Our highest court is a storied national and, in many ways, local institution. During the current term, the Supreme Court is expected to rule on issues ranging from affirmative action to voting rights and Freedom of Information laws in Virginia to seed patents. Two longtime Supreme Court reporters bring us a look at the current session and talk about how covering the Court has and hasn’t changed over the last few decades.

Guests

  • Joan Biskupic legal affairs journalist, Reuters; author, "American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia" and "Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice"
  • Adam Liptak Supreme Court reporter, The New York Times

Transcript

  • 12:06:45

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. The Supreme Court is around the midway point in its current term with the nine justices in the midst of hearing arguments and handing down decisions on issues ranging from same-sex marriage rights to what exactly makes a house boat a boat, the perfect time for us to pull back the curtain on this storied institution where quilt pens are still placed on counsels' tables and a traditional handshake helps keep the peace among the justices.

  • 12:07:28

    MR. KOJO NNAMDIHere to give us an insider's perspective are two reporters who cover the court. Joan Biskupic is editor in charge of legal affairs for Reuters News. She's also a veteran Supreme Court reporter who has covered the institution for various publications. Joan Biskupic, good to have you in studio.

  • 12:07:46

    MS. JOAN BISKUPICThank you, Kojo.

  • 12:07:47

    NNAMDIAlso with us is Adam Liptak. He's a lawyer and reporter who covers the Supreme Court for The New York Times. Adam, good to see you again.

  • 12:07:54

    MR. ADAM LIPTAKGood to be here, Kojo.

  • 12:07:55

    NNAMDIYou, too, can join this conversation, call us at 800-433-8850, or you can send email to kojo@wamu.org. You can send us a tweet, @kojoshow. Adam, let's start with the issue before the court likely maybe to get the most attention this term: same-sex marriage. Tell us about the two cases the court will hear on that matter and how the president's evolving view on the matter might influence it.

  • 12:08:21

    LIPTAKSee, there are two cases. One of them, most people would think is the easier case, of whether Congress was entitled to pass a law called the Defense of Marriage Act in 1996, which said that for purposes of federal benefits -- and there may be 1,000 federal laws that say something about what married people do and don't get from the federal government -- whether that law which defines marriage as between a man and a woman should apply now that there are nine states and District of Columbia which allows same-sex couples to be married.

  • 12:08:56

    LIPTAKSo in essence, the question is should the federal government be able to discriminate against -- excuse me -- same-sex couples in those states that allow such unions. That's the easier case, and I think most people would bet that with Justice Anthony Kennedy has the deciding vote. It's more likely than not that the Defense of Marriage Act gets struck down. But that's a case where states' rights and gay rights are in the same side.

  • 12:09:22

    LIPTAKThe harder case is the one more people have heard about brought by Ted Olson and David Boies in California seeking to establish a constitutional right to same-sex marriage in all 50 states. And there, it may be said that states' rights and gay rights are in opposite sides because it's most ambitious that case, the Proposition 8 case, seeks to have same-sex marriage required as a constitutional matter, say, in Mississippi which would not be eager to marry gay people.

  • 12:09:51

    NNAMDIAnd, of course, Proposition 8 is a voter initiative that bans same-sex marriage in California.

  • 12:09:57

    LIPTAKThat's right, and it may be that if that same question were to come before California voters in the next cycle that they would vote a different way. And if I'm right about that, the court may think let's let this percolate some more, let's let this evolve some more. But as you started in your question, Kojo, the president also seems to be evolving.

  • 12:10:17

    LIPTAKNot long ago, he was saying this is a matter for the states. But at his inaugural address, he seemed to be speaking much more broadly, saying that we won't have real justice in the land -- and I'm paraphrasing now but fairly closely -- until our gay brothers and sisters are treated equally under the law.

  • 12:10:34

    NNAMDISo he seems to be looking at it more nationally in scope also. 800-433-8850. What cases are you keeping an eye on during the Supreme Court's current session? Joan, as the court gets ready to hear these same-sex marriage cases, you've taken a look at the evolution of how open gay and lesbian court staffers have been about their personal lives. What did you find?

  • 12:10:57

    BISKUPICWell, it's interesting that you ask about that because a lot of people aren't aware of the fact that the Supreme Court has a very young culture coming through each year as each chamber gets four new young law clerks. And as you know, generational attitudes about gay rights are quite different. You've got older justices being exposed each year to young folks, and I found that in just about every chamber, there's been a gay clerk.

  • 12:11:21

    BISKUPICAnd what I was looking at was whether that actually influences the justices. And in some cases, for example, Ruth Bader Ginsberg said to me, you know, it's become no big deal to have a clerk there who's out. Whereas in the 1990s, when she first was hiring young clerks that they -- there would always be some sort of skittishness about whether they tell the justice or not. But does that translate into something as big as Proposition 8 and how the court will rule on same-sex marriage nationwide, I don't think so.

  • 12:11:51

    BISKUPICI think it shows that just as a nation we've become much more aware, much more accepting, and you've got that culture at the Supreme Court. What it will come down to for the justices will be if they believe that the Constitution actually has a fundamental right for lesbians and gay men to have marriage unions of their own.

  • 12:12:10

    NNAMDIWell, you had a great anecdote in the story you ran last September about a woman who worked for Justice Rehnquist. Tell us that story.

  • 12:12:15

    BISKUPICOh, I love that story because, as some of your listeners will remember, Chief Justice William Rehnquist was quite the conservative and voted in the two big gay rights cases against gay rights in the '90s and 2003 before he passed away in 2005 and -- but he had as his administrative assistant, a woman by the name of Sally Rider who with her partner was raising two young girls, and they were at a luncheon one afternoon with the chief justice of the United States.

  • 12:12:44

    BISKUPICAnd the two little girls scampered under the table, and there was Chief Justice Rehnquist crawling down after them saying, you know, let me introduce myself. And he was always very warm to his top staffer and to her partner and to the children, but there he was voting with the dissent against gay rights in two key cases in 1996 and 2003, as I say.

  • 12:13:07

    NNAMDISo not necessarily an indicator of how the justices will vote. There are two cases before the court dealing with voting rights, one centering on voter ID requirements, the other a challenge to the Voting Rights Act. What are the potential implications of these suits?

  • 12:13:20

    BISKUPICWell, I think that this voting rights test that we're going to hear at the end of February, on February 27th could be as momentous as even some of the gay rights issues before the justices now. The key question is whether a provision of the landmark Voting Rights Act of 1965 can still stand. And this particular provision says that certain Southern localities, mostly Southern localities, nine states and parts of several other states still have to be covered by a preclearance requirement.

  • 12:13:53

    BISKUPICWhat it -- what this obligation mandates is that certain municipalities cannot change their voting laws, can't redistrict, can't institute voter ID laws, can't even change the polling place without first getting clearance from the federal government that that change will not harm black voters, Latino voters or any other minorities. And this "preclearance" requirement only applies to certain jurisdictions, and Southern place by the name of Shelby County, Ala. is challenging it, saying it's a relic of the Old South.

  • 12:14:32

    BISKUPICThis preclearance requirement is based on data from the '60s and '70s that the South is not more of a discriminatory place than the North these days. And the federal government is trying to defend it, saying indeed certain places still have more chances of discrimination than Northern places and should be subject to this.

  • 12:14:53

    NNAMDIAdam, is that likely to be the distinction that's made if the argument is made that, look, there are other states that have voter ID laws that have not been covered by the Voting Rights Act, therefore you're saying that if a state that's covered by the Voting Rights Act intends to pass a voter ID law somehow that's different than if Pennsylvania tries to pass a voter ID law?

  • 12:15:14

    LIPTAKI think you're right. As Joan says, I think the issue really turns on. And we know this a little -- I can say this with a little more confidence than some of the things I say because the court had to look at this issue in 2009. And it was very clear from both the argument and then the decision that many of the justices are troubled by the idea that some states but not others are made to do what truly is an usual thing, which is they enact a law, the governor signs the law, but it doesn't count as a law until they come to Washington and get the federal government's permission.

  • 12:15:47

    LIPTAKAnd that really turns ordinary federalism ideas upside-down. And the justices seem to think it was doubly troublesome that this is upside-down federalism that applies in part of the country and not others. There's no question that in 1965 when the Voting Rights Act was enacted it was needed. Everybody concedes it was needed. Shelby County concedes it. Alabama concedes it. Back then, there was widespread lawless defiance of the Constitution. Whether that's still the case in the Obama era is a harder question and one that justices will look at pretty hard.

  • 12:16:21

    NNAMDIHow significant is it, Joan, that Chief Justice John Roberts wrote in 2009 that things have changed in the South?

  • 12:16:28

    BISKUPICIt's very significant. He said not only have things changed in the South but the formula that divides these particular covered jurisdictions from the uncovered jurisdictions dates back more than 35 years. But one thing I should note -- and I have quoted that forever, Kojo. I have said it in 2009. I've quoted in just about every story, and I'll quote it again as I do a setup for the Shelby County one that's coming up on Feb. 27.

  • 12:16:54

    BISKUPICBut what he wrote was actually signed by seven other justices, and many of them liberals. And I think he and the others did want to issue a warning shot, but there were enough caveats in it. If you step back, I think, to say that while things have changed in the South, they still might, just might be open to arguments from the Obama administration, that there are still enough reason to say that these jurisdictions should be covered more than places in the North.

  • 12:17:24

    BISKUPICNow, one thing we should mention is that it's -- it does seem that there could be a conservative majority ready to reverse this so-called Section 5. But in the 2009 opinion that you've talked about and in the arguments that are now before the justices, the Obama administration has stressed that places can bail out, places can get a clean bill here and say we should no longer be covered.

  • 12:17:50

    BISKUPICAnd then places in potentially the North that have had more trouble could come under it. Now, that has not happened, and, you know, places like Pennsylvania and Ohio and Indiana that have tried different restrictive voting -- voter ID laws, you know, are not suddenly being covered by Section 5. So, you know, in theory, there's that bail-in, bail-out, and that's what the federal government is going to be insisting on. But I think it's -- I think it can be a very close case.

  • 12:18:16

    NNAMDIIn practice, has there been a bail-in?

  • 12:18:19

    BISKUPICWell, you know, Texas as a matter fact wasn't -- it wasn't quite bail-in. It was new covered. Texas wasn't part of the original 1965 group. It came later. So there have been states that were added over time and counties certainly that were added over time. But what's really at issue is how easy to get out from under the coverage.

  • 12:18:37

    NNAMDIJoan Biskupic is editor in charge of legal affairs for Reuters News. She's also a veteran Supreme Court reporter who has covered the institution for various publications. She joins us in studio with Adam Liptak. He's a lawyer and reporter who covered the Supreme Court for The New York Times. If you like to join the conversation, give us a call at 800-433-8850. Have you ever attended a hearing or ruling at the Supreme Court either as an observer or as an active participant?

  • 12:19:02

    NNAMDIYou might want to share that experience with us at 800-433-8850. Adam, voting rights are not the only racially-charged issue before the court. A case challenging affirmative action in college admissions is up before the court as well. One that it is my understanding could at least theoretically result in a tie. How come?

  • 12:19:22

    LIPTAKWell, only eight justices sat on the case. So a four-four tie which would affirm the decision, well, is theoretically possible. I don't think it's very likely. I think this is a case where the four more conservative justices are gunning for affirmative action programs. The swing justice, Justice Anthony Kennedy, has never voted to uphold an affirmative action program, although he's sometimes a little more moderate than his colleagues. I think there are very likely to be five votes to do something with this case, which involves a University of Texas affirmative action program.

  • 12:19:53

    NNAMDIJoan, the Voting Rights Act case and this affirmative action case have something else in common. Who is Edward Blum?

  • 12:20:02

    BISKUPICEdward Blum is a former stockbroker who spent most of his life in Texas, who engineered the plaintiffs behind these two cases. For more than 20 years, he has been strongly against Section 5 of the Voting Rights Act and any kind of racial remedies. And he was the man behind that 2009 case, Kojo, that you referred to when the court sort of punted on the constitutional question and said that this little water district in Texas could bail out and could not challenge the Voting Rights Act.

  • 12:20:35

    BISKUPICBut he was the man who lined up the original plaintiff in the case that Adam just referred to from the University of Texas, a young woman by the name of Abigail Fisher, a white woman who was rejected despite having some solid scores that some minority students had been admitted under at the University of Texas. And then he was the man who ran down the Shelby County officials and said, why don't you help with this test case against the Voting Rights Act?

  • 12:21:01

    BISKUPICHe is someone who works with a lot of conservative donors. As I said, he's not a lawyer. He's affiliated with an unpaid job through the American Enterprise Institute. And this has been a cause of his that he has joined with other conservatives and with Southern officials to challenge these racial remedies.

  • 12:21:21

    NNAMDII think I've been around too long. I started out when the Allan Bakke case was the case that was making the rounds back in the 1970s.

  • 12:21:25

    LIPTAKOh, yeah.

  • 12:21:26

    BISKUPICRight. The 1978 ruling.

  • 12:21:29

    NNAMDIExactly right.

  • 12:21:29

    BISKUPICThat was a landmark.

  • 12:21:31

    NNAMDIHere is John in Arlington, Va. John, you're on the air. Go ahead, please. Please, don your headphones, Joan.

  • 12:21:37

    JOHNHi there. Hey, Kojo. This is -- so I -- this is John. I was listening to your comment about, you know, whether or not the redistricting of some Southern districts should be federally supervised under the '65 Voting Act. And my girlfriend and I rode bicycles to New Orleans from the East Coast of the U.S. this October during the election month from Oct. 7 to Nov. 7.

  • 12:22:02

    JOHNAnd we experienced, you know, a real sharp division between Republican and Democratic voters being, you know, almost aligned with the race, almost 100 percent, all the way through Mississippi and Alabama and through parts of Tennessee and North Carolina. So it seemed very much to me as if, like, there is some -- unfortunately, some racism still alive and is out, and that maybe that's something to consider.

  • 12:22:35

    NNAMDIWell, some of the Supreme Court will certainly be considering when that case comes up. Here's Joan Biskupic.

  • 12:22:40

    BISKUPICWell, it's interesting that the caller refers to the racial polarization that he and his girlfriend experienced. And the question of racial polarization actually comes into the mix because the federal government is saying that that's one of the things that Congress considered when it reauthorized this preclearance provision.

  • 12:22:57

    BISKUPICAnd one of the questions is, can racial polarization be evidence or grounds to legitimatize Congress' decision to extend this coverage formula that frankly is based on, you know, three decades-old data? So that will -- you'll probably hear some talk about polarization and voting patterns in the South when the court hears the case.

  • 12:23:20

    NNAMDIAnd whether or not racial polarization is -- and racism are essentially the same thing, I guess, Adam, is what they'll be arguing.

  • 12:23:27

    LIPTAKRight. I would say that racial polarization and packing minority voters perhaps into some districts is a problem the Justice Department identifies. But bear in mind, it's a sort of second generation problem. What the Voting Rights Act initially tried to address was blacks couldn't register. Blacks couldn't vote at all.

  • 12:23:46

    LIPTAKAnd we've now moved to the question of whether they can vote effectively, whether black voters can pick the candidates of their choice. But while that's a significant issue, it's nothing like what happened in 1965 in the wake of the bloody confrontation in Selma and the really, really terrible injustice that went on in the civil rights era.

  • 12:24:08

    NNAMDIJohn, thank you very much for your call. Tomorrow, Adam, the court is hearing a case that we talked about in-depth back in November. What's at stake in Monsanto v. Bowman?

  • 12:24:17

    LIPTAKMonsanto has patented its soybean seeds. Monsanto did this neat trick. First, it comes up with a herbicide called Roundup that wipes out everything, including soybeans. And then it comes up with a kind of soybean that resists its own herbicide and then patents that soybean. And there is no question at least in the current case that the patent is such as valid. The question in the new case is assuming you buy these soybeans from some place that's authorized to sell them. And you don't make any promises to Monsanto.

  • 12:24:45

    LIPTAKCan Monsanto nonetheless sue you for patent infringement for each subsequent generation of the seed? Can a farmer do what farmers have done since the beginning of time, which is save some of the seeds from their crop and replant them? Monsanto says that's patent infringement. The lower courts have agreed with them, and the stakes in the case are very, very high.

  • 12:25:03

    NNAMDISo, on the one hand, you have the allegation of patent infringement. On the other hand, you have monopoly.

  • 12:25:10

    LIPTAKRight.

  • 12:25:10

    NNAMDIWhich is what the other side is going to argue in this case.

  • 12:25:14

    LIPTAKWell, it's turned into a kind of monopoly 'cause almost everybody uses these Monsanto seeds called Roundup Ready. But you could still use ordinary soybean seeds. You're not required to use them. So it's not strictly speaking on monopoly. But in practical terms, you may well be right.

  • 12:25:27

    NNAMDIHere is David in Washington, D.C. David, you're on the air. Go ahead, please.

  • 12:25:32

    DAVIDOh, hi. How are you guys doing?

  • 12:25:33

    NNAMDIDoing well.

  • 12:25:34

    DAVIDHi. Yeah. Hey, you know, heard you asked before about, you know, anybody having any questions or maybe stories from attending a Supreme Court argument?

  • 12:25:42

    NNAMDISure.

  • 12:25:43

    DAVIDI was there for Bush v. Gore. And, boy, I tell you, that was -- I just want to share my experience with you. That was electric. It was terrifying at the same time. You know, how it turned out was kind of agonizing for me personally. But, boy, what a circus that was. I tell you. You know, I mean, everybody was, you know, I mean, there was, everybody was there, you know, I mean, all the politicians. And I can't tell you how the arguments went as far as, you know, the actual arguments 'cause I'm not a lawyer.

  • 12:26:18

    NNAMDIBut the theater.

  • 12:26:19

    DAVIDIt was theater. And I tell you what, you know, I'm a middle-age man, so I come out of there at the arguments. So, like, everybody on the north side is, like, you know, with cameras in everybody's faces, and, you know, all the politicians having cameras in their faces. First thing I could think of, I mean, it was wall-to-wall people, too. First thing I could think was, like, well, all right. I'm going to call my mom, and she was first that I could think to call. So I'm calling her. And I got my head down, and I'm walking along just trying to stay on my feet while I'm walking along.

  • 12:26:45

    DAVIDAnd all of a sudden, there's this person in front of me with this really ratty fur coat. I'm trying to tell my mom about everything that happened on the inside, and I was like, who is this person wearing this really ratty fur coat that's standing in front of me? How'd they ever get inside the Supreme Court wearing that thing? And then I finally actually look up from my feet when I'm talking with my mother, and it's a mule. It a -- there's a guy who's got a mule or a donkey or something like that. And, like, I mean, it really was a circus down there.

  • 12:27:11

    NNAMDIHow did he get it in there?

  • 12:27:12

    DAVIDWell, he didn't. This was outside. This was outside...

  • 12:27:14

    NNAMDIOh, outside. Oh, yeah. Well, it certainly was...

  • 12:27:15

    DAVID...on the Maryland side of the Supreme Court.

  • 12:27:17

    NNAMDIIt certainly was a circus outside. It is not always that exciting, is it, Joan?

  • 12:27:21

    BISKUPICWell, it's funny when he says that -- when you said, how he get it in there? You can't believe the rules. You know, lots of people can't get in there, even folks without ties into the bar section. I always say it's the best field trip in town. It is such a great place to go because you can only see what the justices do by showing up there because you know there are no cameras. You can't record anything in there.

  • 12:27:40

    BISKUPICAnd Bush v. Gore was certainly a case completely of its own with all sorts of foreign press there and lots of folks crowded into the court room, crowded into press room, crowded into the plaza where this man was. But even for example, the Monsanto saved patent case that Adam just referred to, that's going to be exciting, too. They'll be a sense of anticipation in the room. It will all be filled up. There's so much money involved in a patent case.

  • 12:28:04

    BISKUPICSo we'll have, you know, rows and rows of lawyers, and every press seat will be filled. And for the voting rights case on Feb. 27, I'm sure you'll see lots of protesters in front of the building. During the Abigail Fisher, University of Texas won back on Oct. 10, I think it was. You know, there were all sorts of demonstrators in front and every seat was filled. And that's the way it is there almost every day at the Supreme Court.

  • 12:28:26

    NNAMDIThank you very much for your call, David. We've got to take a short break. When we return, we'll be taking care a little bit of station business. But we will be returning to the conversation on the Supreme Court of the United States and the cases currently before it. So if you'd like to join that conversation, you can still call us at 800-433-8850. I'm Kojo Nnamdi.

  • 12:35:59

    NNAMDIWelcome back to our conversation on the Supreme Court. We're talking with Adam Liptak. He's a lawyer and reporter who covers the court for The New York Times. And Joan Biskupic is editor-in-charge of legal affairs for Reuters news. You can join the conversation by calling 800-433-8850. Are you a bit mystified by the court's proceedings?

  • 12:36:19

    NNAMDIWell, we've got the inside track. Give us call with your questions, 800-433-8850, or send email to kojo@wamu.org. Adam, a case coming up Wednesday that Brendan Sweeney, you just referred to, has some local ties. What's at the heart of the matter in the suit over the ability to file a FOIA, a Freedom Of Information Act request in Virginia?

  • 12:36:41

    LIPTAKWell, I'll tell you, Kojo, but it might put you to sleep.

  • 12:36:44

    LIPTAKIt's about the dormant Commerce Clause. So states can have freedom of information laws or not, and that's generally not something the Supreme Court gets into because that's a matter of legislative grace. Legislature can decide you can have access to state materials or not. But here, the question is, in discriminating against out-of-state requesters, has the state of Virginia somehow discriminated against people from other states in a way that violates an aspect of the commerce clause?

  • 12:37:18

    LIPTAKAnd so as with so many cases, what sounds on its surface like a really hot, interesting issue will probably turn on some legal principles that may be a little sleepy making.

  • 12:37:29

    NNAMDIWell, it is a fascinating case for those of us who have to cover Virginia on a regular basis. But here is now Elaine in Middleburg, Va., back to another issue we discussed previously. Elaine, your turn.

  • 12:37:41

    ELAINEOh, hello. Well, I'm delighted. Monsanto is a big corporate bully. I have an example with that because I was involved. A pig farm in Iowa was making quite a good living with pigs until -- with his corn. He switched to Monsanto corn. The pigs became (word?). He lost his business, and that's -- he's not a pig farmer anymore.

  • 12:38:01

    ELAINEFor years, he tried to fight this. He even saved some of the seeds, took them to a lab. The lab was shut down. Monsanto is powerful. It's in with every administration, Democrat, Republican. It influences the EPA. Now, they want to genetically modify fish. The whole world seems to be in the hands of Monsanto, and I certainly hope that this case shows that perhaps Monsanto doesn't always win.

  • 12:38:26

    NNAMDIWell, you know, Elaine, expresses the traditional American instinct, I guess, to side with the little guy, but the court proceeding is a whole another matter entirely, right?

  • 12:38:35

    LIPTAKWell, the listener, first of all, identifies a really common popular view in two senses. One, a lot of farmers don't like Monsanto. And, two, a lot of people are apt to side with the little guy. But when Chief Justice John Roberts said -- his confirmation hearings was asked, are you going to side with the little guy? Are you going to side with the big guy? He said, you know, I'm going to side with whoever's right in the law. I'm not going to take account of whether it's David or Goliath.

  • 12:39:00

    NNAMDIExactly right, Elaine. And here's Joan Biskupic.

  • 12:39:03

    BISKUPICWell, I was just going to add that it was fairly remarkable that they even decided to take this case. The man is an Indiana farmer by the name of Vernon Hugh Bowman, and it was sort of a long shot bid filed with, you know, thousands of petitions that the court had received. And the folks in -- at Monsanto and the other biotech companies were really surprised that the justices even decide to take it up. So here is a small David against a Goliath at least having his day in court.

  • 12:39:32

    NNAMDIElaine, thank you very much for your call. Joan, you mentioned earlier about the fact that there are no cameras in the Supreme Court. The other two branches of government come off as really contentious especially in the -- given the past election cycle, and they're dealing with division to the point of deadlock. Are we seeing a conscious effort here from the justices to maintain a sort of decorum distance, if you will, in government that may be unique to the court?

  • 12:39:57

    BISKUPICWell, the court actually believes, according to some of the justices, that that decorum and detached sense from politicking in Washington helps its credibility. You know, it doesn't have the power of the purse. It doesn't have the power of military. It just has its opinions, and its opinions have to be carried out and stand on their own.

  • 12:40:17

    BISKUPICAnd when we ask the justices about the whole issue of cameras in the court, several have lots of -- they have lots of different reasons for why they don't want cameras in the courtroom, but one of them is that they feel that some of the C-SPAN proceedings that have been so helpful to so many viewers nationwide have shown the darker, more contentious sides of folks in the Senate and the House.

  • 12:40:39

    BISKUPICAnd they don't want that for themselves. They like their anonymity. They like that they can proceed in the confines of their red velvet, white marble courtroom. And they also don't want -- they say that they don't want each other playing for the cameras, which I find kind of strange. They don't trust each other much. But that's all part of it.

  • 12:40:59

    NNAMDIOf course, we have Brian Lamb of C-Span on sometime ago, and he's been agitating for cameras in the court for ages to no avail. But, Adam, to highlight the air of mystery, there was recently much ado about some rare comments from Justice Clarence Thomas to outside observers that personalities of the court are intriguing but often fairly opaque to those of us on the outside. What's your take from the inside?

  • 12:41:24

    LIPTAKI think there's no principled reason against cameras in the courtroom. It's surprising that the citizens of a democracy can't see their government at work, and yet every single justice, time after time, is in favor of cameras at their confirmation hearings. We saw that recently with Justice Elena Kagan and Justice Sotomayor, who spoke very positively about cameras at their confirmation hearings. Lo and behold, they get on the court. They don't want it anymore. I think as Joan says, they're afraid that it will do damage to the prestige, authority, mystique of the court.

  • 12:41:53

    LIPTAKThey're particularly afraid, in the era of YouTube and John Stewart, that they'll be made fun of. The chief justice not too long ago said, we can't control our grandstanding, we, the justices, even in a room with 200 people. Imagine what would happen if it were televised. And yet, by counterexample, the supreme courts of Canada and the United Kingdom broadcast and webcast their proceedings. And they seem to be able to control themselves just fine.

  • 12:42:18

    NNAMDIWhen last have either of you made a speech anywhere addressed to a group of high school students, college students or any audience anywhere where someone has not asked, why does Justice Clarence Thomas not ask questions?

  • 12:42:32

    LIPTAKIt's a very popular question, and in some ways, I think he does himself a disservice because it plays into stereotypes about him that he's not a capable justice when, in fact, although his views are idiosyncratic, he is a very, very smart and interesting writer. And somehow this -- what was almost an unbroken seven-year streak of saying nothing on the bench, I think, does him a disservice.

  • 12:42:56

    NNAMDIWell, he says he'd rather listen.

  • 12:42:58

    BISKUPICWell, he's given a lot of different reasons. And we actually, I think, are just about on the seven-year anniversary of the last time he had uttered a question. And he -- he's given the reasons of, you know, he doesn't want to interrupt the lawyers. He feels like his colleagues ask too many questions. He once even said that he was self-conscious about his Gullah accent from where he grew up in Pin Point, Ga. But he has -- he actually has a very strong, booming, effective voice that would probably serve him and serve many, many people in the audience...

  • 12:43:29

    NNAMDIFor those of us who can remember back in 1991 when he...

  • 12:43:33

    BISKUPICRight, right. And he's -- you could still hear him on the audio up to 2006, which was the last time -- was it 2006? I think about then the last time that we heard him speak, in February then. And he does read his opinions from the bench when that time comes. But I think he's -- with a bench this active, it really stands out that he does not say something, and I agree that he disserves himself and the people who want to hear from him.

  • 12:44:00

    NNAMDIHere's Alan in Northwest Washington. Alan, you're on the air. Go ahead, please.

  • 12:44:05

    ALANYes. I proposed the case of -- the Indiana farmers case from -- and Monsanto and Clarence Thomas. Wasn't Clarence Thomas the -- he had worked as a counsel to Monsanto. And I'm wondering -- he also should have recused himself on a Supreme Court vote about the idea of patenting organisms and patenting life forms, like you can make a change in a bacteria and patent that, or you can patent the test for, like that woman that -- Henrietta Lacks, that's a patentable cell line from her, and before we have even a biotech crop.

  • 12:44:41

    NNAMDIAnd you're saying that he should have recused himself from both of those cases on the basis of the fact that he was once a counsel to Monsanto? Is that correct, Adam Liptak, he was a counsel to Monsanto?

  • 12:44:47

    ALANAbsolutely. He should have...

  • 12:44:49

    LIPTAKI think he was briefly an in-house lawyer there. I think that's right. And I know that he has not recused himself so far. I have no reason to think he's going to recuse himself. And while reasonable people can differ, I think most ethics experts would think that that long-ago connection, which has no current financial stake in the matter, would not be grounds for recusal.

  • 12:45:12

    NNAMDIAlan, thank you very much for your call. Joan, last fall, ahead of the health care ruling, everyone suddenly seemed to be abuzz about SCOTUSblog. In your time covering the court, what has or has not changed?

  • 12:45:25

    BISKUPICWell, SCOTUSblog is that -- the Internet product that tells you everything you want to know about the Supreme Court, about cases that have been filed there, about how the justices have ruled. They have all sorts of different elements that -- different features that -- for anyone out in the country who can't get to the Supreme Court, it's a terrific service. And on days that opinions are released, they also do a live blogging so that you can actually follow it from your desk or home, wherever you are.

  • 12:45:53

    BISKUPICAnd that came -- I think Tom Goldstein and his wife Amy Howe started SCOTUSblog in roughly about 2002, so it's fairly modern. And that it's -- that has become available. The justices themselves have now put their transcripts from oral arguments online the same day that they have a hearing. In the Olson days, we would not get the transcript until two weeks later.

  • 12:46:17

    BISKUPICIt was very hard, obviously, to cover the court because you couldn't double check what they said, and that goes for some problems along the way. But now you have access to that. You have access to opinions for folks. For those of us who've covered it for many years, we've gone from essentially just writing a newspaper story at the end of the day that readers would find...

  • 12:46:40

    NNAMDIYour big objective was to get the story above the fold.

  • 12:46:43

    BISKUPICOh, I live for that, Kojo, getting the story above the fold. I can tell you, each time that I went home at night and it was dropped below the fold or inside overnight. But that was what we did. We would file a story at the end of the day, having sort of carefully read the opinion and called many folks to weave in reaction to a story that then, as I said, subscribers would read the next morning. Now, for a big case, all of us immediately try to put something on the Web because that's what viewers want.

  • 12:47:10

    BISKUPICThey want to know right away what happened, and we want to bring it to them. For example, for the health care case, we wanted to file it right away. And then what we do is we update through the course of the day. And for the next morning, if you're just telling people what the justices ruled, you really have old news.

  • 12:47:25

    NNAMDISo you're getting a lot more quick hits. And, Adam, you're also tweeting out during the course of arguments, right?

  • 12:47:31

    LIPTAKWell, if we were allowed to bring devices into the courtroom, I truly would. But yeah, we try to reach readers every way we can, as fast as we can, but not at the expense of accuracy. You do recall after health care, a couple of the major TV outlets managed to get it exactly wrong. And that stings. And that's the kind of thing you will not soon forget. And I'd rather be five minutes later and exactly right.

  • 12:47:52

    NNAMDIHere's Joseph in Harpers Ferry, W.Va. Joseph, your turn.

  • 12:47:57

    JOSEPHHi. I'm calling regarding Monsanto. This is a story I had read on Slashdot several months ago, probably early last year. Two adjacent farmers: one decided to plant Monsanto crops, one plants his own reserve seeds, as farmers do. And when they're pollinated by roving bees, some of that pollen ends up in the first farmer's crops. So when he replants, he starts growing Monsanto crops. And he was found guilty of patent infringement thereto.

  • 12:48:29

    NNAMDIAnd you say that to say what, Joseph?

  • 12:48:31

    JOSEPHWell, it seems that if anyone's guilty of patent infringement there, it would be the bees.

  • 12:48:38

    JOSEPHIf -- I mean, honestly, if they're carrying pollen around and his crops become Monsanto, without having a lab, he's not testing his seeds to find out if it's become somebody else's.

  • 12:48:51

    NNAMDII don't know. Have you heard anything at all about this, Adam?

  • 12:48:54

    LIPTAKThat's a version of the case before the court. First of all, I'd say, judging from the listener calls, if it was listeners voting on this case, you know which side would win.

  • 12:49:02

    NNAMDIExactly right.

  • 12:49:03

    LIPTAKBut what's happening in the Supreme Court case version of this, somebody goes through a grain elevator and buys mixed seeds -- some of it is presumably Monsanto, some of it is presumably not -- plants it and gets sued by Monsanto for patent infringement. So even this kind of planting of next-generation seeds by happenstance, by mistake, by bee pollination, Monsanto would contend is covered by its patent.

  • 12:49:29

    NNAMDIJoseph, thank you very much for your call. We got an email from Elaine, who says, "Wouldn't it be nice for D.C. if those states that want to control their own affairs without federal interference were more supported of the District's control of its affairs without congressional interference?" And we got a tweet from Ray, who says that the case he is watching this time is the Defense of Marriage Act decision because "I'd like to share the freedom to move anywhere in the U.S. and still be married."

  • 12:49:54

    NNAMDIJoan, a number of the justices are in their 70s, prompting speculation about possible retirements. What might we see in terms of turnover on events, say, during Obama's second term?

  • 12:50:05

    BISKUPICWell, our eldest justice is Ruth Bader Ginsburg, who, in March, will turn 80 years old. And she has survived two very serious bouts with cancer, but she seems quite healthy now. She constantly is getting checked medically. She has a personal trainer. She tries to stay as healthy as she can. And she has said many times that she'd like to last at least until 2014, maybe even 2015.

  • 12:50:30

    BISKUPICI think we all know that no justice wants to leave in an election year because it runs the risk of even more politicking that we are -- that we already have on judicial confirmations. So I would expect Justice Ruth Bader Ginsburg, who was appointed by Bill Clinton in 1993, to probably step down in 2014 or '15. After her come two 76-year-olds, Antonin Scalia and Anthony Kennedy.

  • 12:50:54

    BISKUPICIf either of those men were to step down or leave during on Obama administration, I think it would be, first of all, a great new story but a battle royale because it would mean that a Democratic president would be naming the successor to either a far-right conservative in Justice Scalia or a key-conservative swing vote Justice Kennedy. And I think that whoever President Obama put up would face a very strong Republican Senate -- Republicans in the Senate trying to fight that off.

  • 12:51:24

    NNAMDIAdam Liptak, what say you?

  • 12:51:26

    LIPTAKI think Joan's quite right that the only person likely to go voluntarily in the next couple years is Justice Ginsburg, and that's not as an ideological matters such a huge deal because it would be a Democratic president appointing a liberal justice to succeed a liberal justice. It wouldn't alter the balance of power. I do think that if either the swing justice, Justice Kennedy or one of the more conservative justices were to go in an Obama administration, you would see some serious talk of filibuster, which would really transform the American separation of power as experienced.

  • 12:52:01

    NNAMDIAnd I'm afraid that's all the time we have. Adam Liptak is a lawyer and reporter who covers the Supreme Court for The New York Times. Adam, good to see you again. Thank you for being with us.

  • 12:52:08

    LIPTAKGreat to be here.

  • 12:52:10

    NNAMDIJoan Biskupic is editor in charge of legal affairs for Reuters news. She is a veteran Supreme Court reporter, who's covered the institution for various publications. Joan Biskupic, thank you so much for joining us.

  • 12:52:20

    BISKUPICThank you, Kojo.

  • 12:52:21

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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