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TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

We're going to talk about the direction the Supreme Court has been headed in since John Roberts became chief justice five years ago, after the death of William Rehnquist. My guest, New York Times Supreme Court correspondent Adam Liptak, writes that in those five years, the court not only moved to the right but also became the most conservative one in living memory.

We're also going to talk about some of the big cases before the court and a recent revelation from retired Justice John Paul Stevens.

In addition to covering the Supreme Court, Adam Liptak writes the column Sidebar on developments in the law. He's also a lawyer who formerly worked in the New York Times legal department, where he spent a decade advising the paper on defamation, privacy, news-gathering and related issues.

Adam Liptak, welcome back to FRESH AIR. Let's start with how former Justice John Paul Stevens is making news, in an unusual way for a justice. He's reviewed a book on capital punishment for the New York Review of books, and in his review, he explained why his own view on capital punishment changed.

So what was his view, and how did it change?

Mr. ADAM LIPTAK (Supreme Court Correspondent, New York Times): Well, Justice Stevens was one of the justices, right after he joined the court, way back in 1975. In 1976, he was one of the justices who voted to reinstate the death penalty in 1976, after a four-year moratorium.

And at the time, he now says, he thought it might be possible to come up with procedures that would isolate those crimes that were so terrible that they warranted the ultimate punishment.

And in this essay, he talks about how disappointed he was with the court, in moving in the opposite direction; in his mind, making the system more politicized, picking juries more prone to impose the death penalty, allowing elected prosecutors and judges to take politics into account, rejecting statistical evidence of racial disparities in the death penalty. And so in all of those ways, moving away from what he thought was the possibility of focused capital punishment toward a kind of arbitrary system infected by emotionalism, victim impact statements, racial and politicized decision-making.

And so at the very end of his career, before he stepped down just a few months ago, he announced that he no longer thought the death penalty was constitutional. Although, unlike some of his predecessors, he continued to apply the court's precedents and did impose the death penalty through the end. But he's come to the conclusion that the death penalty does violate, at least as it's imposed today, the Constitution's ban on cruel and unusual punishment.

GROSS: So he reversed his decision on capital punishment in 2008, but it wasn't until now, in the New York Review of Books essay, that he actually revealed why he had his change of heart.

Why is it so unusual for a former Supreme Court justice to reveal why they changed their mind about something, why they think what they do?

Mr. LIPTAK: It's not so much why he changed his mind, but his blow-by-blow deconstruction of the cases where he thinks his colleagues went wrong, and really quite focused and surprising accusations of what he called, quote, "regrettable judicial activism" against not only the more conservative justices, but singling out Justices Kennedy - who's currently the court's swing vote - and Justice Souter, who was a frequent ally of Justice Stevens's on the more liberal side of the court. That kind of blow-by-blow, case-by-case deconstruction is quite unusual.

GROSS: So you've been covering the Roberts court. The court, you say, has been handing down very long decisions, but these decisions are also very confusing to the lower courts who are trying to interpret them.

And your article was based, in part, on an actual analysis, like a linguistic analysis of the decisions. Tell us a little bit about that study.

Mr. LIPTAK: Well, Terry, you would be surprised at how much attention is paid to the Supreme Court, not only by journalists like me, but by legal scholars, and now lately, especially, political scientists, who run every aspect of the court's work through databases and come up with various conclusions.

And two of them were, that in just this last term of the court, they set a record for the longest median length of decisions in the history of the Supreme Court. So they're writing very long.

And long, I think you'd probably agree with me - was it Mark Twain who said I have to write you a long letter because I didn't have time to write you a short one?

(Soundbite of laughter)

Mr. LIPTAK: Long moves you in a direction of confusion, but it's not the only reason that the court's opinions are, in the minds of many people, confusing. They're also, you know, written in this kind of institutional style, where it's hard to figure out exactly what the rule being proposed for lower court judges to follow is - and some of them have spoken out about this.

Some of the justices have railed against what Justice Scalia, for instance, calls the court's propensity to issue opaque opinions. And then there's also an interesting phenomenon.

The court is very proud of the number of unanimous decisions it issues. So when you talk about the polarized court and the five-four decisions, and all that's true, the justices will often say, but no, wait a second. Forty percent of our decisions are unanimous.

But interestingly, it's those unanimous decisions, where you need to get everybody on board, and everybody's kind of tinkering with it, and it's written by committee, that you get the most ambiguous decisions according to political scientists, who run this through various kinds of, you know, linguistic metrics.

And the Roberts' court is also setting a record in a second sort of area, where they say they're unanimous, but more often in this last term than ever in the history of the court, justices who vote for the result in the case - so it's nine-zero on the result - will also be writing separately. And those concurring opinions, those separate opinions agreeing with the result but maybe quibbling with the reasoning, also make for confusion.

So for all these various reasons, there's good reason to think that it's not the easiest job in the world, if you're a lower court judge, to do what the Supreme Court is telling you to do.

GROSS: Because you don't know what it's telling you to do.

Mr. LIPTAK: Exactly.

GROSS: So give us an example of the problem, a decision that has been very confusing for the lower courts.

Mr. LIPTAK: Well, a couple come to mind. There was a decision on mutual fund advisory fees. And, you know, I realize it's boring. Welcome to my world.

(Soundbite of laughter)

Mr. LIPTAK: But nonetheless, the decision comes down. It's unanimous. Justice Alito wrote it. And you try to make sense of it, and basically, he's just saying, well, you should take everything into account.

And I knew that it was a confusing decision because my phone started ringing, and the lawyers on both sides were completely convinced that they had won the case. Each side, you know, each party on each side of the V was persuaded that they had won the case because the court's decision was ambiguous enough that you couldn't even tell which side had won.

GROSS: Is the problem that the justices or their clerks aren't very good writers? Is the problem, do you think, that they're not thinking it through clearly? Or, like, what's the problem?

Mr. LIPTAK: I think some of it probably has to do with the delegation of the writing to law clerks. You know, justices, each of them hire, every year, four incredibly well-credentialed, incredibly brainy, but quite young recent law school graduates. And a lot of the drafting gets done in the first instance by those clerks.

Then it's revised. Then it's circulated, and justices give comments to each other. And that kind of writing-by-committee probably results in a certain amount of ambiguity and fuzziness.

Some of it is just that the modern legal writing style - it didn't always used to be this way - has a very bureaucratic, institutional, plodding quality to it. And some of it is that search for consensus, which I mentioned before, which is hard to argue with except, you know, getting nine people on board and taking nine sets of comments might move you in the direction of fuzziness, which again is a point that Justice Scalia, who spoke publicly about my article at the Federalist Society convention a week or two ago, said that's right. You know, the more you go for unanimity, the more you're going to get fuzziness. A five-four decision is likely to give you a much cleaner set of guidelines if you're a lower court judge.

GROSS: The linguistic analysis that was done on Supreme Court decision-writing show that Scalia and Breyer had the clearest written decisions.

Mr. LIPTAK: And the hypothesis of that particular study was that that probably also means they're doing more of their own writing.

GROSS: Interesting. So, just one more thing on the subject. If a lower-court judge can't make sense of an opinion, either because it's fuzzily written, or there are so many concurrences that it's hard to tell what the interpretation really is, what's that lower-court judge supposed to do?

Mr. LIPTAK: Well, it probably means they end up having more discretion to make whatever ruling they think is right. Bear in mind, of course, that we're talking typically about three layers of courts. So there are probably appeals court decisions that can and should be followed if you're a trial judge.

But nonetheless, the lack of clear guidance from the Supreme Court means more discretion in the lower court and more likelihood that the same issue will be decided differently in different parts of the country, and that raises questions of fairness.

(Break)

GROSS: Now, you write that the Roberts court is the most conservative court in living memory, and this is based in part on an empirical study using a database created with the support of the National Science Foundation about 20 years ago. So, what is the evidence that it's the most conservative court in living memory?

Mr. LIPTAK: Political scientists do a lot of coding, and one thing they do is they code in the direction - and say a given decision is conservative or liberal.

And that, at first blush, sounds sort of odd that you can say that about essentially every single judicial decision, but when you look at the methodology, in the great, great number of cases, it does make perfect, intuitive sense that a ruling in favor of a criminal defendant, in favor of someone claiming employment discrimination, in favor of a labor union, can be said to be liberal and the opposite conservative. And among political scientists, at least, this methodology is quite widely accepted.

So when political scientists run these numbers, what they find is that the Roberts court has taken a small step, and I emphasize small step, to the right of the two quite conservative courts that preceded it.

The Burger court and the Rehnquist court, which sat for about 35 years, from '69 to 2005, fairly consistently - and no difference between the two - were ruling in a conservative direction about 55 percent of the time. That was a very, very sharp turn to the right from the Warren court, the famously liberal court that preceded it from '53 to '69, which was at 34 percent.

So we move from 34 to 55, and we stay there all the way until the Roberts court, and the Roberts court, which has now finished five years, now moves an additional increment to the right, locates a little more territory to the right, is now at 58 percent. I stress, not a huge move but a discernable move in a period where there was nothing like this.

And the term that ended last year, the court is at 65 percent. So you do see that by these measurements, at least, the court is noticeably more conservative than even the conservative courts that preceded it.

I guess I'd give you one more caveat: It's not clear to me that in moving to the right, the court has not merely followed where the public is. I think it's probably true to say that the American public has also moved to the right, as well. So this is not a suggestion that the court is out of step with the public, but it is a suggestion that by these historical measures, it's slightly to the right of the courts that preceded it.

GROSS: Is there a case or two that you think exemplifies the move to the right on the court?

Mr. LIPTAK: Well, you could certainly point to Citizens United, the decision from January that struck down limits on corporate and union spending in political campaigns, because that decision came just a few years after the court had said the opposite. But with the substitution of Samuel Alito for Sandra Day O'Connor, it came to a different conclusion.

You saw something similar in the area of partial-birth abortion, where a five-four decision one way goes five-four in the other direction. So it's not hard to look at the occasional case where this proposition comes pretty vividly to life.

GROSS: Well, some people have used the Citizens United case as an example of judicial activism because the court actually sent back the case and - with the intention of broadening the scope of it. Do you want to explain?

Mr. LIPTAK: Well, Citizens United can be said to be an example of judicial activism by one common measure of judicial activism, which is that when the court overturns a precedent or strikes down a law, it can be said to be being activist.

Now, the Roberts court, in terms of numbers, is not especially activist in that sense. It does not overturn a ton of precedent. It doesn't strike down a ton of laws. But when it does, these same political scientists find, it does so almost uniformly in a conservative direction.

The Rehnquist court, not so at all. But the Roberts court, to the extent it does engage in this kind of activism, in that sense I just described, is doing it in a almost uniformly conservative direction.

GROSS: Describe how that applies to Citizens United.

Mr. LIPTAK: Well, Citizens United involved a law passed by Congress. People generally call it the McCain-Feingold Law. More strictly speaking, it's the Bipartisan Campaign Reform Act of 2002. And among the things that law did is, within fairly narrow windows of time before elections, it forbade the broadcast of advertisements for or against political candidates funded by money from the general corporate treasury of corporations or unions.

So Congress passes that law, and the question is does that law comport with the First Amendment or not. Five justices said that it does not, and they strike it down. So in the sense of did they strike down a law, they certainly did.

And they also overturned a decision of the court called McConnell against Federal Election Committee, quite recent also, which had come to the opposite conclusion. So in that sense, it's a two-fer.

GROSS: In Citizens United, the court could have made, and I think was maybe expected to make, a fairly narrow ruling. But the court expanded the nature of that ruling by basically sending the case back and asking the people to broaden what they were asking for. Would you explain?

Mr. LIPTAK: Sure. Citizens United has now been kind of caricatured in a way that obscures that the question in the particular case is a very hard question. The question in the particular case was whether an advocacy corporation could distribute, by video-on-demand technology on your cable box, a 90-minute documentary about a presidential candidate, Hillary Clinton.

And so - and it would have been a crime for them to do it under the McCain-Feingold law. So put that way, whether the government has the power to make political speech a crime, that is without question a very significant First Amendment issue.

But the court could easily have gone off on any number of narrower grounds without coming to the very broad proposition that corporate spending, as such, during elections is fine.

It could have said, for instance, listen, what Congress wanted to address were those 30-second ads that assault you in the election season, not a 90-minute documentary that you affirmatively have to seek out on your cable box, right? So that's one kind of distinction it could have made.

It could have also said that McCain-Feingold applies to broadcast over the air, not this weird video-on-demand technology. It could also have said: Whatever you can say about General Motors, we don't think this quirky little advocacy corporation is the kind of corporation to which Congress meant the law to apply.

So there are at least three reasons why you could have come out in a fairly narrow way. Citizens United would have won, but there are people who say the court didn't need to reach the broader question that it not only did reach, but it reached on its own accord.

It set the case down for reargument after hearing it a first time, and it specifically asked the parties to address the question of whether it should reach that larger point.

The court is not typically in the business of shaping the kind of litigation that comes before it. But in this case - and Justice Scalia likes to say it's not a self-starting institution. But in this case, you could make the argument that it did move in the direction of being a self-starting institution, reaching out for a legal issue that it wasn't necessary to decide.

GROSS: This is Elena Kagan's first Supreme Court term. And she's had to recuse herself from a relatively large number of decisions. You wrote about this on November 16th, and at that time, she had recused herself from 15 of 25 decisions. That's a lot. That's more than half.

Mr. LIPTAK: Well, she had served for a year, before she came on the court, as United States solicitor general, which is the federal government's top appellate lawyer, which meant she was in charge of all the government's work before the Supreme Court.

And she has recused herself, and properly so, from all the cases she was involved in as a lawyer. And that's I'm sure frustrating for her. It's problematic for people who appear before the court because it raises the possibility of a four-four tie, which means that the court, without issuing any reasoning, just automatically affirms the decision below, and we don't get a national answer to the given legal question.

So it's problematic but unavoidable. When the last solicitor general to join the court, Thurgood Marshall, came on, he recused himself from a very high percentage of cases, also.

It seems that the number of cases Justice Kagan will have to recuse herself from will drop fairly rapidly, and the second half of the year will be much better than the first half, and next year will be pretty good.

But in the short term, this is the cost of putting your solicitor general on the Supreme Court is that you don't have the participation you might like to see in a whole bunch of cases early on.

(Break)

GROSS: So what are some of the major decisions before the court this term that you're keeping a careful eye on?

Mr. LIPTAK: Well, two cases that are very interesting and that continue the court's quite intense engagement with the First Amendment have already been argued. One of them involves funeral protesters at military funerals, and in particular, a small church called the Westboro Baptist Church, which has the theological point of view that God is punishing the United States for its tolerance of homosexuality by killing its soldiers - a sentiment a lot of people think very ugly if not lunatic. And they show up at military funerals and, without question, make a very dark day even darker for the people trying to bury their sons and daughters.

The question in the case though, is whether the father of such a fallen Marine can sue for infliction of emotional distress, the pastor and the church itself. And that's a difficult First Amendment question. It's one thing, I can imagine the court might be fairly sympathetic to a local law that says nobody can come protest within whatever, a mile, a thousand yards, whatever, of a funeral - a content-neutral sort of restriction on speech about a funeral.

I think the court is finding it harder to decide how to deal with this case where a jury gets to decide what speech is so ugly and hateful that it would allow a jury to impose millions of dollars of punishment, as it did in this case. So that - how the court comes out on that case seems to me a very, very interesting question.

And then a second First Amendment question, also quite interesting, is whether California can pass a law limiting the sale of violent video games to minors. Laws like this have been uniformly struck down all over the country. And the conventional understanding is that the government can regulate depictions of sex but not violence. And for the court to sustain this California law it would have to change First Amendment doctrine some to move it in the direction of a government regulation of speech or depictions of violence and that would be a fairly large move also, although, in the particular case, limited to minors. But even so, there is no precedent for that.

GROSS: Interesting. Now one of the decisions before the Supreme Court now is a case about whether former Attorney General John Ashcroft can be sued by a man who was detained for 16 days and was shackled because he was suspected of being a terrorist. What is this case about and what are the implications of it?

Mr. LIPTAK: I think it's in many ways the biggest case of the term. It involves an American-born Muslim man, who was a college football star, named Abdullah al-Kidd. And he was on his way to Saudi Arabia when he was detained at Dulles Airport and held in very, very tough conditions.

The issue in the case, and one that resonates across a broad area that Congress and others are struggling with, is if you're not able to charge someone with a crime, as the government concluded it could not here, and yet, you suspect them of terrorism, as it wrongly did here - there is no, nobody now contends that Mr. al-Kidd was guilty of terrorism - is there some other way you can hold him? Just hang on to him long enough to figure out what's going on?

And what the government did here was it relied on a statute called the material witness law. And the idea behind that statute, and you can sort of think about this like back in the Old West, somebody - you need somebody to come to trial. He is not the defendant. He's just a witness. But you are afraid he's going to ride off into the sunset so you hold him, sort of as a prisoner but only long enough to get his testimony, and then you let them go again. That's the idea behind a material witness. And here they used that statute to hold al-Kidd, when al-Kidd says they didn't really care about what he had to say about somebody else's crime. They suspected him of having committed a crime.

And so the question in this case, the narrower question is, is that a proper use of the material witness law? And if it wasn't, can you sue the top policymaker at the Department of Justice, then-Attorney General John Ashcroft? But the broader question really is that one of do we need some kind of preventive detention statute? And you sometimes hear even from relatively liberal scholars and others that maybe like much of Europe it's not good enough to rely only on criminal law, which allows you to detain people once you can prove they've committed a crime, but also something where you're afraid they're going to commit a crime. So that's the broader question.

GROSS: Now, can a Supreme Court say yes, we need a law that says you can hold someone who you suspect is about to commit a crime?

Mr. LIPTAK: The...

GROSS: Like, what can the Supreme Court do that would lead in that direction?

Mr. LIPTAK: The Supreme Court has a great agenda-setting power, so your suggestion is right, Terry. No, they could not directly say this particular statue is no good but hey, you're allowed to do it anyway. But when a case like this hits the court, all of a sudden people start focusing on the issue and I would not be at all surprised that whatever the upshot of this case is in the narrower question of material witness laws, all of a sudden it's on the public radar and all of a sudden some of these ideas that are percolating around start showing up on the op-ed pages and start showing up as proposed legislation and so on.

GROSS: So, John Ashcroft says he should not be sued because he was attorney general at the time the plaintiff was detained and the attorney general is entitled to prosecutorial immunity. So what's the significance of this case in terms of determining whether an attorney general can be sued for their actions?

Mr. LIPTAK: So there are two things going on, and the court may well decide both of them. One is should John Ashcroft get immunity in this case because it wasn't clear at the time that this policy he was supposedly setting was unlawful? And then at the same time, there's the underlying question of, whether it was clear or not, which is what the immunity question will turn on, what is the correct answer? And I think the court is likely to address both points.

The court has been, and particularly in terrorism cases, quite sympathetic to the idea that lawsuits against public officials trying to do their best in figuring out how to combat terrorism is not a great idea. So I think the chances that on the immunity question the former attorney general will do fairly well are reasonably high. But it's not clear that the court won't also have a look at the question of, well, but what is the right answer about the use of the material witness law.

GROSS: Now you used to work in The New York Times legal department and I'm wondering if you have any insights you'd like to share regarding WikiLeaks. The New York Times is one of the newspapers around the world who has leaked the documents before they were put on the Internet and decided to, you know, take the time to sift through them, analyze them and report on them. And, of course, it's revealed a lot, very negative response in the Obama administration and from most diplomats around the world. What are the - are there legal issues that The New York Times faces pertaining to the publication of the WikiLeaks documents?

Mr. LIPTAK: So let me say first that I wasn't involved in either the reporting or the decision to publish these documents. But they do resonate with - I was a libel lawyer basically for about 15 years before I was a reporter, so these are issues I've thought about some. The Times, under any conventional understanding of the First Amendment as the passive recipient of newsworthy - undoubtedly newsworthy information, can face no prospect of liability.

But it is quite possible that the WikiLeaks phenomenon will start to unravel what used to be an uneasy but many-decades-long accommodation that the government and the press had reached, which was basically that it's the government's job to try to keep its secrets. But if the press through ordinary reporting obtains those secrets, it's free to publish them without fear of prior restraint or subsequent penalty.

And you have the sense that that was partly because the courts and even administrations believed that they were dealing with mature and responsible people on the other end with whom they could negotiate and try to persuade them that some things they may not like to be published but they could live with, but that others might have very serious consequences. And The Times has said that it takes very seriously pleas from the government to redact given materials and in this case and others it has. Without a responsible party on the other side that becomes harder.

It's also hard because WikiLeaks may well be outside the reach of American law no matter what the courts might like to do. But it does seem to me that this phenomenon has the potential to put real pressure on what had until recently seemed like very settled First Amendment law unlikely to change.

GROSS: When you say pressure do you mean a change in the law or just more pressure on the press from the White House?

Mr. LIPTAK: No, I do mean a change in the law. And so you saw under the Bush administration the prosecution of some lobbyists who had basically been doing what reporters do which is, you know, get information wherever they can. You see the Obama administration going after people who would call themselves whistleblowers, but certainly sources, quite aggressively. You saw some saber rattling in the Bush administration that The Times's publication of revelations about the warrantless wiretapping program violated the Espionage Act.

So I think there is the beginnings of some sentiment that could well reach the courts and might even find a sympathetic ear among some judges that this old understanding I was talking about, which is that if we obtain, through ordinary reporting, truthful and newsworthy information, we're free to do with it what we wish, that that might not be where we end up, you know, somewhere down the line.

GROSS: So this kind of experiment in making - in sneaking out and then widely making available all kinds of secret documents might end up having the opposite impact that it wanted to have. It wants to be about free information and you're concerned it's going to end up restricting the press's ability to publish.

Mr. LIPTAK: I suppose I have that concern. I want to make clear that I, you know, like almost all journalists, I'm in favor of finding stuff out and I'm in favor of an informed citizenry being able to see what its government is up to and make decisions about how it should be governed based on as much information as can reasonably be shared with it that doesn't endanger very vital interests.

GROSS: Well, Adam Liptak, thank you so much for talking with us.

Mr. LIPTAK: My pleasure. Great to be here.

GROSS: Adam Liptak is The New York Times Supreme Court correspondent. You can find links to his recent articles on our website, freshair.npr.org.

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