MARGARET WARNER: The Supreme Court term that just ended was chock full of high-profile cases on subjects ranging from abortion to school prayer; from suspects' rights to privacy rights. Here to put it all in perspective are four Constitutional law professors: Douglas Kmiec, from Pepperdine University Law School; Laurence Tribe, from Harvard law school; John Yoo, from the University of California Law School at Berkeley; and ACLU President Nadine Strossen, who teaches at New York Law School. Welcome, all.
Doug Kmiec, the dean of the Stanford Law School, whom I know you know, Kathleen Sullivan, writing in today's New York Times called this a rich and important term for the Court. Do you see it that way?
DOUGLAS KMIEC: I do, Margaret. It is a rich and important term. It was about the same number of cases as last year, but it was the breadth of the cases and it was the fact that it touched issues that touch people's lives. If I was to group the cases, Margaret, I'd put them in two different groups. One dealt with the basic structural components of the Constitution, the relationship between the federal and the state government, what's the respective authority between Congress and Court and also, as you mentioned in your introduction, there were tremendously important cases in the context of individual rights, dealing with abortion, school prayer, aid to religious schools, parental rights, various types of associations, both public and private. If you look at them, there is both liberal and conservative victories. There are cases that I think by and large are highly defensible and there are a few that are tragically outrageous.
MARGARET WARNER: Larry Tribe, for what do you think this... do you agree that this was a big term, and if so, for what will it be remembered?
LAURENCE TRIBE: Well, it was certainly a big term, Margaret, in the sense that it touched, as Doug says, virtually every area of the Constitution. It was panoramic, it was sweeping, and it will certainly be remembered as a term with lots of big hits. But if you really step back and ask historically: Is this term going to be remembered because any new direction was established, because any major surprises occurred, because the Court established some landmark in a novel area -- then I think the true answer is no, because although the Court continued the trend of protecting the states and cutting back on the power of Congress, and although it continued, by and large, the trend of protecting abortion rights, though in some ways the Court was closer in its division there than some expected, it was not a term that made new law. And in that sense, it was under whelming and it was anti-climactic.
MARGARET WARNER: John Yoo, how do you see the significance of this term?
JOHN YOO: Well, there's one issue that I think Doug and Larry have skipped, which I think will be the significant signal lesson of this term and perhaps maybe the Rehnquist Court which I think is the stride enter declarations of judicial supremacy by the Supreme Court. And three of the biggest decisions, and particularly the decision on Miranda and the decision striking down the Violence Against Women Act, this Court was quite clear that it is the final and supreme arbiter of the meaning of the Constitution to the exclusion of the other branches, and that I think is a very striking development. Now, it began four years ago, but in this term, you really saw it come to fruition.
MARGARET WARNER: Nadine Strossen, how do you see it in terms of both its significance and for what?
NADINE STROSSEN: I agree with all of the comments that have been made so far. I think two really significant trends are, number one, the continuing judicial activism on the part of Justices who were appointed mostly with the stated purpose of not being activists. They have broken all records in striking down Congressional statutes. Margaret, in the first two centuries of this country, the Supreme Court struck down only 128 acts of Congress. In the last five terms, including this one, the Court has struck down two dozen acts of Congress. And some of the cases that involve individual rights, the Court really hasn't focused on through an individual rights perspective, but rather in terms of the power of Congress vis-à-vis the Supreme Court, to go back to a theme that John mentioned. For example, the Miranda case, the reason that Chief Justice Rehnquist emphasized in striking down, in overturning the fourth circuit decision was really the power...
MARGARET WARNER: Let me interrupt you and just explain that this was striking down a federal law that tried to say the Miranda decision of 30 years ago wasn't operative anymore.
NADINE STROSSEN: So really the Chief Justice didn't stress so much that the warren Court had been incorrect in interpreting the Fifth Amendment, privilege against self-incrimination, as much as he emphasized that this was a determination to be made by the Court, rather than by Congress.
MARGARET WARNER: Doug Kmiec, let's go to this federalism or the power and reach of the Congress. What message, when you look at all these laws that the Court struck down, what message is the Court trying to send to Congress in terms of the limits they think Congress should observe vis-à-vis both the states and the Court?
DOUGLAS KMIEC: I think the message, Margaret, is that the state governments are important. They're important parts of the constitutional system because, by dividing power between the federal and state government, we allow more choices to be implemented into law, not just those that can be implemented in Washington, DC. We protect our political liberties by dividing power. And basically there's more accountability because some of the government is closer to us. And so when the... when the Supreme Court of the United States strikes down an exercise in social policy, perhaps good social policy, it is basically saying to the Congress of the United States, "your powers are enumerated, they're listed, they're defined. Stay to the text, the history, the context of the Constitution. Don't try and legislate in the name of... Don't try and legislate social policy in the name of commerce."
MARGARET WARNER: Larry Tribe, how do you see what the Court is trying to say here in terms of... in this subject?
LAURENCE TRIBE: I think here, although the Court has of course said that the states are important, and that's nothing new, I tend to agree a bit more with John Yoo and with Nadine Strossen that the Court is saying primarily, "we are important. Don't mess with us" -- because when the Supreme Court, for example, struck down Congressional protection of women from domestic violence in the Violence Against Women Act in the name of states' rights, the fact is 35 states were in the Court urging that this be upheld. It was not a law that commanded the states to do anything that they were not otherwise doing. It was just a supplementary remedy, and what the Court was really saying is, "it is really up to us to decide what is the right boundary between state and national authority in gray areas -- " just as the Court said, in reaffirming the famous Miranda rule, "we may not like the rule ourselves, but it's up to us to get rid of it, not you." And so that theme, protecting the Court's own turf is even more powerful than the theme of protecting the turf of the states.
MARGARET WARNER: All right, Nadine Strossen, let's turn to an area that you enumerated which was individual rights and liberties and make it a whole grab bag -- everything within the First Amendment to privacy rights -- the sort of traditional civil liberties issues. Would you call this Court a champion of individual rights and liberties?
NADINE STROSSEN: Absolutely not. But I have to say they haven't done nearly as much damage as many of us feared, considering the politics that went into some of the appointments. Two of the major issues that have been in the front burner of those who sought so-called conservative activists were of course abortion and school prayer. And both in 1992 and now again in this term, we have seen the Court reject attempts to overturn its landmark decisions striking down laws restricting abortion and allowing school-sponsored prayer in the public schools. In addition, I think we've seen major strides forward in this Court in a whole range of privacy cases and a whole range of cases involving criminal defendants' rights that were a pleasant surprise.
MARGARET WARNER: John Yoo, how do you see this individual rights and liberties area in terms of this term?
JOHN YOO: Well, I think I agree with Professor Tribe, that in area the Court didn't really do anything new or surprising, even in the abortion case, which was so contentious and evoked so many emotional responses from the Justices when they read their opinions on the bench, it really was an application of the Casey decision from 1992 where the Court in the plurality decision by Kennedy, O'Connor and Souter really reaffirmed the woman's right to an abortion. So in the individual rights area, I think what happened was it was more of a consolidation of what's already gone before, rather than striking out in new directions.
MARGARET WARNER: And what about on the issue, staying with you John Yoo, for a minute, of the separation of church and state? Now, on the one hand the Court ruled 6-3 public high schools cannot have student-sponsored prayer at football games, but then yesterday they ruled 6-3 that it's okay for the government to give computers and other equipment to religious schools. What distinction is the Court trying to draw here on this church-state issue?
JOHN YOO: If anyone knows a distinction, they should be immediately put on the Supreme Court because the jurisprudence of the Court in this area is utterly incomprehensible. Justices on both sides of these outcomes complain constantly that the Court's jurisprudence is incomprehensible. In the case about the prayer in the football games, the Court again applied a decision from 1992, which had invalidated student-led prayers at graduation exercises, and so that was pretty much the application of that case. But in this other area about federal aid, particularly in terms of schoolbooks and computers, the Court has been making small steps towards trying to put religious schools and religious institutions on the same footing as public schools, as long as the funding program doesn't have a religious purpose. And there is some struggle because there are there were four Justices who want to... clearly are looking ahead to the voucher cases that are going to be coming forward and saying "if the government is neutral, then the programs are okay." Justice O'Connor wouldn't be pulled that fast, and so she didn't give the Court a fifth vote to give it a majority opinion on that point, and she said, "I'd like to have a totality of the circumstances approach." I want to look at all the factors and make up my mind about religion and public schools."
MARGARET WARNER: And Larry Tribe, on church-state, do you see a consistency here or a line that we can draw?
LAURENCE TRIBE: I certainly do, and I think John has just nominated himself for the Court because he's fundamentally described what the Court is doing. In the prayer area, it is saying, "we don't want the government to be writing prayers or dictating when they'll be said, whether it's at football games or pursuant to votes of the students at official occasions, and when it comes to aid, the Court has been very consistently moving, though not all at once, not by giant leaps, toward a simple rule that, if the aid is neutral and secular and doesn't create a great danger of government endorsement of religion, it's fine. And even on the issue of vouchers, I think Justice O'Connor's distance from the rest of the Court is an optical illusion, because she made quite clear that if the aid goes to parents and kids, rather than the sectarian institution itself, she wasn't going to necessarily apply all those tests. So I think the trend is quite clear.
MARGARET WARNER: I'd like to ask you all one final question kindly quickly around, which is we love to talk about conservative Justices and liberal Justices. And my question is this: How predictable are these Justices? And starting with you, Nadine Strossen, briefly, how predictable are they and their alliances, and did we see any significant shifts this term?
NADINE STROSSEN: I think that they are all quite predictable, including Justices O'Connor and Kennedy, being predictable in their unpredictability. They are the crucial swing votes. In terms of free speech, I think it's important to stress, as an example, that conservative and liberal are meaningless terms. Some of the strongest free speech supporters are some of the most conservative justices politically.
MARGARET WARNER: Doug Kmiec, on this point - you already said you thought it was unpredictable, but...
DOUGLAS KMIEC: I think some Justices have crossed over. I mean one can find Justice Breyer taking a number of conservative positions, and I think you have to know Chief Justice Rehnquist wrote the Miranda decision, even though he was an opponent of Miranda for many years. I do have to disagree briefly, Margaret with something that was earlier said, and that is that the abortion case was a substantial break in part because Justice Kennedy, who signed on to the Casey opinion that had more or less struck a truce in the abortion area, dissented because he thought there was a common-sense distinction that could be made between early abortions and late-term abortions, between removing the cells of a child at the early state of a pregnancy and killing the child late, so that's a case that can't be overlooked.
MARGARET WARNER: All right, John Yoo on this point?
JOHN YOO: Well, I think you see two hard camps. You have the Chief Justice Scalia and Thomas who commonly vote together, and you have the four liberals, the two Clinton appointees and Stevens and Souter, and the Court's outcomes are primarily determined by Justices Kennedy and O'Connor and I think that's the way they like it because they're both very much common-law judges who like to decide cases on the facts before them. And so in that respect, it's the moderate's Court.
MARGARET WARNER: The moderate's Court, Larry Tribe?
LAURENCE TRIBE: I think it's been oversimplified a bit. I think that the supposed swing votes of Kennedy and O'Connor are beginning to split way part in many case and more and more often you find justice Thomas to the left of Justice Breyer. So rather happily, the Court is not a bunch of robots who act in the way you might expect of pre-programmed political entities. And that I think is a good development.
MARGARET WARNER: All right, well, professors, l four, thank you all.
May 17, 2013
