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Law Professor Cass Sunstein on Supreme Court Nominee

Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School, comments on Tuesday night's Supreme Court nomination of John G. Roberts. Early in his career, Sunstein clerked for Supreme Court Justice Thurgood Marshall.

34:27

Other segments from the episode on July 20, 2005

Fresh Air with Terry Gross, July 20, 2005: Interview with Cass Sunstein; Interview with Steven Johnson.

Transcript

DATE July 20, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Cass Sunstein discusses Judge John Roberts, nominee to
the US Supreme Court
DAVE DAVIES, host:

This is FRESH AIR. I'm Dave Davies, senior writer for the Philadelphia Daily
News, sitting in for Terry Gross.

President Bush's nomination of Federal Circuit Court Judge John Roberts to the
Supreme Court has touched off the long-anticipated debate over the direction
of the court after the departure of Justice Sandra Day O'Connor.
Conservatives have praised the Roberts pick. Liberal activists have condemned
it. And Senate Democrats are reacting cautiously, saying they want to know
more about Roberts' judicial philosophy.

To discuss Roberts' career, the issues before the court and the forthcoming
confirmation battle, I spoke earlier today with Cass Sunstein, a professor of
law and political science at the University of Chicago. Sunstein clerked for
Supreme Court Justice Thurgood Marshall, and has written widely on legal and
constitutional issues. I asked him if he had a sense of how this nomination
will be received as the hearings approach.

Professor CASS SUNSTEIN (University of Chicago): Too early to say, and that's
good. The early reaction on the part of some conservatives, which was to
dance and describe this person as extremely wonderful in all ways, doesn't
serve the country entirely well. We should discuss substance a bit before
dancing. We should try to figure out something about this person before
rushing to condemn or to celebrate. We can and should celebrate his
competence--there's no question about that--and his character. There's no
question about that.

But competence and character are not really what this is about. They're
necessary conditions. The question is whether the court is going to be moved
in massive directions or not. And especially because this is someone who's
relatively young and has such a thin public record, we just don't know about
that. So I think to wait and try to figure out more about what kind of
conservative this guy is is the right approach for conservatives, liberals and
moderates alike.

DAVIES: He, of course, has argued, I believe, 39 cases before the court and,
of course, did some rulings as an appellate court judge in Washington. Let's
go over his record to the extent you know it. I mean, can you give us a sense
of some of the most important cases he has decided as a judge?

Prof. SUNSTEIN: I think the most important one involves the Endangered
Species Act. There is a disputed question whether the Endangered Species Act
actually is constitutional, whether Congress has the authority to protect
endangered species when they're on, say, one landowner's property and there
isn't an obvious connection with interstate commerce. Congress, of course,
has power over interstate commerce, but it doesn't have general authority to
do whatever it thinks best. The majority view in the courts is the Endangered
Species Act is constitutional even if it involves a single landowner with a
single species on his property. But Judge Roberts, in a separate opinion,
strongly suggested he thought the Endangered Species Act was not
constitutional in some of its applications to particular landowners. And in
doing that, he really reached out and went beyond the position of a lot of
Reagan and Bush appointees.

This is a tea leaf, and you can't read a whole lot into it, but I think it's
the most important tea leaf there, and it suggests that he's not unwilling to
use the power of the federal judiciary to strike down acts of Congress that
exceed what he believes are Congress's constitutional powers. And that's a
position traditionally associated with, let's say, strong conservatives.

DAVIES: Now that was a minority opinion he wrote in that case, was it not?

Prof. SUNSTEIN: Yes, it was just Judge Roberts and another judge, also very
good and also very conservative. That is Judge Sentelle. But all the other
judges on that court, including a number of Reagan appointees and Bush
appointees, too, Bush I, thought that the Endangered Species Act was
constitutional.

It seems technical, but it's quite a bit deal. The Supreme Court has
indicated a willingness to strike down acts of Congress, including civil
rights acts, as beyond the authority of the national government. That would
change constitutional law's fabric in pretty large ways. We don't know from
Judge Roberts' overall record whether he's on the train of constitutional
change, but that single opinion indicates that he's at least willing to think
about it.

DAVIES: Give us a sense of the larger constitutional issue that is at work in
this business about the Endangered Species Act. There are conservatives who
believe that a return to what they call the Constitution in exile would give
us a very different federal government.

Prof. SUNSTEIN: Yeah, there are some conservatives who have a pretty extreme
program. And what they think is that the real Constitution has been
obliterated in the last 50 years, and that since Franklin Delano Roosevelt at
least, the Supreme Court has taken a horrendous wrong turn, and it's time to
have some kind of restoration. Sometimes what they say is they want the
Constitution roughly as it was in 1920. Sometimes they say they want to
interpret the Constitution to mean what it originally meant; that is, what it
meant at the time it was ratified. When the president of the United States
speaks of strict construction, some people think what he's saying is the
Constitution should be understood to mean exactly what it meant at the time it
was ratified.

Now that view sounds kind of good and innocuous and respectful of the
founders, but it would be quite radical. It would mean that, for example,
racial discrimination by the national government would be just fine, that sex
discrimination by all governments would be just fine. This federalism issue
is a way into that, because what a lot of people have objected to, a lot of
conservatives, including most loudly the most extreme conservatives, is that
Congress' power should be more sharply disciplined than the court has been
willing to do since the 1930s.

And what this would mean concretely is that not only the Endangered Species
Act would be in trouble, but also the Clean Water Act, in some of its
applications, would be in trouble. The Americans With Disabilities Act would
fall in part, as it already has. The Age Discrimination Act would fall in
part, as it already has. The Violence Against Women Act would fall in part,
as it already has. Some other laws, including regular civil rights laws, that
is the older ones, and the Voting Rights Act, they might be in constitutional
jeopardy also. Some of federal criminal law might be in trouble.

My guess from this opinion is that Judge Roberts is at least willing to think
about the idea that the constitutional train has gone off the rails since 1950
or so. There's no evidence in his record that he's any kind of extremist or
revolutionary, but his record's pretty thin. And this opinion does suggest
that he's open at least to reconsidering or moving the law in directions that
are major.

DAVIES: He has spent only two years on the appellate court bench, deciding
these, you know, appellate cases. Do you think it's troubling? Do we need
judges with either more judicial experiences or either more of a record which
gives us a sense of their own constitutional views?

Prof. SUNSTEIN: The good side about Judge Roberts is that this isn't someone
who's unfamiliar with issues that come to the Supreme Court. Even though he's
only been a judge for two years, he has fantastic experience in the world of
Supreme Court advocacy, and he really knows what he's doing. So I think we
could be worried about someone who's just been a judge for two years if
they're inexperienced in the issues that the Supreme Court deals with. Then
there'd be some competence questions. But for Judge Roberts, there's no
competence question at all, and the president really should be complimented
for choosing someone who is so obviously qualified.

On the other hand, there is the following issue. He's--with respect to the
huge issues of the day, he's a bit of a blank check, and that's, in a way, OK,
because it suggests he hasn't closed his mind on issues. But what kind of
conservative Judge Roberts is remains mysterious. So it's noteworthy that the
president didn't choose someone who is established as someone with extreme
conservative views or established as someone without extreme conservative
views. He chose, instead, someone who's very affable, someone who's quite
excellent, but someone who we really have very few clues about in terms of
what kind of conservative he would be. And some people, I think,
conservatives as well as liberals, might be nervous about that.

DAVIES: Is it a political reality of the modern confirmation process that we
will get more and more judges with a thin judicial record, because there's
less to pick apart?

Prof. SUNSTEIN: I think so. This was what was said by a lot of Judge Bork's
supporters a long time ago. They said, `If you go after Judge Bork hard, then
presidents are going to have an incentive to appoint people who have no paper
trail.' And the evidence suggests that that's so. Justice Souter had
relatively little paper trail. Justice Thomas had relatively little paper
trail. Justice Breyer and Justice Ginsburg both had a very long paper trail.
They were professors, so paper is what they generate. But it wasn't on the
big issues. They were, for the most part, steady, moderate, not noisy people
whose views on large issues, you couldn't tease out terribly well. You'd know
they wouldn't be likely to want to overrule Roe against Wade, but even there,
Justice Ginsburg, as Judge Ginsburg, thought to be liberal, was a big critic
of Roe against Wade. She said it did too much too soon.

So we have had justices who have had a great degree of unpredictability. I
think what some people concerned about Judge Roberts might worry over is he's
publicly unpredictable, but he might be privately predictable. It's possible
that the White House knows that this is, let's say, a more extreme
conservative than the records suggest.

DAVIES: My guest is University of Chicago Law Professor Cass Sunstein. We'll
talk more after a break. This is FRESH AIR.

(Soundbite of music)

DAVIES: Our guest is University of Law Professor Cass Sunstein. We're
talking about President Bush's nomination of Judge John Roberts to the Supreme
Court.

Well, let's look at some things beyond his judicial record. One thing we know
is that he was a member of the Federalist Society, which is a conservative
lawyers group that, I mean, a few years back, they were written about as
having linked the Ken Starr investigative team with the Paula Jones legal
team, and in part helping to generate the Monica Lewinsky scandal. What does
Judge Roberts' membership in the Federalist Society tell us?

Prof. SUNSTEIN: It tells us he's a conservative. It doesn't tell us that
he's an extremist or that he is on some sort of political mission as a judge.
The Federalist Society is very large. It's mostly an academic society. There
are people who are moderate conservatives there. There are people there who
are extremists there. There are people you really couldn't describe as
conservatives, so extreme are they. There are people you would have a hard
time describing as conservatives, so moderate are they.

So I think the Federalist Society's a pretty wide tent. It is true that some
members are really plugged into the White House and are highly political and
do have an agenda. But the fact that Judge Roberts is a member of the
Federalist Society tells us only something I think everyone ought to know,
which is that he's a conservative, but that can't be disqualifying.

DAVIES: He is Catholic, said to be a man of faith. His wife, I believe, is
active in a pro-life organization. Are those clues, are those insights into
his judicial philosophy? Are they fair game for the confirmation process?

Prof. SUNSTEIN: The fact that he's Catholic certainly is not fair game. And,
you know, we've come to a point in this country, I hope and believe, where
someone's religious convictions can't be used against them. The fact that his
wife is pro-life, if that is a fact, I don't think that's fair game, either.

I'll tell you what is fair game, which is to ask whether he believes that the
Constitution protects the right of privacy, and see what he says about that.
Both Justice Thomas and Justice Scalia have suggested not just that they don't
like Roe against Wade, but also that they think the Constitution doesn't
protect the right of privacy at all.

Now that's a very big deal. That would mean that compulsory sterilization
would be OK. It would mean that people don't have a constitutional right to
live with other members of their family. It would mean that the government
has a right to ban contraceptives. It would revolutionize an area of the law
that's been going now for about half a century, and if you count it a certain
way, by a century. So it is fair to ask him if he believes in a right to
privacy, and if he gives an evasive answer to that question, that canon will
be held against him.

DAVIES: He clerked for Justice Rehnquist. He was a protege of Ken Starr.
Are there any other professional relationships or components of his experience
that would give you insight into his philosophy?

Prof. SUNSTEIN: That's a great question. And I think there we do have a few
things to learn from. The fact that he's clerked for Chief Justice Rehnquist
tells us a little bit. And people who know him say that he and Chief Justice
Rehnquist have a terrifically amiable relationship with a lot of
compatibility. Now Rehnquist, like Judge Roberts, is a great guy, so I'm sure
that's part of it. But it wouldn't be wrong, I think, to say that there's an
ideological congeniality also between the two. And, you know, that's
worthwhile knowing.

The fact that he's a protege of Judge Starr, who is a very articulate and
strong backer of Judge Roberts, is also worth noting. It tells you something.
Now I'd like to say about Judge Starr that when he was on the Court of
Appeals, he was a moderate judge. He was not an agenda-driven conservative or
an extremist by any means. So if Judge Roberts ends up being the way that Ken
Starr was as a judge, then I think all sides should say, `We have a real judge
here and not an extremist.'

But it is noteworthy that, I guess, in his background, he doesn't have
sponsors, at least close sponsors or close colleagues who are on the other
side ideologically. It is true that some people who are left of center quite
like him and respect him. And from all indications, this is someone who
everyone should be willing to like and respect. He's just a good and
admirable person. But whether he has the kind of open-mindedness that we saw
in Justice O'Connor, a distinctive kind of conservative, the record is very
thin. And the fact that he has these particular friends and sponsors doesn't
tell us a whole lot.

DAVIES: Well, Cass Sunstein, I wonder if you could briefly take us through
some of the major areas of law that will be confronting the Supreme Court.
Are there cases soon that could make new law in areas of abortion rights or
affirmative action, gun laws?

Prof. SUNSTEIN: The court has a case next term involving abortion. And as I
recall, it's a case about parental notification or one of the spin-off issues
that the court hasn't had to deal with in a long, long time. What's
interesting about this is that the court has chipped away a bit at the
abortion right. The big headline news has been that the court hasn't
eliminated the abortion right, but there has been some definite chipping. And
it's expected, given the composition of the court, that at least some chipping
will continue. Justice O'Connor wanted to preserve the core of Roe. If Judge
Roberts thinks Roe is wrong and an abuse of authority, then we could see the
abortion case that the court's about to decide as the basis for pretty
significant movement away from Roe, and maybe even an indication that it might
be ready to go before terribly long. So that's a big one.

Coming down the pike, not immediately, but pretty soon, are cases involving
affirmative action, campaign finance, at least at the state level, and
property rights. Those are three hardy perennials: campaign finance,
affirmative action and property rights. And the court has spoken to each of
them relatively recently, but by very fragmented courts that leave the law
quite flexible. It's not at all clear, but it's very possible that Justice
Roberts would want to take a very hard line against both affirmative action
and campaign finance. And that would have very major effects on the country
at both the federal and state levels. For educational institutions, a modest
degree of affirmative action is OK. It's possible that that would be
eliminated. So, too, would campaign finance, where the court has not been
very excited about campaign finance restrictions.

DAVIES: And what about the issues of homeland security and the way, for
example, detainees have been treated?

Prof. SUNSTEIN: One that's coming up very soon involves the president's power
to create military tribunals to try suspected terrorists. The Court of
Appeals in Washington recently said the president does have the authority to
use military tribunals to try suspected terrorists. Judge Roberts was on that
panel. It may be that he'll be disqualified from participation in the case as
a result. Even if he is, the president's power to wage the war on terror has
produced a very badly fragmented set of decisions from the court, where
Justice O'Connor took the lead role, saying the president does have a lot of
power here, but there's a constitutional right which is to fair procedure, and
that's kind of a trump, the right to fair procedure before you're deprived of
your liberty. Some of the justices think she overreached and that the
president can do very much as he wants if he's trying to protect the nation's
security.

Justice Roberts undoubtedly will play a key role on that, not just because the
court is so badly divided, but also because he combines a lot of quality with
a lot of expertise, so he's kind of a specialist in the power of the
president.

DAVIES: University of Chicago Law and Political Science Professor Cass
Sunstein. His new book is "Radicals in Robes: Why Extreme Right-Wing Courts
are Wrong for America." He'll be back in the second half of the show. I'm
Dave Davies, and this is FRESH AIR.

(Soundbite of music)

(Announcements)

(Soundbite of music)

DAVIES: Coming up, why "Everything Bad is Good for You." Steven Johnson
contends video games have become more challenging and complex and are actually
making our kids smarter. He even thinks television is sharpening our minds.
Also, more on last night's Supreme Court nomination with Chicago Law Professor
Cass Sunstein.

(Soundbite of music)

DAVIES: This is FRESH AIR. I'm Dave Davies sitting in for Terry Gross.

As the nation begins to assess President Bush's nominee to the Supreme Court,
Federal Circuit Court Judge John Roberts, we've asked Cass Sunstein, a
professor of law and political science at the University of Chicago, to help
us assess Roberts' record and the coming debate.

Earlier this year the subject of judicial confirmation was fought out in the
Senate over whether the filibuster would be preserved, and in the end a
compromise was reached. What does that showdown and the way it was resolved
tell us about what we can expect in the Senate?

Prof. SUNSTEIN: I think it tell us about the massive power and discipline of
the Republican Party. I thought this was a brilliant maneuver to try to
threaten to get rid of the filibuster, which has been there for a long, long
time, and that the Republicans, in my view, had a smashing victory. The
reason they had a smashing victory is they got some of the most controversial
people through. They also kept the option of the elimination of the
filibuster in reserve. My hunch is the Democratic senators are well aware
that any effort to filibuster will trigger talk and maybe the reality of the
nuclear option. There's a good chance that the Senate Republicans have the
votes to initiate the nuclear option. The Republicans were on message
throughout in a way that, by the Democrats' light, confused the issue, so they
are very much in the ascendancy now.

DAVIES: That's interesting because I think some Democrats looked at that as a
victory for moderates, that they had effectively told the nation that the
Republicans were radicals who wanted to overturn a century of tradition and
were able to defend the filibuster. You see it differently.

Prof. SUNSTEIN: I do. There's an old story of a husband and wife where the
husband says about a cake, `Let me have the whole cake.' And the wife says,
`Well, why don't we split it 50-50?' And the husband says, `Well, let's
compromise. I get three-quarters.' I think the Republicans were the husband
in that story except that instead of three-quarters they got maybe 80 percent.

The Democrats are right to say that they maintained the filibuster option and
that's not nothing. And they also did make some fair points about the
longevity of the filibuster and its role in the system of separation of
powers, but those were kind of academic points.

DAVIES: The confirmation hearings will, of course, attract an enormous
amount of attention. And there's always a debate or a difference of opinion
about what judges should be asked. I mean, there is one view that the court
should be governed by law and precedent and weigh each decision that comes
before it and that, in that vein, you don't ask judges to speculate about
decisions that might be made. And then others say, `We need to know where you
stand on privacy, on choice, on abortion.' What would you ask? What do you
think senators should be asking?

Prof. SUNSTEIN: I think the first question senators should ask is: Do you
believe that the Constitution means what it originally meant? Do you believe
that the Constitution should be interpreted to mean what it meant in 1789
except insofar as it's been amended? When it's been amended do you think it
should be interpreted to mean what it meant after the Civil War? If the
nominee says yes to that question, that seems to me a very bad warning sign,
in my view, that justifies follow-up questions.

The follow-up questions might ask, for example: Do you believe that
established precedent should be taken seriously even if it's inconsistent with
the understanding from a century or two centuries ago? If the judge says, `I
would like to go back to the original understanding, but I understand we have
a tradition that involves respect for precedent,' that means the warning is
less troublesome.

I also think it's perfectly appropriate to ask a nominee, `Do you believe that
there is a right to privacy in the Constitution? Do you think that--not that
Roe against Wade is necessarily right, but do you believe that the privacy
notion has validity?' And if there's an evasive answer to that question,
that's a real problem.

I think it's fine to ask a nominee which decisions of the past 50 years do you
dislike most? Now it's also fine for the nominee to be circumspect about
answering that question for fear that some of the decisions of the last 50
years are vulnerable and might be overruled, and if they're still live, then
the nominee might not want to take a stand on them.

But we can get a big clue about what a nominee thinks by seeing what they
like and what they dislike. I don't think nominees should answer questions
that would precommit them to particular votes on particular issues. So to
say, `Would you vote to overrule Roe against Wade?' That's not an
illegitimate question, but it's probably wrong to answer it.

DAVIES: When they ask the questions that you think are important and the
nominee, who has been coached to be evasive, is evasive, what should the
senator then do?

Prof. SUNSTEIN: The senator should hold evasiveness, unless it's evasiveness
about particular votes, against the nominee. The process now has been
fantastically scripted so there are a lot of superb people, I bet, already
working with Judge Roberts a little bit, and if not now, soon, to help
him--and he is really good so he doesn't need a tremendous amount of help--to
evade questions.

This is something that the Senate should know about and should be bemused and
a little aggressive with. If a nominee says, for example, `I'll follow the
law.' Really that's terrible. That's become the line that nominees give,
`I'll follow the law.' In our system, fortunately, everyone agrees with
that. So that tells us nothing. If the nominee talks a lot about Indiana
and growing up there and what was learned in the steel mills, that's relevant
some, but that's not what the issue should be centering on. So this turning
Supreme Court nominees into heroic characters in docudramas, that's been done
and the Senate really shouldn't stand for that. That just evades the issues.

So what the Senate is entitled to do is to try to get a sense of the general
orientation of the judge, not of specific conclusions, and if the judge
refuses to give a sense of the general orientation, that's a definite problem.

DAVIES: You described him as a great guy, well liked by people from many
different perspectives. There's a long history of conservatives being
disappointed with nominees who they thought would carry their agenda to the
Supreme Court who, in the end, didn't. I mean, Justice Kennedy and many
others. I mean, I'm wondering if the fact that he seems to be an amiable guy
whose opinions don't use inflammatory rhetoric suggests that he's the kind of
guy once he's in a body where many opinions flourish that he might be more of
a consensus builder than conservative backers would hope.

Prof. SUNSTEIN: Yeah, it's possible. History suggests that conservative
presidents mostly get conservative justices and they aren't disappointed. So
there are a few prominent counterexamples, but the lament that you can't
predict whom you're appointing actually isn't backed up by history. O'Connor
is often said to be someone who disappointed the conservatives, but President
Reagan said that, `In O'Connor I got exactly what I wanted.' So I think the
conservatives who have been disappointed by some of these appointments--maybe
with Justice Souter they're right to be--but the court really has shifted
very, very dramatically to the right in a short time.

With respect to Judge Roberts, if there's going to be a shift, I would guess
it would be extremely modest. For one thing, we don't know exactly what he
believes, so the confirmation process should be maybe the most interesting one
we've had in a long, long time. And for another thing, this is someone who
has had a long history of dealing intensely with the most sharply disputed
issues of the day. So there's no question that he's thought long and hard
against both abortion and privacy. There's no question that he's thought in
some detail at least about affirmative action. There's no question that he's
thought probably in great detail about the power of the president.

So unlike Justice O'Connor, for example, or Justice Souter, who both came from
the state court systems, this is someone who's thought about federal law a
lot. So more like Justice Scalia, who hasn't shifted, and Justice Thomas, who
hasn't shifted, and Chief Justice Rehnquist, who on hardly anything has
shifted significantly, all three of those had a lot of intense experience with
federal law in the executive branch of federal government. So I wouldn't
expect this to be someone who would disappoint President Bush.

DAVIES: Well, Cass Sunstein, thanks so much for speaking with us.

Prof. SUNSTEIN: Thank you.

DAVIES: University of Chicago law and political science Professor Cass
Sunstein. His new book is "Radicals in Robes: Why Extreme Right-Wing Courts
Are Wrong For America."

Coming up, writer Steven Johnson says popular culture is making us smarter.
This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Steven Johnson discusses the positive impact of
video games and television programs
DAVE DAVIES, host:

Try and tell a bunch of moms and dads that video games and television shows
are making our kids smarter, and you're probably going to get an argument.
But my guest, writer Steven Johnson, says exactly that in his new book
"Everything Bad is Good for You." Johnson says that while it's common to hear
popular culture has been dumbed down, much of it is more mentally challenging
than it was 20 years ago and that is sharpening our minds. And, he says, his
case is borne out by rising IQ scores. Johnson writes about emerging
technology for Discover magazine and contributes to Slate, Wired and The New
York Times Magazine. We last spoke to him about his book "Mind Wide Open:
Your Brain and the Neuroscience of Everyday Life." In his new book, Johnson
says there's a lot adults don't know about modern video games.

Mr. STEVEN JOHNSON (Author, "Everything Bad is Good for You"): For parents
who are worried about these games, the first thing I would encourage you to do
is to sit down and try and play them with your kids because what you'll find
is that they are extremely difficult. Most of them take really an amazing
amount of thinking and problem-solving and pattern recognition. You have to
really focus and engage with what's going on on the screen. It's not just
about hand-eye coordination. It's not just about shooting things as, you
know, quickly as you can. And you'll find actually when you play these games
with your kids that, you know, they are very sophisticated at solving these
problems and you will have a lot more trouble than they will.

And I think one of the things that happens is that you start to realize that
there's a lot more kind of mental labor going on in these games than we give
them credit for. I mean, the basic element of all this that's really worth
stressing is that in every moment of every video game that's ever been made
really, you have to make decisions. You have to exercise the part of the mind
that makes decisions based on available information. You look at the
situation in the game, you think about what's happened over the last 30
minutes, the last hour. You think about patterns that you've recognized in
the game. You think about your objectives, the resources you have, your
long-term goals, your short-term goals. You synthesize all of that
information and you make a choice. You make a decision about the best
strategy going forward.

Now that is a very--I mean, I can't think of a more kind of basic definition
of what it means to be smart than the ability to make decisions on the fly
based on available information and get feedback from the world telling you
whether that was the right decision or the wrong one.

DAVIES: I was talking with a parent about this who said but, OK, maybe they
get us better at making decisions and thinking about spatial relationships,
but is there any real intellectual workout? I mean, are you dealing with
things other than kind of how objects interact spatially?

Mr. JOHNSON: Abso...

DAVIES: Give us an example maybe from a video game that'll illustrate it.

Mr. JOHNSON: Absolutely. I mean, the--if you look at, let's say--let's look
at the most popular PC game of all time, The Sims, where you manage a virtual
family. You have a household. You have a bunch of different kind of
characters whose lives you're kind of controlling in some way even though the
characters kind of have a life of their own, which is part of the magic of the
game. And when you're managing that game, basically you can steer these
characters in any direction you want. You can try and build a large family
and build a giant house or make them happy professionally or make them happy
romantically or throw a giant party for the neighborhood or do any number of
things that you want to do with their lives.

But what's happening at that moment in the game is a huge number of what you
sometimes might call a multivariable problem in the sense that there are
literally dozens and dozens and dozens of kind of variables that are changing
over time in the game. So you have the different drives of all the
characters. Like you get to see when one of your characters is hungry or
needs sleep or needs to have some social time. You see how those characters
are interacting. You can see all their different relationships with all the
people in the neighborhood. You can see all their kind of career issues and
how much money is coming in and how much money is going out. And you can see
their romantic issues, and all these different variables, and you're trying to
track all of that at the same time.

Now that's, in fact, not really a spatial issue at all. I mean, there is some
kind of spatial sense that you have to make up the environment, but mostly
you're thinking about all these different kind of issues and emotional needs
of all these different characters. You're managing it. You're synthesizing
it. You're putting it all together and you're coming up with a strategy based
on your vision of what you want that world to be like. Now that is a really
profound way of thinking. I mean, you know, it's taking place in this kind of
cartoonlike universe, but you're actually doing a kind of problem solving that
turns out to be really useful in real life when you apply it to real people as
well. So it's not just about, you know, trying to visually remember things or
just keep track of images as they fly by on a screen.

DAVIES: You make the point that there's something about video games that
engages the way our brains are wired, something the way--about the way the
brain responds to mental reward. Explain that.

Mr. JOHNSON: The idea is basically that there is a system sometimes called
the seeking circuitry of the brain which is related to the neurotransmitter
dopamine. And basically the human brain is wired to, in a sense, anticipate
reward and when reward, in whatever form it takes--whether it's in the form of
money or sex or power or little symbolic rewards of the video game world--when
the reward that you're expecting doesn't kind of show up in quite the quantity
that you expected, your brain is kind of wired to want to explore your
environment, to seek out the reward that kind of didn't show up when it was
promised. That's why--this is the term that the neuroscientist Jaak Panksepp
calls--this is why he calls it a seeking circuitry. You want to explore and
find the thing you're missing.

So the argument is that a cultural form--this is the argument that I make in
the book--a cultural form that involves excessive displays of reward or the
promise of reward coupled with exploration will be a very powerful, kind of,
cocktail for the human brain. And, in fact, that's exactly what you find in
video games, in a sense. Video games are always telling you, `OK, you can get
to the next level and then you'll get this special prize or you'll be able to
build this new building, or you'll--you know, your character will be able to
fall in love with the character next door if you do the following things.'
And so many of the games involve moving around a physical space and turning
corners and mapping a large kind of terrain. Grand Theft Auto, for instance,
is a great example of that. It's a huge city that you have to map.

And so I think that that's one of the key factors in why video games are so
powerful and, in fact, why kids will get pulled into them and be willing to
put up with all the work that they have to do mentally to play these games is
because it has this--it activates this kind of seeking circuitry in the brain.

DAVIES: My guest is Steven Johnson. His book is called "Everything Bad is
Good for You." We'll talk more after our break. This is FRESH AIR.

(Soundbite of music)

DAVIES: My guest is Steven Johnson. His new book, "Everything Bad is Good
for You," makes an argument that today's popular culture is actually making us
smarter rather than dumber.

Well, Steven Johnson, surely you're not going to tell us that television
programs these days are more mentally engaging than they used to be.

Mr. JOHNSON: I'm afraid I am. No, I think one of the general points here is
that I think that this process of the kind of cognitive workout that I'm
talking about is being led by the interactive media. So it's the games and
the Internet and e-mail and the participatory forms that you really have to
make decisions and be engaged in. And what has happened with television is,
in sense, television has had to play catch-up.

So while I think the games may be making us smarter, I think it's more fair to
say that television is getting smarter and that's, I believe, partially
because the generation that has grown up, you know, playing some of these
incredibly complex games, if you sat those kids down in front of, you know,
your average, you know, sitcom from the late '70s--in front of, you know,
"Three's Company" or something like that--they'd be bored stiff. They've
grown up expecting to be challenged mentally by their media, by their
entertainment. And so television has had to kind of deliver some of that
challenge for the first time, or the first time, you know, in kind of big pop
mass forms. And so what you see on TV is a whole host of shows that are far
more complex in terms of the kind of thinking that you have to do to keep
track of what's happening on the screen. So everything from "The Sopranos" to
"Alias" to "Lost" to "Six Feet Under" to "24," all these shows have incredibly
complicated narrative structures that if you'd put them on the air 30 years
ago, people just would not have known what to make of them.

DAVIES: Give us an example of a show from the '60s or '70s and how it's
different from and less mentally challenging than programs today.

Mr. JOHNSON: Well, one of the things I do in the book is kind of chart the
narrative structure because this is the key part of the kind of thinking that
you do when you make sense of stories. When you have a single plot line that
involves, you know, a handful of characters following one narrative thread,
there's simply, kind of, less going on. You have to do less cognitive work
than in what they sometimes call a multithreaded narrative like "The
Sopranos" where there are multiple plot lines.

And so I have these kind of charts in the book that are just a sample of what
it looks like basically from "Dragnet" to "Starsky and Hutch" to "Hill Street
Blues" to "The Sopranos." And what you see is basically over that time that
you basically have a single narrative thread, and this would be true of, you
know, most of the shows in that period. In "Dragnet" there's just basically
one plot. In "Starsky and Hutch" there's, you know, a little joke plot at the
beginning where, you know, Starsky gets a funny haircut or something like that
and then, you know, the story breaks out and they have to chase the criminal
for the whole episode and then at the end the joke plot kind of reappears
where Hutch gets a haircut or whatever it is. You know, there's some little
funny riff that happens. But basically it's, you know, one plot with these
two little bookends.

And then you get to "Hill Street Blues." And "Hill Street Blues" introduces
in kind of serious drama this multithreaded format and "Hill Street Blues"
would often have, you know, six or seven separate plots--really two or three
dominant ones and two or three kind of secondary ones. But it would still
have much more going on. Now here's the interesting thing. "Hill Street
Blues" comes out with this structure. It's the most complicated show on
television in 1981. It's also the most critically, you know, well-received
show on television. The critics just love it. Everybody says it's the best
thing on TV. And it is a complete flop the first year. It is literally too
hard for the audiences of the day to understand. There's simply too much
going on.

DAVIES: All right, so television has given us "The Sopranos" and "ER" and
shows that are mentally challenging and have complex plot lines. Television
has also given us "Survivor" and these dumb reality shows. I mean, is that
an improvement?

Mr. JOHNSON: If you're talking about a trend, you have to be fair in making
comparisons. So I agree that the reality shows that are popular today are
not the best things on television, but to compare them to where we were 30
years ago, you can't compare them to, you know, "Mary Tyler Moore" or to
"M*A*S*H." You have to compare them to the mediocre shows from 30 years ago.
I mean, the reality shows are basically game shows, right? I mean, they're
basically, you know, contestants, you know, struggling, competing for prizes.
So the question is: Is "Survivor," is "The Apprentice," you know, more
challenging and interesting than, you know, "Wheel of Fortune" or "The Price
is Right" or "Battle of the Network Stars," because that's what was going on
equivalently, you know, in the late '70s. And, in fact, I would say clearly
that "The Apprentice" and "Survivor" are better than those shows.

In the book I talk a little bit about why they are, which is that they involve
this kind of, you know, psychological game play. They do tend to have a lot
of characters, "Survivor," "The Apprentice." There's lots of different
relationships. There's kind of a social network that you have to map and keep
track of to follow the shows. I think, to some extent, that's been
misinterpreted as me saying, you know, that watching "Survivor," you know,
boosts your IQ, which I do not believe at all. But it is, I think, why those
shows are better than, you know, the kind of worst shows of yesteryear. So
that, you know, even in the kind of middle or bottom of the barrel the quality
is improving.

DAVIES: Your book largely focuses on the mental exercise that popular
culture gives us and says that it's making our brains work harder. You don't
address in any depth the argument that modern--that pop culture is morally
inferior, that we've gone--there's way too much graphic sex and violence and
depravity. What is your view of that? I mean, if it's giving us a good
mental working out, is it giving us sort of a--is it degrading us morally?

Mr. JOHNSON: Yeah, what I tried to do in the book is to put that question of
values and morals aside for the bulk of the book because, frankly, there are a
thousand, you know, op eds about that question and books written every year.
We have an existing big debate about the values question and whether, you
know, Janet Jackson and the Super Bowl and "The Sopranos" are leading to this
coarsening of the culture and Howard Stern or whether it's all right. And I
felt like that's an important conversation to have and thankfully we're
having that conversation, but it's incomplete unless you talk about the other
side, the side of kind of increased cognitive complexity.

If your only way of evaluating the impact of culture is purely to look at the
values, I think you're missing a huge part of the story. And so I said,
listen, with this book, I'm not going to talk about the values. I'm going to
focus on this and other people can talk about the values. And you can decide
after you've read my book whether you think in the end the increased
complexity is worth the trade-off of maybe more violence or more obscenity or
more sex. So I think, you know, sometimes people feel like I'm kind of
dodging the issue there, but I'm explicitly saying, look, I'm not going to
deal with the issue and, you know, that conversation is already happening out
there.

The one thing I will say, though, is that, you know, I think, for instance,
with the violence question there have been a lot of, you know, articles and
essays and hand-wringing about the issue of violence. There's no question
that the games and the TV shows have gotten more explicitly violent in, you
know, in terms of the bloodshed and the gore that you see over the last 10
years or so. But there's also no question that during that period we have
lived through the most single most dramatic drop in violent crime,
particularly among young people in the country's history. So whatever the
effects of fictional media violence are on real-world violence, they are by
definition, you know, much smaller than all the other social effects that, you
know, transform or accelerate or diminish violence in the society at large.
So I think we tend to exaggerate the impact of media violence on real-world
violence, and that's what I think the numbers show from the last 10 years.

DAVIES: Well, Steven Johnson, thanks so much for speaking with us.

Mr. JOHNSON: Oh, my pleasure.

DAVIES: Writer Steven Johnson. His new book is "Everything Bad is Good for
You."

(Credits)

DAVIES: For Terry Gross, I'm Dave Davies.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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