JAMES HATTORI, host:
Tomorrow is the first Monday in October and that means it's back to business for the U.S. Supreme Court. The justices have several high-profile cases on the docket and they echo previous cases in American history. One, for example, concerns what voters should have to do to prove they're eligible to vote. Another considers whether lethal injection constitutes cruel and unusual punishment.
WEEKEND EDITION legal affairs commentator Mimi Wesson is in Boulder, Colorado and joins us for some insight. Mimi, hi.
MIMI WESSON: Good morning, James.
HATTORI: Well, let's begin with this case involving the constitutionality of lethal injection. What's the significance of this case?
WESSON: Well, strictly speaking only the execution protocol that's used in Kentucky is an issue. But since it's similar or identical to the protocol that's used in more than 30 states, the court's decision will have wider implications. In this case, the justices are going to have to address a factual dispute before they get to the legal question.
The factual question is how likely is it that the common three drug cocktail that's used in lethal injections will cause the executed inmate severe pain before he dies.? And once that question is addressed and resolved, then there's a legal question which is how great does the risk of this kind of cruelty have to be before the justices are willing to condemn the practice as unconstitutionality cruel and unusual?
All the predictions are that this case will be a close one, probably decided 5-4, and probably with Justice Kennedy, the justice who is so often in the middle, holding the key to the outcome.
HATTORI: Now, you said this decision will affect more states than just Kentucky. Now, Texas carries out the most executions we know, and they are already mixed signals from there about the impact of this case even before its come before the Supreme Court. How do you figure those signals out?
WESSON: Late in the week, after they agreed to review the Kentucky case, the court issued a stay of a Texas execution without saying why. Most states are expected to observe a sort de facto moratorium on executions until the court decides to lift the lethal injection question but, apparently, not Texas because on Friday, that state's officials announced that they'd continued to schedule executions by lethal injection. It's not clear how this is going to work out but I think it's most likely that the court will stay in the execution that the state of Texas or any other state seized to carry out at least by lethal injection until the pending case is decided.
HATTORI: Another case has to deal with an Indiana law that requires a voter to produce a photo ID. What are the arguments involved there?
WESSON: Well, they have to deal with the constitutionality of this law, which requires others to present a form of identification that was issued by the government when they appear to vote. The federal court below had upheld the law by a divided vote of 2-1, and this appeal of that decision at the Supreme Court will - like the lethal injection case that we've just talked about - it has both factual and legal questions embedded in it. The factual questions are first: How prevalent is voter fraud? Is that a genuine problem that requires this kind of precaution?
And second, does this ID requirement serve to discourage or present any considerable number of legitimate voters from exercising their right to vote? And the closely related-legal question the court will have to address is what standards should it use to judge the constitutionality of a measure like this that may burden the right to vote? Does it have to be a nearly perfect solution, meaning, it discourages a lot of fraudulent voters and almost no legal ones? Or can a certain amount of imposition on genuine voters be tolerated in the name of preventing voter fraud?
As you probably know, James, these issues of voter frauds are really partisan one and it's usually argued in political circles along straight Democratic-Republican lines. And the court below, in fact, divided that way. But the Supreme Court usually thought to be someone above those kinds of considerations. Although the court's 2000 decision in Bush versus Gore is bound and enlarged over any predictions about how this case will come out.
HATTORI: Justice Clarence Thomas is making some headlines this weekend with his new memoir, "My Grandfather's Son," which will be published tomorrow. Now, I know you haven't have the chance to read the book yet, but based on some of the early reports, can you tell - is there anything enlightening about that, and is this kind of biography unusual?
WESSON: Well, it's not all that unusual for a sitting justice to publish an autobiography that halts its narrative when the author steps onto the court and by all accounts that's what Justice Thomas' memoir does. Apparently, he doesn't discuss the court or his colleagues. So in that way, this book is really not surprising or as interesting as other recent examples of justices speaking to journalist about the workings of the court.
Notably, Justice John Paul Stevens, who, in an off-the-record - on on-the-record interview with Jeffrey Rosen that was published a week ago in the New York Times, said several things about the court and its direction. And also several justices who apparently spoke, but not for attribution, to author Jeffrey Toobin for his recent book, "The Nine." It's these developments that it seems to me may be talking a real change in the cloistered culture of the court as an institution.
HATTORI: So the book, in terms of a legal analysis point of view, not that revealing, but probably going to sell some books based on his comments about how he was treated during the process of confirmation and his childhood as well.
WESSON: Yes. It's certainly interesting for those who are interested in Justice Thomas, but perhaps less revealing to court watchers who are interested in the court as an institution.
HATTORI: The court has been famously divided on many key cases, with five-four verdicts the common outcome. How likely is it that that split will continue, Mimi?
WESSON: Most court watchers think that the justices are going to remain narrowly divided, at least on the cases that pose important issues of constitutional law; and that Justice Kennedy will continue to be the least predictable vote on the court, and thus probably the most important one.
HATTORI: Of course, we're not going to put you on the spot and ask for predictions about specific verdicts. But what's your broader sense of where this court is likely to take the country?
WESSON: This isn't a court that's going to get too far out ahead of the country, but since we, Americans ourselves, are so divided on so many matters -national security, elections, capital punishment - we can expect that the court's decisions, which will address these matters among many others, will continue to satisfy some citizens and anger others.
I believe that especially after it chose to participate in a divisive and politicized dispute like the outcome of the 2000 election, the court can't really hope or expect that its work is going to be exempt from the sort of passionate judgments that mark the contentious and argumentative politics in our country today.
HATTORI: Mimi Wesson is a professor at the University of Colorado School of Law in Boulder. In her spare time, she writes legal thrillers and helps us understand the workings of the Supreme Court. Mimi, thanks.
WESSON: It was a pleasure to talk to you, James.
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