Guest Host: Susan Page

Many decisions before the Supreme Court hang in the balance between its conservative and liberal justices. In a new book about the role of politics in the highest court, a Harvard law professor argues the future of the court will be shaped by the competition between Chief Justice John Roberts and the newest member of the court, Justice Elena Kagan. Since her appointment just three years ago, Kagan has emerged as a leader among the liberal judges. Guest host Susan Page talks with a Supreme Court scholar about a court that is formally led by Roberts, but may be intellectually led by Kagan.

Guests

  • Mark Tushnet law professor, Harvard Law School.

Read An Excerpt

Excerpted from “In the Balance: Law and Politics on the Roberts Court” by Mark Tushnet. Copyright © 2013 by Mark Tushnet. With permission of the publisher, W.W. Norton & Company, Inc.

Transcript

  • 11:06:54

    MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. In the Senate confirmation hearings, John Roberts compared Supreme Court justices to baseball umpires. He said judges don't have an agenda. They simply call balls and strikes. In a new book, Harvard Law Prof. Mark Tushnet says the reality is more complicated.

  • 11:07:15

    MS. SUSAN PAGEHe argues that the court, led by Chief Justice Roberts, is reshaping legal precedent to decisions determined by politics as much as by law. The book is titled "In the Balance: Law and Politics in the Roberts Court." And he's with me in the studio. Welcome to "The Diane Rehm Show."

  • 11:07:32

    MR. MARK TUSHNETThanks for having me.

  • 11:07:33

    PAGEWe invite our listeners to join our conversation later in this hour. You can call our toll-free number, 1-800-433-8850. Or find us on Facebook or Twitter, or send us an email at drshow@wamu.org. So your book is titled "In the Balance." You say the Roberts court is closely balanced between -- on politics and on intellectual issues. Explain that balance.

  • 11:08:01

    TUSHNETThe standard thing to say about the current court is that it's relatively evenly divided between people who are characterized as conservatives and people who are characterized as liberals, with Anthony Kennedy being the swinging justice. And that's basically an accurate description. So you have a balance of five roughly conservative justices and four roughly liberal ones.

  • 11:08:27

    TUSHNETAt the same time, it's wrong to emphasize sort of narrow partisan politics in the Supreme Court. The justices do deploy sort of the political theories or attitudes or ideologies that are connected to liberalism and conservatism. But they don't decide cases with an eye to what the Republican majority in the House wants.

  • 11:09:01

    PAGENow, you have -- and you actually worked as a Supreme Court clerk for Justice Thurgood Marshall. And I wonder, to what degree, though, does kind of the partisan politics of the day, what Congress is likely to do, what the president thinks affect Supreme Court decisions, not at all or in some ways?

  • 11:09:20

    TUSHNETMy own view is that the effects of that sort of immediate politics are rare, unusual. When I do talks, the one case that always comes up is Bush against Gore, and that is -- it is hard to explain on any account other than, you know, mean partisan politics on both sides. I mean, Democrats voted one way. Republicans voted another on the Supreme Court.

  • 11:09:51

    TUSHNETBut take a case like the Affordable Care Act case a couple years ago. There was a division between conservatives and liberals, and it matched the division that was going on in the House and Senate. But the reason that the conservatives on the Supreme Court voted that Congress didn't have the power under the Commerce Clause to impose the individual mandate was not that that's what the House Republicans wanted.

  • 11:10:19

    TUSHNETRather, it was that over the past 30 years, conservative legal thinking has developed a theory about the proper scope of congressional power, and that's what they brought to bear on the case.

  • 11:10:32

    PAGENow, in that case, the Roberts vote was a surprise to many. He sided with the liberals. Why do you think he did that?

  • 11:10:39

    TUSHNETI have an explanation in the book that I think nobody else had reasoned with, but I think it's the right explanation. The case raised, for these purposes, two issues. One was the issue about congressional power under the Commerce Clause. And there Chief Justice Roberts did vote with the conservative to say that Congress didn't have the power under the Commerce Clause to impose the individual mandate.

  • 11:11:03

    TUSHNETAnd I say, as I've just suggested, that that's because he had available longstanding conservative theory about the Commerce Clause. The other part of the case was whether a mandate -- or the penalty imposed for the mandate for refusing to have health insurance could be characterized as a tax, and if it was a tax, was it within Congress' power?

  • 11:11:28

    TUSHNETMy account is that the chief justice basically hadn't thought about that issue before it came in the context of this case. There was no longstanding conservative theory about the scope of the tax power. And so he approached the problem as a legal problem. What do the cases say? What does the Constitution say and the like? And my view is that, in doing that analysis, he decided that Congress did have the power under the tax laws to say, if you don't have health insurance, we're going to tax you by this amount.

  • 11:12:08

    PAGESo you take him basically at face value, that he did what justices -- what we think of justices trying to do, which is look at the situation and apply the law?

  • 11:12:16

    TUSHNETYes. Basically, I think that's right. I should say that I think that happens more than people are accustomed to thinking. We are accustomed to saying, well, they're conservatives or liberals. And they look at the cases, and they say, what would a conservative do in this case? And then they just do it. Or what would a liberal do with this case? And just do it.

  • 11:12:39

    TUSHNETI actually think that happens most of the time, but in a fair number of cases, for a number of the justices, they actually approach the cases as if they're really legal questions. That's why I call the book "Law and Politics in the Roberts Court."

  • 11:12:56

    PAGEPeople may not expect that because we live in such hyper-partisan times in many other institutions, including a lot of the institutions here in Washington.

  • 11:13:06

    TUSHNETYes. I think that's right. Another aspect of it, frankly, is a difficulty in communicating the legal dimensions of things to a general public that understandably is not educated about legal technicalities.

  • 11:13:22

    PAGEThere were a lot of people, in looking at the Affordable Care Act decision, who thought Chief Justice Roberts didn't want the political heat of overturning President Obama's signature domestic initiative and that that played with his decision, decide with the liberals.

  • 11:13:38

    TUSHNETI talk about that in the book. And here's what I have to say. The case is argued in March or April, and the -- so he's got to decide how to vote in March or April of an election year. And I go through -- I say, well, suppose you really did just want to do whatever was going to be best for the Republican Party.

  • 11:14:03

    TUSHNETAnd when you try to think about what that is, you'd go crazy. You have no idea in March or April what's going to be best for the Republican Party. Strike it down, and that may energize Republicans to support whoever the nominee will be. Uphold it, it might energize Republicans. We can't count on the Supreme Court. We really have to have a president who will do it.

  • 11:14:29

    TUSHNETSo I don't think that it's plausible to say that he was concerned about long-term kinds of things. There's another account, which he's concerned about the long-term reputation of the Supreme Court. I think that's the same problem. You could vote either way and have a theory about how that was going to help the Supreme Court.

  • 11:14:51

    PAGEOf course, one reason people might inaccurately, in your view, see the court's actions and decisions in very partisan terms is because the process of getting onto the Supreme Court has become such a political one.

  • 11:15:07

    TUSHNETThat's certainly right. And when you look at what happens in the nomination process, that is, by design, a political process. We have a president who nominates and a Senate that confirms. But -- and those decision makers do care about politics of the person they're appointing. But they're -- people are being appointed for a long time.

  • 11:15:36

    TUSHNETAnd all that you really can hope for is somebody who will be, as I put it in the book, reliable over the long term. You can't get guarantees on any specific issue. So if you're a Republican nominee -- president, you're going to be looking for somebody who's a reliable conservative, but that doesn't tell you how that person's going to vote in any particular case.

  • 11:16:01

    TUSHNETAnd Democrats turn out to be, I think, less concerned about reliability. They have certain baselines of requirements, and then the appointment process is one of satisfying different constituencies in the Democratic Party. But -- and just to take Chief Justice Roberts and Justice Alito, when President Bush was deciding who to nominate, he had no idea that the Affordable Care Act was going to be on the horizon and so, you know, wasn't looking for somebody who would be reliable about that.

  • 11:16:39

    TUSHNETHe was concerned about anti-terrorism issues. And I think he probably wanted assurances -- not explicit, but wanted to be confident that Justice Alito and Roberts would be reliable on an anti-terrorism issue. Okay. Fine. There hasn't been a major anti-terrorism case in the Supreme Court for several years. So President Bush may have gotten what he was looking for, general conservatism and results on anti-terrorism issues. But then there's this whole swath of cases that weren't of concern at the nomination stake.

  • 11:17:17

    PAGEYou said that the exception to this generally nonpolitical attitude on the part of justices is Bush v. Gore, decided on partisan lines. Could that have been decided in another way? Or once it got to the court, was it inevitable that it would look like a pretty partisan enterprise?

  • 11:17:38

    TUSHNETOnce they decided to hear the case, it was clear that they were going to rule for George Bush to become President Bush. It's not clear to me that they had to decide it. And so the very decision, to enter into it, was the thing that generated the partisan coloration of the case.

  • 11:18:05

    PAGEThe thing that, as someone who was covering that era of our politics, I have to say the thing that surprised me was that once the court decided on that, by and large, Americans, even Americans who had voted for Al Gore, accepted the decision. There wasn't a question about whether there would be some effort to deny or defy the Supreme Court.

  • 11:18:25

    PAGEWe're going to take a short break. And when we come back, we'll continue our discussion about the new book "In the Balance: Law and Politics in the Roberts Court." We'll take your calls and questions. Our phone lines are open, 1-800-433-8850. Or send us an email to drshow@wamu.org. Stay with us.

  • 11:20:00

    PAGEI'm Susan Page of USA Today, sitting in for Diane Rehm and with me in the studio, Mark Tushnet. He's a professor at Harvard Law School. He's the author of " A Court Divided: The Rehnquist Court and the Future of Constitutional Law." And he's written a new book called, " In the Balance: Law and Politics on the Roberts Court." In your book, you argue that the newest justice, Elena Kagan, has become the leading opposition to the chief justice. Tell us what you mean.

  • 11:20:31

    TUSHNETFirst of all, I'm not sure I would say opposition. But I do think that the story for the next five or ten years will be a story about a struggle for intellectual leadership on the Court, where the sides are Chief Justice Roberts and Justice Kagan. Intellectual leadership means shaping the agenda, persuading people who are wavering at you're the -- you've got the better view of the law on the other side.

  • 11:21:08

    TUSHNETAnd the reason I single out those out, there are several components of it. First, both of them are extremely smart. Second, both of them are extremely personable. And so, when -- and I suppose I should make it clear, it is a group of nine people who have to live with each other for an indefinite period. And so, being able to get along is a real important component of generating useful interactions within this group.

  • 11:21:44

    TUSHNETChief Justice Roberts is a little somewhat more reserved than Justice Kagan. Justice Kagan is a very outgoing, extroverted woman. And both of them able to build the kind of, sort of affection or emotion that makes people sort of want to go along with them if they can.

  • 11:22:07

    PAGESo does the court as a whole, nine of them, do they tend to get along? Are they friends? Or is it like a lot of officer, workplaces where there are a couple of people you like, maybe there are some people you don't like so much?

  • 11:22:19

    TUSHNETThe justices always I guess they have this metaphor that the Supreme Court is a family. And I think that's not a bad metaphor. But what I use, what I suggest is that what you have to think about is sort of the Thanksgiving dinner in a big family where you have everybody together and there is a lot of sort of friendly interaction. But they're almost always some tensions below the surface that sometimes breakout.

  • 11:22:50

    TUSHNETThe version I use, this may not be exactly right, but think about at this dinner the sons and daughters-in-law, the family members are there because there are family ties. The sons and daughters-in-law are there because they fell in love with members of the family but may not have any, you know, relation between themselves. And so, it's -- because it's very long term and everybody they're going to be there for a long time, it's probably a little more closer than office friendships. But it's also not everybody buddy-buddy getting along all the time.

  • 11:23:35

    PAGEWell, you write in particular about Chief Justice Roberts and Justice Kagan going after each other in the opinion on Citizens United that I think to a lot of people they would read some of the exchanges that you write about and think, well, that doesn't sound so harsh. What you're saying, by Supreme Court standards, it was pretty pointed. Tell us about that decision.

  • 11:23:55

    TUSHNETIn Citizens United, as most people probably know, the court held that Congress had violated the First Amendment by restricting the ability of corporations to spend money independently of candidates. And in the course of that opinion, the justices divided of course on, roughly speaking, political grounds. And in that campaign finance area, Justice Kagan has written quite sharply, describing one position as chutzpah or another -- she has this passage where she asks a rhetorical question and sort of pauses for answer.

  • 11:24:49

    TUSHNETAnd then assumes that everybody will give the same answer. And goes on. And they're stylistically very well done, but they are not the kind of thing that you run across in the Supreme Court opinions very often.

  • 11:25:05

    PAGENow, if there is this competition in a sense between Chief Justice Roberts and Justice Kagan and intellectual competition, isn't Justice Kagan constantly going to be at the losing end of that because of the balance at the court, you talk about it tends to be a 5-4 court against her?

  • 11:25:25

    TUSHNETFor the near term probably yes. Although it is worth noting that I had some colleagues sort of run some numbers for me. I couldn't do this myself. But in almost every case, there's one or two justices who's genuinely in play, as you might say, who might go in a counter-conservative or counter-liberal direction. And so even in cases that look from the outside as if they divide on liberal-conservative lines, there's no guarantee.

  • 11:26:04

    TUSHNETThey probably will, but there's not guarantee. But more important, this is a development of leadership on the Supreme Court is a long-term process. Both Justice Kagan and Chief Justice Roberts are relatively young by Supreme Court standards these days. They're going to be there for a long time. We don't know and they don't know what the composition of the court is going to be over the long run.

  • 11:26:34

    TUSHNETAnd so they will, you know, year by year you could probably predict who's going to come out ahead. But over a 15 or 20-year period, which is what's the relevant range for them, there will be genuine competition.

  • 11:26:51

    PAGEThe person in play, the justice in play, we most often think of that as Justice Kennedy as the quintessential kind of swing vote on the Supreme Court. You write that he likes that.

  • 11:27:02

    TUSHNETYes, he certainly does. It's nice in ego-satisfying ways to be the person who everybody is paying attention to. Now -- and he has a sort of a constitutional jurisprudence that has more, let's put it this way, flexibility than the constitutional jurisprudence of others of the justices. And so, he can be -- he can genuinely be in play in lots of different cases.

  • 11:27:38

    PAGELet's go to the phones. We'll talk first to Rose who is calling us from Pittsburgh. Hi, Rose, you're on the air.

  • 11:27:45

    ROSEHi. How are you?

  • 11:27:46

    PAGEGood.

  • 11:27:48

    ROSEWell, I guess my comment is a very short one. I happen to be a lawyer and I had the great fortune when I was in Akron to have Justice Arthur Goldberg as one of the professors. And my personality, I'm not afraid of titles and him and I talked on numerous occasions. One of our conversations, just like I'm having with you now. I asked him about Brown v. the Board of Education. And my question was, how did you come up with the way you voted?

  • 11:28:18

    ROSEBecause if my memory serves me, the word integration is nowhere to be found in that opinion. But the word -- I mean, I'm sorry, reverse that. The word desegregation is not in there. But the word integration is. How did you come up with that? And he said, we thought about it. We knew that it was going to impact the citizens. And how were the citizens going to basically accept the wording of our opinions.

  • 11:28:47

    ROSESo I think they still do that today. I mean, as you said, nobody objected to the Florida decision with the presidential elections.

  • 11:29:00

    PAGEAll right, Rose, thanks so much for your call.

  • 11:29:02

    TUSHNETI think it's clearly right that the justices are aware of the fact that they are part of a larger political system and that in the long run their ability to accomplish anything, to play a role in that system depends on public acceptance, if not enthusiastic endorsement, at least acceptance of what they do. And so they try to communicate in ways that capture some degree of public acceptance.

  • 11:29:38

    TUSHNETSometimes that's difficult when you're dealing with highly technical issues. It's hard to make them clear for lay, non-legal public. Sometimes they develop distinctive styles that allow them to communicate somewhat more effectively. But it is something that they are concerned about, that they think about as they draft their opinions.

  • 11:30:02

    PAGENow on Brown v Board of Education, of course, that's a decision that, in retrospect, looks like clearly the right one to do, moving our country along to more racial equality. There might have been a kind of some similar feeling about this year's decision on the Defense of Marriage Act, which was ruled unconstitutional and moved to recognize more same-sex marriages.

  • 11:30:27

    PAGEAnd do you think that there was, as the justices were considering that decision, there was concern about sort of not being on the wrong side of history when it comes to changing public attitudes about same-sex marriage?

  • 11:30:40

    TUSHNETI have no inside information about how they went about thinking about things. I do -- there's a great constitutional scholar, died in the 1970s Alex Bickel who once wrote something like, I never quoted exactly, correctly. But something like the job of the justices is to predict the future. And sometimes that means getting out ahead of where the country is going and the country catches up to you.

  • 11:31:15

    TUSHNETSometimes it means figuring out where the country is going and making sure that you're not standing in the way. I think that the gay rights issue may be one of those issues. I doubt that the justices sort of explicitly said to themselves, well, I don't want to be on the wrong side of this. But it's hard to believe that they were completely indifferent to the -- what seems to be the rather clear set of social trends in favor of gay rights.

  • 11:31:47

    PAGEAnd is it appropriate for them to be thinking about that?

  • 11:31:51

    TUSHNETIt probably is appropriate. Partly because they have to function as part of the political system as a whole. And if they are always, as I guess one of the conservative lines is, standing in the way of history and saying stop and history doesn't stop, then there are going to be problems with them as a functioning governmental institution.

  • 11:32:18

    PAGEIn his confirmation hearings, as we noted earlier, Chief Justice Roberts said justices should be like umpires, calling balls and strikes, not determining the outcome of the game. Has he acted that way?

  • 11:32:32

    TUSHNETUgh, so the metaphor everybody agrees is overstated. And even he has said he may have overemphasized the metaphor, played it too hard. It was obviously effective in his confirmation hearings. And so, you know, it worked to get him the job, which is I supposed one of the reasons for coming up with it. I do actually think, and I say this in the book, that in the Affordable Care Act case on these two issues, he saw one of the pitches, it doesn't matter which, one as a ball and one of them as a strike.

  • 11:33:12

    TUSHNETAnd he called them as he saw them. In general -- so there's this old joke that's not mine about the three umpires, one who says, I call them as they are. One of them says I call them as I see them. And the third says, they're nothing until I call them. He calls them as he sees. But, you know, his vision is affected by the general political ideology it comes to.

  • 11:33:39

    PAGEI'm Susan Page and you're listening to "The Diane Rehm Show." We're taking your calls at 1-800-433-8850. And in fact that point about the -- what that -- Elena Kagan made the kind of a similar point, didn't she, when she was up for confirmation that you don't just call balls and strikes. You could call balls and strikes, consistently favor one side or the other. She had a slightly different articulation of the role of a justice.

  • 11:34:11

    TUSHNETHer view is that, yes, you're trying to get the right answer because what the balls and strikes metaphor ultimately is about. But that with the issues that come to the Supreme Court, knowing what the right answer is requires the deployment of technical ability, which is what the umpire has. Some degree, well, judgment that's why we call them judges, and some degree of political theorizing, which is what we conventionally label conservative and liberalism.

  • 11:34:55

    TUSHNETBut it's actually more about general visions of the way a good government ought to be organized.

  • 11:35:03

    PAGEYou know, you also bring your life experiences to things when you're judging them, when you're assessing them, when you're trying to decide what the right to do. And so that's also something that must come into play. Where they grew up, what kind of life experience they had, where they went to school. And when you look at the judgments made by justices.

  • 11:35:22

    TUSHNETI think that's clearly right. One of the characteristics of this court is that the range of life experiences is, by historical standards, quite narrow. My own view is that that's a problem at this point that lead to broaden the range of experiences. But when Justice Thomas was nominated, a great deal was made about how his experience as a black in Georgia affected the way he thought about the law.

  • 11:36:01

    TUSHNETAnd that's true of all of them, in some sense. But -- it's not a court where you have people who have had a broad range of experiences over their lifetimes.

  • 11:36:17

    PAGEWell and in fact, we now have diversity by gender and some diversity by race. The first Hispanic on the court. We now have a court that, I think, amazingly, after years of having a court that was entirely protestant, we have a court in which there's not a single protestant, right?

  • 11:36:33

    TUSHNETRight.

  • 11:36:33

    PAGEAll Catholics and Jews. We also have a court now -- I know Harvard and Yale are great schools but we have a court in which eight of the nine justices went to either Harvard or Yale. I'm from Kansas, we have no Kansas on the court. This is a concern to me. It -- and looking in some ways, it's not a diverse court at all.

  • 11:36:49

    TUSHNETYeah, I agree with that. The religious one is sort of -- I find it amusing more than significant. It indicates, I think, that religious characteristics used to be important in our society. It matters whether you were Catholic or Jewish. It's clear that that has diminished quite substantially. It's not gone away entirely and the fact that there are no protestants on the court is just an index of that. The regional issues, I think, are quite significant.

  • 11:37:26

    TUSHNETIt's a court that's composed of people mostly from the East Coast, a little from the West Coast.

  • 11:37:33

    PAGEWe're going to take a short break. When we come back, we'll continue our discussion about this new book, "In the Balance: Law and Politics on the Roberts Court," our discussion with Mark Tushnet. Stay with us.

  • 11:39:58

    PAGEI said earlier in this hour that it had struck me how Americans had accepted the Bush v. Gore decision without much protest. That is not the case with all of our listeners. We're getting a lot of emails and calls with people who would disagree with my assessment of that. Here's just one of them from Michael in Texas. He writes, "I have all my life held the Supreme Court in high esteem. Much more so than any other segment of government, but after Bush v. Gore and then Citizens United they have fallen so far in my estimation as to be lumped with all the other special money interest pandering politicians."

  • 11:40:33

    TUSHNETSo there is this problem in thinking about Bush or Gore, in particular, but Citizens United has also fed into the view. And it is that, on the one hand, there were no, you know, massive protests after Bush against Gore partly because, I think, the division in the country was so close and nobody at the time was all that passionate about Al Gore or even, at the time, about George Bush, I think. I think it just happened to be those candidates, I think, at the time.

  • 11:41:09

    TUSHNETBut because of what you referred to earlier as a, sort of, hyper partisan state of the nation, lots of people now view the Court in the way that they viewed House and Senate and the presidency as of merely part of a body of the government. And the Court, you know, at some level will -- is susceptible to that view.

  • 11:41:39

    PAGEDoes that concern you? Is that a problem?

  • 11:41:42

    TUSHNETSo I'm a scholar of constitutional law, an observer not a maker. And so as a scholar it's an interesting fact that, I think, we all, as citizens, ought to be thinking about. I actually don't know whether -- I guess my view is that when you have a hyper partisan senate and house you shouldn't be surprised that you get something similar in views about the Supreme Court. If it is a problem, and it might be, the solution lies not in changing the Court, but changing the partisan atmosphere in which the Court operates.

  • 11:42:24

    PAGEOf course, that's been something that's been pretty hard to do, but let's go to an email from Mark in Jacksonville, Fla. He writes, "Your guest seems to be downplaying the political nature of the Supreme Court. How does he explain a character like Clarence Thomas who was reliably political in almost all of his decisions?" Do you agree with that assessment of Justice Thomas?

  • 11:42:45

    TUSHNETI think the answer is basically yes. Again, I want to stress I am playing down short term politics, but it would be wrong, and I don't agree, I don't think that it's true to say that long term political ideologies are irrelevant to the court. And that's what Justice Thomas is -- or exemplifies. It's also what Justice Breyer exemplifies. It's just a different vision of what the government should be doing. And that, I think, that's the way to think about it not Justice Breyer was appointed by a democratic president and Justice Thomas by a republican.

  • 11:43:30

    PAGEMarilyn has sent us an email from Colorado. She writes, "Could you comment on Clarence Thomas's wife. One of your guests, that would be the only guest here, the author Mark Tushnet, claimed that the justices are not political partisans. Yet Clarence Thomas's wife raked in big bucks in personal income while running a big right wing political action committee. Hello. That sort of thing tarnishes the Court's reputation."

  • 11:43:56

    TUSHNETSo I think there are two things I want to say. One is a general -- well, they're general points. One is the phenomenon that the emailer identifies is something that we're going to be dealing with from here on out. Not the particulars of Virginia Thomas's activities, but the fact that we are now going to have justices whose spouses have independent professional careers. And we're going to have to figure out how we deal with thinking about the spouse's career in relation to the justice's career. So that's the first one.

  • 11:44:43

    TUSHNETThe second point is that from the point of view of the justices thinking about their institutional role and thinking about their relations with their spouses they have to figure out what sort of relation -- what sort of role they want to play. Do they want to say to their spouse, look, the kind of thing you're doing causes perception problems and I really wish you wouldn't do it. Or are they going to say well, you know, you're your own professional woman. You have a career. Do what you think you want to do and I will do my best as a justice of the Supreme Court to act as a justice would.

  • 11:45:33

    TUSHNETAgain, as citizens, we're going to have figure out how to deal with that. I don't have any particular brief one way or the other for what Virginia Thomas does, but it is something that over the next decades we're going to have to struggle with.

  • 11:45:51

    PAGELet's go to the phones. We'll talk first to Daniel who's calling us from Miami. Daniel, thanks for holding on.

  • 11:45:57

    DANIELThank you very much, good morning.

  • 11:45:59

    PAGEGood morning.

  • 11:46:00

    DANIELI just wanted to ask on the topic of partisan politics about the recent controversy over the NSA leaks and the fact that there seems to be some agreement about the justification for that where we had Senator Feinstein saying this is something that's necessary for safety. And we had President Obama saying this was something that was to be expected. And I wanted to ask the guest how the Supreme Court would deal with that situation where a political atmosphere has affected the way the government is run -- has run against the Constitution.

  • 11:46:34

    PAGEAll right, Daniel, thanks for your call.

  • 11:46:36

    TUSHNETOf course, the Court has not yet dealt with any of these cases and as a, for technical reasons, it may be difficult for them to confront them, but the caller identifies an interesting, again an interesting phenomenon where there's, sort of, agreement among political elites outside the Supreme Court about what the right thing to do is.

  • 11:47:07

    TUSHNETIn those circumstances, I think, as a predictive matter you'd expect the Court to say on the whole what's been going on is constitutionally permissible. And that's true even if there's some degree of disagreement by more libertarian leaning people on both the left and the right. So I would expect that if the Court got these cases, and it may not, it would end up endorsing the program.

  • 11:47:36

    PAGEThanks for your call, Daniel. Let's go to Jack. He's calling us from Worthington, Mass. Jack, you're on the air.

  • 11:47:41

    JACKYeah, hi, thank you. Actually, first I wanted to say I thoroughly agree with Michael from Texas because my opinion of the Court has gone way downhill over the years. But the real question I had was the chief justice's position was filled because it was vacated. That person left and the President appointed Roberts to chief justice. Why can't a president when he comes into office appoint a person from within the Court to be the chief justice?

  • 11:48:15

    TUSHNETAs a -- this is a purely technical question and I'm not fully competent in the answer I'm about to give, but I think it's right. As a technical matter, I think the relevant statutes say that the person is nominated for a position. I think the statutes could be changed, not that they would be under any conceivable circumstances, to give a president the power to name a new chief justice, but as the statutes are currently written I don't think that could happen. And there would be some constitutional argument about the possibility of doing that.

  • 11:48:57

    PAGELet's go to Harrisburg, Pa. and talk to Blake. Hi, Blake.

  • 11:49:00

    BLAKESo, Susan, hi. You know, my question is concerned with these 5-4 decisions. That doesn't give me a lot of confidence in what the ruling statute's going to be. And going to what Justice Roberts had done with the medical -- Affordable Healthcare Act I don't have much confidence that everything is being considered appropriately with looking at the revenue that's being attached, how that revenue's going to be disbursed in what kind of category so that it doesn't appear to be a government that's imposing commerce on an individual against his will. It just seems like there's a private entity and then there's the government entities with it and how can they make a tax evaluation work in that case, you know?

  • 11:50:06

    PAGEAll right, Blake, thanks so much for your call.

  • 11:50:08

    TUSHNETSo on the 5-4 decisions I think the justices do have a sense that it's better for them, as an institution, to come together as often as they can. And they strive to reach unanimity or close to unanimity. And then you read stories about the Court. It'll often be the case that a story will emphasize well, this was, you know, an 8-1 or a 7-2 decision not a 5-4 decision and they think that, and probably properly so, that if it's 8-1 they'll have great popular acceptance.

  • 11:50:50

    TUSHNETAt the same time these issues are issues that -- many of them are issues that are genuinely divisive along these, sort of, deep philosophical grounds. And it's just not reasonable, I think, to expect that people will sacrifice -- justices will sacrifice their fundamental views about how the government should be organized simply in order to get a 7-2 or an 8-1 decision.

  • 11:51:19

    PAGEWe've talked about some of the justices and their roles on the Court. What about Justice Sonia Sotomayor has she changed the dynamic in the Court?

  • 11:51:27

    TUSHNETIt's not clearly that she's changed the dynamic. What I would say is that she is a person of real substance and solidity. When she walks in the room it's not as if people go gaga over her, but when she sits down and starts talking people understand that this is a serious woman who -- and what she says should be taken seriously. And that's true even -- I believe, she's had these two appearances on Sesame Street and they're really worth looking at on YouTube because her solidity comes across. The one thing that she has brought, I think, is real deep attention to the details of criminal cases. She was a prosecutor and a trial judge and she sees -- she cares about what actually happened in the facts of these cases.

  • 11:52:29

    PAGEAnd of course that goes to a point we were talking about earlier about the role that your life experience might play in bringing her judgment to the Court. I recently interviewed Janet Napolitano as she was exiting her job as head of the Department of Homeland Security. She is, of course, often mentioned as a potential nominee to the Court. And she made the point that diversity of life experience, and she herself had been a prosecutor and, of course, a governor, is something of value that this Court may lack.

  • 11:52:56

    TUSHNETIn addition to the lack of regional diversity, which we've already mentioned, and which is -- I talk a little bit about this in the book. The Court deals with western water law issues on a, sort of, regular basis and it's clear they have no idea what, you know, water means in the West. They basically have no idea of how the West is organized. But it's also the case that none of them really have had significant political experience. And that, I think, is a problem.

  • 11:53:27

    PAGEI'm Susan Page and you're listening to "The Diane Rehm Show." We're taking your calls 1-800-433-8850. Let's talk about one other Justice, Ruth Bader Ginsburg, a real ground breaker, quite a political leader in terms of the Court before she became a justice. What kind of role does she play on the Court?

  • 11:53:50

    TUSHNETShe's -- her personality is the opposite of Justice Kagan's. If Justice Kagan is outgoing and the room is dominated when she enters, Justice Ginsberg is very inward and shy in public settings. So she can't play the kind of coalition building role that Justice Kagan might, but she has been -- she's articulated a comprehensive liberal vision of society, of government over now more than 20 years. That's an important component of the Court's work.

  • 11:54:44

    PAGEWe have time for, perhaps, one more call. Let's go to Des Moines, Iowa and talk to Leonard. Hi, Leonard.

  • 11:54:48

    LEONARDHi, there. Actually I'm on I-35 just east of Wichita, but I live in Des Moines. My question is preceded with this anecdote. As it happens my last name is Tinker and I had occasion to meet Justice Douglas in a receiving line and he picked up on my last name and he said Tinker, Tinker. Did you have anything to do with those armbands? And I said well, Mr. Justice, it was my brother and sister, but he said -- I asked him how do you explain, Mr. Justice Black's dissent? Do you have a good explanation for Black's dissent? And do you think Tinker is good law today?

  • 11:55:26

    PAGEYou know, I want you just to explain briefly what he's referring to.

  • 11:55:31

    TUSHNETOK, there's a case called Tinker v., I think it's the Des Moines School District, in which some kids were expelled from school during the Vietnam War era for wearing black armbands as a protest for the -- against the war. And the kids were our caller's siblings. And Justice -- the Court said you couldn't expel them for these reasons. Justice Black who had been a reliable liberal on free speech issues got a little cranky in his older years and was dismissive of what he characterized as conduct. That it shouldn't be protected by the First Amendment. And so he dissented in the Tinker case.

  • 11:56:17

    PAGELeonard, I'm so glad that you called. It's so interesting to hear someone who's close to something that was quite historic with the Court. I want to thank our guest for being with us. Mark Tushnet, a professor at Harvard Law School and his new book is called, "In The Balance: Law and Politics On The Roberts Court." Thanks for being with us.

  • 11:56:34

    TUSHNETI was glad to be here.

  • 11:56:35

    PAGEI'm Susan Page filling in for Diane Rehm. And Diane is out this week for a cause dear to her heart. She's in California starring in a play to benefit Alzheimer's research. She looks forward to being back with you here on Monday. I'm Susan Page of USA Today sitting in for Diane. Thanks for listening.

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