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Tavis: A look now at the changing face of the U.S. Supreme Court with Cass Sunstein, professor of jurisprudence at the University of Chicago Law School. He's also a frequent writer and contributing editor at 'The New Republic,' and 'The American Prospect.' His latest book is called, 'Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America.' Professor Sunstein joins us tonight from Chicago. Professor, nice to have you on the program, sir.

Cass Sunstein: Thank you so much. Great to be here.

Tavis: The passing of Chief Justice William Rehnquist has opened up all kinds of issues that need to be discussed. We'll get to some of those in a moment here. Let me start, though, by asking, with his passing, is that what we are facing, an even more radical court in the minds of some, an even more extreme right-wing court? What are we facing here?

Sunstein: It may be that the court will shift very dramatically to the right. We've seen two waves of conservative shifts, one under President Nixon, which was a quite dramatic development. It's a long time ago, but the court went dramatically to the right under President Nixon. President Reagan above all shifted the court still further with the addition of Justice Scalia, and the elevation of Justice Rehnquist to the position of Chief Justice. So we may see a third and more dramatic wave.

Tavis: Let me ask you what--there's no debate, obviously, that Chief Justice Rehnquist was clearly a conservative jurist. Let me ask you what his legacy will be, as conservative ideology goes in America.

Sunstein: Well, we have to say first that this was a generous and kind and good man. So especially in the aftermath of his death, it's important to appreciate his human qualities, which were quite wonderful. In terms of his legacy on the court, there were two things he did. The first was to limit the expansion of rights that had occurred under the Warren court.

He limited the expansion of the right to privacy, he limited the expansion of rights to be free from discrimination. Those were two very important things he did. Generally, he tried to get rid of what he considered to be liberal activism. The second thing he did was to give rise to conservative activism in the form of an attack on affirmative action programs, the rise of states' rights, and several other more aggressive doctrines by which the Supreme Court limited the power of Congress.

Tavis: Tell me why conservative judicial activism, to your point, is more bad for America or is worse for America than liberal judicial activism.

Sunstein: Well, I don't like either form of activism. I think the court should play a modest role in American government. We have a democracy here, and our basic ground rules should not be set by the Supreme Court. Conservative activism is at least as dangerous as liberal activism, partly because now it's on the ascendancy.

And partly because it threatens to diminish rights that Americans really need to have, like the right to keep information private, and like the right to be free from discrimination, especially those who are most vulnerable. Liberal activism isn't great. We don't want activist courts, but at least the liberal activists can claim that they're protecting the weakest members of society, and that's a point in their favor.

Tavis: Although you know that there are some watching right now who would suggest that this book should have been called, 'Radicals in Robes: Why Extreme Courts are Wrong for America' and that clearly, with all due respect to your wonderful work here, you have an axe to grind with regard to right-wing courts specifically.

Sunstein: Well, this book is about right-wing courts, and that's because we haven't had left-wing courts for a long time. A lot of the Republican noise machine is acting as if we're stuck in 1967, when the liberal courts really were playing a great role in American society. Take two great liberals from the later part of the 20th century, Justice Thurgood Marshall, my boss, and Justice William Brennan. There's no one on the Supreme Court right now who's an activist in the sense that they were.

So while I have some negative things to say about liberal activism, and I think conservatives have made some fair points against liberal activism, it's like fighting something that's not around anymore. The real fight now is whether we're going to have genuine conservatives who believe in stability in the law, and respect for precedent, or we're going to have more extreme, or more radical conservatives, who confuse a partisan agenda with the Constitution of the United States.

Tavis: How dangerous is it for America as a country to have a high court that is clearly ideologically imbalanced?

Sunstein: Well, if this happens, it's dangerous, both for our democracy and our rights. A lot depends on what President Bush ultimately wants to do and what he ultimately is empowered to do. But the danger is real. If the Supreme Court attacks affirmative action programs, says you can't have any, that's a very big deal for our country. Affirmative action programs have been adopted by universities, localities, states, by Congress, by the President sometimes.

If the Supreme Court imposes a kind of fist against affirmative action programs, that's a real problem. If the Supreme Court raises the possibility that the President has full authority to compromise civil rights and civil liberties in the context of the war on terror, that would be a problem. The moderates on the court and some of the conservatives, too, have said the President's authority is not unlimited. But the stakes are pretty high for the American public.

Tavis: You mentioned a moment ago that this in part depends on what the President wants to do. We know that what he wants to do with regard to the vacancy left by the passing of Chief Justice Rehnquist, is to put John Roberts in that seat. We all know, of course, that we were on the eve of hearings to begin with regard to Roberts being elevated to the court, period. Now the Bush White House says they want him not just to be on the court, but they want him to replace Chief Justice Rehnquist as the Chief Justice of the court.

I ask you, like or loathe Karl Rove and the folk who run the White House, you have to admit to me, this was one of the more brilliant strategic moves that you have ever seen, where politics and the court are concerned. You got to give him points for that.

Sunstein: Yeah, I think it was a brilliant choice, and I also think that in terms of serving the country, Roberts does not have the kind of awful record, by any means, that some of the other people on the short list do. So I think we have to give the President credit for selecting someone who, first, is exceptionally competent and, second, who might well be a moderating voice on the court. We don't know yet.

Tavis: What do you think the President has to do now or, for that matter, should do now with the vacancy that Sandra Day O'Connor's leaving still poses? Might we get a woman? Is he forced, coerced, to offer a woman?

Sunstein: I don't think he's forced to offer a woman. I think it would be politically popular if he chose a woman. To have only one woman on the Supreme Court is, for some people who are observing our highest court, is a little bit of an embarrassment. But I don't think this President feels forced to do anything, and I don't think he should feel forced to do anything. What I think he should resist is the temptation to appoint someone who would radically change our rights and radically change our institutions.

I think the Bush White House is actually caught, with respect to the Supreme Court, between two different impulses. One is a kind of honorable impulse to have non-ideological moderates who are literally conservative, they don't want to shake things up. That's an honorable goal. And the second impulse- to put on the court people who will carry forward a kind of partisan political agenda, by reading the Constitution as if it overlaps with the extreme wing of the Republican party.

Tavis: What I'm hearing you suggest, I think, and I want to be clear, so I want to give you a chance to explain this to me more, give me some clarity here. What I'm hearing you suggest is that ostensibly, John Roberts might not be as radical a right-wing jurist as Chief Justice, as Rehnquist was, even though Rehnquist was his boss?

Sunstein: It's possible. Rehnquist, you know, as he got older, he got more cautious. When Rehnquist was a relative youngster on the court, he was called 'The Lone Ranger,' because he wrote fiery dissents and he really suggested he wanted massive change, a diminution of certain rights, and an increase in the right of property owners. That was Rehnquist's early years.

As he got older, he got somewhat more cautious. He showed more respect for competing views. It may be that Roberts will be like the older Rehnquist, or maybe even more cautious than that. Or maybe that Roberts will be like the younger Rehnquist. This is someone who has been a judge only for a short period, and so what he's exactly like we have yet to see.

Tavis: Is that fair to the American people to give them a Chief Justice who we literally know nothing about?

Sunstein: Well, there are a couple things we can say on the President's behalf with respect to Judge Roberts. The first is he has a very extensive record as a lawyer. So we know he really knows about the Constitution and the law. He's a really experienced advocate before the Supreme Court. The other thing we can say about him is that he worked in the government in pretty high positions for a number of years even at a young age, and he worked as a judge for a couple of years on probably the second most important court in the United States.

So the President hasn't put on the court someone who is without experience. I think the confirmation process this time is extremely important in getting a sense of what kind of conservative Judge Roberts is. If he is evasive in the confirmation hearings, or if he just says, "I'm gonna follow the law," which is hopelessly uninformative, then that's a real problem. But he may well, let's hope he'll give a picture of what kind of conservative he is. He'll give a sense, I hope, of whether he's a kind of stabilizing conservative who believes in precedent, or he's someone who's part of a movement.

Tavis: And finally, right quick here, if you are a Democrat and you happen to be a member of the United States Senate, and you believe that extreme right-wing courts are in fact wrong for America, what do you do with the box that the President's put you in now?

Sunstein: Well, the first thing is to get clear on what the risk is and to say that when the President talks about strict construction or getting people who care about the Constitution, that's hopelessly confusing and just not accurate. The risk is that we're gonna have people who are gonna alter our constitutional understandings, take away the right of privacy, endanger some of our most important institutions, give the President much broader authority than the Constitution gives him with respect to the war on terror.

I think what the Democrats and the Republicans, by the way, should say is that kind of partisan agenda is not appropriate for the Supreme Court. If the President does embark on a path of changing the Supreme Court in this partisan direction, then Democrats and Republicans, I hope, will stand firm and tell the American public the truth.

Tavis: Cass R. Sunstein is the author of the new book, 'Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America.' Mr. Sunstein, nice to have you on the program. Thanks for coming on.

Sunstein: Thank you so much.

Tavis: My pleasure. That's our show for tonight. You can catch me on weekends on PRI, Public Radio International. Check your local radio listings. I'll see you back here next time, though, on PBS. Until then, good night from Los Angeles, thanks for watching, and, as always, keep the faith.