A Preview of the Supreme Court's Next Term David Savage, a reporter for the Los Angeles Times, gives a sneak preview of the cases coming up for the Supreme Court. On the docket: the capital punishment debate, voter IDs, the right to bear arms, and a case about habeas corpus at Guantanamo Bay.
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A Preview of the Supreme Court's Next Term

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A Preview of the Supreme Court's Next Term


A Preview of the Supreme Court's Next Term

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This is TALK OF THE NATION. I'm Anthony Brooks in Washington. Neal Conan is on vacation.

As summer wanes and the weather cools, we have Labor Day, the first day of school, and then first Monday, which refers to the first Monday in October -the start of a new term for the U.S. Supreme Court. On the high court's docket, this term are cases of - that could decide who can and can't vote, who has the right to bear arms, and whether execution by lethal injection, as currently administered, constitutes cruel and unusual punishment.

Today, it's last Thursday, and we're giving you a preview of what's expected this year. We'll look at voter IDs, the latest debates surrounding capital punishment, the ambiguous wording of the Second Amendment, as well as a case about habeas corpus at Guantanamo.

Later in the hour, you've seen them. They're small, they're yippy and they travel in style. Should you have the right to take your pampered Chihuahua to the grocery store? Should everyone else be required to put up with him when they go shopping?

If you bring your dog everywhere with you, let us know. If you think traveling with a dog is the worst thing Britney(ph) is responsible for, send us an e-mail, it's talk@npr.org.

But first, a preview of the new Supreme Court term.

If you have questions or comments, join the conversation. Our number here in Washington is 800-989-8255. That's 800-989-TALK. Our e-mail address is talk@npr.org. And you can also comment on our blog, it's at npr.org/blogofthenation.

First up is our Supreme Court guru David Savage. He covers the court for the Los Angeles Times. And he joins us here in our Washington studio.

And, David Savage, welcome.

Mr. DAVID SAVAGE (Supreme Court Reporter, Los Angeles Times): Hi, Anthony.

BROOKS: Good to have you here.

Let's start with the case about voter IDs. This is a case about whether voters need to show a government-issued ID before they cast a ballot. What's the origin of this case?

Mr. SAVAGE: Well, this is a fairly new requirement. These have come in the last couple of years. Karl Rove and the Republicans, I think, were very concerned about the subject of voter fraud after the 2000 election. And they believed that it's quite reasonable to have every one show a photo ID at the polling place.

Now, you have to be registered to vote. The idea is, you know, you're just not walking in off the street, but the idea is we want to verify who you are. So you have to have a driver's license, a passport or something to that effect.

I think most people would say, what's the big deal? You know, the lower court judges who upheld this said, you know, anytime you go to the airport, even you go in a government building, you certainly have to have an ID.

The Democrats have challenged this all around the country saying that a certain percentage of the people, nobody knows how many, but some surveys have said 3 or 4 percent actually don't have a valid voter ID. Suppose - take a…

BROOKS: So an elderly person, for example, or maybe people of low income.

Mr. SAVAGE: Yes. That's - I think, a classic example would be, the elderly person. Suppose you voted for 40 years in Indiana, and you're now 85 years old and you quit driving, you want to go back to your polling place, you don't have a current driver's license because you don't drive anymore.

So the Democrats have said, this is unfair, it's going to dissuade a certain percentage of people from voting, and that could tip the election.

BROOKS: Now, does some states already have photo ID laws in place and have they already been held - upheld by the courts?

Mr. SAVAGE: Yes. A few do. Indiana is the one that the Supreme Court has taken up. Georgia has one that has essentially been upheld. Missouri had one that was knocked down. They've actually come up all around the country. But, yes, several of them have them. And Indiana used its in 2006.

BROOKS: Hmm. So the Republicans essentially saying this is an effort to stop voter fraud. My question is, do we know of a case, do we actually know of documented cases of people voting who weren't who they said they were? Because that seems to be what this is about. If you need an ID, it says, I am so and so and I can vote.

Mr. SAVAGE: Yes. I think the answer is almost no, that there have been very few proven cases of that type of voter fraud.

There's a whole lot of examples of voter registration fraud. You know, in other words, groups go out and register people to vote, sometimes they pay people, and somebody signs up as Daffy Duck or whatever, and says, I live at 123 Main Street. Well, you know, Daffy Duck doesn't actually show up and vote.

But there are a lot of bad registrations. People register who are felons or non-citizens, but those names get screened up. To answer your question, no. There are very few examples. In fact, I can't imagine why somebody - if I'm Joe Jones, would I go and say on election day, hey, by the way, I'm Bill Smith, I live at 123 Main Street, and try to impersonate Bill Smith. That kind of fraud almost - from what I understand, almost never happens.

BROOKS: In your headline, in your writing about this, you talk about this as a case that could have a major effect on the 2008 presidential election, a headline we borrowed for our open of the show. Do you think it's that significant?

Mr. SAVAGE: Well, I'm not sure. I - a lot of editors who were - I said that I think it could affect some close elections in several states. I'm not so convinced that, necessarily, it would affect the presidential election. I think it could affect a lot of close elections in next year's races.

For example, there are a whole lot of governors' races and Senate races that are decided in states like Missouri, Michigan, whatever - by one percent. And so, yes, I think it could effect some elections. I don't see it really tipping the presidential race because at least, at this moment, the states enforcing the laws are not the states that are the classic, you know, the Floridas that would - Ohio that would tip the race.

BROOKS: We're talking to David Savage about the new Supreme Court term, which starts on Monday. If you have questions about voted ID or the other cases we're going to talk, give us call - and talk about, give us a call at 800-989-8255. That's 800-989-TALK. You can also send us an e-mail at talk@npr.org.

David, let's talk about another case. This - about lethal injections. This is a case brought by two death row inmates in Kentucky, who say that the state's lethal injection procedures amount to cruel and unusual punishment. Tell us about this case.

Mr. SAVAGE: Yes. I actually think this is not a case about whether you can have lethal injections, but how you carry it out. This was, as you probably know -the last 20 or 25 years - has been the standard method of conducting executions in the United States. It was viewed as painless and safe.

There were some medical studies a couple of years ago that came to sort of a disturbing conclusion that because of a sort of outdated chemical cocktail, as it's called, what might be happening is that some of these people are being - these inmates are being paralyzed, and then given a particular drug to stop their heart that causes intense pain. A lot of lawyers have then gone into court around the country and said, hey, you need to stop this, judge. This is cruel and unusual punishment.

This case asks this court to say that the constitutional standard issue can't do anything that would cause an unnecessary risk of pain. And their argument is, not that you can't do the lethal injection…

BROOKS: Mm-hmm.

Mr. SAVAGE: …is that you have to switch the chemical compound to assure that the person is not going to suffer intense pain.

I think there's a good likelihood the Supreme Court will buy that and say, unnecessary risk is the standard. That, in turn, will force a lot of states to change how they do this.

BROOKS: In the short run, though, wouldn't it - or at least in the immediate outcome, wouldn't it be a moratorium on the death penalty? I mean, wouldn't that sort of begin to chip away at, sort of, the acceptance, I guess, of the death penalty? Or you don't think it's that significant?

Mr. SAVAGE: Oh, I think - yes, I would assume, I would guess it's going to cause a moratorium. Because normally, you go to the Supreme Court and you say, hey, you're taking up this case, my client is facing death two weeks from now, you ought to put his case on hold or issue some sort of moratorium. So, yes, I think so.

The only reason I'm a little hesitant, the court allowed an inmate from Texas to be executed the other night hours after they granted this. So I'm not exactly sure. I would have guessed, as you said, that the death penalty would be sort of frozen for the next eight months or so until the Supreme Court resolves this issue, and perhaps longer until the states change how they do it.

BROOKS: Well, we've got a couple more cases to talk about. But in the meantime, let's take a call because we've already got a lot of listeners who are very interested in getting in on this conversation. Let's go to Jay(ph) who's calling from Ohio.

Hi, Jay. You're on the air.

JAY (Caller): Yes. Are we talking about voter fraud and all that?

BROOKS: Yeah. Yeah, we're - that's perfectly okay. That's the first case we were talking about, the idea of requiring voters to have a government-issued ID to cast a ballot.

JAY: Yeah. Now, the - what about the cases of caging as opposed to voter fraud? The same thing is equal to where someone doesn't get to vote. The caging incidents, perhaps like in Ohio where the Blackwell suppressed, I don't know, how many thousands of voters. And Mr. No(ph), Mr. Famous No from Ohio, (unintelligible) in Cleveland they found the whole office full of boxes that had voters' registrations that weren't even - you know, were just tossed away. They weren't even used.

So in the same sense, I'm thinking Republican, and just watch out for voter fraud, but at the same time, were flipping the coin and doing things like caging and so forth. Did we study that also?

BROOKS: I'm not familiar with the term. David Savage, do you know what…

JAY: Caging? That's where you take a certain geographical area that has predominantly lower-income people that you feel that will vote Democrat and you don't take their vote for whatever reason. You say because you moved, you haven't the right address, your son's overseas. There were numerous, numerous cases of that by Mr. Blackwell who took the whole thing to the Supreme Court (unintelligible).

BROOKS: Okay. I'm hearing you loud and clear, Jay. This was a fallout from the last presidential election in the state of Ohio. We're going to sort of keep this conversation focused on the cases that are coming before the Supreme Court on Monday. But I'm grateful for the…

JAY: Okay.

BROOKS: …I'm grateful for the phone call. Let me make one more question to - put one more question to you, David Savage, before the break. Just to go back to this issue about the death penalty, the Supreme Court upheld the death penalty, of course, in 1976. But in the last two years, thanks to DNA testing, there've been some spectacular post-conviction death row exonerations. Any indication at all that the high court is moving toward a reconsideration of the constitutionality of the death penalty? I know this, sort of, pushes beyond the narrow focus on the administration of lethal injection.

Mr. SAVAGE: Well, I'm inclined to say yes. But it's really - I'd say four of the justices are very concerned about that issue. They have said it several times. That's, I think, behind their view that we ought to go slow, not try to speed up executions because of the rate of exonerations of people on death row. But if you ask the question, the Supreme Court as a whole? No, I don't see five of them getting behind the move to stop the death penalty. Four of them were very concerned but not a majority yet.

BROOKS: Let's try to just tackle one more case. The Washington, D.C. gun ban. Tell us about this case and whether it's going to go to the Supreme Court. We have about 20 seconds to get into this.

Mr. SAVAGE: Well, this is the old question about what the Second Amendment mean. Does it protect state militias or does it give you a right to own a gun? The Supreme Court has never resolved that. They may do it this year.

BROOKS: Okay. Well, let's pick that up after the break. We're talking about voter ID loss, lethal injection and some of the other cases going before the Supreme Court this term including possible reconsideration of a gun ban in Washington, D.C.

If you have questions about these cases or what the decisions might mean, give us a call, 800-989-8255. The e-mail address is talk@npr.org. I'm Anthony Brooks. It's TALK OF THE NATION from NPR News.

(Soundbite of music)

BROOKS: This is TALK OF THE NATION. I'm Anthony Brooks in Washington sitting in for Neal Conan.

Ask Amy Dickinson will be here a little later. Should everyone have to put up with those yippy dogs people carry in their purses and bags? Amy weighs in on that in just a little bit.

But right now, a look ahead at the cases coming before the Supreme Court this term and how they might affect you.

David Savage is with us. He's the Supreme Court reporter for the Los Angeles Times. If you have questions or comments, give us a call at 800-989-TALK. Our e-mail address is talk@npr.org.

And David, before the break, we were talking about consideration of a handgun ban in Washington, D.C. This is a law that outlawed the possession of handguns by anyone except law enforcement officials and ex-law enforcement officials struck down by an appeals court, and now D.C. wants the U.S. Supreme Court to take up this case. Is it likely that the court will consider this case?

Mr. SAVAGE: Yes, I think it is quite likely. The other side, in fact, said, go ahead and do take it. Usually, on the other side, you say, don't touch this, that the lower court made the right decision. The people who brought this case are also encouraging the court to take up this case because I think everybody has heard about the Second Amendment and the right to bear arms, and it's one of the provisions of the Constitution where the Supreme Court has said almost nothing during its entire history.

BROOKS: Isn't that interesting because it's such a polarizing issue and we hear about it all the time. So this is really the question about exactly what the Second Amendment means. And I thought it might be useful just to read it because it's just one sentence.

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

It's all about the relationship of the first part of that statement, a well-regulated militia and the right of the people, right?

Mr. SAVAGE: Yes, that's exactly right. I mean, you could read that sentence, I think, and walk away with two meanings. The old meaning was that this was really about state militias, that the people who drafted the Constitution were worried about an overpowered federal government. The states were joining together and they didn't want a national army that was sort of running the country. And so they wanted to preserve, by this theory, well-regulated state militias and basically said, our militiamen have a right to be armed. That was the old view.

The second half of the sentence, it basically says all of us have a right to have guns, to be armed, to protect ourselves, and this doesn't have anything to do with state militias. And so the NRA has, I think, very effectively, over many years - everybody knows the second part of that sentence and it seems to say, if the First Amendment gives you an individual right to free speech, the Second Amendment gives you a right to have a gun.

BROOKS: Hmm. And when is the last time the Supreme Court said anything about this?

Mr. SAVAGE: 1939 was the only major case. It involved sub-machine guns during the prohibition era, and they issued a very short opinion and talked about weapons and the state militia theory. They basically suggested that Second Amendment was about state militias and didn't have anything to do with machine guns. But they never really ruled squarely on it. So this is a case that a lot of people are looking at to finally say what does the Second Amendment mean?

BROOKS: Well, let's go - let's take a listener call. Let's go to Mark(ph) who's calling from Salt Lake City. Hi, Mark.

MARK (Caller): Hi.

BROOKS: You have a question about this D.C. gun ban.

MARK: Yes. I hope they actually rule in favor of - yeah - very, very narrow interpretation of the Second Amendment, so that it will force Congress to actually take some action. Because right now, they can - the NRA can get a lot of mileage out of its interpretation of it. And because they've become so conservative, I think, it will ultimately backfire, because it will force Congress to actually say, wait a minute, this is going too far. Because if it really is true, then they - then you can't ban weapons on airplanes or in courthouses, or if you really want to take a really strict interpretation…


MARK: …to force them back to put it in legislation, and it will hopefully end this endless debate and argument that NRA can always win.

BROOKS: Mark, that's an interesting point. Let me put it to David Savage. Do you think if they rule very narrowly that that would sort of push it into Congress and we'd actually get serious gun control legislation?

Mr. SAVAGE: I think however they rule - if they rule that Second Amendment gives you a right to bear arms or have a gun, that forces the debate then, okay, but what's the reasonable regulation?

Everybody agrees, I think even the NRA probably agrees, that there are reasonable regulations that can be imposed. You presumable can't have a howitzer in your backyard. You know, you can't have a machine gun, as you said it, in public. Everybody agrees there'd be reasonable regulations. So, yes, if the court agrees the Second Amendment gives everyone, at least, a right to have some gun, then it's going to force states in Congress to say, okay, but what are the reasonable limits on that?

BROOKS: Hmm. Mark, thanks for the call.

Let's go to Noah(ph) who's calling from Cleveland, Ohio. Hi, Noah.

NOAH (Caller): Yeah, hi, how are you guys doing?

BROOKS: Very well.

NOAH: Oh, I just wanted to say that I think it's kind of sad that here in America we've forgotten what the Second Amendment is about. It's about revolution and not allowing the government to become too powerful. People can't tell them not to, you know, stop what they're doing. And arming people, you know, allowing us to bear arms is allowing us to have the same arms that the government has, so that can't happen. And that's completely impossible nowadays. So, the Second Amendment has, kind of, lost all meaning. We don't really need that as a means of protection from the government, though…

BROOKS: So, you're reading of the Second Amendment is, in fact, the right of the people to bear arms is in association with a well-regulated militia. This is about the right of people to bear arms so that they can raise arms against the government?

NOAH: Yeah, if they had the means to, but we don't have that possibility anymore in America.


NOAH: That was a possibility back when the Second Amendment was drafted. Yeah.

BROOKS: Some people might be relieved we don't have that possibility. What do you think, David Savage, you want to talk to Noah about this?

NOAH: It's kind of a bad thing, but…

Mr. SAVAGE: Well, there's certainly - this is a kind of amendment that a lot of people have different views on. I think, as you said, though, Anthony, there's a line in there that suggested well-regulated militia. The original meaning suggested that, yes, you could have arms, but it was in the guise of a well-regulated militia, not a sort of revolutionary bands of citizens who are operating on their own.

BROOKS: Let me bring another voice into this conversation. Jeffrey Rosen is a professor at George Washington University Law School as well as the legal affairs editor at The New Republic. He's on the phone from his home now in Washington.

And Jeffrey, thanks for joining us.

Professor JEFFREY ROSEN (Law, George Washington University; Legal Affairs Editor, The New Republic): Thanks for having me.

BROOKS: I wanted to get you in on this conversation to talk a little bit about the personality of the Roberts Court and how it might reveal itself on anyone of these cases that we've been talking about. What do you make of that? I mean, which case, first of all, jumps out at you as how the Roberts Court might reveal itself in the most interesting way.

Prof. ROSEN: Well, there's so many interesting cases and any one of them might provide a different opportunity for different aspects of the court's personality to emerge.

Last term, after all, was really one of the most divisive in recent memory, with more five-to-four decisions in a row than any time in the court's history, I gather. So, the justices may be shell-shocked to some degree. They're coming back, and Chief Justice Roberts, in particular, will face some pressure, presumably, to vindicate the vision that he denounced at the end of his first terms as chief justice when he said that he wanted to get a bunch of narrow unanimous opinions that the court could converge around. Obviously, he failed to do that last term, which was Samuel Alito's first full term. And it's a challenge for Roberts' ability to establish his leadership and will certainly reveal the court's personality about whether he'll be able to do that.

Certainly, the gun case that you've been talking about would be defining moment for the court, but it might not be an opportunity for the familiar ideological divisions that we've seen in the past. After all, as David and you have been discussing so well, there are plenty of liberals, actually, who believe that the original understanding of the Second Amendment actually does favor an individual rights vision, and they're filing historical briefs. And you could imagine some unexpected alliances that might unite some unlikely bedfellows.

Lots of people certainly think that the terrorism case will be a defining moment for the Roberts Court, but it may be defining in a way that we've already seen last time around.

BROOKS: Jeffrey…

Prof. ROSEN: Yeah.

BROOKS: …let me just stop you there only because we haven't laid that case out yet. So, you've given us a good opportunity to do that.

Prof. ROSEN: Sure.

BROOKS: Let me just swing over to David Savage here. There's a case involving habeas corpus and terrorism trials at Guantanamo Bay, correct? And what's at stake here?

Mr. SAVAGE: Well, I suppose, in a nutshell, this is the question that's been lingering for six years now. Does - do these foreign nationals held at Guantanamo Bay have a right to go before a judge and basically plead their innocence. This has been kicked around. In 2004 the Supreme Court said, yes, they have a right to habeas corpus, because Guantanamo is basically American territory.

Habeas corpus is basically just a ticket into court. It doesn't say what you're going to win; it just says you can go before a judge. But before that ever worked out to mean anything, Congress went back, changed the law and said no, no right to habeas corpus. Now, it's back before the Supreme Court to decide, does the Constitution give these people a right?

The Constitution has a habeas corpus privilege. It says it can't be taken away except during times of an invasion and insurrection. The argument is, we're not under invasion, therefore, the Constitution gives these people the habeas right. That's what they're going to now take up and decide. And it basically - we'll be back right where we were four or five years ago. They'll be going into court and trying to say, you've got the wrong guy. I was a cab driver in Kabul; I'm not an enemy combatant, or whatever.

BROOKS: Well, there's a lot to talk about with this case and I want to get to a few more points, but let me get another caller into this conversation. Let's go to Erv(ph) who's calling from Chicago.

Hi, Erv, you're on the air.

ERV (Caller): How are you doing? Yeah, I guess - my issue is more of a broad issue, which involves all these cases, is legitimacy of the Supreme Court these days. I mean, I have no confidence whatsoever that people are acting in good faith. I think ideology plays into it. It's sort of, you know, I think we're going to have nothing but 5-to-4 decisions, and I think the court has leaned rightward and will continue. I don't think there's a whole lot of surprises ahead. I disagree with Mr. Rosen.

BROOKS: Mm-hmm. Jeffrey Rosen, the rightward tilt of the court - I've heard you talk about that in the past. Do you - are you sympathetic to Erv's concerns?

Prof. ROSEN: It's certainly the case. But lots of people, especially liberals, are very upset about court's rightward turn. And Erv raises a question - will this hurt the legitimacy of the court? I think that - actually, he and Chief Justice Roberts don't disagree on this question. Because Roberts has said very explicitly that he thinks that the legitimacy of the court does suffer when it's perceived as a partisan body, that it's not above politics. And he said that in a polarized age, when the president and Congress are often at each other's throats, it's especially important for the court to appear to be a neutral body that embodies values about the rule of law.

Will he do it in the future? Of course, it'll be a surprise. We have no idea whether this hard division will continue. It might for a while. It might not. This group is just beginning to get used to each other. It's often said that the addition of a new justice utterly transforms the dynamic. You'd asked about the effect of personalities on this court. And the question about whether the conservative and liberal blocs are going to solidify, and ultimately, who will be more successful in courting Justice Anthony Kennedy - this is, of course, the swing justice who's deciding one of these cases, will be played in all sorts of surprising ways. We'll see. We might have another term of lots of divorce. Roberts is going to be on for a long time. Certainly, he will have plenty of time to try to achieve his vision.

But these things tend to go in cycles. And last term, there were a tremendous - they were an unusual number of very hotly contested cases involving abortion and religion and campaign finance. This term, although, there are some exciting cases, they're not really that culture war issues that tend to, especially, inflame the country and the justices.

And in the past, very divisive terms have often been followed by a period of quiet retrenchments. So I think it will be silly to try to imagine exactly what the dynamic will be.

BROOKS: Sure. That's Jeffrey Rosen, professor of George Washington University Law School. We're also joined by David Savage, Supreme Court reporter for The Los Angeles Times. We're talking about the new Supreme Court term. And we're taking your calls at 800-989-8255. That's 800-989-TALK.

You're listening to TALK OF THE NATION from NPR News.

And let's take another call. Let's go to Shawn(ph), who is calling from Rochester.

Shawn, you're on the air.

SHAWN (Caller): How are you doing?

BROOKS: Very well. Thanks.

SHAWN: I'm sorry to bother you. I know you did - you touched on this topic and have kind of passed it. But I'm a convicted felon. And what I wanted to know -my question is that: In conversation, you know, I will tell people that, you know, I feel like a second-rate citizen because I don't have the right to anything, one of those being to vote. And I when I tell people they just say no, that can't be true. Why would they take away your privilege to vote? Now, my question basically is, is that case?

BROOKS: Can you vote is the question?

SHAWN: Correct.

BROOKS: David Savage, do you want to answer that?

Mr. SAVAGE: I'm not sure I know the answer. I think that differs by states. Some states restore voting rights when people have served their term and many don't and some have a procedure to serve. So I think that would depend on your state law.

BROOKS: Yeah. I know this was an issue that came up in a big way in the 2000 election in the state of Florida. Jeffrey Rosen, can you help Shawn with this question?

Mr. ROSEN: I think David is absolutely right. It does vary state by state. And for better or for worse, it's been viewed throughout American history that voting is not a fundamental right of citizenship. It's a political right that states can portion out as they please. They can impose all sorts of restrictions on it. Historically, of course, there were many more restrictions involving poll taxes and property taxes and things like that.

So the Supreme Court is basically viewed as something that is up to the states, unlike the right to have a job, to make contracts - these are rights that the states can't take away from anyone regardless of their conviction status. It's pretty well established - again, for better or for worse - that the states do have the power to portion out the right to vote as they please.

BROOKS: Well, Shawn, I hope that's helped. Although, it sounds like you're going to have to get some information from your own state there in Minnesota. But thanks for the call.

Let's go to Fred(ph) who is calling from Grass Valley, California.

Hi, Fred. You're on the air.

FRED (Caller): Yes. My question concerns the terrorism case - the Guantanamo habeas corpus case.


FRED: What…

BROOKS: Well, I think we've lost Fred. But let's stick with that case - the habeas corpus case.

Jeffrey Rosen, I'm curious to know, sort of, your best guess about how you think the court is likely to rule and what is sort of the broader significance as to what's going to come out of this case?

Mr. ROSEN: I don't know if I'd hazard a bottom line prediction. But of course, it is up to Kennedy once again. Roberts will not be recused, as he was the last time around. So he'll presume - I think they're actually sitting on the case. And both sides will be trying to appeal to Kennedy in his own terms.

So Justice Stevens, who is the senior associate justice and is responsible for trying to make the liberal case, is likely to appeal to Kennedy by invoking decisions from the 1940s written by Stevens' former boss, Justice Rutledge. Rutledge wrote famous dissents in many World War II cases involving liberty and security. Stevens, who cared a lot about Rutledge, has invoked these dissents in his own landmark opinions.

For example, striking down President Bush's military tribunals in Hamdan case. It was very interesting to see both Stevens and Kennedy originally voted not to hear this case because they thought that the litigants hadn't exhausted the remedies that Congress have prescribed. And in filing a separate statement about their decision not to hear the case, they quoted from Justice Rutledge's opinion and said, but if it looks like there's an impossible obstacle course, we're going to change our mind. And, in fact, they did both change their mind together.


Mr. ROSEN: It's tremendously interesting that Stevens and Kennedy are operating in tandem, at least in the initial decision to hear the case in the first place. And liberals hope - I think they're cautiously optimistic, although, no one would venture a firm prediction - that Stevens will be able to do in this case what he did in the Hamdan case - keep Kennedy on board and actually at least a strike down part of the Military Commissions Act.

BROOKS: Interesting. And, David Savage, finally, in about the 20 seconds that remain. The larger issue here seems to be that we really haven't found a good legal solution for these prisoners at Gitmo.

Mr. SAVAGE: That is absolutely right. Congress really should have taken this issue on. The Constitution says Congress shall set the rules for captures on land and water. They haven't done it. The likelihood is, these people, I think, will win in the Supreme Court but it's not clear it will mean anything. We're may be sitting at this time next year, when it's still not clear exactly what rights the Guantanamo people have and what'll be left to the next administration.

BROOKS: Well, David Savage and Jeffrey Rosen, thank you both so much for coming in today and helping us understand what's going on with our Supreme Court. I appreciate it.

Thank you, Jeffrey Rosen.

Mr. ROSEN: Thank you.

BROOKS: And David Savage, thank you.

Mr. SAVAGE: Thank you.

BROOKS: Jeffrey Rosen, professor at George Washington University Law School, and David Savage reports from the Supreme Court for the Los Angeles Times.

Up next, Ask Amy Dickinson. She weighs in on all these people bringing their miniature dogs to the grocery store. Should you have the right to take your pampered Chihuahua to the grocery store? Give us a call.

I'm Anthony Brooks. It's TALK OF THE NATION from NPR News.

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