ALEX CHADWICK, host:
More now on US Supreme Court nominee Judge John Roberts. The White House says it's not going to release papers that Judge Roberts wrote when he worked for the George H.W. Bush administration back in the late '80s; Democrats have asked for those papers. But the administration says it will release material from Judge Roberts' days as a lawyer under President Reagan. And writing in this week's New Yorker, Jeffrey Toobin focuses on one case Judge Roberts may hear this fall if he's confirmed to the high court.
Jeffrey Toobin, welcome to DAY TO DAY.
You're writing about the so-called Solomon Amendment. Why is this case so interesting?
Mr. JEFFREY TOOBIN (The New Yorker): Well, it's a case that one of the lawyers involved said to me is so difficult that it made her head hurt to think about it, I mean, because there are so many conflicting legal incentives in play. You know, the facts of the case, as my father used to say to make a long story unbearable, are most law schools in America have banned military recruiters because the military discriminates against gay people. Congress responded to this by passing a law that said, `Well, if you don't treat our military the same as everyone else, we're going to cut off all your federal funding for the entire university, not just the law school.' Universities have sued, saying that this law--which is known as the Solomon Amendment--is unconstitutional; it's a restriction on the free speech rights of the university. That's the case the Supreme Court will consider this fall.
CHADWICK: So when you write about this, why do you think this is an interesting case to think about for Judge Roberts?
Mr. TOOBIN: Well, because it is rooted in the cultural conflict that is really the major grist for the big Supreme Court cases, which is the military's `don't ask, don't tell' policy and what means of protest are legitimate against that. That said, it is primarily a First Amendment case. It is about whether a university can be penalized for exercising its First Amendment rights, and it is also about whether the federal government can attach strings to federal funding, something it does all the time: Federal highway money comes with a string of--you know, a requirement for a 21-year-old drinking rule, certain safety requirements. That's how the federal government imposes its will on the states. So there are a lot of difficult cross-currents there, but it is rooted, I think, in cultural conflict about gay rights, which will be a huge issue for Judge Roberts if he becomes Justice Roberts.
CHADWICK: Are you saying, in picking out this case, that the selection of a Supreme Court justice is actually a cultural question for the country?
Mr. TOOBIN: You know, absolutely. I think if you look at how the Supreme Court has changed since the 1950s--you know, in the 1950s, you had Brown v. Board of Education and then for basically a generation after that, the main business of the court was dealing with the subject of race in one guise or another, whether it was voting rights, criminal laws, desegregation. And those cases haven't disappeared, but they have really become much, much less important in the court's docket. And what has risen in importance--starting, of course, with Roe v. Wade in 1973--is cultural issues. Abortion, of course, is huge; gay rights is going to be a bigger and bigger part of the court's docket; church-state issues. That's really what a Justice Roberts will spend his 30 years on the bench dealing with, I think.
CHADWICK: And what you say about him is he is a believer in judicial restraint.
Mr. TOOBIN: And that is actually different from the conservatism of an Antonin Scalia or a Clarence Thomas, who have a much more aggressive approach to the law, that the court should impose their agenda and their will on the other branches. The tradition that Roberts appears to come out of--and you can't know for sure because he hasn't been a judge for very long--is much more from judges who say, `Look, we are virtually always duty-bound to stay out of the business of the other branches of government, stay out of the business of how the states run their operations.' That is traditionally conservative and it probably still is conservative, but it is not as conservative as the more aggressive brand of conservatism that we've seen from Scalia and Thomas.
CHADWICK: Jeffrey Toobin's article Sex and the Supremes--nice headline, Jeffrey--appears in this week's issue of The New Yorker.
Jeffrey, thank you.
Mr. TOOBIN: My pleasure.
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CHADWICK: I'm Alex Chadwick, and DAY TO DAY continues just ahead.
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