Listen: A Conversation with NPR's Nina Totenberg
Nina Totenberg is an NPR Correspondent who spoke with KCBX reporter Randol White about the recent Supreme Court decisions and her take on the situation in Washington, DC.
RANDOL WHITE: We are honored to have Nina Totenberg join us today from the NPR studios in Washington, DC. Welcome to Issues and Ideas.
NINA TOTENBERG: And I'm honored to be with you.
RW: So how do see the legal issues playing out surrounding the court's decision last month on marriage rights for same-sex couples?
NT: Well, you know, it's very difficult to predict these things, but I do think when I was doing my court wrap-up, I talked to Akhil Amar, who is a professor at Yale Law School, and he made a point that others have since reinforced which is that while there is a distinct part of the country, mainly in the South and some parts of the West, that are, shall we say, opposed to or at least hesitant about the Supreme Court's decision or not particularly in favor of the Supreme Court's decision on same-sex marriage, the fact is that the country has moved along even in those areas way more quickly than anyone might reasonably have anticipated. Public opinion has changed so dramatically from a decade or so ago when something like 27% of the people who were polled said they favored same-sex marriage to now, not just over 50%, but significantly over 50%. In most areas of the country, it's way over 50%, and it crosses all demographic groups to a limited extent. What's interesting is when you look at people who say they've changed their views on same-sex marriage, older people, they haven't gone back to the way they used to be. So there's that and there's the fact that if you compare the issue of same-sex marriage to the issue of school desegregation in the 1950s, the Supreme Court was really leading the way in school desegregation in the South and that is much less the case today in terms of same-sex marriage. The country has changed, as I said, dramatically as professor Amar said to me, 'The court is to some extent, just riding the wave.' So I expect that we're going to have some ugly stuff about will people issue marriage licenses in some places. But that will be ironed out in relatively short order and the more difficult question will be whether businesses, usually small businesses, have to cater to and provide services to same-sex couples in the same manner they provide them to opposite sex couples. There is no question about how that would be resolved if there were public accommodations law, for example, similar to the federal law requiring that public accommodations be provided on an equal basis to all people of the same race, religion, ect. But in most states, such a law doesn't exist. In the states where it does exist, it's not a problem. You are going to see a big drive now from gay rights groups trying to get those laws passed, in some states with an ultimate goal of getting a federal law passed.
RW: During Morning Edition on Monday, you had a piece that really breaks down the most recent US Supreme Court term, saying the liberals were victorious in the majority of cases and the conservatives were splintered and in disarray. Is the court more divided than you've ever seen it?
NT: Well, I think there is a tendency, more of a tendency, to write separate opinions, usually by the Conservatives in the last few years. At least more so than I recall. You always have to say, I haven't gone back and done a statistical analysis of what it was like in the late 60s and in the 70s and in the 80s. But my overall impression is that you look at a dissenting opinion, or even a majority opinion, and you'll see one or two or three concurring opinions, often of the conservative justices, who will say, "I concur in the judgment, which means I concur in the outcome, but not in how you got there and what the legal reasoning is." Now that may be the product, this term especially, of the mix of cases. That certainly is the reason I think the liberals prevailed in many of the big cases is the mix of cases and the issues that were before the court and next term the mixes look to be very different with conservatives with the issues before the court much more in the heartland of issues that are important to conservatives and where they're likely to have 5 votes to prevail.
RW: Included in that is affirmative action in higher education, right? And I think for the first time in decades a case dealing with the general availability of abortion.
NT: Well, they haven't granted an abortion case yet but we expect that they will because these cases have come up to the court and now there is in front of the court from the 5th circuit, a test of quite Draconian limits on abortion. In Texas, it seems that, and similar efforts in other states have been invalidated by other courts in other regions of the country and it would seem like it's time that the court to resolve that issue. There's a very important case that could drive a dagger into the heart of labor unions in the public sector. It comes from California and there are cases involving 'one person, one vote,' that could re-do the way redistricting is done because the people that brought these cases content that by 'one person, one vote' we mean, not people eligible to vote, that it should be free, let me put it this way. For years, in general, when we look at redistricting, were looking at the number of people in a state and how to carve up districts. The challengers here claim that we should not be looking at the number of people in a state but we could be looking at those eligible to vote.
RW: Where are we in terms of retirement? Do you think President Obama will have an opportunity to appoint a justice before his second term is finished?
NT: Unless someone gets very sick I would doubt it because it would be very difficult to confirm someone with a Republican senate and a Democratic President and a tendency by both parties, but Republicans even more than Democrats, to not vote to confirm a President's nomination to the Supreme Court for ideologic reasons or not even ideologic reasons, just in some ways because the nominee is the nominee of that President's party. So I think with less than a year and a half to go in Obama's presidency, unless we get someone who is quite ill and can't serve, or who dies, the likelihood is that the next President will have the opportunities. And the next president could have an many as 4 or 5 vacancies to fill. Because that's how many people are over 70.
RW: Wow that would really be an altering of the make-up of the court.
NT: It certainly would.
RW: Correspondant Nina Totenberg NPR legal affairs, thank you so much for joining us from the NPR studios in Washington DC and being with us today on Issues and Ideas.
NT: It's really been great. Thanks so much.