Suzanna Sherry discuss key rulings and trends at the U.S. Supreme Court

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Suzanna Sherry, University of Minnesota constitutional law expert, talks about the key rulings and trends at the U.S. Supreme Court.

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(00:00:10) Good morning, and welcome to midday in Minnesota Public Radio. I'm Gary eichten glad you could join us Miranda Yas School prayers at football games. No grandparents, maybe gays in the Boy Scouts and partial birth abortions will have to wait till tomorrow the US Supreme Court wraps up its term tomorrow with one last flurry of opinions including decisions on whether gaze can be troop leaders in the Boy Scouts and whether states can ban the procedure known as partial birth abortions yesterday the court handed down a number of rulings including a long-awaited decision on the Miranda decision. You have a right to remain silent the one we've heard on TV earlier this year the court also attempted once again to clarify the issue of Prayer in the schools and waded into the touchy area of family life can parents prevent grandparents from visiting their grandchildren. It's been a busy year for the US Supreme Court. Once again this year and joining us today as she does each year to discuss the courts term and what the decision say about the direction of the court is Supreme Court expert Suzanna Sherry who teaches constitutional law at the University of Minnesota, as always we invite you to join our conversation. If you have some questions or comments about the Supreme Court rulings that we've received here in the last year or the ones that will be coming out tomorrow. Give us a call six five. One two, two seven six thousand 6512276 thousand outside the Twin Cities. You can reach us toll free at 1-888-438-6557 and or 1-800 to for to to 828 we're talking today about the US Supreme Court's term which comes to an end tomorrow Professor Sherry. Thanks for coming in today. It's my pleasure. Gary. One thing I have to ask right away is every year the court seems to load up. It's it's Calendar so that at the end of the term right before they head out for vacation. This red rash of decisions big decisions comes out. Why is that why don't they kind of dribble them out through the course of (00:02:14) the Year? Well, they do dribble out the decisions during the course of the year, but the get the easy ones out first and the easy because they're easier to write and they can write them faster the ones they struggle with the ones that are often very divided or where the justices are still trying to persuade each other. In other words, the hard cases. They usually can't get them written until the very end. They're working on them all through the term. Some of these cases have been argued quite early. It's not just that these cases are argued light. It's that they actually are struggling with them. So this is this is always what happens at the end of the term as you (00:02:47) say. Hmm. So it's not just that they're they're (00:02:50) dabbling. No, I don't think they're dawdling II think they're actually trying to get these cases to work. (00:02:56) Is there any discernible pattern to the decisions that have come out this year any Common Thread that runs through (00:03:02) Well shouldn't the big threat in the decisions his federalism this court and it's been going on now for about 10 years and it's it's now accelerating. This court is very interested in policing the boundaries between the federal government's power and state government powers in the last five years alone. They have struck down. I think it's 20 for all or part of 24 Federal statutes and a number of those have been on federalism grounds that is on the ground that Congress lacks the power to regulate this particular area this term they decided several. They struck down a part of the Age Discrimination Act that allows individuals to sue their state employers saying that Congress cannot strip the states of their sovereign immunity can't strip them of their immunity from suit. They have a case on the on the docket for next term involving the Americans with Disabilities Act raising exactly the same question. So right now if your state employers discriminate, Against you on the basis of your age. You can't sue them after next year. There's a possibility that if your state employer discriminates against you on the basis of disability, you still won't be able to sue them so the court has been doing that sort of thing. They struck down the federal violence against women act on federalism grounds essentially on the ground that this is the business of States not the business of the federal government and and this is continuing a pattern that they started back in 1992 (00:04:29) now has the court been been issuing these decisions as indefinable blocks pretty much the same judges always voting on the same side, or are they all over the (00:04:39) match? The federalism decisions are almost always 524 and it is almost always the same five against the same for for want of a better term. It is generally the conservatives prevailing the Chief Justice rehnquist and justices Thomas and Scalia and Kennedy and O'Connor are generally the strong Federalists the ones who are striking down federal regulations and Voting in favor of the states and the dissenters are usually justices Stevens Suitor Ginsburg and Breyer. (00:05:08) Hmm and from from the arguments the oral arguments and from the decisions that have been written does it does it appear that the justices are all get along well and just disagree on legal points or is there's been a fair amount of sniping this year last year. (00:05:26) The sniping has increased a little bit over past years. You may remember that some time ago 00 somewhere around 5 or 10 years ago. There was quite a bit of sniping in the very early 90s and there were reports that some of the justices weren't talking to each other and things and then it's settled down and for the last several years they seem to get along quite well, they make jokes at each other's expense at oral argument, but they are jokes not nasty, but yesterday's opinion in the Miranda case may portend a different Trend Justice. Scalia was obviously just spitting Mad he dissented he would have upheld the federal statute and and allowed Congress to override the Miranda decision. And he basically accused the majority of having no logic at all and no basis in the law and he closed his opinion by saying that no sane person would would establish the kind of regime that the majority has established and so he's really suggesting that the majority is crazy. And this is particularly interesting since the majority opinion was written by Chief Justice rehnquist. So it's not say justice Stevens that he is fighting with your but Justice chief justice rehnquist, who is obviously ideologically quite close to (00:06:45) him as Scalia become the like the most prominent individual on this court other than the Chief Justice perhaps. (00:06:53) Well, he certainly one of the most vocal both at oral argument and in writing separate opinions. I don't know whether he is the most prominent In the sense that occasionally Justice Thomas outflanks him on the right that is he is not the furthest to the right. He is not always the single dissenter sometimes Justice Thomas will will be further out but I think Justice Scalia is more more likely to write (00:07:19) hmm. And before we get to collar is it can't help but talk a little bit about the about the Miranda decision. It was unusual was it not for chief justice rehnquist to provide what sounded like any of this ringing endorsement of the Miranda decision, which was kind of a the Hallmark of the very liberal Warren Earl Warren Court. (00:07:44) Well, it was unusual but I think it shows that he is taking his role not only is the justice but as a chief justice quite seriously in that he's paying attention to president. He doesn't want the court to be going around disrupting everything. Gone before most police departments for example are happy to live with Miranda. There has not been a lot of police chafing at the Miranda rule because they've gotten used to it most law enforcement agencies don't complain about it and he wrote just chief justice rehnquist wrote a very narrow opinion basically saying, you know, we decided 30 years ago that Miranda was the law and and it's worked fine since then. There's no reason to change (00:08:29) it. Hmm. Will that be the the defining decision for this year's court or is there something else that over time will prove to be more (00:08:37) important? Well, I think in some way it's hard to say that that decision is defining because it doesn't change the law. It's always hard to say that something that leaves things as it is is the defining or most important decision. Obviously, it's very important because it could have gone the other way. It could have changed the law and and disrupted everything and so on I think actually Than the possibility that one of the cases that will come down tomorrow or the next day is important. I think the the sort of collection of federalism cases is probably going to have the most lasting impact the case striking down the violence against women act puts into Jeopardy a number of other Federal statutes as I mentioned the case that says that states can't be sued for age discrimination suggest that there are a lot of other things that states can't be sued for and so I think those are the cases not only that will have the most impact but that will in a sense historically defined this court. This court is a court about federalism (00:09:42) University Minnesota constitutional law professor. Suzanna. Sherry is our guest this hour and she's come by today to talk about the decisions that have come from the Supreme Court this year one more day to go tomorrow the today's the court the court is resting today tomorrow. The last batch of decisions comes out and then the court recesses for the term. Lots of interesting cases to talk about and if you'd like to join our conversation, give us a call six five one two, two seven six thousand 6512276 thousand outside the Twin Cities 1-800 to for 228286512276001. 802 for to 288 Gene. Go ahead with your question, please hi. It's nice to have Professor Sherry back eyes, like hearing her fingers. I can never guess what side she's on and I like that. I am interested in the parent all the Lincoln between Scalia and Thomas as Thomas ever disagreed with scalia's far as you know, (00:10:41) thanks Jean for your comments about my neutrality. I work hard at that. Yes Thomas and Scalia do disagree occasionally. In fact in the case. There was a case of this term involving whether police officers who came on a Greyhound bus and wanted to squeeze the luggage that The overhead rack and they they squeeze the luggage and they found some drugs or a gun and the Court ruled 7 to to that that was an invalid search that the the passenger had rights of privacy and his luggage and that the cops couldn't come on and just squeeze it and Justice Scalia was in dissent. That is he thought that the police should have been allowed to do this and Justice Thomas actually went with the majority and said that the police could not do this. They also justices Thomas and Scalia split in the grandparents rights case Justice Scalia said the grandparents should have no rights at all. I'm sorry Justice Scalia said that the court should not strike down the statute given grandparents. Right? So essentially what he said is that parents have no rights at all that are enforceable by courts Justice Thomas on the other hand went along with the majority and said that at least under current president parents do have rights, and they do have rights to exclude. Grandparents from their children's lives. He did. He did write a special concurrence that suggested that maybe the court should rethink its current president. But he but he wasn't ready to do that. Then (00:12:15) is Justice Thomas is still the object of so much criticism early on I suppose in part out of the as a result of the Anita Hill hearings why he seemed to be under a (00:12:26) microscope. I think a lot of that has died down the he's been writing some interesting opinions and people are now looking at those instead. Some of them some people are praising those opinions. Some people obviously are attacking those opinions. But but when he was first appointed there wasn't much to talk about except that the Anita Hill business and now he has a record behind him. And that's mostly I think what people are talking (00:12:54) about Charlie your question, please hi, you just answered How much is to the right of Justice Scalia I could think of any cases where they were in the same in the same court. I wonder if there are any others any other than the ones that do that you just spoke about and I'll listen for my answer up here. Thank you. (00:13:18) Well, it's interesting. I mean in general Thomas can be to the right of Scalia but that's not always true. In fact in in the case involving the luggage I suppose if you wanted to describe it as left and right Scalia was to the right of Thomas and Scalia would allow the police to search the luggage. I don't know how you would characterize the grandparents case who's on the left and who's on the right there were let's see a few others again. There's another one where Thomas might be considered to the left of Scalia. And that's the cable still scrambling case the Playboy case where the federal government said passed a statute that said that cable indecent cable companies had to cable programmers had to scramble. Bowl their pictures so that they weren't at all accessible getting rid of all of the leakage around the edges and the majority including Justice Thomas struck that down and Justice Scalia would have held it there. Other than that, I think they've been together on most of the cases this term at least most of the big (00:14:22) ones. Is there anybody comparable to a liberal on the court comparable to the conservatives? Is there anybody who would fit into fit in well with say the Warren (00:14:33) Court? Well surprisingly enough. It's just a Stevens Who was appointed by a republican President Gerald Ford and is the senior member of the of the Court after chief justice rehnquist, and he takes a pretty consistently liberal position not always but pretty consistently and he often dissents alone when the court goes in a more conservative (00:14:58) Direction. So more more liberal if you will even The Clinton (00:15:02) 2.0. Yes. Yes. I think he is more consistently liberal than the three Clinton appointee. Sorry, then the to Clinton appointees or then Justice souter who is also a one of the four pretty solid liberals (00:15:14) raises an interesting question with the presidential campaign this year and I would imagine at some point we're going to get a fairly Lively discussion about the power of the president to appoint people to the Supreme Court and the long-term impact that will have is it is there any relationship between who appoints these judges and how they end up serving on the court. (00:15:37) There's obviously a general relationship that is President's conservative president's try to pick conservative judges and liberal presidents try to pick liberal judges, but it's not presidents are often surprised. They're surprised partly because the judges don't do what they expect them to do partly because judges grow in the job and change in the job and partly because if a judge if a Justice served 10 15 20 even 30 years on the bench, you can't predict at the time of appointment what the hot button issues what the questions that are going to be before The Supreme Court 30 years from now and somebody who might be liberal today may turn out to be very conservative on an issue 20 years from now or somebody who was conservative on issues 20 years ago is liberal on the issues that come up today and Justice Stevens is a good example. He was quite conservative when he was appointed. He fit right in with the then developing Burger Court. He was appointed by a Conservative Republican president. And now he is one of the the Liberals on the court and that's not just because the court has changed he has changed and the issues have changed. Another surprise is Justice souter Who was appointed by President Bush and expected to be a very reliable conservative vote. And in fact is a much more reliable liberal vote. Just the the President Clinton's appointments justices Ginsburg and Breyer have not had full time to show what they're doing. But I think they're probably not as liberal as perhaps President Clinton expected. So there is some Trend but it you can't guarantee (00:17:19) it. We're talking this hour with the University Minnesota constitutional law professor Suzanna Sherry. She is here today to talk about the US Supreme Court decisions that have come down this past year look ahead to the decisions tomorrow and give us some sense of where the court is where the court is heading. If you'd like to join our conversation, give us a call six five. One two, two seven six thousand 6512276 thousand outside the Twin Cities. You can reach us toll free at 1-888-438-6557 and thousand or one eight hundred two, four two two eight two eight time. Go ahead, please hi. I am not clear on the specifics of the Miranda Miranda sizing an accused person. Which who is then arrested? I know the wording but is this an absolute known void on on the arrest then if the police officer does not mirandize an accused person and then arrest them and they are jailed. The accusation is I mean, do you understand my (00:18:25) question? I think I understand Miranda is a very complicated Doctrine and part of the reason that this case was such a dispute is that the The Descent and the and the people arguing that this the Congress could overrule Miranda based their desire their arguments on the fact that the court has allowed various exceptions to Miranda. The basic rule is that if the police do not read the warnings do not give the warnings to the suspect and the suspect who is arrested then confesses that confession will be in admissible at trial that is you can't then use that confession at trial against the suspect but there are various exceptions to that. For example, you can use it for impeachment purposes so that if the suspect takes the stand if the defendant takes the stand and says I didn't do it you can then Admit the confession in which the suspect said I did do it, even if that confession resulted after no warnings. So it is very complicated. But the basic rule is if a suspect confesses after not getting the warnings then generally that confession is not going to be (00:19:41) admitted. I guess the big issue in the criminal justice system right now has to do with the issue of capital punishment. Is that is that likely to come back before the court? (00:19:56) No, I don't think so. They've had several capital punishment cases this term not challenging capital punishment, but simply that prisoners on death row have challenged something about their trial or something about their prison conditions and so on and the Supreme Court deals with the issues, whatever issues it has to deal with usually not very favorably to the prisoners and then but but says absolutely nothing about the death penalty. Itself, there doesn't seem to be any sentiment on the court at all for overturning the death penalty, and that issues. Probably probably not coming back at least for a while. (00:20:32) Let's go back to the phones Jim is on the line with a question for Professor Sherry. Go ahead, please yes. I happened to attend college at Georgetown undergraduate with Tony Scalia and have been steadily amazed at his progress toward the right. I'd be interested to hear what your interpretation is of his main influence on the court as a whole. I'll hang up and listen. Thank you. (00:20:57) Well, he has I think several influences on one of them is that he does talk the court towards the right and to the extent that he can persuade four justices to go along with him. Obviously. The decision is going to be more conservative than it would have been without him. I think in some sense and this is a funny thing to say, I think he keeps the court honest when he wants to that is he will sometimes write a very intellectual opinion an opinion that really either deals with the issue fully or takes the majority apart and sometimes they're quite persuasive now. Unfortunately, he doesn't do that consistently and I think that he has the ability to do it and I'd like to see him do that more when he wants to reach a certain result. He will often do the same things that the other justices sometimes do when he will sort of shade the precedent and he will ignore arguments and then one of the other justices often Justice souter or Justice Breyer will take him on and try and keep him honest. So his main influence I think has been to pull the court gently towards towards the right. (00:22:06) Now. How does how does the court work internally you were noting earlier that Justice Scalia in his dissent in the Miranda decision yesterday went so far is basically to suggest that the majority was crazy that they lost their mind are the other justices likely going to try to get back at him at some point for this. I mean will does that affect the way the court itself operates the decisions that come out or is this just an internal thing where they won't talk to each other and they get mad at each (00:22:38) other. I don't think it affects the decisions except to the extent and and the Miranda case I think was a mild example and I doubt it will have any effect. I think the Chief Justice will basically just laughs that one off but there was a time I think when Justice Scalia exerted a fair amount of influence over a couple of other more Junior justice has Justice O'Connor was one of them at the time actually, I guess Justice O'Connor is senior to Justice Scalia. But but she I think would follow his lead for a while. And then there was a period around the time of the Casey decision in 1992, which reaffirmed Roe v-- Wade where Justice Scalia really got very bitter and his opinions just criticized her mercilessly and often made I think uncalled for remarks at her expense and I suspect that that took her out of his Ambit a little bit. That is she was less willing to go along with him and became much more her own judge in her own person after that and I don't know whether this will have whether it justice scalia's backbiting has that effect on anybody else. It may have that effect on Justice rehnquist. It may have that effect on Justice Thomas. It's not that they're going to try and get back at him. There may be a footnote here or footnote there where they snipe at each other, but nobody's (00:23:56) To (00:23:56) say I won't vote with you because I don't like what you said in that last case, but to the extent that the court relies on persuasion that is that individual justices rely on persuading their colleagues. Look you really ought to see it my way. Here's here's my argument. I want to persuade you to the extent that they rely on persuasion the kind of sniping that Justice Scalia does is going to undermine his ability to do that (00:24:22) Suzanna Sherry is whether she teaches constitutional law at the University of Minnesota and each year about this time. She comes by our midday program to take a look at what the Supreme Court has done during the previous year. The court is wrapping up its term tomorrow a final batch of rulings comes out and then the court has done for the year. Lots of interesting cases this year. Miranda prayer is school prayer grandparents rights a whole list of things as Professor. Sherry was noting lots of federal state issues resolved this year, or at least decided this year. You'd like to join our conversation. Give us a Six five one two two seven six thousand 6512276 thousand outside the Twin Cities. You can reach us toll free at 1-888-438-6557 and (00:25:09) PRS Main Street radio coverage. A rural issues is supported by the blandin foundation committed to strengthening rural communities and better housing through the Greater, Minnesota housing fund. (00:25:20) It's Morning Edition. And midday All Things Considered and Marketplace A Prairie Home Companion and The Splendid Table NPR's news and Information Services, each of these great programs and more it offers in-depth analysis award-winning reporting vibrant debate and lots of humor and it comes to you each and every day think about how much you value all MPR brings you and call 1-800 to to 7 2011 right now and pledge your support. Thank you time. Now for news headlines here surely Idol sincerely. Thank you Gary. The justice department is moving to block the proposed merger of phone Giants Worldcom and Sprint. It's filed a lawsuit claiming. The marriage would increase prices of for millions of dollars for consumers European Union. Regulators are also against the merger Republican lawmakers are attacking the Clinton Administration over soaring gas prices at a house hearing one Congressman says the administration is firing blanks when it should be making an all-out attack on OPEC Secretary Bill Richardson is now testifying Rising interest rates and high gas prices appear to be eating away at consumers confidence the conference board consumer confidence index slipped this month falling below Wall Street analysts expectations a former Brooklyn Patrol man is going to prison for more than 15 years in one of the worst brutality cases in NYPD history Charles Schwartz was sentenced today for helping torture Haitian immigrant Abner louima in a police station bathroom in 1997 in Regional news talks aimed at ending the Twin Cities Hotel strike resumed today. Negotiations went on until after midnight last night Union official. J-roc Unix as progress is being made, but pay Remains the major issue yesterday the strike spread to a seventh hotel to other hotels also face a possible walk out Governor Ventura is telling flood victims of Northwestern Minnesota. The state will help them recover Ventura stopped in Moorhead this morning as he kicked off a 12 city bus. Or the Northwestern part of the state yesterday Ventura declared a state of emergency in 14 flood-damaged counties in Northwestern Minnesota and minneapolis-based. General Mills says its fourth quarter profits Rose almost four percent compared to a year ago the maker of Cheerios cereal and Yoplait yogurt earned 109 million dollars in the latest three-month period on sales of almost one point seven billion Dollars. General Mills says it expects profits to rise at least 10% in the (00:27:48) next year (00:27:49) the state forecast this afternoon scattered showers are expected in the far Northeast and extreme Southwest highs from the middle 60s in the North to the middle 70s in the south at this hour 67 in Rochester 67 in st. Cloud in the Twin Cities 69 degrees. That's the news update Gary. All right. Thank you Shirley 25 minutes before noon. This is midday coming to you on Minnesota Public Radio Suzanna. Sherry is with us. She teaches constitutional law at the University of Minnesota and she follows the US Supreme Court very closely. She's gone by today to talk about all the decisions that the court is handed down this year the ones that we can look for tomorrow and also talked about the way the court operates and if you'd like to join our conversation again, the number of 6512276 thousand or 1-800 to for to to 828 Professor. One of the decisions that were looking for tomorrow is a ruling in in for lack of a better term. The partial birth abortion case is this likely going to reopen the whole debate over abortion? Is there any chance that the court would go beyond just the ruling in the narrow confines of this particular case? (00:28:56) It's highly unlikely. They basically closed the book on that in the Casey decision and it was a 6 to 3 decision. There's there hasn't been any changes in the Personnel of the Court since then they are quite clear that Roe v-- Wade is good law and that states may not ban abortion all together. This is a question of how far You can go in regulating abortion because it's always been true. Even since Roe for example, that states can ban abortion in the third trimester, except if the life or the health of the woman is in danger, so that kind of Regulation is allowed various other regulations. You can require a minor a girl under 18 to get either either to notify her parents or to get a judge's permission not to notify her parents. So various various kinds of Regulation are permissible. And the question here is whether this particular legislation Banning what is known as DNX or partial birth abortion is illegal (00:30:02) and if the court says such legislation is legal then I would apply Nationwide. (00:30:07) Yes, it probably would if they say it's not that my guess is actually what they're going to say is that this particular statute is unconstitutional, but that doesn't mean that Dates Can't Ban partial-birth abortion the main problem with the Nebraska statute that they're considering seems to be that it is very vague. That is that it doesn't Clearly say we are Banning partial birth abortion or however you want to describe it. It says that you can't deliver part of the fetus and and then terminate the rest of it. I don't know the exact language but what's quite clear is that this statute could operate to prohibit what's known as a DME abortion. That is the sort of normal kind of abortion that is done in the first 12 weeks. And I think that from what I've heard of the oral argument Justice O'Connor is fairly troubled by that if that's the defect in a statute that is if the defect is it's not clear enough that really tells us nothing at all about partial birth abortion (00:31:16) generally and then the other case I see Back that will be in the headlines tomorrow has to do with the Boy Scouts and whether gaze can be troop leaders in the Boy Scouts is that it again, a fairly narrow issue applicable only to Boy Scouts or (00:31:34) this this case. I have no guesses on the question in this case New Jersey prohibits discrimination on the basis of sexual orientation. So and it prohibits it among anybody who's a public any kind of public entity and they count the Boy Scouts and that's all New Jersey Law. So under New Jersey Law, the Boy Scouts are not allowed to discriminate on the basis of sexual orientation. The Boy Scouts claim is a constitutional one. That is they claim that the New Jersey Law violates their freedom of Association. It violates their right to decide who can be a troop leader and who can't this is a very broad question rights of Association who has rights of Association when they're violated what kind of state interest Can overcome a violation and justify a violation the court could write a very narrow opinion that applies only to the Boy Scouts. It could write an extremely broad opinion. Now, we may have some hints in one of the cases that came down yesterday was a case that struck down California's blanket primary law, California and I believe two other states have a law that in the primaries you can vote for anybody. That is they put all the candidates for Governor on the ballot republican-democratic libertarian everybody and all the candidates for Senator and so on and you come in and you can say vote for a Democrat for in the vote for a democratic kind of candidate for governor and a Libertarian for Senator and a republican for congressman and you're helping to determine the party's nominee. We're not talking about the general election. We're talking about the primaries and the court struck that down saying that the parties have a right. To determine who their standard-bearer will be who their candidate will be and they have a right to exclude non-affiliated people. So the Democratic party can say only Democrats can vote in our primary. Only Democrats can help us decide who the Democratic candidate will be in the general election. So that protected freedom of Association that that is a pretty strong protection of associational rights that may spill over into the Boy Scouts or it may not because political parties are not the same as the Boy Scouts and discrimination against people who are not members of your party is different from discrimination on the basis of sexual orientation. I think the key question is going to come down to whether the Boy Scouts message is anti-homosexual. Let me give you an example the Boy Scouts almost certainly cannot discriminate on the basis of Nice if they claimed a right to exclude African-Americans the Supreme Court would say 920. They don't have that right on the other hand. The Ku Klux Klan probably does have a right to discriminate on the basis of race. That is they can say we are an association our association is dedicated to racism. We don't want to admit people who are not racists. We don't want to affiliate with people who are African-American. Where does the Boy Scouts discrimination against homosexuals fall? Is it more like discrimination by the Boy Scouts against blacks, or is it more like discrimination by the Klan is an anti-homosexual message part of the Boy Scouts Creed and I don't know the answer to that. (00:35:09) Hmm. Well, we'll find out tomorrow. I guess what the court thinks (00:35:12) anyway. Well, we may or may not they may go off in an entirely different direction. (00:35:15) Don your question, please yes. I'm wondering about the process my image of the court is always this role of of. Justices with their black robes on and wondering how does it work day to day two they sit around with with pizza sitting in there and they're Adidas arguing it out. And and where do the where do the court clerk's fit into all this? What is their influence? Okay. How does the process work behind the scenes? First of all, do they wear their robes all the (00:35:47) time? No, they only wear their robes on the bench. I don't I'm afraid I can't tell you whether they eat pizza, but I'm sure some of them to the way it works is every Saturday. They have a meeting to discuss among other things the cases that they've heard oral arguments on during the week. And that meeting is only the justices no clerks. No secretaries. Nobody else the junior Justice For example serves us the doorkeeper. That is if anybody knocks at the door, it is the most Junior Justice who has to go and answer the door because there are no underlings allowed and they discuss the cases that they've heard and they take a preliminary vote on the cases that they've heard. Week and then whoever is the the the most senior Justice in the majority, which would be chief justice rehnquist. If he's in the majority. Otherwise, they go by order of appointment. So Justice Stevens is the next most senior em and then Justice O'Connor and so on whoever is the most senior Justice in the majority assigns the opinion to some justice in the majority, including him or herself. So for example in the Miranda case chief justice rehnquist was in the majority, he assigned the opinion to himself at that point, they go off into their separate Chambers and with the help of their clerks and some use their clerks more and some use their clerks less with the help of their clerks, they draft and opinion, which is then circulated to all of the other justices both those in the majority and those who are dissenting and sometimes this will cause people to change their minds in One Direction or another and sometimes you have to scramble to get another Vote or sometimes a majority falls apart and all of a sudden an opinion that used to be a descent becomes a Ready, and after a while the majority opinion gets crafted and honed and and people the other justices give comments and the writing Justice changes some things and then the dissents in the concurrences get written and when all of that is done, that's when they release the (00:37:43) opinion now, sometimes they read their opinions when they when they have their when they released the (00:37:51) decision. It used to be that they always did it used to be first of all that Monday was court today and that they only released opinions on Mondays and now they can release opinions on any day of the week. Although they still often come down on Mondays and that's what they did each Justice would read his well, then it was his opinion out loud the whole opinion now, they don't do that very often. They will do that in a they won't read the whole opinion, but they'll read parts of it. They'll read important ones. They'll read ones that they think are special the concurrent concurs and descents can read their opinion. If they like now that they will often decide many fairly long cases in one day it would take too long. I think to read all of the (00:38:36) opinions and how do they decide who gets to be chief? Justice the the king or (00:38:41) queen that's nominated by the president that is when the Chief Justice retires as chief justice Burger did early in the in the 1980's the president gets to nominate a new chief justice the president can either nominate one of the current justices as President Reagan did with Justice rehnquist. And then he has to be re confirmed by the Senate as chief justice and then Reagan gets to nominate somebody to fill associate Justice rehnquist spot or the president can nominate somebody who's not on the court as President Eisenhower did with Chief Justice Warren just said, okay, you know, here's here's my nominee. He's not currently On the court. And again that person has to be (00:39:29) confirmed now is the theory that the chief justice is the best of all the (00:39:34) judges know he is known as the first among equals different Chief Justice's approach the job in different ways some think that they are a little more equal some don't and I'm not going to name any names here often. It is really a people job and it well it's partly an administrative job. There's a lot of administrative headaches that go with it, but it's sort of it's a people job justice justice Warren saw it as his role as persuading the court to be unanimous Whenever there were difficult questions and so on but but I don't think anybody views the chief as better than the other justices or smarter than the other justices. He's simply the the leader (00:40:21) Steve your question, please yeah. Hi. My question is my son's 13 as wondering. If there's any one book that he should read he's going to go to Washington this summer. And then the other question is is the is the Supreme Court of good tourist site for him to go to even though they're closed. So I'll hang up and listen. (00:40:43) I'm afraid I can't recommend a particular book on the Supreme Court for a thirteen-year-old. I teach law students and my children are 8 and 10, so I haven't hit the teenage years yet, but I would recommend a library. I found Librarians just very helpful in recommending books. My son is into cephalopods at the moment and and the local librarian has helped us find books on cephalopods. So I'm sure that a librarian can help you find one on the Supreme Court in terms of a tourist site. Yes. I think it's very interesting. It's obviously more interesting when the court is in session, but for anybody who follows the court at all or who has any interest in the Supreme Court's opinions just to walk into the chamber and see where they're where they issue there. Onions, I think I think would be an interesting sight. It shouldn't it particularly in the summer. It shouldn't take very long. It's only probably 10 minutes or so. There isn't a whole lot that there is to see that they allow tourists (00:41:41) into back to the rulings this year at the decisions this year. We haven't talked yet about the big school prayer ruling having to do with whether you can have student-led prayers at football games in the court said no does that end once and for all the debate now over what what role prayer plays in the schools? (00:42:03) Probably not because this was only about football games. This was not about for example student-led prayer at graduation, which the court docked the courts. It didn't decided not to hear that question, which was also raised by this particular case. Basically the court has what comes down to a two-part test they Does the prayer essentially put a government endorsement behind religion or does the prayer coerce people into praying or into going along with the prayer and in the football case? They said this it does both and that's why it violates the Constitution but you can see that this is going to raise all sorts of questions. What if a student who is giving a book report in a class an oral book report says, you know, my book report is about religion and and in order to get us in the mood. I would like to just say a little prayer. Is that going to be a government endorsement of religion? Is that going to coerce people unclear there's going to be so many examples of closed cases that I'm afraid. This issue is going to be with the court for (00:43:18) decades. Why doesn't in a case like that because right after this ruling even on football came out there was quite a debate here in Minnesota about A lot of coaches had their team's pray before the games and stuff and there's a lot of discussion whether that be legal and so on in a case like this, why doesn't the court just say once and for all here's what's legal in this is not (00:43:39) legal, but that's not its job. The courts job is to site to decide individual cases and perhaps secondarily to give some guidance to the lower courts to explain why they are deciding the case the way they are which in the process gives guidance to the lower courts in other issues, but their job is not to come and say okay here are the rules for prayer in school. This is allowed this is not allowed. This is allowed. This is not allowed and in particular it will depend on the context. I could spend hypotheticals for the rest of the program that will be devil lawyers judges and Supreme Court Justices and they don't want to decide those things until they actually have a case. (00:44:22) Hmm. Let's get one more caller on before we wrap up quick question Byron. Yes. You know, I don't have never really heard anybody comment. Well on my questions and basically they're very simple with the scholar. Please comment on what she feels on the qualification level for Clarence Thomas to become a Supreme Court Justice and could she also comment on his performance since being on the court and should can she also comment or interpret for us what she feels his constant silence on the bench his his actual non-speaking existence on the bench might mean thank you. (00:45:12) Okay. Well, let me start with the last question first time different justices have different styles and some of them ask a lot of questions and some of them don't ask any questions and I think it just means that that's his style either. He doesn't have questions to ask. Score he doesn't want to ask them but it doesn't hinder him from reaching results. That is it doesn't it doesn't keep him from voting on cases and deciding which way he's going to go and writing opinions as to the qualifications. I think again, that's it's difficult to comment on obviously President Bush thought he was highly qualified the Senate thought he was qualified they confirmed him. Everybody has their own opinions of particular justices and how good they are and whether they should be on the Supreme Court, but that's all they are is opinions. He's performed adequately in the sense that he writes his opinions. They are understandable. They explain why the court is reaching the result it is or why he is dissenting in particular cases. I personally often disagree with his votes, but just because I disagree with them just because I think his opinions are wrong doesn't mean that he's not a good Supreme Court Justice. It simply means I disagree with him. (00:46:37) Any justice is likely to retire soon so that the next president will have an opportunity to appoint some new (00:46:42) justices. Well Justice Stevens is in his 80s and there are constant rumors that he will retire and there are always rumors that Justice O'Connor is ill I I have had no confirmation of that but there's always talk about that. The chief justice is getting on in years as well. It's a guessing game. Basically. What I will say is that if the next president does have an opportunity to appoint justices, it will make more difference if if liberal Justices are appointed then if conservative Justices are appointed the conservatives are pretty well in control of the court or almost all of the 524 decisions are the five conservatives against the four liberals. And if one of the conservatives were tires and is replaced by a liberal all of those decisions. Mostly the federalism decisions could go the other way when the liberals do Prevail. Usually it's by getting one and often two or three of the conservatives to go along with them so that it probably wouldn't make very much difference. If one of those conservatives disappeared (00:47:51) we're out of time, but I'm sure appreciate your coming by today always good to talk with you (00:47:55) nice to talk to you (00:47:56) University of Minnesota law professor Suzanna Sherry joining us. This first hour of our midday program to bring us up to date on what the Supreme Court has been up to and give us a little preview of tomorrow's decisions as well.


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