As of this morning, the U.S. Supreme Court is back in session. In the new term the justices will decide cases dealing with affirmative action, unreasonable searches and human rights. In the latter case, the court will hear arguments today on whether to allow victims of human rights abuses committed in foreign countries to seek justice in U.S. courts. Legal analysts also say it’s likely the court will agree later in the term to take up challenges to the Defense of Marriage Act and the 1965 Voting Rights Act. Diane and her guests discuss the implications of the major cases before the court and how individual justices might affect outcomes.

Guests

  • David Cole law professor at Georgetown University Law Center and author of "The Torture Memos: Rationalizing the Unthinkable." His previous books include "Less Safe, Less Free" and "Terrorism and the Constitution."
  • Stuart Taylor author and journalist, covering the health care case for Kaiser Health News, and a contributing editor for National Journal. He's the author of a new book, "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It."

Transcript

  • 10:06:55

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Today marks the first day of the U.S. Supreme Court's new term. The nine justices hear dozens of cases a year. Their decisions can have widespread and long-felt consequences. This term, the court will hear a major challenge to affirmative action, and many expect the court to agree to take up same-sex marriage cases and voting rights. Court watchers will be looking closely at individual justices to see if any are likely to break away from the established voting patterns.

  • 10:07:37

    MS. DIANE REHMJoining me in the studio to talk about what's ahead in the U.S. Supreme Court: legal affairs analyst Stuart Taylor and Georgetown University law professor, David Cole. Do join us. Call us on 800-433-8850. Send us your email to drshow@wamu.org. Follow us on Facebook or Twitter. Good morning, Stuart, and good morning, David.

  • 10:08:09

    MR. STUART TAYLORGood morning to you. Nice to be here.

  • 10:08:10

    PROF. DAVID COLEGood morning, Diane.

  • 10:08:11

    REHMGood to see you both. David, tell us about Abigail Fisher. She's the student who was denied admission at the University of Texas at Austin.

  • 10:08:26

    COLEThat's right. And she's challenged their affirmative action program as a violation of her equal protection rights. She was -- did not qualify for admission under a program that University of Texas put in place called the top 10 percent rule in which anyone who is in the top 10 percent of their high school graduating class automatically gets into UT. She didn't make that, so she applied nonetheless. There are people who get in nonetheless.

  • 10:08:58

    COLEBut in that sort of remainder of people who are considered, not based on getting into -- not based on finishing the top 10 percent, the school considers race as one factor among many, many other factors. And she argues that that consideration of race, even though it's done in a holistic, individualized way, it's not given any automatic preference or anything like that. She argues that that violates the Constitution.

  • 10:09:28

    REHMAnd where do you stand on this?

  • 10:09:31

    COLEI think her case is largely based on a misrepresentation of the record. So her lawyers argue that the reason the UT program violates the equal protection clause is that it's basically a racial quota system. They're trying to get -- match the racial proportion of the Texas population. That's not true. They also argue that it's based on an attempt to get diversity in every classroom, so, if you have a class of 10, that you have to have two African-Americans, two Latinos. That's also not true.

  • 10:10:07

    COLEWhat is true is that the University of Texas adopted a program that's designed to further educational diversity. The Supreme Court has said that as a compelling interest, has upheld a program that consider -- gave race more weight. The University of Michigan's law school program gave race more weight than the UT program just nine years ago. And what's really at stake here is that the make-up of the court has changed.

  • 10:10:34

    COLEJustice O'Connor, who was the deciding vote in upholding the University of Michigan program nine years ago and said, well, maybe we should revisit this in 25 years, but for the time being, it's appropriate, she's gone. Justice Alito replaced her. And people count the votes and see five votes who have expressed very, very strong skepticism about any race consideration, even if it's designed to further a compelling interest in diversity.

  • 10:11:07

    REHMDavid Cole, he's professor of law at Georgetown University. He's the author of "The Torture Memos: Rationalizing the Unthinkable." And now, turning to you, Stuart Taylor, you've actually written a new book titled "Mismatch" all about affirmative action. How do you see this case?

  • 10:11:30

    TAYLORI see it a little differently from David. That full disclosure first, apart from the book, the subtitle which is descriptive, so I'll read it, "How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It." We have that book coming out. And my co-author, Richard Sander, and I also filed for another court brief in the Supreme Court making similar points. So we have that bias, if you will.

  • 10:11:54

    TAYLORBut here's how I see it differently than David. I think he's characterized it fairly from his perspective. But from another perspective, it's true that changes in the court's composition, in particular Justice Alito replacing Justice O'Connor, have lead to a more skeptical court than there was in 2003 on racial preferences issues of all kind.

  • 10:12:17

    TAYLORIt's also true that the operations so far of the University of Texas program is not that dramatically different or -- than the Michigan program, but there are some principles that Justice O'Connor, chief in the 1980 -- I'm sorry, 2003 case, laid down that, I think, the Texas program doesn't meet. One is no racial balancing, which means you can't try and approximate the ethnic composition of the state. Now, they haven't gone very far down that road.

  • 10:12:51

    TAYLORBut I believe it's an explicit objective of their plan is to come closer to racial proportionality of representation of the policy. Number two, they do say they want critical mass in every class or they want to come close to it. I'm not sure they take it to the point that David says, you know, two of every classroom. Again, they haven't gone very far down that road. But that creates a problem with number three, which is the court said you should phasing out these racial preferences.

  • 10:13:19

    TAYLORWe don't like them. Maybe they're necessary for a while. We'll defer to the universities that want to use them for a while for diversity. You should be phasing them out within 25 years. Nine of those years are gone. The University of Texas' aspirations suggest that they will be doing this for decades and decades and decades if they can. So I think that's another collision with the court.

  • 10:13:41

    REHMSo if the court were to decide in favor of Abigail Fisher's case, what would that mean for affirmative action in other schools, other states around the country?

  • 10:13:59

    TAYLORIt would all depend on how the court writes it. A lot of conservatives would like to see the courts say, ban it. Outlaw it. No consideration of race, period. My co-author and I don't buy that. That's not our remedy. How -- the effect would depend on, really, Justice Kennedy, who seems to be the justice in the center on this. He's the one who's probably, you know, what -- how does he write his opinion? Does he write a narrow little opinion that grinds some tiny distinction between Michigan and Texas and say, this is different, therefore Abigail Fisher wins?

  • 10:14:30

    TAYLOROr does he maybe uphold the Texas thing? That's not out of the question. Or does he go broader? His past performance suggests he is not going to say outlaw preferences. But I do think he believes that the court has articulated principals for limiting preferences -- I mentioned them before -- but has not enforced them. I think he will want to enforce them. That's a guess.

  • 10:14:53

    REHMDavid Cole.

  • 10:14:54

    COLEWell, I think, you know, the name of the game so often in the Supreme Court is predicting what Justice Kennedy will (unintelligible).

  • 10:14:59

    REHMSure, of course.

  • 10:15:00

    COLEAlthough as we saw in the Affordable Care Act case...

  • 10:15:02

    REHMRight.

  • 10:15:03

    COLE...last term, it doesn't always work out that way. But -- and he's hard to predict on this for two reasons. One, he has never voted in favor of a racial preference in any context. He's never voted in favor of a racial preference. But, on the other hand, in the University of Michigan law school case where the court upheld the law school program and he dissented, saying that it was unconstitutional, he endorsed the approach that Justice Powell took in the Bakke case many, many years ago, which basically says it is OK to consider race as one factor among many, as long as it's part of a holistic review.

  • 10:15:43

    COLEIt's not designed to get any particular racial quota, and it's designed to further the compelling interest in academic diversity. So he's endorsed that concept. And I think what Texas says is look, we've adopted the Michigan plan that the court -- the majority of the court upheld, but we've also tweaked it to take out each of the factors that Justice Kennedy thought were problematic in the Michigan program. So if he sticks with the position he took in the Michigan case nine years ago, he ought to vote to uphold the UT program.

  • 10:16:17

    REHMWell, rather than focusing on predicting what he will do, let's just say that the court votes against Abigail Fisher and says you cannot have this preference simply because of the way the state population is formed. What is that going to mean for affirmative action in the coming years?

  • 10:16:51

    COLEWell, you know, I agree with Stuart. It really depends on how they arrive at a decision.

  • 10:16:54

    REHMOK.

  • 10:16:54

    COLEI mean, if they uphold the UT program, then basically things stay where they are, which is that universities are permitted to consider race but only as one factor, only as part of a holistic consideration of the entire file without aiming at any particular goal. But if they strike it down, I mean, you know, and the challengers, I think, recognizing that their case is largely based on a misrepresentation of the record, is really seeking to get a reconsideration of the entire approach.

  • 10:17:24

    COLEIf they were to adopt that and strike down affirmative action, what you'd see is basically no African-American representation in the top 25 universities in this country at least.

  • 10:17:39

    REHMAnd that's my question. Could this go beyond universities to the workplace, for example, Stuart?

  • 10:17:49

    TAYLORIt possibly could, although the Supreme Court has always treated universities as having a special...

  • 10:17:53

    REHMSeparate.

  • 10:17:54

    TAYLOR...element of diversity is especially important there as part of the learning process and so forth. And so they could slice it back somewhat without having an effect on other cases. Or they certainly won't telegraph, in this case, I don't think, here's what we're going to do about preferences in the job market or whatever, here's what we're going to do about preferences. But I'd like to just quickly respond to one thing David said.

  • 10:18:17

    TAYLORI'll respond in a minute, if I may. It's the size of the preferences are so large, 467 points between Asians and blacks at the University of Texas on the SAT score that, I think, they sort of belie these holistic stuff.

  • 10:18:35

    REHMStuart Taylor, legal affairs journalist. His forthcoming book is titled "Mismatch: How Affirmative Action Hurts Students It's Intended to Help."

  • 10:20:04

    REHMAnd welcome back. As we talk on the opening day of the court's 2012 -- the U.S. Supreme Court's 2012-2013 term at this very moment, the issue of Kiobel v. Royal Dutch Petroleum is, as my guest just said during the break, about 13 minutes into the argument. Stuart, what is this case all about?

  • 10:20:39

    TAYLORIt goes back to a 1789 law passed to us by the first Congress as part of the Judiciary Act, called the Alien Tort Statute, and it's a very mysterious law. It basically says people wronged by human rights violations, international law human right violations or treaty violations, atrocities, for example, in Nigeria as in this case, can sue for damages or perhaps other relief. This statute was dormant on the books until 1980 when it was revived in the case from Paraguay where a Paraguayan victim tortured by Paraguayan bad guys in Paraguay managed to get a suit to go forward in the United States.

  • 10:21:20

    TAYLORHighly unusual. The usual thing with American laws is we don't adjudicate things that happened overseas. So this case comes along. The plaintiffs are Nigerians who claim that they were victims of atrocities by the Nigerian government and that three European oil companies -- because they were protesting oil exploration -- were in on it, that were complicit with the government, and, therefore, the oil companies ought to pay them a lot of money.

  • 10:21:45

    TAYLORNote that, by the way, that most of this happened more than 20 years ago, which is the way of litigation these days. So the court is going to consider, after a big build up, which David can probably help tell you about, is going to consider whether they should cut back on the application of this law and either say, we're never going to apply it to things that happened in foreign countries or in a lot of cases, in most cases, we won't. And that's the Obama administration's position.

  • 10:22:11

    REHMBut there is a U.S. corporation involved here. And doesn't that make this case a little different?

  • 10:22:20

    COLEWell, it's a -- Royal Dutch Shell is incorporated in the Netherlands, but it has plenty of businesses, offices here and presence here. And that's why it could be sued here. The plaintiffs also, the Nigerian plaintiffs, who were the victims of torture and the like, are here as asylees. They were given asylum because of the risk that they would be tortured and persecuted if they went back to Nigeria. And the Alien Tort Statute -- the one thing I would differ with Stuart on is the notion that the United States doesn't frequently adjudicate issues that arise in other countries, torts that arise in other countries.

  • 10:22:58

    COLEThere's a doctrine called the transitory tort doctrine that basically says that wherever a tort happens, if you can find the defendant in country B, even though the tort happened -- the injury happened in country A, you can sue the defendant in country B. So what the Alien Tort Statute did was it said, OK, we understand that state courts are going to be hearing cases arising in foreign countries not infrequently under this doctrine.

  • 10:23:24

    COLEIf the defendant is here and can be sued, he's answerable. They're said, we're going to carve out a subset of these cases. Those that are most sensitive internationally that involve aliens raising law of nations violation, international law violation, and we're going to put those into federal court on the theory that federal courts are going to be more sensitive to the federal interest that are at stake. And that's really what it's been about. It's been used to advance human rights for about 20 years.

  • 10:23:56

    COLEThe Supreme Court upheld it a few years back in a case involving U.S. -- alleged U.S. involvement in human rights abuses in Mexico. And the question is just how far can it extend to entities that are not -- that are sueable here, but aren't actually present here.

  • 10:24:14

    REHMBut the question becomes, why 20 years later? And is this case all about money?

  • 10:24:23

    COLEI don't -- well, it's certainly not all about money. I mean, I'm -- I've done a number of these cases when I was at the Center for Constitutional Rights. That's the organization that brought the first case, the Filartiga case, the Paraguayan case that Stuart talked about. And I've represented a number of individuals. And what these individuals want is vindication. These are people who have been tortured or have had family members disappear.

  • 10:24:45

    COLEThey're interested in vindication and holding people accountable who have done truly horrific things. And the principle here is simply that those cases, which could be heard in state court, will be heard in federal court if the alien so chooses where it involves international human rights.

  • 10:25:03

    REHMStuart.

  • 10:25:04

    TAYLORIt's interesting that the Obama administration, I think, would say to David, you got a doctrine. We got a doctrine. Our doctrine says it's a presumption that we don't hear cases that are extratorial unless Congress says we should specifically. But more broadly, it's interesting. They started out on the side of the plaintiffs in this case when the case got rolling. They filed it for another court brief, saying in essence, the plaintiff should be able to go forward. And they changed their mind over the course of the case. And now they're saying the plaintiff should not be able to go forward.

  • 10:25:34

    TAYLORAnd they have a complicated set of rules they would apply, the basic effect of which would be to wipe out most lawsuits that have been filed under the Alien Tort Statute. And one thing I might add, it's true that sometimes the victims of these are horrible -- are victims of horrible human rights violations.

  • 10:25:53

    TAYLORBut, for example, one of the big cases that made it a long way was basically a class action by the entire population of South Africa, the black population, against every major company in the world because all of them had done business in South Africa. I wrote a long column basically saying, what good is this going to do anybody except the lawyers who brought the case?

  • 10:26:15

    COLEAnd that's a legitimate question. But what's interesting about that case is that application of normal doctrines led to a very significant narrowing of that case so that it is not against all companies who did business in South Africa, and it focuses on the most egregious human rights violations.

  • 10:26:33

    REHMWhat about the question of how the case Citizens United relates to this particular case? David.

  • 10:26:43

    COLEWell, that's an interesting question because the -- when this case first came up to the court, which was last year -- and it was argued last year. This morning's argument is a re-argument, which is pretty unusual, the heard argument last year. The issue in the case last year was, can corporations be sued for human rights violations? And the corporation, Royal Dutch Shell, is arguing, no, corporations cannot be sued for human rights violations. They're different from people. But, of course, in Citizens United, the corporations argued, we are people.

  • 10:27:15

    REHMAre people.

  • 10:27:16

    COLETherefore, we have First Amendment rights. Therefore, we can spend unlimited amounts of money in campaigns. So for the court to say, on the one hand, corporations are people when they want to spend millions of dollars, you know, skewing elections, but they're not people when we try to hold them accountable for human rights violations, I think was unacceptable even to the conservative members of the court.

  • 10:27:35

    COLEAnd so now they've shifted to this other theory, this extraterritoriality question, asked for re-argument. The result might be the same. It might be to basically insulate corporations from liability in many, many cases, but it doesn't have that same kind of feel.

  • 10:27:51

    REHMInteresting. Stuart.

  • 10:27:52

    TAYLORTwo things: One, I think the reason the court said, hey, we want to hear about this broader issue of extraterritoriality rather than focusing on corporations is not they were embarrassed by Citizens United. I think they thought that that was a bigger and more important question by far. I think David and I concede that in American law for many, many decades, corporations have been deemed people for some purposes and have not been deemed people for other purposes.

  • 10:28:20

    TAYLORFor example, all of the First Amendment cases, New York Times v. Sullivan, et cetera, a lot of them freedom of the press. Those are corporations that brought those cases. And, therefore, I don't think you need to be embarrassed if you think Citizens United was right, and you also think that corporations shouldn't be sued. I think the questions are very particularized.

  • 10:28:41

    COLEI can...

  • 10:28:41

    TAYLORIt's a nice rhetorical point.

  • 10:28:43

    COLEI can bet that not a single justice will rely on the corporate status of the defendant in this case.

  • 10:28:50

    REHMOK. I'm particularly interested in this so-called dog sniff case because I came in late last night on an international flight to Dulles. Not only were there police with guns as we came in, there were also dogs sniffing all of the suitcases. And, indeed, one beagle -- I've never seen a beagle used as a dog sniffer. A beagle apparently sniffed fresh fruit in somebody's suitcase. They had to open all the suitcase, take everything out. What's the case about?

  • 10:29:39

    COLEWell, your example is, of course, an area at the border where, essentially, the Fourth Amendment doesn't apply. And the courts have said, in order to do border enforcement, you know, they can require everyone to open.

  • 10:29:50

    REHMOf course.

  • 10:29:51

    COLESo -- but the question here is, when you go away from the border and you use -- you sort of walk around with dogs and have them sniff people, luggage, houses, et cetera...

  • 10:30:03

    REHMHouses.

  • 10:30:03

    COLERight. What is the -- and so there's two cases, actually, in the court. One is the court has previously said that a dog sniff of luggage or a dog sniff of a car for drugs is not a search because all it reveals is the presence or absence of contraband. That's the theory, anyway, and you don't have a legitimate interest in the privacy of the presence or absence of contraband. But now the question is, can the police, without any individualized suspicion, just take their dog out and go up to anybody's house and have the dog smell the house?

  • 10:30:38

    COLEAnd is that a search? Because -- or -- again, historically, the court has said the house is sort of the sine qua non of privacy. That is where we protect privacy most strictly. It's absolutely essential that people have privacy in their home. And so how do you marry this rule that says a dog sniff is not a search with this rule that you generally cannot use techniques to try to figure out what's going on inside the house without obtaining a warrant?

  • 10:31:08

    TAYLORNow, I hate to disappoint David, but I'm going to have to agree with everything he said about that.

  • 10:31:12

    TAYLORI do want to point to two significant oversights. One, the dog in the house case was named Franky, and, two, the dog in the other case was named Aldo. And Aldo was deemed to be unreliable or not proven sufficiently reliable as a sniffer, and that was the crux of that case. And, actually, the serious point underlying it is they ought to have evidence put on, when they want to use a dog sniff, that shows that this dog can be trusted on that kind of a thing...

  • 10:31:42

    COLEThat's right.

  • 10:31:42

    TAYLOR...how well was he trained, et cetera.

  • 10:31:44

    COLERight, and that's the other case. The other case is, does the fact that a dog sniff -- that a dog alerts, is that probable cause in and of itself? Or do the police have to show that there's some reason to trust this dog? When an informant comes in and says, I saw drugs, you know, in this apartment, you have to -- the court has to assess whether this informant is credible, reliable, has a good track record. Dogs, we just trust them.

  • 10:32:09

    COLEAnd, in fact, there's no nationally certified training regimen for dogs. I can attest, based on my own dog, that training doesn't necessarily lead to the best results.

  • 10:32:20

    COLEAnd so dogs might alert to drugs, but they also might alert to a pork chop. And so, is -- should we just treat any dog alert as automatic probable cause? Because then what that means is the police will then be coming in to conduct a real search.

  • 10:32:33

    REHMBut if the court were to allow this dog sniffing of homes or residences to occur, couldn't it be argued that you could carry that on and have dog sniffing on the street for individuals who might be carrying some kind of contraband?

  • 10:32:57

    COLEWell, actually, they've already allowed that. They've already said that a dog sniff of a -- well, I don't know if they've said a dog sniff of a person. They've said a dog sniff of luggage and a dog sniff of a car...

  • 10:33:07

    REHMOK.

  • 10:33:07

    COLE...is not a search, but, yeah. But I think, you know, you raise a really important point here. The kind of image here is if they say there's no Fourth Amendment issue because it's not a search when you use a dog sniff, then there's nothing to stop the police from going out and going down any street they want, targeting anybody they want without having a good basis for doing so.

  • 10:33:29

    REHMDavid Cole is professor of law at Georgetown University Law Center, author of "Less Safe, Less Free" and "Terrorism and the Constitution." And you're listening to "The Diane Rehm Show." We're going to go through a couple of more cases, and then we'll open the phones. I hope you'll join us. 800-433-8850. There was a New York Times editorial on the drunk driving blood test case. Stuart, tell us about that one.

  • 10:34:14

    TAYLORBasically, a fellow is pulled over for speeding...

  • 10:34:17

    REHMRight.

  • 10:34:18

    TAYLOR...and the police officer goes up to him and smells alcohol in his breath, by his account. And he's acting strange, and he can't do -- he can't walk the line. And so he wants to nail -- he wants to make it a drunk driving case, and he wants to nail it down with irrefutable evidence. He asked the man to blow into a bag. The man refuses, which is his privilege to do. So he takes him down to the hospital or clinic and has a blood sample taken from him involuntarily...

  • 10:34:47

    REHMWhoa.

  • 10:34:47

    TAYLOR...involuntarily, so they can test it for alcohol, which they do. And it helps convict him. The issue in the case is whether they should have gotten a warrant before taking his blood. And the argument of the state is that, well, blood -- alcohol in the blood dissipates over time, and therefore we got to hurry this up. We can't fool around with warrants. The argument from the other side is you had plenty of time to get a warrant.

  • 10:35:15

    TAYLORYou could have still done it. Police ought to have to get warrants for cases like this, and, therefore, it's unconstitutional. My quick two cents would be the danger that the police are going to run around, taking random blood tests of people just for fun or for some illicit purpose strikes me as sufficiently small so that I'm not that impressed by the need to have a warrant here.

  • 10:35:37

    REHMDavid.

  • 10:35:38

    COLEYeah. I don't know that the danger of improper blood tests is all that great, but I think the principle is what's important here. And the principle is that, when the police have time to get a warrant to conduct a search -- and the court has long recognized that taking somebody's blood is obviously a search. It's a very intrusive search -- they have to get a warrant.

  • 10:36:01

    COLEAnd the situation in which they don't have to get a warrant is when there is a true exigency, which means that going to get the warrant will mean that the evidence is gone. And the -- they say, well, you know, the evidence of alcohol in blood dissipates over time, but their own...

  • 10:36:17

    REHMHow quickly? Do we know?

  • 10:36:18

    COLEWell, how -- right. Not that quickly, and their own practice refutes this because this same officer had repeatedly done blood tests on drunk drivers or suspected drunk drivers in the past only after getting warrants. And he makes no showing in this particular case, and that's why the lower courts ruled against him that there was any reason that he couldn't have gotten a warrant very expeditiously.

  • 10:36:42

    COLEAnd then you at least have the protection of a independent, neutral judge. That's the whole idea of a warrant, is that the police get caught up in catching police -- catching criminals. They don't care as much about the privacy interests. So you give that decision about whether you can invade privacy to a neutral arbiter. And when you have time to do that, you should, and, here, there was time to do it.

  • 10:37:04

    REHMIf the officer had previously gotten warrants, what was his reason for not getting a warrant in this particular case?

  • 10:37:15

    TAYLORThe guidance he had gotten from his leaders was -- and it sounds like he was quite conscientious. He read in a -- some manual. He used to get warrants. And he said -- sort of said, you don't have to do that anymore. I think David characterizes the case properly. The question is sort of a line drawing question. Where do you draw the line?

  • 10:37:32

    REHMStuart Taylor and David Cole, they'll be answering your questions on what the Supreme Court's going to be considering this year. Do join us.

  • 10:40:03

    REHMAnd just before we go to the phones, we have a little bit of news from the Supreme Court, from Lyle Denniston, a reporter on the court issues, who says the Supreme Court opened its new term by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law. What's this mean, David?

  • 10:40:42

    COLEWell, it's a little unclear from this report, but what the report goes on to say is that the court has asked for the solicitor general's views, which is something that the court not infrequently does. It hasn't decided whether to grant this request for re-hearing or to grant this request to take this case. It's just asking the solicitor general, what do you think -- given that it's a federal law, do you think we should consider or not, although I think it's probably unusual that they do that on a request for re-hearing.

  • 10:41:13

    COLEThis is a case in which the court previously denied a review of the case and that the Liberty University bringing the challenge has come back and said, well, we just think you should rethink your denial. They've asked the solicitor general for views. But it may well be just -- you've decided the health care case. That has -- might have some implication on this, and before you consider it, let's hear what the federal government has to say. So I think it's very early to -- too early to say whether this will really lead to another big health care challenge.

  • 10:41:42

    REHMAll right. Let's open the phones, going first to Daytona Beach, Fla. Good morning, Patrick.

  • 10:41:49

    PATRICKGood morning, Diane. How are you today?

  • 10:41:51

    REHMI'm fine. Thank you, sir.

  • 10:41:53

    PATRICKI have a question about -- and I've been around a while. I'm over 50, so I guess you could say I'm kind of a middle-of-the-road person. But this case in Texas, I can never wrap my head around this issue of diversity. And when we've become -- we're a society where we feel that taking diversity is better than having the best and the brightest and the smartest contribute. I don't understand that.

  • 10:42:27

    PATRICKAnd I can also say this from another standpoint. I have a son that's handicapped. And although there are some things that allow him to participate, from a federal standpoint, like accessibility and things of that nature, I never expected for him to be accepted or gone to places 'cause he wasn't able to do it or qualify to do it. If he's qualified to do it, then he should be able to do it.

  • 10:42:52

    REHMStuart.

  • 10:42:53

    TAYLORI think Patrick's view is the majority view of the American people, I believe. By a wide margin, polls and other (word?) have shown for a long time that people do not like -- most of them -- having race give somebody an advantage over somebody else. One thing that's interesting about the current case is the entire American establishment, just about, is on the pro-racial preference side.

  • 10:43:18

    TAYLORSeventy-three friend of the court briefs filed on that side by hundreds of institutions and all the universities, all the educational associations, most of the Fortune 500 corporations. And so we have this huge disconnect between the ordinary citizen -- a lot of them like Patrick -- and the establishment, which, for its own reasons -- racial peace, whatever -- wants to have racial preferences continue, I think, indefinitely.

  • 10:43:48

    COLEYou know, I think the reason that the establishment, as Stuart calls them, are supporting this program is because they recognize the advantages of educating a diverse population, and they -- I mean, one of the most important briefs in the case comes from the military, saying, look, we need qualified officers. We need them from a range of backgrounds. And the, you know, the -- no university that I know of in the United States or, indeed, in any country admits based solely on test scores and grades.

  • 10:44:26

    COLETo get a interesting class, to get a class that reflects America, to get a discussion that really brings in perspectives, you look at socio-economic status. You look at whether someone's from a rural as opposed to a urban setting. You look at art and sports kinds of considerations. We even look very heavily at whether the person's father or mother went to the university. Why shouldn't we also consider race, which is certainly relevant to perspectives, when we're trying to create a diverse student body?

  • 10:44:51

    REHMAll right. And here's an email from Jeff in Rolla, Mo., who says, "In my town, the city government has applied consent to search with canines in public housing and has, on at least one occasion, subsequently searched and charged public housing recipients. There certainly is a drug problem here, but I'm not sure if this is the way to attack it." Stuart.

  • 10:45:35

    TAYLORIf I understand it correctly, that would mean if you want to be in that public housing, you have to sign a waiver and say, you can search me anytime with a drug-sniffing dog. If that's correct, I think there would be serious constitutional questions about such a policy because, in general, you couldn't require everybody to consent to that sort of thing. So can you put this special burden on people in public housing? What's your justification for that? It would be an interesting argument. I'm not aware that a case like that has come up.

  • 10:46:05

    REHMNot yet.

  • 10:46:05

    COLENow, there are cases on consent searches, and the court has said that if the police, for example, come up to you on the street or on a bus and say, can I search your bag, and you say, yes, that's a constitutional search. But this is an -- a kind of variant in which, in advance, you're asked to give a kind of blanket consent, that's a very different question.

  • 10:46:27

    REHMAll right. To Louisville, Ky. Hi there, Chuck.

  • 10:46:32

    CHUCKHi, Diane. Hi, panel, and nice to talk to everybody this morning.

  • 10:46:35

    REHMThanks.

  • 10:46:36

    CHUCKHi there. Just -- actually, something came up in -- from the last caller -- I believe his name is Patrick -- about diversity. The phrase, using the best and the brightest, is kind of a buzz phrase that's being used by non-minorities in the country to kind of campaign against this sort of thing. The point, as far as college admissions being used to -- or, you know, just various criteria being used for college admission makes a lot of sense in most cases and doesn't make sense in others. And I think it's something that we need to look at on a case-by-case basis, not a sweeping policy.

  • 10:47:07

    CHUCKBut the main reason that I called this morning is that it seems like the Supreme Court has been acting, at least since Justice O'Connor left the bench, has been acting in much more of a politician role with following party positions and so forth with some rare exceptions. And the thing that I worry about right now is that the Affordable Care Act -- Justice Roberts basically ruled in favor of the Patient Protection and Affordable Care Act.

  • 10:47:37

    CHUCKAnd I'm terrified that he's going to basically be looking to "pay back" conservatives for that ruling. And in light of rulings like Citizens United, I think that's an incredibly well-founded fear, and just I wanted to get your thoughts on that.

  • 10:47:52

    COLEWell, you know, it is true that we have a court that divides very predictably on controversial cases on 5-4 grounds and that the deciding vote in almost all of those cases is one justice, Justice Kennedy. And that's troubling. And when Justice O'Connor was on the court, she was often a swing vote. Justice Kennedy was often a swing vote. Justice Souter and Justice Stevens were both often swing votes the other way.

  • 10:48:21

    COLESo -- but now you have four justices -- Roberts, Scalia, Thomas and Alito -- who almost always vote conservative and four justices -- Kagan, Sotomayor, Breyer and Ginsburg -- who almost always vote liberal on these hot-button issues. And so it turns on one justice, Justice Kennedy.

  • 10:48:44

    REHMAnd talking about hot-button issues, which same-sex marriage cases do you think the court's likely to take up, Stuart?

  • 10:48:56

    TAYLORWell, there's a passel of them, like nine or so, that are flying around. And I don't know the names of them all, but they are -- they fall into two categories. Most of them are about DOMA, the Defense of Marriage Act. And there are constitutional challenges by people to the provisions, section three of the Defense of Marriage Act, which was signed by President Clinton in 1996, challenges to the provision that says, federal benefits of all kind will be denied that are available to traditional married couples will be denied to same-sex couples.

  • 10:49:28

    TAYLORThe argument is that this denies their rights of equal protection, discriminates against them. The Obama administration has, in a pretty unusual move, accepted that argument. They said, that's right. We think it's unconstitutional, and we're going to concede that. Other people, Republicans in Congress, have come in to argue the other side, but -- so that -- they're almost certain to take that because lower courts have held the law unconstitutional.

  • 10:49:50

    TAYLORAnd when lower courts do that, the court almost always says, well, we'll be the last word on that. The other one is the California gay marriage case, which is already sitting in front of the court waiting to be taken. And basically, the Federal Appeals Court in California held, in a kind of tortured, narrow holding, that gay marriage must be allowed in California. And it's not as clear whether the court's going to want to take that on or not.

  • 10:50:18

    REHMDavid.

  • 10:50:19

    COLEI agree with that. I think they will take the federal law case because they generally review federal statutes that have been declared unconstitutional. And deciding that this law is unconstitutional does not necessarily call into question every state law on same-sex marriage.

  • 10:50:36

    COLEIt just says, the federal government, which usually doesn't play a role in defining marriage, shouldn't, for no good reason, come in and say, where a state has recognized same-sex marriages as the same as opposite-sex marriage, we're going to deny all kinds of benefits, Social Security and the like, survivor benefits to same-sex couples. To hold that doesn't, as they say, call into question the legitimacy of a state making a choice to recognize one kind of marriage and not another kind of marriage.

  • 10:51:11

    COLEI think, ultimately, they're going to have to take on that question, but they may not want to take it on right now. The country is clearly moving in the direction of recognizing same-sex marriage. There is no good argument for not recognizing same-sex marriage. There just isn't. And when you look at polls, young people overwhelmingly recognize that.

  • 10:51:31

    COLEAnd so this is an issue on which we are sort of moving forward. And the question is, does the court want to let that development go through the political process? Or does it want to get involved early, issue a decision which might cause a lot of push back in many sort of traditional states that are going to object mightily to being told they have to recognize same-sex marriage?

  • 10:51:57

    REHMBut, really, what's at stake, Stuart, with challenging the whole Defense of Marriage Act?

  • 10:52:05

    TAYLORWell, challenging -- they're only challenging part of it. They're challenging the part that says no federal benefits to same-sex couples. There is a lot at stake there because there is a lot of federal benefits. David mentioned Social Security survivor benefits. There are state tax benefits. There are other survivor benefits. Frankly, it's a long, long list, and I couldn't start down it right now. So it's pretty important to same-sex couples, maybe most same-sex couples eventually.

  • 10:52:33

    TAYLORThe gay marriage issue is a little bit less directly important. For example, California, which is at issue, gays in California, under state law, have every single right that married couples have except the state doesn't call them "married." That's the issue in this case. And I think the, you know, the effect of having the state not refuse to say certain things about your marriage is not what I would call oppression.

  • 10:52:59

    REHMAnd you're listening to "The Diane Rehm Show." We cannot not talk about the Voting Rights Act and to what extent you believe the court will take that up this term and what the issues are that might effect their ruling in that kind of case. David.

  • 10:53:23

    COLERight. Well, the particular challenges at issue is to what's called section five of the Voting Rights Act, which identifies particular states and counties around the country and requires them to get approval -- it's called pre-clearance from the Justice Department -- before they make any change in their voting laws. And this was enacted initially in 1965. And it was really aimed at those states which were repeat offenders in denying African-Americans access to the vote.

  • 10:53:53

    COLEAnd they said, given your track record, you've got to get approval. But this court three years ago, in another Voting Rights Act case, said, you know, that was then. This is now. 1965 is different from 2009. We don't have a kind of a record of repeat offending from the -- these states.

  • 10:54:14

    COLEIt's not clear that these individual states should be required to come to the federal government to get approval in advance of every voting change, even ones that have been held to be legitimate and legal in many northern states. They're mostly southern states, plus Alaska, that are required to come hat in hand, so I think there's a -- it's a serious question, whether that provision of the Voting Rights Act will survive.

  • 10:54:41

    REHMStuart.

  • 10:54:42

    TAYLORI think, especially if you look at the background, the 2009 case in which they narrowly dodged a decision that looked like it was going to strike down the Voting Rights Act section five and then, you know, based on the oral argument, they narrowly dodged doing that. But in the process, Chief Justice Roberts wrote an opinion in which basically all nine justices, eight of them joined his opinion. Justice Thomas said the same thing, said that the Voting Rights Act raises serious constitutional questions.

  • 10:55:08

    TAYLORThat was really quite remarkable. All the liberals on the court were saying this raises serious constitutional questions, and I think that's a signal they were sending to Congress, the chief justice in particular. You know, Congress, this thing is outmoded. It needs revision. You ought to fix it. If you don't fix it, we're going to be back, and we may strike it down. And Congress basically ignored that. And some lawyers -- some scholars who were pro-Voting Rights Act said, Congress is really inviting a decision that it's not going to like.

  • 10:55:39

    REHMDo either of you expect any of the justices to retire after this term is over? David.

  • 10:55:52

    COLEI think it depends on the election.

  • 10:55:55

    REHMDo you?

  • 10:55:56

    COLEYeah. I think that if President Obama wins another term, you might see Justice Ginsburg step down...

  • 10:56:05

    REHMShe's 79.

  • 10:56:07

    COLESeventy-nine. She's still going strong, but...

  • 10:56:09

    REHMRight.

  • 10:56:10

    COLE...you know, she might want to step down rather than wait another four years, a possibility that a Republican is appointed. I mean, if a Republican gets to name the next justice to replace, say, Justice Ginsburg, then there will be no balance whatsoever on the court. It'll be -- there will be five very, very strong conservative votes, plus Justice Kennedy. Justice Kennedy will no longer be a swing vote.

  • 10:56:39

    REHMStuart.

  • 10:56:40

    TAYLORTo be symmetrical, the exact scene would be true if a liberal replaces any of the conservatives. The court is really at the tipping point. We're replacing a person with one ideology with a person to the other. It'd make a dramatic difference in how cases are decided.

  • 10:56:54

    REHMTalk about politics on the court. I mean, there is really not much question about that. Stuart Taylor, he is legal affairs journalist. His forthcoming book, "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It." David Cole, professor of law at Georgetown University Law Center and author of "The Torture Memos: Rationalizing the Unthinkable." Thank you both.

  • 10:57:31

    COLEThank you.

  • 10:57:32

    TAYLORThank you, Diane.

  • 10:57:33

    REHMThanks for listening, all. I'm Diane Rehm.

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