify, what did the appeals court decide on this case, and then what did the Supreme Court rule?
Mr. LIPTAK: The lower court, and then affirmed by a three-judge panel of the Federal Appeals Court in New York, including Judge Sonia Sotomayor, threw out the case brought by the white firefighters, saying they had not made out a case of discrimination because all the city of New Haven had done was tried in good faith to comply with the anti-discrimination law's mandate that you shouldn't disparately negatively impact groups. And the Supreme Court reversed that ruling.
DAVIES: And said in effect that they will now have to promote these 18 firefighters if they're still around.
Mr. LIPTAK: That is, in short, the effect of the ruling. What the Supreme Court did was re-jigger the balance. The city had said all it needed was a good-faith belief that it might get sued by the black firefighters, the people who had done poorly on the test. And what the Supreme Court said is no, you need a substantial basis in evidence to know that you're going to lose such a suit, and to lose such a suit, you need to show more than statistic disparity. You need to show that the test was not job-related and that there was no other test that would have satisfied your business needs and had a lesser disparate impact on racial groups.
DAVIES: So place this in the broader context of the affirmative action issue. To what extent has the Supreme Court made new law here?
Mr. LIPTAK: This is another step that the Roberts court has taken, incremental to be sure, but nonetheless this is a court that's very skeptical of government classification by race. And the conservative majority in the court - the four conservatives plus Justice Kennedy, who is the swing vote and who wrote the decision in the New Haven firefighters case - seem in many cases ready to announce that we live in a post-racial society where you no longer need to take account of race, particularly to remediate the effects of past discrimination.
DAVIES: Now in some of what I've read about this case so far, people have written that the appeals court really was following the established Supreme Court precedents on this issue. Did they, in fact, really change things?
Mr. LIPTAK: The Supreme Court, the majority said, acknowledged, conceded, that they were reshaping the legal landscape, they were making new law. And so it's hard to criticize the appeals court panel for not anticipating what the Supreme Court was going to do but rather doing what appeals-court judges are supposed to do, which is follow the law that was in place at the time.
That's not to say that the appeals court decision was a model of judicial craftsmanship. It was a cursory paragraph that many judges on the court itself criticized as not having taken adequate account of a really difficult issue.
DAVIES: Can you say what the actual impact will now be on cities across the country that deal with this issue very often?
Mr. LIPTAK: It will make it very hard to throw out the results of tests and other practices once you have results from them. So once you've given a test, and you're not happy with the range of outcomes that that test has generated, it's going to be awfully hard to say let's have a do-over.
It remains possible, when you're at the test-design stage, to try to set up the test in a way that will minimize disparate impact on various racial groups. But once the test is administered, you practically have to be able to prove a case against yourself that you would lose a disparate-impact lawsuit from the effected minority group before you can throw out the test.
Now although the case applies to public and private employers, it's really public employers and civil-service tests and so on, in which case you have this kind of testing typically, but there's quite a lot of it. And it's going to reshape the landscape quite substantially.
DAVIES: Let's talk a little bit about what this means for Sonia Sotomayor. She was, of course, a part of the lower-court panel that held that the city of New Haven could throw out the results of this promotional exam because of a disparate racial impact, and of course, that's a much-discussed aspect of this.
Senator Jeff Sessions, who is the ranking Republican on the Judiciary Committee that will review Sotomayor's nomination, said that this decision will only raise more questions in the minds of the American people concerning Judge Sotomayor's commitment to treat each individual fairly and not as a member of the group.
Will this decision make things harder for her now?
Mr. LIPTAK: I don't know that it'll make it much harder. It will be, for sure, a very fertile ground for questioning on a couple of levels. There's the question of whether the court really worked hard enough, whether the panel that she joined - and remember it was an unsigned decision. It was three judges, but they dispensed with the case in a quite cursory fashion.
That said, the result is, quite arguably, one that was compelled by existing precedent at the time. And remember also that the decision from the Supreme Court was five to four, that Justice David Souter, who Judge Sotomayor hopes to replace, was among the dissenters. So it's not as though this is a question on which everyone agrees.
DAVIES: As you've looked at Judge Sotomayor's opinions and looked at what's been written about her temperament as a judge, what have you seen that's maybe not been so widely covered in the conversation about her nomination?
Mr. LIPTAK: Her judicial writing is competent, unflashy, able, not really a treat to read through, but very methodical and very serious and very mainstream. So if you look at her judicial work, you're not seeing the person that some people on the right are painting of some sort of radical.
She has made some statements in speeches which suggest that she would take particular care to attend to the interests of minority groups, and of course famously said that a wise Latina judge might make better decisions than a white one. But whatever those out-of-court statements might suggest, they're not reflected in her work on the appeals court, where she is super-diligent and methodical.
That said, the job of an appeals court judge is different from the job of a Supreme Court justice. The Supreme Court has a lot more room for maneuver, and an appeals court judge, particularly one with ambitions for promotion, understands the job to mean applying existing precedent and not making broad, sweeping, new constitutional rulings.
DAVIES: Does it seem that she has the kind of intellectual power and will to weigh these weighty questions and, you know, establish new precedent when needed?
Mr. LIPTAK: She certainly has the intellectual horsepower and judicial capability of being an excellent judge, but you never know until not only when a justice arrives but until years into that justice finding his or her feet on the court exactly where they're prepared to go. And so it's too early to tell, and we won't know a year from now or two years from now or three years from now, when she's confirmed. Many justices don't ripen into their full being on the Supreme Court until quite a long time into their tenure.
DAVIES: Do we see anything distinctive about her style and temperament on the bench?
Mr. LIPTAK: She is a New Yorker and has an impatient side. I don't think that's unusual on the New York federal courts, but I would not want to be a lawyer appearing before her not in full command of the record and not ready to answer hard questions. And she's rather more talkative than some judges. So she will give you her point of view right from the get-go.
Some lawyers welcome that. You want to know what the judge is thinking, they would say, and you want to respond to that thinking. Other lawyers will say that they might like a chance to lay out the case as they would like it before having to respond to her questions.
DAVIES: How do you think her style will play in a confirmation hearing?
Mr. LIPTAK: I have a feeling that she is being prepared to fare-the-well, and she will be deferential and appealing and will figure out 15 different ways to avoid answering the questions.
DAVIES: As the good ones do. You are, of course, an attorney as well as a journalist and used to looking at legal issues thoroughly and carefully, and I'm wondering: What do you find frustrating about the confirmation process as you've seen it in the past and the way it's talked about publicly?
Mr. LIPTAK: Oh, it can be terribly reductive and misleading and reduced to sort of soundbites, and you know, given moments in cases being taken in isolation from a career, as in Judge Sotomayor's case, which has spanned, you know, more than 15 years on two different courts and a rich career in some 3,000 decisions in which she's participated. And there is a tendency to focus in on and over-emphasize, given a data point, and that can be a frustration.
DAVIES: So it's likely we'll see her joining the court in the fall, and you know, you wrote an interesting piece in May raising the question of whether the very presence of women or minorities on the Supreme Court has affected its deliberations in ways beyond simply the views that the new members have held. What did you discover as you looked at that issue?
Mr. LIPTAK: I discovered what all of us discover in sort of a social setting: that you might talk a little differently, think a little differently, depending on who's in the room, so that even a conservative justice, like Justice Antonin Scalia, would say that Thurgood Marshall, the first black justice, his very presence in the room exerted a kind of gravitational force. You had to make your case a little better when race was at issue and Thurgood Marshall was in the room. You had to maybe think a little more clearly. You might have to suppress some impulses.
So the presence of people from different backgrounds, whatever their votes and whatever their reasoning, sort of has a tug. And you hear political scientists say this, that diverse inputs make for better outputs because you take account of things that maybe you hadn't thought through. But just looking across the room and seeing that there is a Thurgood Marshall, or there is a Sandra Day O'Connor might make you pause and think, you know what, maybe I should think about this some more.
DAVIES: Our guest is Adam Liptak. He is the Supreme Court correspondent for the New York Times. We'll talk more after a break. This is FRESH AIR.
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DAVIES: If you're just joining us, our guest is Adam Liptak. He is the Supreme Court correspondent for the New York Times. We're talking about the Supreme Court term that's just ended and the prospects of Sonia Sotomayor to become the next justice.
Well Adam Liptak, let's talk about some of the important or significant cases that the Supreme Court has decided. One of the most widely discussed involved the strip search of a middle-school student on the suspicion that she might be trying to smuggle in prescription-strength Ibuprofen.
The facts were odd in this case, seemed almost to defy common sense. The court ruled that this strip search was indeed not permissible. What's the impact going to be here on the legality of searches in the future?
Mr. LIPTAK: This is one of those cases in which the guidance the Supreme Court gives is sort of vague. It says, depending on how dangerous the drugs are and how much reason you might have to suspect they're being held in an intimate place, you can or can't do it, that this particular case, Ibuprofen not dangerous enough, no reason to think she's hiding them in her underwear - by the way, she had no drugs with her.
That said, that's the strict legal holding of the case. My guess is that when the in-house lawyers of school districts across the country look at this case, they're going to go, you know what, let's not be strip-searching our students. If it's a police matter, it's a police matter, but parents don't send their students to school to be strip-searched.
It was an eight-to-one ruling from the court. And it was an instance of what we were talking about a second ago, I think, where the presence of Ruth Bader Ginsburg, currently the only female justice on the court, really seemed to shape the discussion.
At the argument, there was not a lot of sympathy for Savannah Redding. Justice Ginsburg gave a newspaper interview to Joan Biskupic at USA Today saying that she wasn't sure her colleagues really understood how humiliating it would be to be a 13-year-old girl made to strip. And the final outcome in the case I think may have reflected, in part, the fact that Justice Ginsburg brought to her colleagues' attention that their life experience may not have given them the full capability to view the case.
DAVIES: Now, one of the cases that I found really interesting involved a West Virginia coal company, right, that had made heavy financial contributions to a candidate for that state's Supreme Court, which then cast a deciding vote to vacate a, I think, a $50 million jury award against the coal company.
Mr. LIPTAK: That's right. A coal company executive named Don Blankenship spent $3 million to get a Justice Benjamin elected, and then that justice, two different times, cast the deciding vote, three to two, to throw out this $50-million verdict. And so the question is: Does the federal Constitution's due process clause give litigants at least the right to appear before a judge who had not had that kind of support in a case? And the court, only five to four, with Justice Kennedy writing, says yes, the due process clause does at least, in that case, give you the right to a judge who does not owe perhaps a debt of gratitude to one of the people involved in the case before him.
But again, it's one of those cases where we don't know what the repercussions are going to be because the facts were so extreme. And you should remember that campaign contributions from litigants and lawyers are very common, and judges across the country, elected state court judges, almost never recuse themselves. And the court didn't say how bad it has to be. It said $3 million is too much, but $3 million is quite exceptional. What if it's $10,000? What if it's $1,000? We don't know the answer to that question.
DAVIES: And this sort of really has the Supreme Court tiptoeing into this very delicate issue of electing judges in the first place. We're the only country that does that, right?
Mr. LIPTAK: With almost no exceptions. I think some Swiss cantons and some Japanese courts, but really it's an American idea that the best way to get an independent judiciary is to have them accountable to the public.
DAVIES: And as you say, the Supreme Court said that in facts that are this jaw-dropping, where a litigant pays $3 million to help somebody get elected and then has that justice help him out in a critical ruling, that that goes too far, but there are just all kinds of cases all the times in elected judges, as you say, around the country who are ruling on cases where campaign contributors' interests are at stake.
You co-authored a piece I believe, in 2006, which looked at the sort of State Supreme Court of Ohio and the extent to which its decisions might have corresponded to the interest of campaign contributors. Is that right?
Mr. LIPTAK: That's right. Now we found a high degree of correlation. That is, the justices voted in favor of their contributors very often, but correlation isn't causation. I mean, it doesn't mean that because of the contribution, they changed their vote. It may be they attracted the contribution because the people in question, the contributors, liked the way the judge was likely to rule. But it does open the question of whether - it's sort of a three-step process.
You can be in favor of judicial elections, you can say that once we're going to have elections, you need to be able to raise money to get the message out. But that doesn't necessarily answer the third question down the road of assuming you take a contribution, should you sit on the contributor's case.
DAVIES: Now as you say, the Supreme Court didn't give clear guidance here about when a contribution is too heavy, or the interests of a litigant who is also a contributor are too directly connected. On the other hand, I would imagine that this ruling would encourage litigants to file motions for judges to recuse themselves when they are, you know, facing an opponent who has been a heavy campaign contributor.
Mr. LIPTAK: And that's what the dissenting justices, led by Chief Justice Roberts, said, that what this ruling created was maybe it fixed a problem in one outlying case - one really weird, $3-million case - but created problems and fomented litigation in thousands and thousands of cases around the country.
The case was called Caperton v. Massey. And we will probably, very soon, see a kind of motion routinely filed called a Caperton motion, in which litigants, for strategic reasons and principled ones, try to knock out the judges on their cases.
So there is an argument to be made on the other side, that fixing one outlying problem may give rise to a ton of litigation that, in the end, is counter-productive.
DAVIES: And of course, it's really state legislatures around the country who decides whether their states will elect judges or have them appointed. Do you think this decision might give a boost to merit selection around the country?
Mr. LIPTAK: It will give a small boost, but electing judges is quite popular. There is not much of a movement away from it at all.
GROSS: Adam Liptak will talk more with FRESH AIR contributor Dave Davies in the second half of the show. Adam Liptak is the New York Times Supreme Court correspondent. Dave Davies is a senior writer for the Philadelphia Daily News. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the interview FRESH AIR contributor Dave Davies recorded earlier today with Adam Liptak, The New York Times Supreme Court correspondent. The court concluded its term yesterday. It was the final term for Justice David Souter.
DAVIES: Another move that the Supreme Court made in this term dealt with campaign finance issues. In this case it involved this highly controversial documentary film about Hillary Clinton which was made by a Clinton critic during the last presidential campaign. In this case the Supreme Court chose not to rule but I guess to reschedule it for arguments in September. Tell us what the case is about and what the Supreme Court did.
Mr. LIPTAK: The case is about a documentary called "Hillary the Movie," which is a slashing polemical, negative, critical look at Hillary Clinton. But I don't know that it's terribly different from, say, what Michael Moore would have to say in "Fahrenheit 9/11" about President Bush. The McCain-Feingold campaign finance law says that so-called electioneering communications ads, movies, whatever, that are broadcast right before an election can't be paid for by corporate money. And the film here was made by a corporation. And they sued to get the right to show their movie on video on demand and lost, and the case goes up to the Supreme Court. And it looks like a relatively minor question. Should they be allowed, you know, on video on demand to show this minor movie that might not be of wide interest to anyone, which incidentally remains available on the Internet and DVDs because McCain-Feingold only deals with broadcast.
And the court, instead of deciding that narrow question, on the last day of the term decides to set it down for re-argument and asks the parties to brief whether an important part of McCain-Feingold should be stricken down and whether a 1990 case that allowed limits on corporate speech supporting political candidates also to be struck down. So they set the stage for what may be a very big ruling in which corporations might be allowed to say whatever they want from their general treasury funds, and that's not the world that we've been living in for some time.
DAVIES: Right. I mean for decades corporate spending on political campaigns has been banned, right?
Mr. LIPTAK: Right. Except through political action committees, which are unwieldy, but yes, that's right.
DAVIES: So what does it tell us that the court decided not to decide right now?
Mr. LIPTAK: It tells us that if it's going to take a big step it wants to do it in a considered way with briefing on a question not much considered so far in this quirky little case. It also tells us that the replacement of Justice Sandra Day O'Connor by Justice Samuel Alito makes a big difference in campaign finance cases, and that there is now a solid majority to strike down all kinds of campaign finance regulations on First Amendment grounds.
DAVIES: Another interesting case involved a challenge to the Voting Rights Act of 1965 that came out of Austin, Texas. What was this case about?
Mr. LIPTAK: The Voting Rights Act, which is really one of the triumphs of the Civil Rights Era, has a provision in it that requires some states and localities to get permission from the federal government before they change even a very minor voting practice, like moving a poling place. And the idea was that Southern states were always one step ahead of the sheriff in trying to find ways to disenfranchise black voters.
So you had this regime enacted in 1965, where some states and localities were required to do something quite odd in the federal system. The case goes up to the Supreme Court and the question the justices seem focused on is whether this distinction that some states are covered, some aren't - is the rationale for who's covered and who's not good enough? How come Ohio and Florida, where we've had terrible problems lately, are not covered? Southern states which now have very vibrant minority participation in elections still are covered.
And it looked like the court might be gearing up to do something quite bold in striking down the Voting Rights Act and there was substantial hostility from the justices - the conservative justices at argument. But in the end they punted, and in a way not terribly different from the campaign finance case. They ruled 8-1 that instead of ruling on the broad issue they'd rule on a quite narrow one and they'd allowed this particular little municipal utility district in Austin, Texas to bail out of the covered system, and without making a broad ruling.
But at the same time, they seemed to set up not very far down the road the possibility that they would strike down the heart of the Voting Rights Act.
DAVIES: And the impact then would be that jurisdictions throughout many, many states would then be free to change election procedures without permission from the federal government, right?
Mr. LIPTAK: Right. They would be subject to lawsuits afterwards. Now, elections are fast moving things so the post hoc lawsuit is not always the most satisfying way to go about doing business, but it is the typical way of going about doing business in many, many areas of the law. You don't typically ask permission first. You typically do what you're going to do and you get sanctions for it or not. And you know, you comply with the law or attempt to comply with it but you don't sort of get permission up front. And the getting permission up front was an innovation of the Voting Rights Act that almost everyone agrees made a lot of sense back in the Civil Rights Era, but there's more dispute these days about whether it still makes sense.
DAVIES: Yeah. Underlying this really is the question of whether or not wide scale disenfranchisement of minority voters is still prevalent, isn't it?
Mr. LIPTAK: Right. And you hear very different opinions on that.
DAVIES: Now, the court in this term had an important ruling that involved the right of defendants who have already been convicted access to DNA evidence which they think might exonerate them. Tell us about this case.
Mr. LIPTAK: The question in the case was whether there's a Constitutional right to DNA evidence that might prove your innocence. So if you're in jail somewhere and it turns out there's DNA evidence in your case, are you entitled to have access to it and at your own expense tested? The court says 5-4 the Constitution does not give you that right. They noted that 46, or depending on how you count it, 47 states have laws, not - we're not talking about the federal Constitution now, local state laws - that allow that kind of testing in at least some circumstances, and the majority said that was good enough.
The dissenters said, wait a second, what's the downside? So you have this guy, we can find out for sure if he's guilty or not, and we're not going to let him do it? And the majority says the Constitution's due process clause does not contain such a right. So you have again this interesting notion, and Kennedy now is with the majority of conservatives ruling against the Constitutional right, so what you have in a way is whatever Justice Kennedy says the due process clause means, it means.
In the Caperton case, the judicial recusal case we were talking about, Justice Kennedy said it means that the West Virginia Supreme Court justice has to recuse himself. In the Osborne case - the DNA case - Justice Kennedy says that Mr. Osborne does not have a right, the Constitutional right to test his DNA.
DAVIES: And this was a man, we should say, he was convicted of raping and assaulting a woman. And there was some DNAevidence at the scene that he wanted the right to have tested with more sophisticated techniques that are now available. What...
Mr. LIPTAK: He was not the ideal candidate. You know, there was a lot of evidence of his guilt. He had - his lawyer had at trial declined to use sophisticated DNA testing because she was afraid it would only inculpate him. But nonetheless, the question of what's the downside of allowing this testing is a little bit hard to answer.
DAVIES: Right. I mean defense lawyers have always said, look, there's not an unlimited number of people who will want access to DNA. There's one convicted, you know, individual who with the testing could be either, you know, confirmed as guilty or exonerated. What's the state these days? You said 46 or 47 states have some laws which...
Mr. LIPTAK: Yeah, Alabama's about to become the 47th.
DAVIES: Right. And they grant some access to DNA. But overall, what kind of rules are imposed on a defendant's ability to get access to DNA?
Mr. LIPTAK: Well, it varies a lot. Some states only allow you to do it if you're on Death Row, so if you're serving life for rape, tough luck. Some states only allow you to seek it if it wasn't available at the time of your trial. Some states bar you, as in Mr. Osborne's case, from seeking it if you decided not to do testing at the time of trial. Some states will impose a penalty on you if you seek it and it turns out to confirm your guilt. So it's a real patchwork.
DAVIES: There was also an interesting ruling about the admissibility of routine crime lab reports in cases in which the laboratory personnel aren't there in person to testify in court and face cross-examination. What did the court decide here?
Mr. LIPTAK: The court said that the Constitution's Confrontation Clause, which gives people accused of crimes the right to confront their accusers, extended to crime lab evidence. And there was an interesting alignment here. Here you have the two justices who most adhere to the original understanding of the Constitution, Justices Scalia and Thomas, joining three liberal justices to find that the Confrontation Clause means it's not good enough for the prosecution to show up with a piece of paper that says the lab analysis said the white powder found with you, Mr. Jones, is cocaine, that the analyst, him or herself, needs to show up and be subjected to cross-examination.
And prosecutors are really squealing over this ruling because it makes their lives much more difficult and it gives criminal defense lawyers one more lever to push in insisting that a crime lab analyst, sometimes retired, sometimes, you know, working across the state, sometimes working for the FBI across the country, has to say get on a plane and appear and explain a report.
DAVIES: Is this one of these cases where experience will tell whether this is workable?
Mr. LIPTAK: Yes. Exactly. And you had a very big difference of opinion between the majority and the dissenters about the practical impact of the ruling. You did also though have Justice Scalia saying, listen, the right to a jury trial is burdensome, but if the Constitution requires it, the Constitution requires it. And if the Constitution imposes a burden on us, it's not for us to say that we're going to ignore it because it's inconvenient.
DAVIES: We're speaking with Adam Liptak. He is The New York Times Supreme Court correspondent. We'll talk more after a break. This is FRESH AIR.
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DAVIES: If you're just joining us, our guest is Adam Liptak. He covers the Supreme Court for The New York Times. You know, I have to ask you about a fascinating piece you wrote about the fact that the Supreme Court now has access and can view - at least in one case, YouTube videos and get a direct look at what might be some compelling video evidence. How might that change the nature of the court's deliberations?
Mr. LIPTAK: Well, there was one case in particular. And the court's Web site, which is, I have to say, a little clunky, nonetheless occasionally posts the videos, and there was a case involving a high speed chase where the justices got to watch from the camera mounted on the police cruiser's dashboard how a high speed chase came out and whether a person who was rammed off the road and was paralyzed as a consequence bore the blame for the chase or whether the police did. And what you saw the justices doing, which is not what appellate court justices or Supreme Court justices typically do, is figure out the facts for themselves. It's very hard if you have a video in front of you to say, I'm going to defer to what the jury found because the jury saw the witness, the jury made the credibility judgment, whatever.
Here you have the video and it has the potential on some level to really reorient how judging happens because there's this feeling, although experts will tell you that it's a false feeling, that having seen the video, you know precisely what happened. Of course videos are partial. They only show you what's in the frame. They only show you that part of what happens to be recorded as a temporal matter. But nonetheless we do seem to be entering an era where judges and Supreme Court justices will have what appears to be direct primary access to what really happened and that might kind of undermine the typical idea of how judging is supposed to work where juries find fact and judges defer to the juries on fact finding and just apply the law to the facts.
DAVIES: And in this case it seemed to make a difference because this involved a police chase in which the police rammed a - someone in the car who had been eluding them, resulting in serious injury. The man sued. And if I'm remembering correctly, the lower court at some point ruled in favor of the gentleman. But when the Supreme Court looked at the police chase video, they saw it differently.
Mr. LIPTAK: Exactly. Right. So what you had, and there have been studies since then where researchers take this video out and show it to various groups of people, and the truth is most people thought that the person being chased bore the burnt of the responsibility for what happened to them. But it varied some across the political spectrum, across racial spectrums, so that liberals were more likely to think that the police bore the blame. Minority group members were more likely to think that. And it really highlights that there's a new emerging field now about judicial cognition, about how it is the judges go about making their decisions, that what you bring to the table matters a lot. And also here, whether you think you're seeing something for yourself so that you've direct access to the evidence makes a difference.
DAVIES: There was also this interesting post 9/11 case involving immigration detainees in Brooklyn and their attempt to sue high level government officials for alleged abuse. Tell us, tell us about that one.
Mr. LIPTAK: The case is called Iqbal and the question in the case was whether people rounded up after 9/11 on immigration offences and held in really harsh conditions could sue high level Bush administration officials - here Attorney General Ashcroft and FBI Director Mueller - for what they claimed was a policy of ethnic and religious discrimination. And the Supreme Court said at the very earlier stages of the case that the claims made by these detainees were implausible and therefore should be thrown out at the outset.
And it tells us two different things. One, it tells us that the court will probably be hostile should other kinds of cases in which Bush administration officials are sued over their conduct after 9/11. And it also reorients a little bit in all kinds of civil litigation - the burdens that a plaintiff has to pass in order to even get a lawsuit off the ground. It says that's it not enough just to write down on a piece of paper the things that you claim happened to you. That they have to pass a somewhat vague kind of hurdle of plausibility, which gives judges a lot of power to throw out all kinds of cases at the outset.
DAVIES: Did this court rule in anyway that really surprised you, in this term?
Mr. LIPTAK: I guess, I would have thought that the voting rights case and the strip-search case would have, if not come out differently, certainly not have had lopsided eight-one majorities. The other trend that is a surprise, because I do believe that the justices think of themselves as independent-minded and looking at issues case by case, is how often they spilt in the perfectly predictable way of the four conservative members on one side, the four liberal members on the other. And Justice Kennedy switching between the two as the swing vote.
So you don't see a lot of scrambled alignments. And you see Justice Kennedy really controlling the course of the court and therefore the course of the nation. This last term he leaned to the right more when he joined the conservatives in five-four cases, more than twice as often as the liberals. And where Justice Kennedy goes, so goes the nation.
DAVIES: So when do Judge Sotomayor's confirmation hearings begin? How long might they go?
Mr. LIPTAK: The hearings begin July 13th. They'll almost certainly wrap up that week. And there is, because of this campaign finance decision that has been set down for argument on September 9th, some additional pressure to get her confirmed quickly so that she can be on the bench for that. Justice David Souter's last day was Monday. And I'm sure that there will be an impulse not to want to have only eight justices to hear that case, which has been set down for argument almost a month before the court typically comes back for the first Monday in October when it starts the new term.
DAVIES: You know, we spoke last year when you had begun this job of covering the Supreme Court for the New York Times. And you were of course, at the time, an experienced legal journalist and yourself a lawyer. But I'm wondering if the experience of covering the court intensively as you have has given you any different impression of either its operations or the thinking of its members.
Mr. LIPTAK: It sure has. The day-to-day work of the court - and they take it very seriously - are a lot of cases that don't get a lot of attention - cases in which they interpret federal statutes or make fine-tuned adjustments in criminal procedure laws. And they work awfully hard and they're very good lawyers. And it's very hard to give people a sense of the full body of the court's work, given that people really pay attention to a handful of cases that come down typically at the end of the term, where they're slogging through methodically with a lot of intellectual heavy-lifting, all sorts of work through the term. And if there were something wish I could do better as a journalist, it would be to convey the full spectrum of the work of the court.
DAVIES: Well Adam Liptak, thanks so much for speaking with us.
Mr. LIPTAK: Really good to be here.
GROSS: Adam Liptak spoke with FRESH AIR contributor Dave Davies. Adam Liptak is the New York Times Supreme Court correspondent. Dave Davies is a senior writer for the Philadelphia Daily News. Coming up, rock critic Ken Tucker reviews Patterson Hood's new album "Murdering Oscar (And Other Love Songs)." This is FRESH AIR.
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