Overview Of Recent Supreme Court Rulings

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Overview Of Recent Supreme Court Rulings

TERRY GROSS, host:

This is FRESH AIR. I’m Terry Gross. The Supreme Court finished its last term
with retiring Justice David Souter yesterday. The court rendered a
controversial ruling, which proponents of affirmative action say will make it
harder for minorities to secure employment and promotion in the public sector.

The ruling, which involved firefighters in New Haven, Connecticut, reversed the
ruling of a lower-court panel, which included Judge Sonia Sotomayor, whom
President Obama has nominated to replace Justice Souter on the court.

The court also made some important decisions involving searches of school
students, campaign-finance law and criminal procedure. For some perspective on
the court and the coming confirmation hearings for Judge Sotomayor, we turn to
Adam Liptak, the New York Times Supreme Court correspondent.

Liptak is a graduate of Yale Law School. He spent several years in practice,
specializing in First Amendment cases, before joining the Times. He spoke to
FRESH AIR contributor, Dave Davies.

DAVE DAVIES: Well Adam Liptak, welcome back to FRESH AIR. I thought we’d begin
with a case that is perhaps the most widely publicized and most closely
watched, and that of course involves the promotional exam for New Haven,
Connecticut, firefighters. They gave an exam for promotions and then threw out
the exam when it resulted in the promotion of no African-American firefighters.

In this case, the Supreme Court reversed an appeals court ruling that – from a
panel that included Sonia Sotomayor. First of all, what was the central legal
issue that was debated here?

Mr. ADAM LIPTAK (Supreme Court Correspondent, New York Times): The question in
the case really was how do you reconcile two potentially conflicting parts of
federal anti-discrimination law? On the one hand, obviously it says that you
can’t discriminate against particular people on the basis of their race. You
can’t intentionally discriminate against people because they’re black, white or
whatever.

But it also says that you shouldn’t use hiring or promotion practices that have
the effect, unintentional, of a negative impact on one group or the other. And
here what you had was a test that did negatively impact black firefighters as a
group but also denied white firefighters, and a Hispanic, the potential for
promotion. And the court tried to reconcile those two potentially warring
mandates and tilted the balance in favor of individuals and, in the process,
reshaped anti-discrimination law in a way that’s going to affect a lot of
employers in a lot of places.

DAVIES: Now there was no evidence before the court here that the test itself
had a discernable racial bias, right?

Mr. LIPTAK: The test is under seal. The majority certainly took the view that
it was a valid, job-related test. The dissent took some shots at that point of
view. It said that a written test is not the best way to figure out who is a
firefighting leader in an emergency. But there is no obvious reason to think
that it was biased in any way that we know about - except from the results.

DAVIES: All right. And just to clarify, what did the appeals court decide on
this case, and then what did the Supreme Court rule?

Mr. LIPTAK: The lower court, and then affirmed by a three-judge panel of the
Federal Appeals Court in New York, including Judge Sonia Sotomayor, threw out
the case brought by the white firefighters, saying they had not made out a case
of discrimination because all the city of New Haven had done was tried in good
faith to comply with the anti-discrimination law’s mandate that you shouldn’t
disparately negatively impact groups. And the Supreme Court reversed that
ruling.

DAVIES: And said in effect that they will now have to promote these 18
firefighters if they’re still around.

Mr. LIPTAK: That is, in short, the effect of the ruling. What the Supreme Court
did was re-jigger the balance. The city had said all it needed was a good-faith
belief that it might get sued by the black firefighters, the people who had
done poorly on the test. And what the Supreme Court said is no, you need a
substantial basis in evidence to know that you’re going to lose such a suit,
and to lose such a suit, you need to show more than statistic disparity. You
need to show that the test was not job-related and that there was no other test
that would have satisfied your business needs and had a lesser disparate impact
on racial groups.

DAVIES: So place this in the broader context of the affirmative action issue.
To what extent has the Supreme Court made new law here?

Mr. LIPTAK: This is another step that the Roberts court has taken, incremental
to be sure, but nonetheless this is a court that’s very skeptical of government
classification by race. And the conservative majority in the court – the four
conservatives plus Justice Kennedy, who is the swing vote and who wrote the
decision in the New Haven firefighters case - seem in many cases ready to
announce that we live in a post-racial society where you no longer need to take
account of race, particularly to remediate the effects of past discrimination.

DAVIES: Now in some of what I’ve read about this case so far, people have
written that the appeals court really was following the established Supreme
Court precedents on this issue. Did they, in fact, really change things?

Mr. LIPTAK: The Supreme Court, the majority said, acknowledged, conceded, that
they were reshaping the legal landscape, they were making new law. And so it’s
hard to criticize the appeals court panel for not anticipating what the Supreme
Court was going to do but rather doing what appeals-court judges are supposed
to do, which is follow the law that was in place at the time.

That’s not to say that the appeals court decision was a model of judicial
craftsmanship. It was a cursory paragraph that many judges on the court itself
criticized as not having taken adequate account of a really difficult issue.

DAVIES: Can you say what the actual impact will now be on cities across the
country that deal with this issue very often?

Mr. LIPTAK: It will make it very hard to throw out the results of tests and
other practices once you have results from them. So once you’ve given a test,
and you’re not happy with the range of outcomes that that test has generated,
it’s going to be awfully hard to say let’s have a do-over.

It remains possible, when you’re at the test-design stage, to try to set up the
test in a way that will minimize disparate impact on various racial groups. But
once the test is administered, you practically have to be able to prove a case
against yourself that you would lose a disparate-impact lawsuit from the
effected minority group before you can throw out the test.

Now although the case applies to public and private employers, it’s really
public employers and civil-service tests and so on, in which case you have this
kind of testing typically, but there’s quite a lot of it. And it’s going to
reshape the landscape quite substantially.

DAVIES: Let’s talk a little bit about what this means for Sonia Sotomayor. She
was, of course, a part of the lower-court panel that held that the city of New
Haven could throw out the results of this promotional exam because of a
disparate racial impact, and of course, that’s a much-discussed aspect of this.

Senator Jeff Sessions, who is the ranking Republican on the Judiciary Committee
that will review Sotomayor’s nomination, said that this decision will only
raise more questions in the minds of the American people concerning Judge
Sotomayor’s commitment to treat each individual fairly and not as a member of
the group.

Will this decision make things harder for her now?

Mr. LIPTAK: I don’t know that it’ll make it much harder. It will be, for sure,
a very fertile ground for questioning on a couple of levels. There’s the
question of whether the court really worked hard enough, whether the panel that
she joined – and remember it was an unsigned decision. It was three judges, but
they dispensed with the case in a quite cursory fashion.

That said, the result is, quite arguably, one that was compelled by existing
precedent at the time. And remember also that the decision from the Supreme
Court was five to four, that Justice David Souter, who Judge Sotomayor hopes to
replace, was among the dissenters. So it’s not as though this is a question on
which everyone agrees.

DAVIES: As you’ve looked at Judge Sotomayor’s opinions and looked at what’s
been written about her temperament as a judge, what have you seen that’s maybe
not been so widely covered in the conversation about her nomination?

Mr. LIPTAK: Her judicial writing is competent, unflashy, able, not really a
treat to read through, but very methodical and very serious and very
mainstream. So if you look at her judicial work, you’re not seeing the person
that some people on the right are painting of some sort of radical.

She has made some statements in speeches which suggest that she would take
particular care to attend to the interests of minority groups, and of course
famously said that a wise Latina judge might make better decisions than a white
one. But whatever those out-of-court statements might suggest, they’re not
reflected in her work on the appeals court, where she is super-diligent and
methodical.

That said, the job of an appeals court judge is different from the job of a
Supreme Court justice. The Supreme Court has a lot more room for maneuver, and
an appeals court judge, particularly one with ambitions for promotion,
understands the job to mean applying existing precedent and not making broad,
sweeping, new constitutional rulings.

DAVIES: Does it seem that she has the kind of intellectual power and will to
weigh these weighty questions and, you know, establish new precedent when
needed?

Mr. LIPTAK: She certainly has the intellectual horsepower and judicial
capability of being an excellent judge, but you never know until not only when
a justice arrives but until years into that justice finding his or her feet on
the court exactly where they’re prepared to go. And so it’s too early to tell,
and we won’t know a year from now or two years from now or three years from
now, when she’s confirmed. Many justices don’t ripen into their full being on
the Supreme Court until quite a long time into their tenure.

DAVIES: Do we see anything distinctive about her style and temperament on the
bench?

Mr. LIPTAK: She is a New Yorker and has an impatient side. I don’t think that’s
unusual on the New York federal courts, but I would not want to be a lawyer
appearing before her not in full command of the record and not ready to answer
hard questions. And she’s rather more talkative than some judges. So she will
give you her point of view right from the get-go.

Some lawyers welcome that. You want to know what the judge is thinking, they
would say, and you want to respond to that thinking. Other lawyers will say
that they might like a chance to lay out the case as they would like it before
having to respond to her questions.

DAVIES: How do you think her style will play in a confirmation hearing?

Mr. LIPTAK: I have a feeling that she is being prepared to fare-the-well, and
she will be deferential and appealing and will figure out 15 different ways to
avoid answering the questions.

DAVIES: As the good ones do. You are, of course, an attorney as well as a
journalist and used to looking at legal issues thoroughly and carefully, and
I’m wondering: What do you find frustrating about the confirmation process as
you’ve seen it in the past and the way it’s talked about publicly?

Mr. LIPTAK: Oh, it can be terribly reductive and misleading and reduced to sort
of soundbites, and you know, given moments in cases being taken in isolation
from a career, as in Judge Sotomayor’s case, which has spanned, you know, more
than 15 years on two different courts and a rich career in some 3,000 decisions
in which she’s participated. And there is a tendency to focus in on and over-
emphasize, given a data point, and that can be a frustration.

DAVIES: So it’s likely we’ll see her joining the court in the fall, and you
know, you wrote an interesting piece in May raising the question of whether the
very presence of women or minorities on the Supreme Court has affected its
deliberations in ways beyond simply the views that the new members have held.
What did you discover as you looked at that issue?

Mr. LIPTAK: I discovered what all of us discover in sort of a social setting:
that you might talk a little differently, think a little differently, depending
on who’s in the room, so that even a conservative justice, like Justice Antonin
Scalia, would say that Thurgood Marshall, the first black justice, his very
presence in the room exerted a kind of gravitational force. You had to make
your case a little better when race was at issue and Thurgood Marshall was in
the room. You had to maybe think a little more clearly. You might have to
suppress some impulses.

So the presence of people from different backgrounds, whatever their votes and
whatever their reasoning, sort of has a tug. And you hear political scientists
say this, that diverse inputs make for better outputs because you take account
of things that maybe you hadn’t thought through. But just looking across the
room and seeing that there is a Thurgood Marshall, or there is a Sandra Day
O’Connor might make you pause and think, you know what, maybe I should think
about this some more.

DAVIES: Our guest is Adam Liptak. He is the Supreme Court correspondent for the
New York Times. We’ll talk more after a break. This is FRESH AIR.

(Soundbite of music)

DAVIES: If you’re just joining us, our guest is Adam Liptak. He is the Supreme
Court correspondent for the New York Times. We’re talking about the Supreme
Court term that’s just ended and the prospects of Sonia Sotomayor to become the
next justice.

Well Adam Liptak, let’s talk about some of the important or significant cases
that the Supreme Court has decided. One of the most widely discussed involved
the strip search of a middle-school student on the suspicion that she might be
trying to smuggle in prescription-strength Ibuprofen.

The facts were odd in this case, seemed almost to defy common sense. The court
ruled that this strip search was indeed not permissible. What’s the impact
going to be here on the legality of searches in the future?

Mr. LIPTAK: This is one of those cases in which the guidance the Supreme Court
gives is sort of vague. It says, depending on how dangerous the drugs are and
how much reason you might have to suspect they’re being held in an intimate
place, you can or can’t do it, that this particular case, Ibuprofen not
dangerous enough, no reason to think she’s hiding them in her underwear – by
the way, she had no drugs with her.

That said, that’s the strict legal holding of the case. My guess is that when
the in-house lawyers of school districts across the country look at this case,
they’re going to go, you know what, let’s not be strip-searching our students.
If it’s a police matter, it’s a police matter, but parents don’t send their
students to school to be strip-searched.

It was an eight-to-one ruling from the court. And it was an instance of what we
were talking about a second ago, I think, where the presence of Ruth Bader
Ginsburg, currently the only female justice on the court, really seemed to
shape the discussion.

At the argument, there was not a lot of sympathy for Savannah Redding. Justice
Ginsburg gave a newspaper interview to Joan Biskupic at USA Today saying that
she wasn’t sure her colleagues really understood how humiliating it would be to
be a 13-year-old girl made to strip. And the final outcome in the case I think
may have reflected, in part, the fact that Justice Ginsburg brought to her
colleagues’ attention that their life experience may not have given them the
full capability to view the case.

DAVIES: Now, one of the cases that I found really interesting involved a West
Virginia coal company, right, that had made heavy financial contributions to a
candidate for that state’s Supreme Court, which then cast a deciding vote to
vacate a, I think, a $50 million jury award against the coal company.

Mr. LIPTAK: That’s right. A coal company executive named Don Blankenship spent
$3 million to get a Justice Benjamin elected, and then that justice, two
different times, cast the deciding vote, three to two, to throw out this $50-
million verdict. And so the question is: Does the federal Constitution’s due
process clause give litigants at least the right to appear before a judge who
had not had that kind of support in a case? And the court, only five to four,
with Justice Kennedy writing, says yes, the due process clause does at least,
in that case, give you the right to a judge who does not owe perhaps a debt of
gratitude to one of the people involved in the case before him.

But again, it’s one of those cases where we don’t know what the repercussions
are going to be because the facts were so extreme. And you should remember that
campaign contributions from litigants and lawyers are very common, and judges
across the country, elected state court judges, almost never recuse themselves.
And the court didn’t say how bad it has to be. It said $3 million is too much,
but $3 million is quite exceptional. What if it’s $10,000? What if it’s $1,000?
We don’t know the answer to that question.

DAVIES: And this sort of really has the Supreme Court tiptoeing into this very
delicate issue of electing judges in the first place. We’re the only country
that does that, right?

Mr. LIPTAK: With almost no exceptions. I think some Swiss cantons and some
Japanese courts, but really it’s an American idea that the best way to get an
independent judiciary is to have them accountable to the public.

DAVIES: And as you say, the Supreme Court said that in facts that are this jaw-
dropping, where a litigant pays $3 million to help somebody get elected and
then has that justice help him out in a critical ruling, that that goes too
far, but there are just all kinds of cases all the times in elected judges, as
you say, around the country who are ruling on cases where campaign
contributors’ interests are at stake.

You co-authored a piece I believe, in 2006, which looked at the sort of State
Supreme Court of Ohio and the extent to which its decisions might have
corresponded to the interest of campaign contributors. Is that right?

Mr. LIPTAK: That’s right. Now we found a high degree of correlation. That is,
the justices voted in favor of their contributors very often, but correlation
isn’t causation. I mean, it doesn’t mean that because of the contribution, they
changed their vote. It may be they attracted the contribution because the
people in question, the contributors, liked the way the judge was likely to
rule. But it does open the question of whether – it’s sort of a three-step
process.

You can be in favor of judicial elections, you can say that once we’re going to
have elections, you need to be able to raise money to get the message out. But
that doesn’t necessarily answer the third question down the road of assuming
you take a contribution, should you sit on the contributor’s case.

DAVIES: Now as you say, the Supreme Court didn’t give clear guidance here about
when a contribution is too heavy, or the interests of a litigant who is also a
contributor are too directly connected. On the other hand, I would imagine that
this ruling would encourage litigants to file motions for judges to recuse
themselves when they are, you know, facing an opponent who has been a heavy
campaign contributor.

Mr. LIPTAK: And that’s what the dissenting justices, led by Chief Justice
Roberts, said, that what this ruling created was maybe it fixed a problem in
one outlying case - one really weird, $3-million case - but created problems
and fomented litigation in thousands and thousands of cases around the country.

The case was called Caperton v. Massey. And we will probably, very soon, see a
kind of motion routinely filed called a Caperton motion, in which litigants,
for strategic reasons and principled ones, try to knock out the judges on their
cases.

So there is an argument to be made on the other side, that fixing one outlying
problem may give rise to a ton of litigation that, in the end, is counter-
productive.

DAVIES: And of course, it’s really state legislatures around the country who
decides whether their states will elect judges or have them appointed. Do you
think this decision might give a boost to merit selection around the country?

Mr. LIPTAK: It will give a small boost, but electing judges is quite popular.
There is not much of a movement away from it at all.

GROSS: Adam Liptak will talk more with FRESH AIR contributor Dave Davies in the
second half of the show. Adam Liptak is the New York Times Supreme Court
correspondent. Dave Davies is a senior writer for the Philadelphia Daily News.
I’m Terry Gross, and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I’m Terry Gross. Let's get back to the interview
FRESH AIR contributor Dave Davies recorded earlier today with Adam Liptak, The
New York Times Supreme Court correspondent. The court concluded its term
yesterday. It was the final term for Justice David Souter.

DAVIES: Another move that the Supreme Court made in this term dealt with
campaign finance issues. In this case it involved this highly controversial
documentary film about Hillary Clinton which was made by a Clinton critic
during the last presidential campaign. In this case the Supreme Court chose not
to rule but I guess to reschedule it for arguments in September. Tell us what
the case is about and what the Supreme Court did.

Mr. LIPTAK: The case is about a documentary called "Hillary the Movie," which
is a slashing polemical, negative, critical look at Hillary Clinton. But I
don't know that it's terribly different from, say, what Michael Moore would
have to say in "Fahrenheit 9/11" about President Bush. The McCain-Feingold
campaign finance law says that so-called electioneering communications ads,
movies, whatever, that are broadcast right before an election can't be paid for
by corporate money. And the film here was made by a corporation. And they sued
to get the right to show their movie on video on demand and lost, and the case
goes up to the Supreme Court. And it looks like a relatively minor question.
Should they be allowed, you know, on video on demand to show this minor movie
that might not be of wide interest to anyone, which incidentally remains
available on the Internet and DVDs because McCain-Feingold only deals with
broadcast.

And the court, instead of deciding that narrow question, on the last day of the
term decides to set it down for re-argument and asks the parties to brief
whether an important part of McCain-Feingold should be stricken down and
whether a 1990 case that allowed limits on corporate speech supporting
political candidates also to be struck down. So they set the stage for what may
be a very big ruling in which corporations might be allowed to say whatever
they want from their general treasury funds, and that's not the world that
we’ve been living in for some time.

DAVIES: Right. I mean for decades corporate spending on political campaigns has
been banned, right?

Mr. LIPTAK: Right. Except through political action committees, which are
unwieldy, but yes, that's right.

DAVIES: So what does it tell us that the court decided not to decide right now?

Mr. LIPTAK: It tells us that if it's going to take a big step it wants to do it
in a considered way with briefing on a question not much considered so far in
this quirky little case. It also tells us that the replacement of Justice
Sandra Day O'Connor by Justice Samuel Alito makes a big difference in campaign
finance cases, and that there is now a solid majority to strike down all kinds
of campaign finance regulations on First Amendment grounds.

DAVIES: Another interesting case involved a challenge to the Voting Rights Act
of 1965 that came out of Austin, Texas. What was this case about?

Mr. LIPTAK: The Voting Rights Act, which is really one of the triumphs of the
Civil Rights Era, has a provision in it that requires some states and
localities to get permission from the federal government before they change
even a very minor voting practice, like moving a poling place. And the idea was
that Southern states were always one step ahead of the sheriff in trying to
find ways to disenfranchise black voters.

So you had this regime enacted in 1965, where some states and localities were
required to do something quite odd in the federal system. The case goes up to
the Supreme Court and the question the justices seem focused on is whether this
distinction that some states are covered, some aren't - is the rationale for
who’s covered and who’s not good enough? How come Ohio and Florida, where we’ve
had terrible problems lately, are not covered? Southern states which now have
very vibrant minority participation in elections still are covered.

And it looked like the court might be gearing up to do something quite bold in
striking down the Voting Rights Act and there was substantial hostility from
the justices - the conservative justices at argument. But in the end they
punted, and in a way not terribly different from the campaign finance case.
They ruled 8-1 that instead of ruling on the broad issue they'd rule on a quite
narrow one and they'd allowed this particular little municipal utility district
in Austin, Texas to bail out of the covered system, and without making a broad
ruling.

But at the same time, they seemed to set up not very far down the road the
possibility that they would strike down the heart of the Voting Rights Act.

DAVIES: And the impact then would be that jurisdictions throughout many, many
states would then be free to change election procedures without permission from
the federal government, right?

Mr. LIPTAK: Right. They would be subject to lawsuits afterwards. Now,
elections are fast moving things so the post hoc lawsuit is not always the most
satisfying way to go about doing business, but it is the typical way of going
about doing business in many, many areas of the law. You don’t typically ask
permission first. You typically do what you're going to do and you get
sanctions for it or not. And you know, you comply with the law or attempt to
comply with it but you don't sort of get permission up front. And the getting
permission up front was an innovation of the Voting Rights Act that almost
everyone agrees made a lot of sense back in the Civil Rights Era, but there's
more dispute these days about whether it still makes sense.

DAVIES: Yeah. Underlying this really is the question of whether or not wide
scale disenfranchisement of minority voters is still prevalent, isn't it?

Mr. LIPTAK: Right. And you hear very different opinions on that.

DAVIES: Now, the court in this term had an important ruling that involved the
right of defendants who have already been convicted access to DNA evidence
which they think might exonerate them. Tell us about this case.

Mr. LIPTAK: The question in the case was whether there's a Constitutional right
to DNA evidence that might prove your innocence. So if you're in jail somewhere
and it turns out there's DNA evidence in your case, are you entitled to have
access to it and at your own expense tested? The court says 5-4 the
Constitution does not give you that right. They noted that 46, or depending on
how you count it, 47 states have laws, not - we’re not talking about the
federal Constitution now, local state laws - that allow that kind of testing in
at least some circumstances, and the majority said that was good enough.

The dissenters said, wait a second, what's the downside? So you have this guy,
we can find out for sure if he's guilty or not, and we’re not going to let him
do it? And the majority says the Constitution's due process clause does not
contain such a right. So you have again this interesting notion, and Kennedy
now is with the majority of conservatives ruling against the Constitutional
right, so what you have in a way is whatever Justice Kennedy says the due
process clause means, it means.

In the Caperton case, the judicial recusal case we were talking about, Justice
Kennedy said it means that the West Virginia Supreme Court justice has to
recuse himself. In the Osborne case - the DNA case - Justice Kennedy says that
Mr. Osborne does not have a right, the Constitutional right to test his DNA.

DAVIES: And this was a man, we should say, he was convicted of raping and
assaulting a woman. And there was some DNAevidence at the scene that he
wanted the right to have tested with more sophisticated techniques that are now
available. What...

Mr. LIPTAK: He was not the ideal candidate. You know, there was a lot of
evidence of his guilt. He had - his lawyer had at trial declined to use
sophisticated DNA testing because she was afraid it would only inculpate him.
But nonetheless, the question of what's the downside of allowing this testing
is a little bit hard to answer.

DAVIES: Right. I mean defense lawyers have always said, look, there's not an
unlimited number of people who will want access to DNA. There's one convicted,
you know, individual who with the testing could be either, you know, confirmed
as guilty or exonerated. What's the state these days? You said 46 or 47 states
have some laws which...

Mr. LIPTAK: Yeah, Alabama's about to become the 47th.

DAVIES: Right. And they grant some access to DNA. But overall, what kind of
rules are imposed on a defendant's ability to get access to DNA?

Mr. LIPTAK: Well, it varies a lot. Some states only allow you to do it if
you're on Death Row, so if you're serving life for rape, tough luck. Some
states only allow you to seek it if it wasn't available at the time of your
trial. Some states bar you, as in Mr. Osborne's case, from seeking it if you
decided not to do testing at the time of trial. Some states will impose a
penalty on you if you seek it and it turns out to confirm your guilt. So it's a
real patchwork.

DAVIES: There was also an interesting ruling about the admissibility of routine
crime lab reports in cases in which the laboratory personnel aren't there in
person to testify in court and face cross-examination. What did the court
decide here?

Mr. LIPTAK: The court said that the Constitution's Confrontation Clause, which
gives people accused of crimes the right to confront their accusers, extended
to crime lab evidence. And there was an interesting alignment here. Here you
have the two justices who most adhere to the original understanding of the
Constitution, Justices Scalia and Thomas, joining three liberal justices to
find that the Confrontation Clause means it's not good enough for the
prosecution to show up with a piece of paper that says the lab analysis said
the white powder found with you, Mr. Jones, is cocaine, that the analyst, him
or herself, needs to show up and be subjected to cross-examination.

And prosecutors are really squealing over this ruling because it makes their
lives much more difficult and it gives criminal defense lawyers one more lever
to push in insisting that a crime lab analyst, sometimes retired, sometimes,
you know, working across the state, sometimes working for the FBI across the
country, has to say get on a plane and appear and explain a report.

DAVIES: Is this one of these cases where experience will tell whether this is
workable?

Mr. LIPTAK: Yes. Exactly. And you had a very big difference of opinion between
the majority and the dissenters about the practical impact of the ruling. You
did also though have Justice Scalia saying, listen, the right to a jury trial
is burdensome, but if the Constitution requires it, the Constitution requires
it. And if the Constitution imposes a burden on us, it’s not for us to say that
we’re going to ignore it because it's inconvenient.

DAVIES: We’re speaking with Adam Liptak. He is The New York Times Supreme Court
correspondent. We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

DAVIES: If you're just joining us, our guest is Adam Liptak. He covers the
Supreme Court for The New York Times. You know, I have to ask you about a
fascinating piece you wrote about the fact that the Supreme Court now has
access and can view - at least in one case, YouTube videos and get a direct
look at what might be some compelling video evidence. How might that change the
nature of the court's deliberations?

Mr. LIPTAK: Well, there was one case in particular. And the court's Web site,
which is, I have to say, a little clunky, nonetheless occasionally posts the
videos, and there was a case involving a high speed chase where the justices
got to watch from the camera mounted on the police cruiser’s dashboard how a
high speed chase came out and whether a person who was rammed off the road and
was paralyzed as a consequence bore the blame for the chase or whether the
police did. And what you saw the justices doing, which is not what appellate
court justices or Supreme Court justices typically do, is figure out the facts
for themselves. It's very hard if you have a video in front of you to say, I'm
going to defer to what the jury found because the jury saw the witness, the
jury made the credibility judgment, whatever.

Here you have the video and it has the potential on some level to really
reorient how judging happens because there's this feeling, although experts
will tell you that it's a false feeling, that having seen the video, you know
precisely what happened. Of course videos are partial. They only show you
what’s in the frame. They only show you that part of what happens to be
recorded as a temporal matter. But nonetheless we do seem to be entering an era
where judges and Supreme Court justices will have what appears to be direct
primary access to what really happened and that might kind of undermine the
typical idea of how judging is supposed to work where juries find fact and
judges defer to the juries on fact finding and just apply the law to the facts.

DAVIES: And in this case it seemed to make a difference because this involved a

police chase in which the police rammed a - someone in the car who had been
eluding them, resulting in serious injury. The man sued. And if I'm remembering
correctly, the lower court at some point ruled in favor of the gentleman. But
when the Supreme Court looked at the police chase video, they saw it
differently.

Mr. LIPTAK: Exactly. Right. So what you had, and there have been studies since
then where researchers take this video out and show it to various groups of
people, and the truth is most people thought that the person being chased bore
the burnt of the responsibility for what happened to them. But it varied some
across the political spectrum, across racial spectrums, so that liberals were
more likely to think that the police bore the blame. Minority group members
were more likely to think that. And it really highlights that there's a new
emerging field now about judicial cognition, about how it is the judges go
about making their decisions, that what you bring to the table matters a lot.
And also here, whether you think you’re seeing something for yourself so that
you've direct access to the evidence makes a difference.

DAVIES: There was also this interesting post 9/11 case involving immigration
detainees in Brooklyn and their attempt to sue high level government officials
for alleged abuse. Tell us, tell us about that one.

Mr. LIPTAK: The case is called Iqbal and the question in the case was whether
people rounded up after 9/11 on immigration offences and held in really harsh
conditions could sue high level Bush administration officials - here Attorney
General Ashcroft and FBI Director Mueller - for what they claimed was a policy
of ethnic and religious discrimination. And the Supreme Court said at the very
earlier stages of the case that the claims made by these detainees were
implausible and therefore should be thrown out at the outset.

And it tells us two different things. One, it tells us that the court will
probably be hostile should other kinds of cases in which Bush administration
officials are sued over their conduct after 9/11. And it also reorients a
little bit in all kinds of civil litigation - the burdens that a plaintiff has
to pass in order to even get a lawsuit off the ground. It says that’s it not
enough just to write down on a piece of paper the things that you claim
happened to you. That they have to pass a somewhat vague kind of hurdle of
plausibility, which gives judges a lot of power to throw out all kinds of cases
at the outset.

DAVIES: Did this court rule in anyway that really surprised you, in this term?

Mr. LIPTAK: I guess, I would have thought that the voting rights case and the
strip-search case would have, if not come out differently, certainly not have
had lopsided eight-one majorities. The other trend that is a surprise, because
I do believe that the justices think of themselves as independent-minded and
looking at issues case by case, is how often they spilt in the perfectly
predictable way of the four conservative members on one side, the four liberal
members on the other. And Justice Kennedy switching between the two as the
swing vote.

So you don’t see a lot of scrambled alignments. And you see Justice Kennedy
really controlling the course of the court and therefore the course of the
nation. This last term he leaned to the right more when he joined the
conservatives in five-four cases, more than twice as often as the liberals. And
where Justice Kennedy goes, so goes the nation.

DAVIES: So when do Judge Sotomayor’s confirmation hearings begin? How long
might they go?

Mr. LIPTAK: The hearings begin July 13th. They'll almost certainly wrap up that
week. And there is, because of this campaign finance decision that has been set
down for argument on September 9th, some additional pressure to get her
confirmed quickly so that she can be on the bench for that. Justice David
Souter's last day was Monday. And I’m sure that there will be an impulse not to

want to have only eight justices to hear that case, which has been set down for
argument almost a month before the court typically comes back for the first
Monday in October when it starts the new term.

DAVIES: You know, we spoke last year when you had begun this job of covering
the Supreme Court for the New York Times. And you were of course, at the time,
an experienced legal journalist and yourself a lawyer. But I’m wondering if the
experience of covering the court intensively as you have has given you any
different impression of either its operations or the thinking of its members.

Mr. LIPTAK: It sure has. The day-to-day work of the court - and they take it
very seriously - are a lot of cases that don’t get a lot of attention - cases
in which they interpret federal statutes or make fine-tuned adjustments in
criminal procedure laws. And they work awfully hard and they’re very good
lawyers. And it’s very hard to give people a sense of the full body of the
court’s work, given that people really pay attention to a handful of cases that
come down typically at the end of the term, where they’re slogging through
methodically with a lot of intellectual heavy-lifting, all sorts of work
through the term. And if there were something wish I could do better as a
journalist, it would be to convey the full spectrum of the work of the court.

DAVIES: Well Adam Liptak, thanks so much for speaking with us.

Mr. LIPTAK: Really good to be here.

GROSS: Adam Liptak spoke with FRESH AIR contributor Dave Davies. Adam Liptak is
the New York Times Supreme Court correspondent. Dave Davies is a senior writer
for the Philadelphia Daily News. Coming up, rock critic Ken Tucker reviews
Patterson Hood’s new album “Murdering Oscar (And Other Love Songs).” This is
FRESH AIR.
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Patterson Hood: From Drive-by To 'Murder'

TERRY GROSS, host:

Patterson Hood is best known as a co-founder of the acclaimed Southern rock
back, Drive-By Truckers. His new solo album called, “Murdering Oscar (And Other
Love Songs)” contains a few songs written in the early 90s before the Truckers
reformed as well as more recent songs, all of them freshly recorded over the
past few years. Rock critic Ken Tucker has a review.

(Soundbite of song, “I Understand Now”)

Mr. PATTERSON HOOD (Singer): (Singing) Uncle Phil said to me that woman will be
the death of me. But I don’t think there’s anything I can do. She’s got ways I
don’t understand putting words into my mouth. Things I just can’t get used to.
But then she dropped the cornbread in the kitchen. Uncle Phil smiled as if
she’d just done the greatest thing. I’m not sure if I understood then. But I
guarantee I understand now. My cousin screwed up without a doubt…

TUCKER: On that song, “I Understand Now,” Patterson Hood sings about the value
of growing ups and starting to comprehend with life that is heard long ago. He
sings of quote “appreciating the value of generation’s changing hands.” This is
in keeping with the music Hood makes with his bands that Drive-By Truckers,
which is often all tied up in deep Southern roots and history. But many of
these solo songs are also tight little snapshots of moments and people and
feelings, such as this one, “She’s A Little Randy.”

(Soundbite of song, “She’s A Little Randy”)

Mr. HOOD: (Singing) She’s a little randy for something she ain’t got. A man a
little handy this summer sure is hot. Maybe fix some iced tea or lemonade.
She’s a little randy for some fanning in the shade.

TUCKER: Also playing on this record is Hood's father - David Hood, a highly
regarded bass player for the great Muscle Shoals Rhythm Section. The senior
Hood has done session work with scores of great musicians including Aretha
Franklin, Wilson Pickett, Willie Nelson and Paul Simon. In another gesture of
generation's changing hands the father accompanies the son on one of the
strongest tracks on this album, “Back of a Bible.” It’s about a guy who writes
a love song on the back page of the good book. "Back of a Bible" has a terrific
narrative flow. A whole short story compressed in a three verse song.

(Soundbite of song, “Back of a Bible”)

Mr. HOOD: (Singing) I wrote you a love song on the back of a Bible, on the back
of a Bible, a love song for you, I ain't no authority about what it says in it,
can't even begin it. But that page in the back is blank and waiting for you,
heard me a sad song…

TUCKER: The songs on this album gather their power from Patterson Hood’s
articulated drawl and the creepy crawl of guitar chords and drum patterns.
Nowhere is that more true than on the title song - a homicidal scenario whose
content is some kind of cross between Johnny Cash and Eminem.

(Soundbite of song, “Murdering Oscar”)

TUCKER: You believe this vehement narrator when he yowls I killed Oscar before
he killed me. You also believe him when he said these quote, “happy, happy,
happy and that he doesn’t need salvation or redemption." This is one cold
character.

(Soundbite of song, “Murdering Oscar”)

Mr. HOOD: (Singing) I killed Oscar, shot him in the head, put the gun in his
mouth, watched his brains fly out, saw my worries fade as the hole got bigger,
solved all my problems with a trigger. I don't need forgiveness for my sins I
don't need redemption for my sins. Got the satisfaction of a job well done with
my own bare hands…

TUCKER: Where the music made by the Drive-By Truckers can expand to epic
proportions without becoming overblown, Patterson Hood’s solo songs are smaller
scale, more intimate. They tap into feelings of longing and regret but also
into fantasies that can be sexy or frightening. It seems on the evidence of
these songs old and new that Patterson Hood has a gift for both common man
stories and a jarring Southern surrealism. But you don’t have to be Southern
boy with a dad who played bass on the Staple Singers, "I’ll Take You There" to
enjoy the places Patterson Hood will take you.

GROSS: Ken Tucker is editor-at-large for Entertainment Weekly. He reviewed the
new solo album by Patterson Hood called “Murdering Oscar (And Other Love
Songs).” You can download Podcasts of our show on our Web site
freshair.npr.org.
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