Audio: http://www.npr.org/templates/story/story.php?storyId=113533758

October 6, 2009

The U.S. Supreme Court returned to session Monday with a new team member in newly-appointed Justice Sonia Sotomayor. The court is expected to delve directly into several important cases that could re-shape the law as it relates to the separation of church and state, gun rights and free speech, among other areas. Kimberle Williams Crenshaw, a law professor at UCLA and Columbia University, and former Supreme Court reporter Eva Rodriguez, who now writes for The Washington Post, offer analysis on what can be expected in the current session.

TRANSCRIPT:

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MICHEL MARTIN, host:

On to other news. The Supreme Court began its session on Monday with a new Justice, Sonia Sotomayor, and a new raft of cases that could re-shape and the separation of church and state, gun rights, free speech, and more. With us now to talk about the cases before the court is Eva Rodriguez. She’s a writer for The Washington Post editorial board. She’s a former Supreme Court reporter and a former editor-n-chief of Legal Times.

Also with us is Kimberle Williams Crenshaw. She’s a law professor of law at Columbia University and UCLA. Welcome to you both. Thank you so much for joining us.

Ms. EVA RODRIGUEZ (Writer former Supreme Court reporter, The Washington Post): Thanks.

Professor KIMBERLE WILLIAMS CRENSHAW (Law, Columbia University, UCLA): I’m happy to be here.

MARTIN: Eva Rodriguez I want to begin with you. You began your Sunday column with the quote that “Here’s the truth, a lot of important, really important Supreme Court cases would put most of us to sleep” end quote. But, you say that this session – not so much. How so? There are some headline grabbers here?

Ms. RODRIGUEZ: And they are and they’re both interesting and the kind of cases that would trigger natural conversations over dinner on a Saturday night. They involve things that we as human beings and as citizens of this country care about, you know, whether we could lock up a juvenile for life without parole. Whether, you know, there is a right to have a cross on public land.

All of these kind of things that, you know, sort of this informed intelligent, you know, people we would naturally debate, as opposed to the constitutionality of an accounting board.

MARTIN: Oh dear.

Ms. RODRIGUEZ: Don’t go there.

MARTIN: Don’t go there, okay, but just going back a little bit the Court customarily doesn’t hear an argument before the first Monday in October, but there was an exception this year for a campaign finance case? What’s the issue here and why did community here in D.C. because actually the Court had heard this case earlier in the Spring and we were expecting in June or July a decision. Instead, the justices has said well, never mind we want to re-hear this case and by the way, we want to address different questions. And what happened is, they went from a really, you know, ishky-pishky(ph) case in spring to a bomb in the – in the fall.

And it goes to the heart of whether, basically, we can regulate how much money if any corporations may give to campaigns. It was rare also – I mean exceedingly rare – that they heard the case in September and not, you know, after the first Monday in October, when they usually start. So this was weird all around.

MARTIN: Oh, interesting. And Kimberle Williams Crenshaw, there’s a civil rights case that’s a little bit under the radar this term but you nevertheless feel is important. That’s Lewis(ph) v. Chicago, and like that blockbuster Riche(ph) case of last session that we all talked about, it involves alleged racial discrimination in hiring firefighters.

In this case, an appeals court overturned a ruling favorable to black firefighters on technical grounds. What’s the issue in this case, and why do you feel that’s so important?

Ms. CRENSHAW: Well, you know, this issue is very similar to the Ledbetter case because on the substance, on the merits of the case, the plaintiffs were able to prove that the hiring practices were, in fact, discriminatory. So this case is pretty much like Riche in that the firefighters are making an argument. This time, there was actually a case. A court decided that they had prevailed in proving that the use of particular kinds of tests discriminated against potential firefighters.

The problem, according to the Court of Appeals, was that the case was initiated late. In other words, you have 300 days from the injury, the first injury, to actually file the case. The plaintiff’s lawyer filed the case within 300 days of the promotions that were based on the test. He did not file it within 300 days of announcing the test. And the Court of Appeals has determined that the time that they should have filed it was when the tests were announced, as opposed to when the promotions actually commenced.

Now, why is this important? Now, this is a technical case. This is part of the Roberts court’s kind of legacy. This is what they do very well. They manage technical issues that have huge substantive consequences. That’s what they did with Ledbetter, and this was overturned basically by a congressional action.

This is going to be a similar kind of case. The real question is: Is this sending a message that the court should be fairly narrow and circumscribed when the question is technical questions that preclude plaintiffs from actually getting into court? This is a very significant concern on the part of those who feel that the courts have been pushing certain kind of plaintiffs out of court altogether.

MARTIN: I understand what you’re saying. In the Ledbetter case, for people who don’t remember it, it was a question of a question of how soon after Lilly Ledbetter found out that she had been a victim of vast pay disparities could she go to court to seek a remedy. And the original law had a very narrow window, and that’s why Congress stepped in. And that was one of the first bills that President Obama signed when he took office.

Briefly, professor, there’s also this case where the court will explore whether the sentence of life without parole is cruel and unusual punishment for juvenile offenders. Can you tell us about that?

Ms. CRENSHAW: Yes. So there are two cases, companion case, Graham versus Florida and Sullivan versus Florida, and basically it takes up a concern that the court looked at a few years ago. This had to do with whether giving the death penalty to defendants who committed their crimes while they were juveniles violates basically not only our Constitution but broader human rights idea against cruel and unusual punishment. And Justice Kennedy provided the key vote that held that it in fact was unconstitutional.

So now the question is: If a juvenile commits a crime and is sentenced to life without the possibility of parole, is that also cruel and unusual. And it’s important to note that we are the only country in the world that has any juveniles who are currently incarcerated without the possibility of parole. It’s 2,500 or so defendants. And the United States was the only country basically to oppose a United Nations efforts to render this a human rights violation. So the question is whether that earlier case will apply to this, whether Justice Kennedy’s general opposition to the death penalty would carry over to life without the possibility of parole.

MARTIN: If you’re just joining us, you’re listening to TELL ME MORE from NPR News. We’re talking about the new session of the Supreme Court with law professor Kimberle Williams Crenshaw and Eva Rodriguez, an editorial writer for The Washington Post, a former Supreme Court reporter and former editor-in-chief of Legal Times.

Eva, the court is hearing arguments today, as I understand it, that ostensibly is about animal cruelty but actually is a free speech case. Can you tell us about that?

Ms. RODRIGUEZ: Yeah, it involves a man who describes himself as a dog trainer and a dog lover. He happens to love pit bulls, and he produces these videos, hour-long, two-hour-long videos that he describes as educational on how not to train your dog, how not to, you know, let your dog run wild, but how to use your dog to ward off predators like coyotes or to hunt wild boar. Well, in the process, he’s included some pretty gruesome footage in this, and…

MARTIN: Of the consequences of mis-training or poor training?

Ms. RODRIGUEZ: That’s how he claims. That’s how he frames it, okay? The Humane Society and others say, you know, that’s just not true, and he just likes to, you know, show gruesome film.

So the question here, though, is it a violation? You know, he was prosecuted. Let’s put it this way. He was prosecuted under a law that says you cannot show or peddle material that shows a live animal being tortured, maimed or killed. And the question is: Does that law basically violate his First Amendment right to, you know, to show these films?

I think it’s a tough question. Look, all of these cases are tough. They wouldn’t be at the Supreme Court if there wasn’t disagreement, and there are legitimate arguments on both sides. But I think at the end of the day that as much as we hate what this man shows and possibly does that there’s a First Amendment right for him to basically, you know, archive this on film.

MARTIN: Interesting. And there’s another case involving the separation of church and state that I think a lot of people will have heard about. It involves a cross that members of the Veterans of Foreign Wars placed in California back in 1934, land that later became part of the Mojave National Preserve. What’s the issue here?

Ms. RODRIGUEZ: The issue here is: Is it a violation of the establishment clause to have, to allow, for the federal government to allow this cross on the land? You know, we’re supposed to be a government where the government does not embrace any one particular form of religion. So by allowing a cross on federal land, is the government violating that?

Now, there has been a lot of funky stuff that’s happened in this case, including an attempted land swap, where the government said okay, we’ll give the VFW, the Veterans of Foreign Wars, the acre on which this cross stands, and we’ll get another parcel of land. So hence, you know, the cross now stands on private grounds.

Well, the ACLU and others challenging this case say, you know, that’s a bogus transaction, and you’re just trying to – you know, you’re playing with us here.

MARTIN: Well, very, interesting, and there are a number of interesting cases we don’t have a chance to talk about today. We’re going to have to have you ladies back. But before we let you go, professor, I want to ask you about the newest justice, Sonia Sotomayor. She made history when she was sworn in as the first Latina to sit on the high court. She was unusually outspoken, some people thought, for a new justice. Is it unusual for…?

Ms. CRENSHAW: Oh, it was so refreshing to hear it. You know, Sonia Sotomayor, Justice Sotomayor is a rock star now. So pretty much everything she does draws a lot of attention, which I think is good for the court in general and for the public more broadly, but it’s just fascinating. In the two days that she sat, she’s talked more than Clarence Thomas has in a period of years. So we’ve got a whole new voice, literally, on the Supreme Court.

MARTIN: And we’re going to have a chance to have your voices back because we have more to talk about. Thank you. Kimberle Williams Crenshaw is a professor of law at UCLA and Columbia University, she joined us from New York; and Eva Rodriguez is a writer for The Washington Post editorial board, a former Supreme Court reporter, former editor-in-chief of Legal Times. She was here with me in Washington. Ladies, thank you both so much.

Ms. RODRIGUEZ: Thank you.

Ms. CRENSHAW: It was a pleasure.

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MARTIN: The moms are next on TELL ME MORE from NPR News. I’m Michel Martin.

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