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A New Face and New Issues for High Court
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A New Face and New Issues for High Court

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A New Face and New Issues for High Court
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LYNN NEARY, host:

This is TALK OF THE NATION. I'm Lynn Neary in Washington, sitting in for Neal Conan.

Earlier today, the Senate confirmed the nomination of John Glover Roberts Jr. as the 17th chief justice of the United States.

Unidentified Man: Mr. Nelson of Florida.

Senator BILL NELSON (Democrat, Florida): Aye.

Unidentified Man: Mr. Nelson of Florida, aye. Mr. Nelson of Nebraska.

Senator BEN NELSON (Democrat, Nebraska): Aye.

Unidentified Man: Mr. Nelson of Nebraska, aye. Mr. Obama.

Senator BARACK OBAMA (Democrat, Illinois): No.

Unidentified Man: Mr. Obama, no.

NEARY: The Senate voted 78-to-22 to hand over the reins of the nation's highest court to Roberts, who will be sworn in as chief justice later today. As one of the youngest chief justices in modern history, the 50-year-old Roberts could very likely preside over the Supreme Court for the next generation. At stake are some of the very issues which came up during his confirmation hearings earlier this month: abortion, civil rights, individual privacy and military powers. The debate over those issues continues as the Supreme Court prepares for its next term, which begins on Monday. On the docket: a fight in Oregon over assisted suicide, a push for parental notification for abortions in New Hampshire, and across the country law schools fight to keep military recruiters off campus. Those cases, plus the legality of hallucinogenic tea and the inheritance of Anna Nicole Smith. It's a preview of the upcoming Supreme Court term.

Later in the hour we'll have a profile of Representative Tom DeLay, congressman from Texas, who was indicted yesterday and forced to step aside from his powerful post as House majority leader.

But first, what Supreme Court cases are of interest to you, and what impact do you think Justice John Roberts will have on the high court? Join the conversation. Our number here in Washington: (800) 989-8255. That's (800) 989-TALK. And our e-mail address is totn@npr.org.

Joining me now are David Savage, Supreme Court reporter for the Los Angeles Times.

Thanks for being with us, David.

Mr. DAVID SAVAGE (Los Angeles Times): Hi, Lynn.

NEARY: And Joan Biskupic. She is legal affairs correspondent for USA Today, and author of the upcoming book "Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice."

Thanks for being with us today.

Ms. JOAN BISKUPIC (USA Today): Thank you.

NEARY: Are either of you surprised by the Senate vote tally for Roberts' confirmation?

Ms. BISKUPIC: No, I'm not, in part because most of the senators had announced early and laid down some markers, and all 55 Republicans backed him. It was a matter of where some of the Democrats who were on the fence were gonna go, and as you know, Lynn, where some of the Democrats who might run for the presidential election in 2008 might fall, and of that group, only one, Russ Feingold of Wisconsin, voted for John Roberts.

NEARY: David, any surprise to you?

Mr. SAVAGE: Well, I think it was a little better margin for Roberts than some of his supporters expected. Actually early on they thought they'd get 60-some votes. I think Roberts' testimony was so good that the Democrats didn't have much ammunition for reason for voting against him, and I also think the Democrats wanted to say--at least some of them wanted to say, `I can go along with this guy. He's very qualified. Looks to be. Doesn't look to be an ideologue. But not necessarily the next one.' Sort of saying to President Bush, `Don't pick somebody really extreme the next time.'

NEARY: Right. This kind of ups the ante, doesn't it...

Mr. SAVAGE: Yes, yes.

NEARY: ...on the next nomination?

Mr. SAVAGE: I also think it gives some of the senators like Patrick Leahy a little more credence to say he's voting no on the next one, because he said, `I'll accept somebody who's conservative but not an ideologue. This next person is an ideologue so I can vote against him.'

NEARY: `You can't call me unreasonable if I fight the next one.'

Mr. SAVAGE: Yes.

Ms. BISKUPIC: That's exactly right. It also ups the ante in another way. John Roberts was unanimously considered just highly competent and so well-prepared as he sat before those senators over the four days of hearings that I think the next nominee is going to have a tough act to follow, and I think senators recognize that, and I'm sure President Bush recognizes that.

NEARY: And, of course, the nominee we're talking about would take the place of Sandra Day O'Connor. First of all, when do we expect that nomination to occur? People are saying it might happen very quickly, as soon as tomorrow perhaps.

Ms. BISKUPIC: Well, at first the indications from the White House were, indeed, that it could happen tomorrow. We've got John Roberts about to be sworn in officially with his oath this afternoon. But there have been some words that President Bush might take the weekend at Camp David and not come back until early next week and reveal his choice. There have been several names in the mix, but obviously this nomination to succeed the influential Justice O'Connor could have a lot more controversy around it and a lot more trouble in the Senate.

NEARY: And this nomination, even without the Roberts confirmation hearing going as well as it did for the Republicans, this nomination is really--a lot is at stake with this one, is it not, because of the role that Sandra Day O'Connor plays on the court, David Savage?

Mr. SAVAGE: Absolutely. She was the swing vote on all the big issues: abortion, affirmative action. You know, we--strange thing is we were through this before. You remember in mid-July President Bush was going to pick...

NEARY: Right.

Mr. SAVAGE: ...a replacement for Justice O'Connor. Everybody said, `It's got to be a woman. It's got to be a minority.' We were wrong. And so I'm thinking this time we really don't know much.

NEARY: I was gonna say, does this time...

Mr. SAVAGE: We know it's a...

NEARY: Does it have to be a woman? Does it have to be a minority?

Mr. SAVAGE: Everybody says so, but stay tuned.

Ms. BISKUPIC: But, you know, that's the thing. I think that the president would have a really tough time if he didn't pick a woman or a minority this time. Just think, when you walk into the Supreme Court on Monday, you're gonna see just two women up there on that bench. When Sandra Day O'Connor steps down, you'd only see one. And what a picture that presents. Also, as you know, we've never had a Hispanic justice on the Supreme Court, and I think that the pressure out there to bring more diversity to the court is there, and the president even said something to that effect earlier this week.

NEARY: But didn't some Democrats already warn the president off naming some of the women whose names are out there?

Ms. BISKUPIC: Yes, because there are--there is a very conservative woman on the 5th Circuit by the name of Edith Jones who, I think, Democrats are saying, `We don't care if she's a woman. She'd be far too much to the right.' Ditto with a woman by the name of Priscilla Owen, who's also on the 5th. But I think that there are a lot of competing interests here and God knows that there are more than just two women Republican appointees on the federal courts.

NEARY: Right. And let me ask you about the role that Sandra Day O'Connor's gonna be playing when the court convenes next week. She's gonna stay there until there is a nominee, has been confirmed, there's a new member of the court. But what does that mean in terms of her role in terms of hearing these cases and then the final decisions on these cases?

Ms. BISKUPIC: Well, it's actually quite complicated, Lynn, because what happens is a justice can sit and hear a case, vote in their private conference in the case, but then when the drafting begins, if her successor comes on the bench before she has actually issued that opinion with all other eight colleagues having signed on one way or another, her vote and her opinion doesn't count. So what we think, and David could elaborate on this, is that she will probably be assigned opinions that are unanimous or nearly unanimous. Ones that don't drag out and get particularly dicey, for example, like the Oregon's assisted suicide law, because then they could be resolved in a matter of maybe two months.

Mr. SAVAGE: Yeah, I don't get it, Lynn. It seems to me it's only symbolic, because you only need a ninth justice to break the tie, you know, when they're tied. You don't need a ninth justice for a unanimous tax case. Eight-to-nothing will do it. But the votes at the Supreme Court only count when the opinion comes out, and if they're divided, the dissenters usually take months writing a dissent after the majority opinion is written. So suppose they hear a case next week, they're--it's--and Sandra O'Connor casts the deciding fifth vote on one side, that case is not gonna be actually decided until January, and by then she'll be gone. So they'll be back to 4-4, and then they'll have to reargue the case. So I don't really understand the point of her staying there in October and November. I think it will only be significant is if the Senate gets into a big fight and they don't actually confirm President Bush's nominee during the fall, you know, carries over...

NEARY: And that's possible.

Mr. SAVAGE: Then--it's possible. And then her vote could be crucial.

NEARY: Oh.

Ms. BISKUPIC: Do you know in 1987 after President Reagan nominated first Robert Bork and then of course we know how that one went when the Senate rejected him, and then possibly Doug Ginsburg and then it fell to Anthony Kennedy. For four months the court had only eight justices, so these things can drag out.

NEARY: All right. Let's see if we can get a call in here. We've got John calling from Massachusetts, I believe.

JOHN (Caller): Yes. Hi.

NEARY: Hi, John. Go ahead.

JOHN: I'm just wondering whether, with this new chief justice, we'll actually turn to international law in the hallucinogen tea case, because two courts in Europe as well as Peru, Colombia and Brazil have recognized the validity of this religion, so literally we have hanging in the balance in this case a protection of religious freedom with the federal government's insistence on pursuing the drug war at some people's religious expense.

NEARY: All right, John. You've jumped ahead a little bit, so maybe one of our Supreme Court experts here can explain this case and respond--I'm sorry. Joan, go ahead.

Ms. BISKUPIC: Well, the question there is whether the Religious Freedom Restoration Act, a 1993 federal law, requires the federal government to waive drug control law to permit the importation of this hallucinogenic tea. As I understand it, this tea is used in the Brazilian ritual of a religious group that is now practicing in the United States and it wants to import it. Those are the basic facts of the case. The actual legal test has to do with what standard judges use to assess whether what would appear to be a generally applicable law actually impinges on religious practice. And--but the caller raised a question that kind of goes beyond the case, and that has to do with what--whether justices look to international standards, international laws as they figure out what would apply domestically, and that's actually quite a controversial issue at the Supreme Court, and what John Roberts suggested during his hearings is that he would not rely in any way international law but it--you know, if somehow that shed some light on a case, he would use it.

One thing the caller should know is that even though he mentions cases internationally that might support the importation of this hallucinogenic tea, apparently there's some treaty law that would go the other way here that the US is part of. So it isn't as cut and dried as it might appear on the surface.

NEARY: All right. John?

JOHN: The signatories of that international law, the actual committee has stated that hoasca, the potion that's in question here, does not come under any international ruling, and they've already specified that, and moreover, the plants that is derived from--that this tea gets made from, neither of them are listed in the Controlled Substances Act of 1970, Schedule I list, therefore, it is--the government is pursuing a case against a non-drug, a non-scheduled drug.

NEARY: All right, John. Thanks so much for bringing this case to our attention.

JOHN: Thank you.

NEARY: It's one of the cases that we were planning to discuss, now we've brought it up already. We've got other cases that we want to get to as we look towards the beginning of the new term of the Supreme Court. We're gonna have to take a short break before we get to that, but when we return, we're gonna continue this discussion of our Supreme Court preview with our guests, David Savage, Supreme Court reporter for the Los Angeles Times, and Joan Biskupic, legal affairs correspondent for USA Today.

It's TALK OF THE NATION from NPR News.

(Soundbite of music)

NEARY: This is TALK OF THE NATION. I'm Lynn Neary in Washington, sitting in for Neal Conan.

We're talking about cases coming up before the US Supreme Court when its new term begins next Monday. Our guests are David Savage of the Los Angeles Times and Joan Biskupic of The Washington--of USA Today. Sorry. You're invited to join the discussion. Give us a call at (800) 989-TALK, and our e-mail address is totn@npr.org.

David, maybe you could briefly summarize some of the big cases that we're--the Supreme Court's gonna be taking on in its new term?

Mr. SAVAGE: Sure. We have a big one up the first week, which is a little bit unusual: the right to die case from Oregon. This has the potential to be a real landmark, I think. It's the nation's only right-to-die law. The Oregon voters voted twice to say that if you are terminally ill, your doctor can give you, prescribe to you a lethal dose of medication that you can take on your own. Two hundred and eight people have done this, usually cancer patients, the very end of their life. When John Ashcroft became attorney general he said, `This law violates the federal drug control laws because doctors may not prescribe lethal medication because that's not legitimate medical care.' So he's threatening to take away from doctors the right to prescribe medication. So it's a big test of that law.

I think it's a fascinating sort of test for John Roberts, too, 'cause you've got the sort of social conservatives on one side being against this right to die, and you've got this sort of small government `defer to the states' type conservatives on the other side saying, `You know, this is up to the people of these states, and Washington shouldn't be dictating to them.'

NEARY: What about abortion? There are some abortion cases coming up as well, right?

Mr. SAVAGE: Yes. In November we've got a case from New Hampshire that's--on the one hand it's about parental notification. Does the state have to make an exception for girls who have a medical emergency--in other words, the girl comes to the doctor with a medical emergency, needs to have an abortion right away. Can the doctor do that, or is it a crime? New Hampshire refused to make any exception for these situations, so it's a test of whether there has to be sort of a health exception to a parental notification law, and it has the potential to--the Bush administration got into the case and said, `You, the Supreme Court, ought to uphold these general abortion regulations even if they may be unconstitutional in some cases,' because, obviously, most girls don't have a medical emergency, and that those ought to be fought out as a sort of case-by-case matter. And if the Supreme Court buys that, say these laws can stand even if some women are gonna have a problem, it's gonna change the way all the abortion cases are litigated because doctors and patients will sort of have to fight them on a case-by-case basis.

NEARY: And, Joan, one of the frustrations, I guess, in the confirmation hearings for John Roberts for some senators, the Democrats, were that they didn't really get a read on how he might--what he might do on cases like this.

Ms. BISKUPIC: That's right, Lynn. He did acknowledge that he believed that there was a right to privacy in the Constitution, which, frankly, every justice on the Supreme Court has acknowledged that in one way or another, so that would have been quite radical if he hadn't accepted that. But then when we got into the nitty-gritty of how he would look at abortion regulations, he declined to comment, saying, `Look, these kinds of cases are coming up. I just can't say. I need to keep an open mind.'

NEARY: All right. Let's take a call now from--Ann's calling from St. Cloud, Minnesota.

Hi, Ann.

ANN (Caller): Hi.

NEARY: Go ahead.

ANN: I was wondering what your panelists think of the Supreme Court's recent announcement that they were going to review the Cuno decision, which held that the big business subsidies that states give to corporations to relocate jobs into their state are unconstitutional because they interfere with interstate commerce. And I was wondering what your panelists think of the effect that it will have that John Roberts is now on the court.

NEARY: David Savage?

Mr. SAVAGE: Well, I think it's a big deal if the Supreme Court agrees with the lower court, because almost all the states have these special tax breaks for big business. If the Supreme Court were to say those kinds of tax breaks are unconstitutional, 'cause in effect you're--the argument is you're discriminating against interstate commerce because you're sort of giving a subsidy for a business to do business just in that state, my guess is they're going--they took that case, however, to reverse the lower court and it won't turn out to have a big impact. But it won't be up till January and we won't know for a while.

Ms. BISKUPIC: And as David knows, they also rewrote the question presented so for the caller's interest, the court might not even get to the actual question about the commerce clause violation. There was a standing issue it was first saying it wanted to look at before even getting to the merits. So we might not get an answer even this term.

NEARY: All right. We're gonna turn now to that very contentious assisted suicide case in Oregon, which we've already discussed a bit. David Savage talked to us about it earlier. We wanted to focus in on one of the important cases that's coming up in the Supreme Court, so we're joined now by Clarke Forsythe, and he is the director of law and bioethics for Americans United for Life in Chicago, and his organization filed a friend-of-the-court brief in support of the Justice Department.

Thanks so much for being with us.

Mr. CLARKE FORSYTHE (Americans United for Life): Thank you, Lynn. Good to be with you and David and Joan.

NEARY: Now from your perspective, what are the legal issues that are at stake here?

Mr. FORSYTHE: Well, I think it may be a rather uninteresting, narrow administrative law question, and that is: Is the attorney general's interpretation of the Controlled Substances Act regulations entitled to deference? Assisted suicide swirls around this case, but it may come down to rather a narrow technical interpretation of that, and I agree with David that how the justices stack up may not be upon a kind of traditional, quote, unquote, "liberal-conservative" lines.

NEARY: So the question is whether the drugs--the drugs we're talking about are illegal?

Mr. FORSYTHE: No, it's whether--the attorney general--and actually this case really started back in November 1997 to some extent because it was the first--or it was the Clinton DEA administrator, the Drug Enforcement Administration administrator, Thomas Constantine, who first declared or concluded, initiated an opinion that delivering, dispensing or prescribing controlled substances was not a legitimate medical purpose under the Controlled Substances Act. So the attorney general, the Clinton attorney general rejected that, but then almost four years to the day later, Attorney General Ashcroft basically adopted that opinion. And so the question really here is whether the attorney general's opinion under this special act, the Controlled Substances Act, should be entitled to deference, and that's kind of the narrow issue in this case.

NEARY: But isn't there a larger issue, also, of states' rights?

Mr. FORSYTHE: Well, it--that, I think, has actually been already decided by the Supreme Court. I mean, Oregon can't drop out of the union, and so supremacy of federal law is clear. The validity of the federal Controlled Substances Act is clear, and the Supreme Court affirmed that twice just in the last six months. The Supreme Court said in 2001 in the Oakland Cannabis Buyers' case that the Controlled Substances Act is superior over any voter attempt in the state to approve medical marijuana, and in Gonzales vs. Raich just several months ago the Supreme Court again said that federal law is supreme and that the Controlled Substances Act can prevent voters from approving medical marijuana. And I think this case actually, the Gonzales vs. Oregon case, implicates privacy less directly than even the Raish case, because in the Raish case, the Controlled Substances Act was specifically applied against users, and in the Gonzales vs. Oregon case, that involved the DEA's revocation of a doctor's federal license to prescribe.

NEARY: All right. I think Joan Biskupic had a point to make here.

Ms. BISKUPIC: I just wanted to respond to Lynn's question about the state control here, because as you know, the 9th Circuit did make more of that in its opinion by saying that what the attorney general was doing in effect altered the relationship between the states and the federal government, and sort of upset that constitutional balance by usurping the states. And interestingly, going to the administrative law question that will be before the court, also, is that the 9th Circuit, whose decision will now be reviewed next week, said that if anybody in the administration was going to issue some directive about the practice of medicine, those decisions should be made by the secretary of Health and Human Services, not the attorney general.

NEARY: Clarke Forsythe?

Mr. FORSYTHE: Well, I think Judge Wallace's dissent in the 9th Circuit may be exactly the interpretation that a majority of the court adopts, and that is that the Controlled Substances Act is a unique statute. It gives the attorney general unique authorities. Regulations in 1971 said that the attorney general can describe--can determine what's a legitimate medical purpose. And in 1984, Congress amended the Controlled Substances Act to give the attorney general broader authority to decide what acts are inconsistent with the public interest. And it's a unique statute that gives the attorney general unique authority concerning federal licenses, which every doctor in the country has to have a federal license to prescribe drugs.

NEARY: All right. Thanks so much for joining us today, Clarke.

Mr. FORSYTHE: Thank you.

NEARY: Clarke Forsythe is the director of law and bioethics for Americans United for Life and he joined us from Chicago.

And I think, David Savage, you wanted to add something ...(unintelligible)?

Mr. SAVAGE: Well, you asked about the drugs themselves, Lynn. These are not illegal drugs. They're legal drugs, except that the doctors are giving you sort of an overdose of, say, a painkiller, which if you take it all at once, will end your life. So it's a legal drug, and the argument on the other side is that states traditionally regulate doctors and regulate the practice of medicine. The federal government's argument is, `Yes, but we regulate drugs.' And so the question is: Is this a matter of regulating the practice of medicine, which is a state matter...

NEARY: Right.

Mr. SAVAGE: ...or is it drug control, which is a federal matter?

NEARY: So these issues aren't settled?

Mr. SAVAGE: They are absolutely not settled.

NEARY: And we have someone from the other side of this case about to join us now, too. Eli Stutsman is the attorney for physician Peter Rasmussen and pharmacist David Hochhalter, who challenged then-Attorney General John Ashcroft in US District Court back in 2002, and he joins us from his office in Portland, Oregon.

Thanks again for being with us. Thanks so much for being with us.

Mr. ELI STUTSMAN (Attorney): It's my pleasure.

NEARY: What is your legal argument against the so-called Ashcroft directive?

Mr. STUTSMAN: Well, certainly it's our position that the states, not the federal government, regulate medicine and always have. The question in this case is whether a federal drug law, the Controlled Substance Act, which was passed by Congress to stop illicit drug use, drug trafficking and drug diversion, may be interpreted so broadly as to allow the attorney general to regulate medicine in the states. The particular phrase that the attorney general relies upon is a regulatory phrase, `legitimate medical purpose.' That language, that word `legitimate,' as used by Congress and as used in the case law, has referred consistently to whether the channel of distribution is legitimate. It is not a subjective phrase that empowers the attorney general to quarrel with the states over medical practices and, in fact, there's no history of the attorney general doing that--or any former attorney general doing that under our country's drug laws.

NEARY: What drugs are we talking about? Is it the same in each case or is it a ra--I mean, what are we talking about?

Mr. STUTSMAN: We are talking about the same drugs in each case. It's important to understand that drugs in this country are scheduled--placed on five schedules. And Schedule One drugs are banned. Those are the illicit drugs--heroin, marijuana, for example--that we're used to hearing about in the context of illicit drug use and traffic. Schedule II, III, IV and V are lawful drugs, and those drugs are placed on the schedules depending upon their efficacy and potential for abuse, and they're regulated for the public safety. The purpose of the regulation is to maintain the inventory and make sure that these lawful drugs aren't diverted. In Oregon, we're using Schedule II drugs. Pharmacists and physicians are involved. It's clearly the practice of medicine. All of the drugs are accounted for. There's no allegation by the attorney general that there's any illicit use, any drug diversion or drug trafficking taking place in Oregon. It's purely a dispute over the legitimacy of the practice.

And what's important to know about the medical marijuana cases that our opponents rely upon is that those are Schedule One drugs. Those are banned drugs. Marijuana is a banned drug. There's no purpose, no medical purpose that's recognized in this country. So when the attorney general's enforcing the Controlled Substances Act against states that have passed medical marijuana laws, the attorney general is enforcing a Schedule One ban. And the cases that have upheld the attorney general's power have simply recognized the power to ban a drug.

In Oregon, the circumstances are very different. We're not using any banned drugs, and the attorney general's disagreement with the state of Oregon is very different and his power is very different, and any reliance upon the medical marijuana cases is misplaced and, in fact, we cite to--and rely upon ourselves the medical marijuana cases because the distinction between a Schedule One drug that's banned throughout this country and Schedule II drugs that are permitted in all 50 states is crucial.

NEARY: All right. Thanks so much for being with us today, Mr. Stutsman.

Mr. STUTSMAN: Certainly.

NEARY: Eli Stutsman is the attorney for Oregon physician Peter Rasmussen and pharmacist David Hochholder. He joined us from his office in Portland, Oregon.

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

David Savage, if this case goes against Mr. Stutsman and the parties that he's representing, does that mean that assisted suicide will then become illegal in Oregon?

Mr. SAVAGE: I would think, for practical purposes, it would be. Because the whole notion is that you get these drugs via your doctor, and it the doctor is forbidden from prescribing these drugs to end your life, then I think for practical purposes, it would be.

NEARY: And, Joan, what--is this--what will this tell us about Judge Roberts, depending on how he judges this case? What can we learn about him...

Ms. BISKUPIC: Well, that's a good question, because as you remember, Senator Dianne Feinstein tried to draw out some of Judge Roberts' sentiment on these issues and dealing with terminally ill relatives, and he said, `I will not let any of my personal feelings affect how I might rule on a case like this.' We'll see a couple different things. First of all, he will vote as early as next Friday in their private conference on this case, and then in a few months after that, we'll probably see the ruling. We'll see just how much deference he would give to the attorney general in this case, so that will be key.

And the second key thing will be how does he write about this? How does he frame this? The last time the justices looked at the question of assisted suicide in 1997, there were a lot of impassioned opinions that I think really revealed the justices' own experiences with sort of end-of-life tough medical questions, and also just whether they believe this is the kind of thing that really states should be grappling with. In fact, the state of Oregon relies on something that Sandra Day O'Connor said in 1997, that essentially said the laboratory of the state should be working this out, or if in John Roberts' case, he thinks that this is much more of a federal government matter.

NEARY: So you may begin to see with a case like this what John Roberts is really thinking or what his personal feelings are on these kinds of issues, which, at this point, we don't know.

Ms. BISKUPIC: That's right. And I think that as you watch justices over the years, that they evolve in different ways. This will just be one piece of information, but finally, it will be a piece of information about his views as a judge.

NEARY: OK. When we come back from a short break, we're going to continue this discussion about the Supreme Court, and we're also going to get a little more insight into Representative Tom DeLay from a reporter who has spent some time with him.

I'm Lynn Neary. It's TALK OF THE NATION from NPR News.

(Announcements)

NEARY: This is TALK OF THE NATION. I'm Lynn Neary in Washington, sitting in for Neal Conan.

Tomorrow on "Science Friday," join Ira Flatow for a look at energy supplies post hurricanes Katrina and Rita. Plus, the latest in the Dover court case on teaching evolution. That's "Talk of the Nation/Science Friday."

Today we're talking about some of the cases scheduled to come before the Supreme Court when its new term begins on Monday. Our guests are David Savage of the Los Angeles Times and Joan Biskupic of USA Today. Join the conversation. Give us a call at (800) 989-TALK. Or send us an e-mail at totn@npr.org.

Joan, one other case that's interesting that's coming up has to do with law schools who have wanted to curb the access of military recruiters to their students. Give us the outline of that case...

Ms. BISKUPIC: That's right. And it comes up at a particularly interesting time when we're, you know, obviously fighting a war overseas. The question is whether a congressional amendment that's commonly known as the Solomon Amendment, because of the New York congressman who sponsored it years ago, which requires the withholding of federal funds from universities that deny military recruiters the same access to campuses as other recruiters, whether that violates the First Amendment, because of the universities' opposition to the military's don't ask, don't tell policy.

What law schools are saying--they've formed a group and they've challenged this--is they say this violates our First Amendment rights because it forces us to adopt a message against gay men and lesbians that we don't subscribe to; in fact, that we vigorously oppose. And by coming in and forcing us to turn over classrooms to be used by recruiters, the lists of student names and numbers to be used by recruiters, that's, in effect, forcing us to associate and adopt the message of the military.

So it's a very interesting case. The government lost in the court below, and I think many of us who've watched this court and seen the way it's looked at the federal government and, you know, the spending powers of the government and military powers believe that it could be reversed, and these recruiters would have equal access.

NEARY: All right. Let's take a call now from Matthew in Detroit, Michigan. Matthew, go ahead.

MATTHEW (Caller): Hi. You know, we're all dying to know, how did Anna Nicole Smith get to the Supreme Court?

NEARY: Which one of you would like to take that on?

Mr. SAVAGE: We're wondering--to know the same thing. They had 1,700 appeals to pick from on Monday, and the justices get together--these are appeals that are sitting around all summer long. They supposedly go over the legal questions. This had a particularly dull legal question, I thought. It even had a dull caption. It was called, Vickie Lynn Marshall vs. E. Pierce Marshall. And a particularly dull legal question involving whether federal bankruptcy judges have jurisdiction to reconsider matters decided by state probate courts. They granted 11 cases, meaning they're going to hear 11 cases, some of them pretty important cases involving election law, for example. But there was this case. And so the AP wires immediately mentioned, `Well, this is actually Anna Nicole Smith,' and so Joan and I and all the...

NEARY: Vickie Lynn is Anna Nicole's...

Mr. SAVAGE: Yes, that's correct.

Ms. BISKUPIC: Exactly. That's her real name.

NEARY: Right.

Ms. BISKUPIC: Yeah.

Mr. SAVAGE: We all had to write about this case because Anna Nicole Smith goes to the Supreme Court, and I can't answer why they picked this one.

Ms. BISKUPIC: Well, apparently, there were some conflicts in the circuits over a very boring issue that actually people really don't want to know about, about the federal probate exception. There was a conflict between a state court in Texas that actually gave the late husband of Anna Nicole Smith's son most of his inheritance, but she was able to go to a federal judge and try to get some of it. So it's actually a jurisdictional question, but we all know that none of our readers really want--don't want to know about that. They'd rather know about whether she shows up for oral arguments on a January day.

MATTHEW: And is there a dress code?

Ms. BISKUPIC: There is a dress code...

NEARY: Matthew...

Ms. BISKUPIC: ...a very strict dress code.

NEARY: ...I just want to thank you for taking the bait and asking that question. We did leave it hanging out there to be asked, so thanks for calling in, Matthew.

I mean, are there any--I ca--you know, this raises a question in my mind, which is, as reporters who watch the Supreme Court, are you often or just occasionally surprised by what they decide to take on? I mean, how often do they surprise you by the cases they sometimes take on?

Ms. BISKUPIC: Well, this was sort of surprising. Plus, we are a very stuffy crowd. I have to admit that several of us did not know not only that Vickie Marshall was her real name, but even told of the actress' name.

NEARY: Vickie Lynn, I think--oh, Vickie Lynn Marshall, OK.

Ms. BISKUPIC: We didn't even--some of us, I'm afraid to say, really hadn't followed the career of Anna Nicole Smith, but we are surprised often, because as David said, they get literally hundreds and hundreds of appeals up there, and they have to make decisions. It takes four votes to actually accept a case, and they end up deciding about 75 each term. Sometimes you know because there'll be a conflict in the circuit courts that needs to be resolved, and sometimes there's ones, you know, very big, national importance.

Mr. SAVAGE: We're surprised--when we get a surprise, it's usually because they've chosen to reconsider some area of the law that was really settled. You know, for 30 years, it's been sort of settled; is that candidates actually have a free speech to spend as much as they want. That's how Ross Perot runs for president or Steve Forbes or whatever. They're going to reconsider that rule in this case, because a lot of states and a lot of cities have said, `We don't want these big money races.' And so they've agreed to reconsider that old free speech rule. That, for us, is a surprise. We don't see many cases that their main element is that a celebrity name is attached to the case.

NEARY: Yeah. And is that the only campaign finance case that will be coming up?

Ms. BISKUPIC: Actually, there are two that they took; one involving, as David mentioned, from Vermont, a limit on how much a candidate can spend. The court, in its 1976 case, equated spending with free speech and said that governments cannot cap an individual candidate's spending. So we have one--that's one question. And then the other question from Wisconsin is an appeal brought by the Wisconsin Right to Life taking issue with kind of a landmark revision of campaign law that Congress passed in 2002 known as McCain-Feingold, and that limited certain broadcast ads that corporations such as Wisconsin Right to Life can run shortly before elections that would be issue-oriented but invoke the name of a candidate. So both of these are very important cases that were accepted on the same day as Anna Nicole Smith and are going to be more important in the end.

NEARY: And before we leave this topic, is there anything we've overlooked or anything else coming up that either of you can think of, either frivolous or not?

Ms. BISKUPIC: Well, the court will probably decide this term whether to hear a constitution question over the partial-birth abortion procedure...

NEARY: Right.

Ms. BISKUPIC: ...that they took up in 2000. They'll be looking at that. And the disenfranchisement of felons in terms of voting rights, so we've got a couple other cases that are marching up toward the Supreme Court.

Mr. SAVAGE: Yes. There are actually quite a few good cases pending for the--there's a case about innocence on death row. What happens if new DNA evidence comes up and cause them to doubt your guilt? A federal appeals court out in Ohio said on an 8-to-7 vote, even if the new evidence suggests you're innocent, you don't have a right to reopen your case in federal court. So that's potentially a big deal.

NEARY: All right. Well, thanks to both of you for being with us.

Ms. BISKUPIC: Thanks, Lynn.

Mr. SAVAGE: Thank you.

NEARY: David Savage, a Supreme Court reporter for the Los Angeles Times. Joan Biskupic is legal affairs correspondent for USA Today and author of the upcoming book "Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice."

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