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Legal Scholar Cass Sunstein on the Supreme Court's Future

University of Chicago law professor Cass Sunstein discusses the death of Supreme Court Chief Justice William Rehnquist and President Bush's nomination of John G. Roberts to replace him.

44:26

Other segments from the episode on September 7, 2005

Fresh Air with Terry Gross, September 7, 2005: Interview with Cass Sunstein; Review of Sonny Rollin's new music album "Without a song: the 9/11 concert."

Transcript

DATE September 7, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Cass Sunstein of the University of Chicago law school
discusses William Rehnquist and the future of the 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.

As the nation pays its respects today to Supreme Court Chief Justice William
Rehnquist, senators are preparing for confirmation hearings, which begin
Monday, on Judge John Roberts. Rehnquist's death Saturday leaves President
Bush with two appointments to the nation's highest court, and he quickly
announced that Roberts, whom he recently nominated to replace retiring Justice
Sandra Day O'Connor, is now his choice for chief justice. Bush has said he'd
like to have Roberts confirmed in time for the court's session in October.

To talk about Rehnquist's legacy and the forthcoming confirmation battle,
we've turned to Cass Sunstein, a professor of law and political science at the
University of Chicago. Sunstein, a former clerk on the Supreme Court, has
written widely as an academic on issues of constitutional law. His latest
book is "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for
America."

Well, Cass Sunstein, welcome back to FRESH AIR. Let's talk a bit about
William Rehnquist first. How do you rate his impact on the law, among
American justices?

Professor CASS SUNSTEIN (University of Chicago): Huge, probably one of the 10
most important justices in the history of the Supreme Court, and possibly in
the top five. When he got to the court, the court was quite liberal. He had
views that were extreme by the standards of the day and he's pushed the court
in his directions on key questions.

DAVIES: He was appointed in 1971, became chief justice in '86. Let's look at
the role of the Rehnquist court on some areas of the law. One is the role and
powers of Congress.

Prof. SUNSTEIN: Yeah. What Rehnquist wanted to do from a very early stage
was to reassert the fact that the Constitution has limits on Congress' power.
In his view, after the New Deal, the Supreme Court had let Congress do things
that really didn't have much to do with interstate commerce and Congress is
supposed to regulate interstate commerce; that's one of its jobs, not just
actions within a state. And he succeeded in getting the court to strike down
a law that was designed to protect against violence against women. The
Violence Against Women Act got struck down, in part, in an opinion he wrote.
He also wrote an opinion that struck down a law forbidding guns from being
near schools, saying that that had not enough to do with interstate commerce.

After those two very important decisions, Congress now has to worry over
things like the Endangered Species Act, hate crimes laws, even the Clean Water
Act, in part, because the Clean Water Act applies to bodies of water that just
are in one or another state.

DAVIES: So he has struck down a number of laws and we see a clear trend in
that area.

Prof. SUNSTEIN: Yeah. I'd say it's a minor revolution. Between the New
Deal and the 1990s, the Supreme Court didn't once say that an act of Congress
was beyond the power of the national government because it didn't involve
interstate commerce. Rehnquist has now made it the case that the courts are
available to strike down acts of Congress as violating the rights of states to
regulate their own citizens. Whether you like it or not, that's a very big
deal.

DAVIES: So if this principle holds, does that mean that any law which does
anything beyond strictly regulating commerce, any aspect of our lives, is
likely to be overturned or never passed in the first place?

Prof. SUNSTEIN: Well, what Chief Justice Rehnquist really did was to plant a
seed and we don't know how big the seed's going to grow, whether it's going to
become a tree. It is true that some lower courts have suggested the
Endangered Species Act is unconstitutional in some of its applications, which
would be very major if the Supreme Court struck down aspects of the Endangered
Species Act.

It's also true that Congress has tried to prevent hate crimes by saying it's a
federal crime to engage in acts of violence against people because of their
race or religion or ethnicity. That may be unconstitutional under what Chief
Justice Rehnquist has done. So how big this development is going to be
remains to be decided. But because of Chief Justice Rehnquist's work, this is
really on the agenda.

DAVIES: Justice Rehnquist cast a dissenting vote in the Roe vs. Wade decision
which struck down the state laws prohibiting abortion. What was his role in
privacy and reproductive rights?

Prof. SUNSTEIN: Very, very important. Chief Justice Rehnquist resisted, very
aggressively, the idea that the Constitution protects a right of privacy at
all, really. He thought that if the national government, or the state
government is intruding in the private domain, including the domain of
reproduction and childbirth, it can do that so long as it has any kind of
legitimate reason. What he was not able to do was to eliminate the right to
choose or to abolish the right to privacy, which he almost certainly wanted to
do. What he was able to do--and this shouldn't be underrated--he was able to
stop the expansion of the right of privacy pretty much in its tracks. The
court has been very reluctant to build on its privacy decisions of the '60s
and '70s, and Chief Justice Rehnquist more than anyone is responsible for that
reluctance.

DAVIES: The Rehnquist court also had an opportunity to do something truly
rare and that is to, in effect, pick a president. In 2000, the Bush vs. Gore
case came before the Supreme Court, and in the end resulted in the
inauguration of President George Bush. What was Rehnquist's role then?

Prof. SUNSTEIN: We don't know the details, because what happened behind the
scenes is not visible to the public. We do know that it was a five-four vote
and that Rehnquist was one of the five. There's also reason to believe that,
as chief justice, someone who everybody liked also, he had a behind-the-scenes
role in helping to produce the court's majority. So there's no question that
he was firmly in favor of President Bush's position in Bush against Gore, and
he was probably an architect of the ultimate outcome.

DAVIES: He was known for a collegial style. He was well-liked by his
colleagues, right?

Prof. SUNSTEIN: Rehnquist was a great guy, so people who know him, including,
I'll confess, myself--I clerked there--are mourning his loss. He was a person
of great kindness and personal generosity.

DAVIES: And had ways of communicating kind of where he was and where the
court was going in a sort of a gentle way, didn't he?

Prof. SUNSTEIN: Yeah. He was a civilized person and he believed in
respectful disagreement. There was some evolution with Rehnquist on that
count. In his early days on the court, he was capable of being pretty rough
in his dissenting opinions, never bitter and never enraged; he wasn't that
type. But he could be rough and sarcastic. After he became chief justice in
'86, his tone modulated a bit so that he did disagree strenuously, but he
always acted as if those who disagreed with him were acting in good faith and
their positions were wrong, but reasonable.

DAVIES: Are there any other areas of the law in which you feel he's had a
particularly dramatic impact?

Prof. SUNSTEIN: Yeah. He's had a huge impact on separation of church and
state. That's because he doesn't believe the idea of separation of church and
state is constitutionally sound, so he attacked early on the wall of
separation between church and state and he mostly succeeded in getting the
court to be careful with that metaphor. The Supreme Court has upheld a
voucher program in education, something that was very unlikely, one would have
thought in the early '80s. The Supreme Court did that because of Rehnquist's
attack on the notion of a wall of separation.

In criminal procedure, his influence has been immense. He really did not like
the Warren court's expansion of constitutional rights protecting criminal
defendants, and he succeeded in limiting the exclusionary rule which requires
the exclusion of evidence that's obtained in violation of the Constitution.
And he succeeded pretty much in stopping in its tracks the development of new
rights to protect criminal defendants.

He much disliked the early efforts to understand the Constitution to protect a
right to education, welfare and employment. In the early '60s and late '60s,
there was some effort to understand the Constitution to protect these
affirmative rights. Rehnquist eliminated that pretty much entirely.

He very much disliked the use of the equal protection clause to protect groups
other than African-Americans, so he fought hard against the expansion of the
equal protection clause to protect disabled people and older people and even
women. He lost with respect to women and eventually he gave up that fight.
But he may have won the war with respect to the equality principle because he
did succeed in preventing the court from recognizing multiple other groups,
like disabled people and older people, recognizing them as entitled to special
constitutional protection against discrimination.

DAVIES: Well, Cass Sunstein, with the death of Chief Justice Rehnquist,
President Bush has nominated Judge Roberts, who he had planned to place as an
associate justice on the Supreme Court. He will now make him--wants to make
him the chief justice. Explain for us what the role of the chief justice is
in the functioning of the Supreme Court.

Prof. SUNSTEIN: The most important thing is the chief justice assigns
opinions and kind of runs the deliberations among the justices, so the
justices meet in something called conference in which they vote, and the
chief justice kind of runs that meeting. He also assigns opinions, so if he
thinks that he really wants, for example, Scalia to write this one, or Stevens
to write that one, he can make that choice. Or, maybe most important of all,
if he wants himself to write the major opinions, the most important ones
facing the country, he can assign opinions to himself.

DAVIES: So something akin to a committee chair in Congress. By controlling
the flow of the work, you influence its outcome.

Prof. SUNSTEIN: Yeah. There--he is a little like a committee chair, maybe a
little weaker than a committee chair because, don't forget, the eight others
on the court are pretty strong-willed people and they operate a little bit
like independent law offices which they run. And so a chief justice can't
really manage them in the way sometimes a committee chair is entitled to
through agenda control. But the chief justice does have some power to move
the law by assigning opinions to the people whose views he trusts most.

DAVIES: Now the previous chief justice, Warren Burger, was known for, I
guess, what some might describe as a chaotic management style and was resented
by some of the associate justices. I'm wondering whether a chief justice's
style matters a lot in pursuing whatever legal agenda they have, and what
Rehnquist's style was.

Prof. SUNSTEIN: Rehnquist had two things to his style. First, he was
efficient, and second, he was nice, so he really made the trains run on time.
He was not someone who let chaos reign in the least, and they appreciated
that. It was as important that he was a nice person who was funny about how
the trains had to be made to run on time rather than punitive or high-handed.
So those two things working together made him a terrific administrator.

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: We're speaking with University of Chicago law Professor Cass
Sunstein. He's also the author of a new book, "Radicals in Robes: Why
Extreme Right-Wing Courts Are Wrong for America."

Now if John Roberts is confirmed as chief justice, he will come into the court
as its newest and youngest member, as the chief. Would that make any
difference in terms of his ability to do his job, his influence, the respect
he gets from other justices?

Prof. SUNSTEIN: I think the fact that he's been a presence around the court,
because he's argued there so many times, dozens of times, will counteract the
fact that he is as youthful, in terms of Supreme Court years, as he is, at the
age of 50, so he's not inexperienced or unknown among the justices. On the
other hand, it just is the case for any one new job, the hallways looked
different from what you're used to and they make you maybe a little
off-balance. There's a big learning curve. He has a lot to find out about
internal management of the court. The justices certainly wouldn't like it if
he asserted himself as their boss and it would be very surprising if he did
anything like that.

DAVIES: Well, you know, Justice Rehnquist had, I guess--What?--a 15-year
apprenticeship on the court as an associate justice before he became the chief
in 1986. How common is it for a president to pick an outsider to move in as
chief justice?

Prof. SUNSTEIN: Very, very common. In fact, what happened with Rehnquist is
rare in our history. The vast majority of chief justices have been chosen by
the president from outside the court. And the reason for that, if you think
about it, is pretty clear. The president wants as chief justice, often,
someone whom the president has particularly chosen as his chief justice. He
doesn't necessarily want to go to someone who's been chosen by some
predecessor president, even if the earlier president is someone the president
likes, even if the earlier justice was chosen by the president who is the
current president's dad.

DAVIES: Critics of Judge Roberts have said that the stakes are now higher,
that he isn't simply being considered to ascend to the Supreme Court but to
lead it. Should that make a difference in the confirmation process?

Prof. SUNSTEIN: Some. The fact that Judge Roberts has been nominated to be
the number-one judge in the United States does raise the stakes some,
certainly symbolically and to some extent in terms of substance, So it is
right to say that this should be a serious rather than just celebratory
confirmation process. The president's called for a dignified confirmation
process. Dignified confirmation process doesn't involve jeering and
accusations, but it also doesn't involve celebrations of personal narrative or
simple sound bites that suggest someone's great. It suggests the need for
serious discussion of the issues.

DAVIES: When you say it shouldn't involve celebrations of personal narrative,
what do you mean?

Prof. SUNSTEIN: Well, what I mean is there's been some tendency in recent
Supreme Court nominations to talk about where the person lived or what he
overcame or what he did when he was a teen-ager or what obstacles he faced at
some bad moment in his life with respect to money or health. And these are
relevant to getting a picture of a personal life, but really we shouldn't turn
Supreme Court nominees into heroes of docudramas on television. These are
people who are going to have a big effect on our lives and rather than talking
about what they did in high school or what they overcame, we should think
about what they're going to do in their jobs.

DAVIES: When we spoke after Roberts was nominated as an associate justice,
one of the things you said was that his views on a lot of critical
constitutional issues were not publicly known, though they might be privately
known, that is to say, he might have said things in conversation which
provided insights that his opinions haven't. In the two months that have
passed since, there have been a lot more of his writings and legal memoranda
that have made public. Do we know more now about his stands on these key
constitutional issues?

Prof. SUNSTEIN: We don't know more, I don't think, about where he now
stands, but we do know more about where he stood when he was a young man. So
one thing we've learned is that as a person in his 20s and 30s in the Reagan
administration, he was very conservative. He was on the conservatives' side
of the Reagan administration itself. Even in a conservative White House, he
stood out as a quite-conservative lawyer. That's a bit of a surprise to some
people.

DAVIES: Does it give you greater pause that he might be kind of one of the
radical fundamentalist conservatives?

Prof. SUNSTEIN: I doubt that he's a radical. The fact that in his 20s and
early 30s he took certain positions doesn't give us a lot of clues to what he
thinks when he's 50. Probably the fact that he was a cautious and careful
judge is more informative than the fact that he was, let's say, a careful but
less than cautious lawyer as a young man. So I feel that we need a good
discussion but that there's no reason to be attacking him or to be frightened
of him.

DAVIES: The Democratic Senate majority leader, Harry Reid, urged President
Bush recently to take into account Justice O'Connor's role as what he called a
voice of moderation and reason on the court in selecting a replacement. It
seems to be a kind of warning that he wants to see a centrist. I'm wondering,
does the fact--I mean, you are also a professor of political science, I
believe, in addition to law. Does the fact that President Bush is struggling
in the polls on Iraq and his handling of Hurricane Katrina weaken his position
in these potential confirmation battles? Does it make it more likely he will
nominate a centrist?

Prof. SUNSTEIN: I think there's no question that it weakens his position,
that because he's not quite as popular as he's been in the past, a contested
Supreme Court nominee will not be received happily by moderates and liberals
in the United States Congress. Even some Republicans will be unhappy, and
their hands are stronger, too. On the other hand, this president is someone
who's been occasionally willing to be quite tough, even in circumstances in
which the politics aren't favoring him. So I don't know whether he's going to
be more moderate because of the political difficulties. It's not even clear
whether his own judgments on the judges at this stage are moderate or not. We
don't quite know what the White House is like with respect to the Supreme
Court. On that, the jury's still out.

DAVIES: You've said that it's important for the nation to have a serious
confirmation process that looks at the important issues. I mean, the
confirmation process has moved beyond that to, you know, a battle in the
popular media, and we see advertising for and against justices, and we've seen
them in the case of Judge Roberts. Is that a good thing? Is it good that
more people are drawn into the fight over a Supreme Court justice?

Prof. SUNSTEIN: I do think it's good, that this should be a broadly
democratic inquiry. And so the Supreme Court is very important, and in a way,
the debate threatens the ridiculous where the president says, `I'm going to
appoint people who follow the law. I'm not going to appoint people who make
up the Constitution.' Well, no one wants to have people on the court who make
up the Constitution or who don't follow the law, so that's uninformative. We
need to have a discussion of what kind of judges we're actually getting, and
if we're getting judges who read the Constitution as if it reflects the views
of the extreme wing of the Republican Party, that's a problem, and the country
needs to talk about that.

On the other hand, there is a risk of the sound-bitification of the Supreme
Court process where liberal groups, let's say, characterize conservative
appointees as if they hate civil rights or are against women or something,
which is a ludicrous caricature of the position of conservative judges. So
involving the democratic public, I think, is extremely good and very
important, but we have to be careful to avoid accusations and caricatures.

DAVIES: I wonder if you've seen the television ads that have aired so far and
what you think of them.

Prof. SUNSTEIN: Well, I've read about them, and I think they're pretty bad on
both sides. They either make it seem as if Judge Roberts is, you know,
perfect and the noblest human being maybe ever, or as if he's a kind of demon
who is out to sabotage American democracy. And that doesn't help a lot.

DAVIES: Do you think the ads have an effect? I mean, do you think that they
get people to call their senators and that matters?

Prof. SUNSTEIN: I think they do. I think that's why people run them. Judge
Bork--there were legitimate questions raised about Judge Bork, but there were
also illegitimate and false things said about Judge Bork, and some of the
advertisements were quite unfair to him, and they had a big impact.

DAVIES: University of Chicago law Professor Cass Sunstein. He'll be back in
the second half of the show. I'm Dave Davies, and this is FRESH AIR.

(Soundbite of music)

DAVIES: That's tenor saxophonist Sonny Rollins. Today is his 75th birthday.
Coming up, jazz critic Kevin Whitehead reviews his latest album "Without a
Song: The 9/11 Concert."

(Soundbite of music)

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

My guest is Cass Sunstein, a professor of law and political science at the
University of Chicago. He's written widely on issues of constitutional law.
His latest book is "Radicals in Robes: Why Extreme Right-Wing Courts are
Wrong for America." In it, he argues that extremism on the bench, from the
left or right, generally produces bad law.

Well, Cass Sunstein, I'd like to talk to talk about the points you make in
your new book. And you look at judges--people often talk about activist
judges and non-activist judges, but what you say is really important are
certain perspectives that judges have on the Constitution, and you divide them
into fundamentalists, minimalists and perfectionists. Briefly, what are
the--what do these categories mean? Why are they important?

Prof. SUNSTEIN: OK. The minimalists are literally conservative. They
believe in conserving, so the minimalists like to take small, little steps.
They think that a Supreme Court decision ought not to settle things for all
time. They think Supreme Court justices ought to avoid taking great stands on
the deep meaning of liberty and equality. So when you think of minimalists,
think of cautious, modest judges.

The perfectionists are the more ambitious liberal judges of whom we don't have
any on the Supreme Court right now, but they included in our history Justice
Earl Warren--Chief Justice Earl Warren, Justice Harry Blackmun, Justice
William Brennan and Justice Thurgood Marshall. The perfectionists believe
that the Constitution should be taken as an invitation to implement our
broadest ideals as they are captured in the Constitution. So perfectionists
want to perfect the Constitution by making it the best it can be, and that way
of thinking is responsible for Roe against Wade, I believe, and some of our
most ambitious decisions involving liberty and equality.

The fundamentalists, who include Justice Scalia and Justice Thomas, believe
that the Constitution means what it always meant, and we ought to go back to
the original meaning of the Constitution and follow it literally in terms of
its meaning when it was originally ratified.

DAVIES: Now your book is primarily a warning on the dangers of a
fundamentalist view in judges. You know, the appeal, I guess, of a
fundamentalist view of the Constitution is that we are a nation of written
laws. You know, we aren't guided by kind of mystic customs or spiritual
beliefs, but the idea that we can decide upon a law, agree upon it, put it
down in writing and then we all follow it. It's an appealing idea, that to go
back in some respects intellectually to what the Constitution meant. Tell us
a little bit about what this approach, this constitutional originalist
approach would mean for some of the areas of the law. Let's just take, say,
racial discrimination, segregation.

Prof. SUNSTEIN: It's clear that if we believe the Constitution means what it
originally meant, the national government can engage in race discrimination
however it wants. If it wants to segregate the schools in the District of
Columbia, that's completely fine. If it wants to engage in racial profiling,
that's completely fine. If it wants to have segregation in its own civil
service, it can do that. If it wants to exclude Hispanics or
African-Americans from government employment, it can do that. The reason that
has to be the answer from the originalist's point of view is that the equal
protection clause, which is the clause that forbids race discrimination, only
applies to the states. It doesn't apply to the national government at all.
So one of our very core values, that is the idea that the national government
can't discriminate people on the basis of race, would be cast out the window
immediately if we believe that the Constitution means what it originally
meant.

DAVIES: Are there judges that are rendering decisions in that direction?

Prof. SUNSTEIN: Not on the race issue, so the fundamentalists are a little
evasive about the true meaning of their theory of interpretation. It is true
that Justice Thomas has said that the separation of church and state idea
doesn't apply at all to the states, so as far as Justice Thomas is concerned,
if a state wanted to establish an official religion, it could do that. That's
a quite amazing view.

Justice Thomas' view, incidentally, is held both in good faith and with solid
historical support, so he might not be right on the history, but he's
certainly reasonable on the history, and if, in the end, the question is a
historical question, then the separation of church and state might be out the
window as far as states are concerned. That would fundamentally, so to speak,
transform the United States in which we now live.

Many fundamentalists believe that Congress can't give discretionary power to
executive agencies, so many of them believe that the Environmental Protection
Agency and the Federal Communications Commission are unconstitutional. That
would be an extremely big deal. That would unsettle institutions that we've
had for a long, long time.

DAVIES: What about reproductive rights, the right of privacy?

Prof. SUNSTEIN: OK. The best argument the fundamentalists have made is that
Roe against Wade has no constitutional basis and was essentially made up, and
I actually think that is a respectable argument. But many of the
fundamentalists would go much further and say there's no right of privacy in
the Constitution at all, so in their view, the Constitution doesn't forbid
government from releasing medical and financial information against people's
will. It wouldn't forbid government from sterilizing people or from banning
them from using contraceptives. So for Justice Scalia and Justice Thomas, the
right of privacy really is a constitutional innovation without any basis in
the document itself.

Now we have to say on behalf of Justice Scalia and Justice Thomas that they're
being true to their own ideals here. As a matter of the original
understanding, there wasn't a general right of privacy, but this would be a
very big change in constitutional understandings as they've developed for over
half a century, and I don't think that change counts as conservative.

DAVIES: Now are the fundamentalists consistent in favoring legal positions
that are in keeping with the intent of the framers of the Constitution? I
mean, do they have their history right?

Prof. SUNSTEIN: Unfortunately not always. At their best, Justice Scalia and
Justice Thomas will follow history wherever it goes, and as I've said on the
right of privacy, they are dead on in terms of the history. But there are
areas where their historical interest is relaxed, and I'll give two examples.
Justice Thomas and Justice Scalia have joined the constitutional assault on
affirmative action programs. They have not said that whether states and
localities have affirmative action is up to them in a federal system. They
have not said that judicial restraint is the right approach in a system of
separated powers. And then instead they've basically said no affirmative
action ever.

Have they inquired into the history behind the 14th Amendment which are the
basis for their decisions? Has either of them uttered even a sentence about
the original understanding of the 14th Amendment? No is the sad answer to
that question. There's a lot of historical work suggesting that affirmative
action was just fine on the original understanding. But...

DAVIES: Let's--yeah, if I can just probe that for a second, fundamentalists
are arguing that the meaning of the 14th Amendment is--was to remove race as a
criteria in any way for rights and privileges recognized by the str--we should
have a race-blind government. But in fact...

Prof. SUNSTEIN: Right, the history...

DAVIES: Right, that's their view. But, in fact, that's not what happened
when the 14th Amendment was passed, was it?

Prof. SUNSTEIN: Right. Many fundamentalists assert that our Constitution is
color-blind, and there can't be any racial lines drawn by government. But the
Congress that ratified--that produced the 14th Amendment--was eventually
ratified by the states--itself had a body called the Freedmen's Bureau, and
the Freedmen's Bureau engaged in affirmative action. There was a lot of
discussion of whether the Freedmen Bureau's special favors to the newly freed
slaves was a form of discrimination. That was discussed. And the answer was
special favors for newly freed slaves--in fact, special favors for people who
were African-American--were just fine. The ultimate view in the country was
this form of discrimination, so-called, wasn't discrimination in the bad
sense. It was a way of equalizing.

Now maybe the people who said this were wrong. Maybe affirmative action is
bad policy. That's a legitimate argument to make. But what is to me
astounding is that Justice Thomas and Justice Scalia, who normally use history
in good faith, don't even talk about history in asserting a principle of
color-blindness, so those who like Justice Scalia and Justice Thomas and their
method, they ought to be very happy with affirmative action, not as a matter
of policy, but as a matter of constitutional law. If that's not right, then
they have a lot of historical work to do, and they haven't done it yet.

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: We're speaking with University of Chicago Law Professor Cass
Sunstein. His new book is "Radicals in Robes: Why Extreme Right-Wing Courts
are Wrong for America."

You know, one of the difficulties with applying an originalist's notion to the
Constitution is that there are technologies and issues which didn't exist when
the Constitution was crafted, and, you know, the guarantee against
unreasonable search and seizure could not have anticipated a day when we had,
you know, electronic eavesdropping and cell phones and, you know, the right to
the due process clause which says you can't be deprived liberty of property
without due process. Well, what does that say about things that didn't exist
then, like welfare payments or disability payments or--how do fundamentalists
deal with the issue of dilemmas which simply didn't exist when the
Constitution was framed?

Prof. SUNSTEIN: They have some real problems. They know, at least in their
best moments, that changes in society make their whole program a lot harder to
implement. They tend to say, `Well, we're going to understand what they tried
to do at the level that they tried to do it.' So if they were trying to say
that you can't invade people's homes without a warrant, then if there's some
new technology that actually invades people's homes, you've got to have a
warrant. So they tried to describe what the framers were doing in a way that
would pick up some changes but not others.

So let me give you an example. If the government uses technology to invade
people's use if their telephones in their homes, the fundamentalists tend to
think that's not OK. You've got to get a warrant for that. But if the
government is discriminating against gays and lesbians, then that's not
constitutionally banned because there's no principle that the Constitution has
that forbids discrimination against gays and lesbians. Now these are tricky
lines to draw, and they may draw the whole project of the fundamentalists into
some question, but those are the kinds of lines they try to draw.

DAVIES: You argue in your book that the constitutional fundamentalists, those
who believe that the original intent of the framers of the Constitution should
be guiding our decisions, that that's a bad approach and that you favor what
you've described as a minimalist approach in which the court does not make
huge, sweeping leaps, but advances the law gradually. One decision which
seems not to have done that was the 1973 Roe vs. Wade decision legalizing
abortion. I mean, that was not a minimalist decision. It took a great leap
in reproductive rights. Was it good law?

Prof. SUNSTEIN: No. Roe against Wade was a big blunder from the
constitutional standpoint. The reason was that the court took some pretty
small precedents and blew them up to create a very general right to choose
abortion. Now many people like that as a matter of policy, and maybe it's
right as a matter of policy, but the court used the Constitution much too
expansively, much too quickly, and cast contempt on millions of Americans who
believe in good faith that abortion is a murder of a human being. So this was
really an abuse of the court's constitutional authority.

DAVIES: What should the court have done?

Prof. SUNSTEIN: Well, there were a couple of things that would have been
reasonable. I think it would have been reasonable for the court to say that
the interest in protecting the life of the fetus is adequate to justify the
intrusion on the woman's right. I say reasonable, though I don't think in the
end that would have been right. I think the best thing for the court to have
done was--would have been to focus much more specifically on the laws at issue
in that case. The law in Roe against Wade didn't have an exception for rape
or incest, so the Texas law was a wildly overbroad effort to intrude on
women's choice. There was an allegation of rape, incidentally, in Roe at the
time, and the court could have just said narrowly that if you're going to
protect the interests in fetal life, you can't do that by forcing women who've
been victims of rape or incest to carry the child to term.

DAVIES: Well, I guess a lot of folks who regard, you know, the pre-Roe
climate as one of terrible violations of women's reproductive rights would
say, `But if you do that, I mean, you're just leaving millions and millions of
women denied, you know, the constitutional protection that they think that
they're entitled to.' I mean, are there times when you need a bold decision?
I mean, take Brown vs. Board of Education in 1954.

Prof. SUNSTEIN: Well, there--the increase in the rate of legal abortions was
higher in the three years before Roe than in the three years after Roe. It's
worth pausing over that. That's the increase in the rate of legal abortions.
How can that be, you might ask, if Roe made almost all abortions legal. The
reason is that the country was rapidly liberalizing abortion. The court
thought it was catching a wave, I think. That's why it didn't expect this
decision to be so controversial. The point is just that when the court way
oversteps where the country's going, it may not be doing something that's very
productive.

Now Brown is an interesting contrast. It is true that Brown, getting rid of
American-style apartheid, was a very bold and big deal, but Brown was
anything--was not anything like Roe. Brown was the result of a slow and long
sequence of decisions. By the time of 1954, the ground was carefully laid for
getting rid of apartheid in the United States. The court had dealt time and
again with so-called separate but equal schools, and said time and again,
`This separate is not equal. That separate is not equal.' By the time of
Brown, separate but equal was all but dead. The court could have built up a
more general privacy right, maybe, but going slowly. If it was going to do
that, that would have been the way to do it.

DAVIES: On Roe vs. Wade, if the court erred in taking a great leap in privacy
in reproductive rights, what harm did it do?

Prof. SUNSTEIN: Well, it created a kind of polarized America that has
infected not only our Supreme Court nominations, but our interactions with one
another. The court's decision probably helped defeat the Equal Rights
Amendment. It was a big blow to the feminist movement in the United States
partly because it demobilized women and mobilized--in fact, helped create the
Moral Majority. It polarized the country and gave tremendous energy to those
who think abortion is a form of murder while eliminating the energy, for a
time at least, for those who believe that the right to choose is a part of
the--of what's necessary to ensure equality on the basis of sex in the United
States.

Now I don't meant to say that the court as a policy matter was wrong, all
things considered. Maybe it was right as a policy matter, all things
considered. Certainly many people believe that. But the Supreme Court is not
our national policymaker. I mean, my principle claim is the court would have
done better in terms of its proper role in American government if it had gone
slowly and let some kind of dialogue occur within the democratic process of
the sort that was occurring then, of the sort that's occurring now with
respect to discrimination on the basis of sexual orientation. We've seen
massive changes in the country on sexual orientation issues in the last
decade, and the Supreme Court, fortunately, has played just a small, cautious
role.

If the court took a big stand on discrimination on the basis of sexual
orientation now, it might polarize the country terribly and cause all sorts of
bad consequences. So I do believe the court didn't serve the country very
well, but more important than that, the court overstepped its proper bounds
even if it did serve the country well.

DAVIES: Among these competing approaches to the Constitution, where would you
put Justices Rehnquist, O'Connor and Judge Roberts?

Prof. SUNSTEIN: O'Connor's the easiest. She is a minimalist. Her approach
to the law is one case at a time. She does not believe in big theories. She
does not believe in the announcement of rules. She hopes to reach decisions
that are small and narrow and that lots of people can agree on despite their
theoretical disagreements. So she is a quintessential minimalist, though a
minimalist of the conservative kind. There are also some liberal minimalists.

Rehnquist is poised between minimalism and fundamentalism, but he's more like
a fundamentalist. He hasn't quite signed on to the historical program of
Scalia and Thomas. He never said--that is Rehnquist--that he believed the
Constitution means what it originally meant, but he voted with them in the key
cases at a very high rate, and he did attack the notion of a living
Constitution. So the idea that the Constitution evolves over time is
something that made him extremely nervous. So I would say Rehnquist was too
pragmatic to be a fully committed fundamentalist. He had a little flexibility
and a sense of the needs of changing times, but he was more than O'Connor by
far in the fundamentalist camp.

With Roberts, it's too early to say. We have someone who is not fully formed
as a judge, someone whose own judicial opinions don't give a real sense of his
approach to constitutional law. I think the hearings will be very informative
on what Roberts' approach to the document is, whether he's a minimalist or
fundamentalist. If I had to bet, I'd bet he's going to be more minimalist
than anything else.

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

Prof. SUNSTEIN: Thank you.

DAVIES: Cass Sunstein is a professor of law and political science at the
University of Chicago. His latest book is "Radicals in Robes: Why Extreme
Right-Wing Courts are Wrong for America."

Coming up, Kevin Whitehead on the new Sonny Rollins album recorded days after
the 9/11 attacks. This is FRESH AIR.

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

Review: Sonny Rollins' new CD "Without a Song: The 9/11 Concert"
DAVE DAVIES, host:

Tenor saxophonist Sonny Rollins turns 75 today. His new album was recorded
four years ago, just days after the World Trade Center attacks, which were
only a few blocks from Rollins' Lower Manhattan apartment. The album was
recorded live at a concert in Boston. Jazz critic Kevin Whitehead says
besides the emotional resonance, it contains some excellent music.

(Soundbite of music)

KEVIN WHITEHEAD reporting:

That's what jazz fans want to hear: Sonny Rollins on stage and blowing for
the roof. He rarely makes live records. His new one is the first in 18
years. But his concerts are the main reason folks still swear by him as one
of the tippy-top jazz talents. Given the room, he'll serve up chorus after
chorus of exuberant honking, little pearls of melody, shards and paraphrases
of the original tune, and outbursts of killer sax technique.

His always keeping the melody in mind is one reason casual listeners love him
as much as experts do. Here's Rollins on Rodgers and Hart's "Where or
When."

(Soundbite of "Where or When")

WHITEHEAD: Sonny Rollins' CD "Without a Song" is subtitled "The 9/11
Concert." Actually it's the 9/15 concert, recorded in Boston the next
weekend. It's an applause and announcements and all kind of live album, which
shows Rollins was no more able than most of us to articulate his feelings that
week. He told the crowd, `Maybe music can help. I don't know, but we have to
try something these days.' He certainly gave it his best shot at a moment
when maybe only art could help. A highlight is his long solo intro to "Why
Was I Born?"

(Soundbite of "Why Was I Born?")

WHITEHEAD: The new Sonny Rollins album skims the highlights from his 2001
Boston concert, but it also points up some shortcomings in his live shows.
Nobody in his 70s wants or should have to solo all the time, so he needs other
and inevitably less brilliant musicians to spell him. Trombonist Clifton
Anderson has learned volumes from his mentor about artful melodic paraphrase
and the joys of a deep groove, but he can't sustain long solos like Rollins.
And I wish Stephen Scott wouldn't sing along with his solos. Him or any other
pianist.

(Soundbite of music and scat accompaniment)

WHITEHEAD: In general, the rhythm quartet chugs along efficiently without
really prodding or challenging the boss. Not that he wants them to. But even
if you hated the band, you could fast-forward through their parts and focus on
a scattered half-hour of prime, recent Sonny Rollins. For some fans, that'll
make this live album better than being there.

(Soundbite of music, applause)

DAVIES: Kevin Whitehead teaches English and American studies at the
University of Kansas and is a jazz columnist for EMusic.com. He reviewed
"Without a Song: The 9/11 Concert" by Sonny Rollins.

(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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