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Roberts Court Long On Words, Short On Clarity

New York Times reporter Adam Liptak wrote recently that the Supreme Court under Chief Justice John Roberts has become the most conservative court in living memory. Liptak discusses several recent decisions that have been unusually long -- but also vague and opaque.

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Other segments from the episode on December 2, 2010

Fresh Air with Terry Gross, December 2, 2010: Interview with Adam Liptak; Review of Kanye West's album "My Beautiful Dark Twisted Fantasy"; Review of DVD and Blu Ray films and box sets for the…

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Roberts Court Long On Words, Short On Clarity

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

We're going to talk about the direction the Supreme Court has been headed in
since John Roberts became chief justice five years ago, after the death of
William Rehnquist. My guest, New York Times Supreme Court correspondent Adam
Liptak, writes that in those five years, the court not only moved to the right
but also became the most conservative on in living memory.

We're also going to talk about some of the big cases before the court and a
recent revelation from retired Justice John Paul Stevens.

In addition to covering the Supreme Court, Adam Liptak writes the column
Sidebar on developments in the law. He's also a lawyer who formerly worked in
the New York Times legal department, where he spent a decade advising the paper
on defamation, privacy, news-gathering and related issues.

Adam Liptak, welcome back to FRESH AIR. Let's start with how former Justice
John Paul Stevens is making news, in an unusual way for a justice. He's
reviewed a book on capital punishment for the New York Review of books, and in
his review, he explained why his own view on capital punishment changed.

So what was his view, and how did it change?

Mr. ADAM LIPTAK (Supreme Court Correspondent, New York Times): Well, Justice
Stevens was one of the justices, right after he joined the court, way back in
1975. In 1976, he was one of the justices who voted to reinstate the death
penalty in 1976, after a four-year moratorium.

And at the time, he now says, he thought it might be possible to come up with
procedures that would isolate those crimes that were so terrible that they
warranted the ultimate punishment.

And in this essay, he talks about how disappointed he was with the court, in
moving in the opposite direction; in his mind making the system more
politicized, picking juries more prone to impose the death penalty, allowing
elected prosecutors and judges to take politics into account, rejecting
statistical evidence of racial disparities in the death penalty. And so in all
of those ways, moving away from what he thought was the possibility of focused
capital punishment toward a kind of arbitrary system infected by emotionalism,
victim impact statements, racial and politicized decision-making.

And so at the very end of his career, before he stepped down just a few months
ago, he announced that he no longer thought the death penalty was
constitutional. Although, unlike some of his predecessors, he continued to
apply the court's precedents and did impose the death penalty through the end.
But he's come to the conclusion that the death penalty does violate, at least
as it's imposed today, the Constitution's ban on cruel and unusual punishment.

GROSS: So he reversed his decision on capital punishment in 2008, but it wasn't
until now, in the New York Review of Books essay, that he actually revealed why
he had his change of heart.

Why is it so unusual for a former Supreme Court justice to reveal why they
changed their mind about something, like why they think what they do?

Mr. LIPTAK: It's not so much why he changed his mind, but his blow-by-blow
deconstruction of the cases where he thinks his colleagues went wrong, and
really quite focused and surprising accusations of what he called, quote,
"regrettable judicial activism" against not only the more conservative
justices, but singling out Justices Kennedy - who's currently the court's swing
vote - and Justice Souter, who was a frequent ally of Justice Stevens's on the
more liberal side of the court. That kind of blow-by-blow, case-by-case
deconstruction is quite unusual.

GROSS: So you've been covering the Roberts court. The court, you say, has been
handing down very long decisions, but these decisions are also very confusing
to the lower courts who are trying to interpret them.

And your article was based, in part, on an actual analysis, like a linguistic
analysis of the decisions. Tell us a little bit about that study.

Mr. LIPTAK: Well, Terry, you would be surprised at how much attention is paid
to the Supreme Court, not only by journalists like me, but by legal scholars,
and now lately, especially, political scientists, who run every aspect of the
court's work through databases and come up with various conclusions.

And two of them were, that in just this last term of the court, they set a
record for the longest median length of decisions in the history of the Supreme
Court. So they're writing very long.

And long, I think you'd probably agree with me – was it Mark Twain who said I
have to write you a long letter because I didn't have time to write you a short
one?

(Soundbite of laughter)

Mr. LIPTAK: Well, long moves you in a direction of confusion, but it's not the
only reason that the court's opinions are, in the minds of many people,
confusing. They're also, you know, written in this kind of institutional style,
where it's hard to figure out exactly what the rule being proposed for lower-
court judges to follow is - and some of them have spoken out about this.

Some of the justices have railed against what Justice Scalia, for instance,
calls the court's propensity to issue opaque opinions. And then there's also an
interesting phenomenon.

The court is very proud of the number of unanimous decisions it issues. So when
you talk about the polarized court and the five-four decisions, and all that's
true, the justices will often say, but no, wait a second. Forty percent of our
decisions are unanimous.

But interestingly, it's those unanimous decisions, where you need to get
everybody on board, and everybody's kind of tinkering with it, and it's written
by committee, that you get the most ambiguous decisions according to political
scientists, who run this through various kinds of, you know, linguistic
metrics.

And the Roberts' court is also setting a record in a second sort of area, where
they say they're unanimous, but more often in this last term than ever in the
history of the court, justices who vote for the result in the case - so it's
nine-zero on the result - will also be writing separately. And those concurring
opinions, those separate opinions agreeing with the result but maybe quibbling
with the reasoning, also make for confusion.

So for all these various reasons, there's good reason to think that it's not
the easiest job in the world, if you're a lower court judge, to do what the
Supreme Court is telling you to do.

GROSS: Because you don't know what it's telling you to do.

Mr. LIPTAK: Exactly.

GROSS: So give us an example of the problem, a decision that has been very
confusing for the lower courts.

Mr. LIPTAK: Well, a couple come to mind. There was a decision on mutual fund
advisory fees. And, you know, I realize it's boring. Welcome to my world.

(Soundbite of laughter)

Mr. LIPTAK: But nonetheless, the decision comes down. It's unanimous. Justice
Alito wrote it. And you try to make sense of it, and basically, he's just
saying, well, you should take everything into account.

And I knew that it was a confusing decision because my phone started ringing,
and the lawyers, you know, on both sides were completely convinced that they
had won the case. Each side, you know, each party on each side of the V was
persuaded that they had won the case because the court's decision was ambiguous
enough that you couldn't even tell which side had won.

GROSS: Is the problem that the justices or their clerks aren't very good
writers? Is the problem, do you think, that they're not thinking it through
clearly? Or, like, what's the problem?

Mr. LIPTAK: I think some of it probably has to do with the delegation of the
writing to law clerks. You know, justices, each of them hire, every year, four
incredibly well-credentialed, incredibly brainy, but quite young recent law
school graduates. And a lot of the drafting gets done in the first instance by
those clerks.

Then it's revised. Then it's circulated, and justices give comments to each
other. And that kind of writing-by-committee probably results in a certain
amount of ambiguity and fuzziness.

Some of it is just that the modern legal writing style – it didn't always used
to be this way – has a very bureaucratic, institutional, plodding quality to
it. And some of it is that search for consensus, which I mentioned before,
which is hard to argue with except, you know, getting nine people on board and
taking nine sets of comments might move you in the direction of fuzziness,
which again is a point that Justice Scalia, who spoke publicly about my article
at the Federalist Society convention a week or two ago, said that's right. You
know, the more you go for unanimity, the more you go for fuzziness. A five-four
decision is likely to give you a much cleaner set of guidelines if you're a
lower court judge.

GROSS: The linguistic analysis that was done on Supreme Court decision-writing
show that Scalia and Breyer had the clearest written decisions.

Mr. LIPTAK: And the hypothesis of that particular study was that that probably
also means they're doing more of their own writing.

GROSS: Interesting. So, just one more thing on the subject. If a lower-court
judge can't make sense of an opinion, either because it's fuzzily written, or
there are so many concurrences that it's hard to tell what the interpretation
really is, what's that lower-court judge supposed to do?

Mr. LIPTAK: Well, it probably means they end up having more discretion to make
whatever ruling they think is right. Bear in mind, of course, that we're
talking typically about three layers of courts. So there are probably appeals
court decisions that can and should be followed if you're a trial judge.

But nonetheless, the lack of clear guidance from the Supreme Court means more
discretion in the lower court and more likelihood that the same issue will be
decided differently in different parts of the country, and that raises
questions of fairness.

GROSS: If you're just joining us, my guest is Adam Liptak. He's the Supreme
Court correspondent for the New York Times. Let's take a break, and then we'll
talk more about the Roberts court. This is FRESH AIR.

Mr. LIPTAK: If you're just joining us, my guest is Adam Liptak. He covers the
Supreme Court for the New York Times.

Now, you write that the Roberts court is the most conservative court in living
memory, and this is based in part on an empirical study using a database
created with the support of the National Science Foundation about 20 years ago.

So what is the evidence that it’s the most conservative court in living memory?

Mr. LIPTAK: Political scientists do a lot of coding, and one thing they do is
they code in the directions and say a given decision is conservative or
liberal.

And that, at first blush, sounds sort of odd that you can say that about
essentially every single judicial decision, but when you look at the
methodology, in the great, great number of cases, it does make perfect,
intuitive sense that a ruling in favor of a criminal defendant, in favor of
someone claiming employment discrimination, in favor of a labor union, can be
said to be liberal and the opposite conservative. And among political
scientists, at least, this methodology is quite widely accepted.

So when political scientists run these numbers, what they find is that the
Roberts court has taken a small step, and I emphasize small step, to the right
of the two quite conservative courts that preceded it.

The Burger court and the Rehnquist court, which sat for about 35 years, from
'69 to 2005, fairly consistently were ruling in a conservative direction about
55 percent of the time. That was a very, very sharp turn to the right from the
Warren court, the famously liberal court that preceded it from '53 to '69,
which was at 34 percent.

So we moved from 34 to 55, and we stayed there all the way until the Roberts
court, and the Roberts court, which has now finished five years, now moves an
additional increment to the right, locates a little more territory to the
right, is now at 58 percent, I stress not a huge move but a discernable move in
a period where there was nothing like this.

And the term that ended last year, the court is at 65 percent conservative. So
you do see by these measurements, at least, the court is noticeably more
conservative than even the conservative courts that preceded it.

I guess I'd give you on more caveat: It's not clear to me that in moving to the
right, the court has not merely followed where the public is. I think it's
probably true to say that the American public has also moved to the right, as
well. So this is not a suggestion that the court is out of step with the
public, but it is a suggestion that by these historical measures, it's slightly
to the right of the courts that preceded it.

GROSS: Is there a case or two that you think exemplifies the move to the right
on the court?

Mr. LIPTAK: Well, you could certainly point to Citizens United, the decision
from January that struck down limits on corporate and union spending in
political campaigns, because that decision came just a few years after the
court had said the opposite. But with the substitution of Samuel Alito for
Sandra Day O'Connor, it came to a different conclusion.

You saw something similar in the area of partial-birth abortion, where a five-
four decision one way goes five-four in the other direction. So it's not hard
to look at the occasional case where this proposition comes pretty vividly to
life.

GROSS: Well, some people have used the Citizens United case as an example of
judicial activism because the court actually sent back the case with the
intention of broadening the scope of it. Do you want to explain?

Mr. LIPTAK: Well, Citizens United can be said to be an example of judicial
activism by one common measure of judicial activism, which is that when the
court overturns a precedent or strikes down a law, it can be said to be being
activist.

Now, the Roberts court, in terms of numbers, is not especially activist in that
sense. It does not overturn a ton of precedent. It doesn't strike down a ton of
laws. But when it does, these same political scientists find, it does so almost
uniformly in a conservative direction.

The Rehnquist court not so at all. But the Roberts court, to the extent it does
engage in this kind of activism, in that sense I just described, is doing it in
a almost uniformly conservative direction.

GROSS: Describe how that applies to Citizens United.

Mr. LIPTAK: Well, Citizens United involved a law passed by Congress. People
generally call it the McCain-Feingold Law. More strictly speaking, it's the
Bipartisan Campaign Reform Act of 2002. And among the things that law did is,
within fairly narrow windows of time before elections, it forbade the broadcast
of advertisements for or against political candidates funded by money from the
general corporate treasury of corporations or unions.

So Congress passes that law, and the question is does that law comport with the
First Amendment or not. Five justices said that it does not, and they strike it
down. So in the sense of did they strike down a law, they certainly did.

And they also overturned a decision of the court called McConnell against
Federal Election Committee, quite recent also, which had come to the opposite
conclusion. So in that sense, it's a two-fer.

GROSS: In Citizens United, the court could have made, and I think it was maybe
expected to make, a fairly narrow ruling. But the court expanded the nature of
that ruling by basically sending the case back and asking the people to broaden
what they were asking for. Would you explain?

Mr. LIPTAK: Sure. Citizens United has now been kind of caricatured in a way
that obscures that the question in the particular case is a very hard question.
The question in the particular case was whether an advocacy corporation could
distribute, by video-on-demand technology on your cable box, a 90-minute
documentary about a presidential candidate, Hillary Clinton.

And so – and it would have been a crime for them to do it under the McCain-
Feingold law. So put that way, whether the government has the power to make
political speech a crime, that is without question a very significant First
Amendment issue.

But the court could easily have gone off on any number of narrower grounds
without coming to the very broad proposition that corporate spending, as such,
during elections is fine.

It could have said, for instance, what Congress wanted to address were those
30-second ads that assault you in the election season, not a 90-minute
documentary that you affirmatively have to seek out on your cable box, right?
So that's one kind of distinction it could have made.

It could have also said that McCain-Feingold applies to broadcast over the air,
not this weird video-on-demand technology. It could also have said: Whatever
you can say about General Motors, we don't think this quirky little advocacy
corporation is the kind of corporation to which Congress meant the law to
apply.

So there are at least three reasons why you could have come out, in a fairly
narrow way. Citizens United would have won, but there are people who say the
court didn't need to reach the broader question that it not only did reach, but
it reached on its own accord.

It set the case down for re-arguments after hearing it a first time, and it
specifically asked the parties to address the question of whether it should
reach that larger point.

The court is not typically in the business of shaping the kind of litigation
that comes before it. But in this case – and Justice Scalia likes to say it's
not a self-starting institution. But in this case, you could make the argument
that it did move in the direction of being a self-starting institution,
reaching out for a legal issue that it wasn't necessary to decide.

GROSS: This is Elena Kagan's first Supreme Court term. And she's had to recuse
herself from a relatively large number of decisions. You wrote about this on
November 16th, and at that time, she had recused herself from 15 of 25
decisions. That's a lot. That's more than half.

Mr. LIPTAK: Well, she had served for a year, before she came on the court, as
United States solicitor general, which is the federal government's top
appellate lawyer, which meant she was in charge of all the government's work
before the Supreme Court.

And she has recused herself, and properly so, from all the cases she was
involved in as a lawyer. And that's I'm sure frustrating for her. It's
problematic for people who appear before the court because it raises the
possibility of a four-four tie, which means that the court, without issuing any
reasoning, just automatically affirms the decision below, and we don't get a
national answer to the given legal question.

So it's problematic but unavoidable. When the last solicitor general to join
the court, Thurgood Marshall, came on, he recused himself from a very high
percentage of cases, also.

It seems that the number of cases Justice Kagan will have to recuse herself
from will drop fairly rapidly, and the second half of the year will be much
better than the first half, and next year will be pretty good.

But in the short term, this is the cost of putting your solicitor general on
the Supreme Court is that you don't have the participation you might like to
see in a whole bunch of cases early on.

GROSS: My guest, Adam Liptak, will be back in the second half of the show. He's
the New York Times Supreme Court correspondent. I'm Terry Gross, and this is
FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross. We're talking about the Roberts
court with Adam Liptak, the Supreme Court correspondent for the New York Times.
He also writes the column "Sidebar" about developments in the law.

So what are some of the major decisions before the court this term that you're
keeping a careful eye on?

Mr. LIPTAK: Well, two cases that are very interesting and that continue the
court's quite intense engagement with the First Amendment have already been
argued. One of them involves funeral protesters at military funerals, and in
particular, a small church called the Westboro Baptist Church, which has the
theological point of view that God is punishing the United States for its
tolerance of homosexuality by killing its soldiers - a sentiment a lot of
people think very ugly if not lunatic. And they show up at military funerals
and, without question, make a very dark day even darker for the people trying
to bury their sons and daughters.

The question in the case though, is whether the father of such a fallen Marine
can sue for infliction of emotional distress, the pastor and the church itself.
And that's a difficult First Amendment question. It's one thing I can imagine
the court might be fairly sympathetic to a local law that says nobody can come
protest within whatever, a mile, a thousand yards, whatever, of a funeral – a
content-neutral sort of restriction on speech about a funeral.

I think the court is finding it harder to decide how to deal with this case
where a jury gets to decide what speech is so ugly and hateful that it would
allow a jury to impose millions of dollars of punishment as it did in this
case. So that - how the court comes out on that case seems to me a very, very
interesting question.

And then a second First Amendment question, also quite interesting, is whether
California can pass a law limiting the sale of violent video games to minors.
Laws like this have been uniformly struck down all over the country. And the
conventional understanding is that the government can regulate depictions of
sex but not violence. And for the court to sustain this California law it would
have to change First Amendment doctrine some to move it in the direction of a
government regulation of speech or depictions of violence and that would be a
fairly large move also, although, in the particular case, limited to minors.
But even so, there is no precedent for that.

GROSS: Interesting. Now one of the decisions before the Supreme Court now is a
case about whether former Attorney General John Ashcroft can be sued by a man
who was detained for 16 days and was shackled because he was suspected of being
a terrorist. What is this case about and what are the implications of it?

Mr. LIPTAK: I think it's in many ways the biggest case of the term. It involves
an American-born Muslim man who was a college football star named Abdullah al-
Kidd. And he was on his way to Saudi Arabia when he was detained at Dulles
Airport and held in very, very tough conditions.

The issue in the case and one that resonates across a broad area that Congress
and others are struggling with is if you're not able to charge someone with a
crime, as the government concluded it could not here, and yet, you suspect them
of terrorism, as it wrongly did here - there is no, nobody now contends that
Mr. al-Kidd was guilty of terrorism - is there some other way you can hold him?
Just hang on to him long enough to figure out what's going on?

And what the government did here was it relied on a statute called the material
witness law. And the idea behind that statute, and you can sort of think about
this like back in the Old West, somebody - you need somebody to come to trial.
He is not the defendant. He's just the witness. But you are afraid he's going
to ride off into the sunset so you hold him sort of as a prisoner but only long
enough to get his testimony and then you let them go again. That's the idea
behind a material witness. And here they used that statute to whole hold al-
Kidd when al-Kidd says they didn't really care about what he had to say about
somebody else's crime. They suspected him of having committed a crime.

And so the question in this case, the narrower question is, is that a proper
use of the material witness law? And if it wasn't, can you sue the top
policymaker at the Department of Justice, then-Attorney General John Ashcroft?
But the broader question really is that one of do we need some kind of
preventive detention statute? And you sometimes hear even from relatively
liberal scholars and others that maybe like much of Europe it's not good enough
to rely only on criminal law which allows you to detain people once you can
prove they've committed a crime, but also something where you're afraid they're
going to commit a crime. So that's the broader question.

GROSS: Now, can a Supreme Court say yes we need a law that says you can hold
someone who you suspect is about to commit a crime?

Mr. LIPTAK: The...

GROSS: Like, what can the Supreme Court do that would lead in that direction?

Mr. LIPTAK: The Supreme Court has a great agenda-setting power, so your
suggestion is right, Terry. No, they could not directly say this particular
statue is no good but hey, you're allowed to do it anyway. But when a case like
this hits the court, all of a sudden people start focusing on the issue and I
would not be at all surprised that whatever the upshot of this case is in the
narrower question of material witness laws, all of a sudden it's on the public
radar and all of a sudden some of these ideas that are percolating around start
showing up on the op-ed pages and start showing up as proposed legislation and
so on.

GROSS: So, John Ashcroft says he should not be sued because he was attorney
general at the time the plaintiff was detained and the attorney general is
entitled to prosecutorial immunity. So what's the significance of this case in
terms of determining whether an attorney general can be sued for their actions?

Mr. LIPTAK: So there are two things going on, and the court may well decide
both of them. One is should John Ashcroft get immunity in this case because it
wasn't clear at the time that this policy he was supposedly setting was
unlawful? And then at the same time, there's the underlying question of whether
it was clear or not, which is what the immunity question will turn on. What is
the correct answer? And I think the court is likely to address both points.

The court has been, and particularly in terrorism cases, quite sympathetic to
the idea that lawsuits against public officials trying to do their best in
figuring out how to combat terrorism is not a great idea. So I think the
chances that on the immunity question the former attorney general will do
fairly well are reasonably high. But it's not clear that the court won't also
have a look at the question of, well, but what is the right answer about the
use of the material witness law.

GROSS: Now you used to work in The New York Times legal department and I'm
wondering if you have any insights you'd like to share regarding WikiLeaks. The
New York Times is one of the newspapers around the world who has leaked the
documents before they were put on the Internet and decided to, you know, take
the time to sift through them, analyze them and report on them. And, of course,
it's revealed a lot, very negative response in the Obama administration and
from most diplomats around the world. What are the - are there legal issues
that The New York Times faces pertaining to the publication of the WikiLeaks
documents?

Mr. LIPTAK: So let me say first that I wasn't involved in either the reporting
or the decision to publish these documents. But they do resonate with - I was a
libel lawyer basically for about 15 years before I was a reporter, so these are
issues I've thought about some. The Times, under any conventional understanding
of the First Amendment as the passive recipient of newsworthy - undoubtedly
newsworthy information, can face no prospect of liability.

But it is quite possible that the WikiLeaks phenomenon will start to unravel
what used to be an uneasy but many decades long accommodation that the
government and the press had reached, which was basically that it's the
government's job to try to keep its secrets. But if the press through ordinary
reporting obtains those secrets, it's free to publish them without fear of
prior restraint or subsequent penalty.

And you have the sense that that was partly because the courts and even
administrations believed that they were dealing with mature and responsible
people on the other end with whom they could negotiate and try to persuade them
that some things they may not like to be published but they could live with,
but that others might have very serious consequences. And The Times has said
that it takes very seriously pleas from the government to redact given
materials and in this case and others it has. Without a responsible party on
the other side that becomes harder.

It's also hard because WikiLeaks may well be outside the reach of American law
no matter what the courts might like to do. But it does seem to me that this
phenomenon has the potential to put real pressure on what had until recently
seemed like very settled First Amendment law unlikely to change.

GROSS: When you say pressure do you mean a change in the law or just more
pressure on the press from the White House?

Mr. LIPTAK: No, I do mean a change in the law. And so you saw under the Bush
administration the prosecution of some lobbyists who had basically been doing
what reporters do which is, you know, get information wherever they can. You
see the Obama administration going after people who had called themselves
whistleblowers, but certainly sources, quite aggressively. You saw some saber
rattling in the Bush administration that The Times's publication of revelations
about the warrantless wiretapping program violated the Espionage Act.

So I think there is the beginnings of some sentiment that could well reach the
courts and might even find a sympathetic ear among some judges that this old
understanding I was talking about, which is that if we obtain through ordinary
reporting, truthful and newsworthy information, we're free to do with it what
we wish, that that might not be where we end up, you know, somewhere down the
line.

GROSS: So this kind of experiment in making - in sneaking out and then widely
making available all kinds of secret documents might end up having the opposite
impact that it wanted to have. It wants to be about free information and you're
concerned it's going to end up restricting the press's ability to publish.

Mr. LIPTAK: I suppose I have that concern. I want to make clear that I, you
know, like almost all journalists, I'm in favor of finding stuff out and I'm in
favor of an informed citizenry being able to see what its government is up to
and make decisions about how it should be governed based on as much information
as can reasonably be shared with it that doesn't endanger very vital interests.

GROSS: Well, Adam Liptak, thank you so much for talking with us.

Mr. LIPTAK: My pleasure. Great to be here.

GROSS: Adam Liptak is The New York Times Supreme Court correspondent. You can
find links to his recent articles on our website, freshair.npr.org.

Coming up, Ken Tucker reviews Kanye West's new album.

This is FRESH AIR.
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Kanye West: 'Beautiful' Soul Or Raging Egomaniac?

TERRY GROSS, host:

Kanye West's new album "My Beautiful Dark Twisted Fantasy" is one of the year's
most anticipated recordings. West's public-relations gaffes, last year's
interruption of Taylor Swift's acceptance speech at an Academy Awards ceremony
– at an awards ceremony and more recently, losing his temper during a "Today
Show" interview, have only increased interest in how West was going to either
use or hide his outspoken nature in his new music.

Rock critic Ken Tucker has an answer and a review.

(Soundbite of song, "Gorgeous")

Mr. KANYE WEST (Hip-hop artist; Producer): (Singing) Ain't no question if I
want it, I need it. I can feel it slowly drifting away from me. I'm on the
edge, so why you playing? I'm saying. I will never ever let you live this down,
down, down.

KEN TUCKER: I am fascinated by Kanye West on every level. I thought his first
two albums, 2004's "College Dropout" and 2005's "Late Registration," were and
remain some of the strongest, most diverse hip-hop collections of the decade.

As a producer and rapper, his imagination seems limitless. He covers more
ground in his cultural references than any other contemporary pop musician
under the age of 40. He's also, depending on your point of view, a sensitive
soul or an egomaniac of the highest order. At this point, West is like Blue-
period Joni Mitchell with a Twitter account.

(Soundbite of song, "Runaway")

Mr. WEST: (Singing) And I always find, yeah, I always find something wrong. You
been putting up with my - just way too long. I'm so gifted at finding what I
don't like the most. So I think it's time for us to have a toast.

Let's have a toast for the douche bags. Let's have a toast for the - let's have
a toast for the scumbags, every one of them that I know. Let's have a toast for
the jerkoffs. That'll never take work off. Baby, I got a plan. Run away fast as
you can.

TUCKER: That’s “Runaway,” a nine-minutes-plus opus in which West takes himself
to task as an arrogant perfectionist who can, quote, “always find something
wrong.”

I'm so gifted at finding what I don't like the most, he says, shortly before
offering up a toast - in blunt language - to all self-centered perfectionists.
Because West knows that in any given artform one person's self-centered
perfectionist is another's acclaimed genius.

At other points on this album, West diffuses his self-regard so that it becomes
universal.

(Soundbite of song, "Lost in the World”)

Mr. WEST: (Singing) I'm lost in the woods, I'm down on my mind; I'm building a
still to slow down time. I'm lost in the woods, I'm down on my mind; I'm
building a still to slow down the time.

I'm lost in the woods, I'm down on my mind; I'm building a still
(unintelligible) I'm lost in the woods, I'm down on my mind; I'm building a
still and I'm down for the time(ph). Down for the time. Take me down for the
time.

TUCKER: On a composition such as that one, titled "Lost in the World," West
creates a surging soundscape that transports the listener, carrying you along
with Kanye as he seems to travel across the world, searching for his place in
it. Being lost in the world, as the song title has it, means combining American
and African pop rhythms with a sampling of the poet-musician Gil Scott-Heron
declaiming, "Who will survive in America?"

In the early '70s, Scott-Heron placed his question in the context of the
oppressed and of conspiracy theories that were being floated at the time about
radical groups such as the SDS, the Black Panthers, and the Young Lords. West,
appropriating it, applies it to the drama of his own life. You can say this is
yet another example of egregious self-aggrandizement. It's also superb music-
making.

(Soundbite of song, “Power”)

Mr. WEST: I’m living in the 21st century. Doing something mean to it. Do it
better than anybody you ever seen do it. Screams from the haters, it’s a nice
ring to it. I guess every superhero need his theme music.

No one man should have all that power. The clock’s ticking, I just count the
hours. Stop tripping, I’m tripping off the power - 21st century schizoid man.

The system broken, the schools closed, the prisons open. We ain’t got nothing
to lose, everybody, we rolling. Huh? Everybody, we rolling, with some light-
skinned girls and some Kelly Rowlands. In this white man’s world, we the ones
chosen. So goodnight, cruel world, I see you in the morning. Huh? I see you in
the morning. This is way too much, I need a moment.

No one man should have...

TUCKER: While Kanye West is very much a man of the current pop moment, I think
he connects with a strong strain in American popular music: the musician who
cultivates an image that is inseparable from his music, an artist whose work
can be enjoyed on its own yet which is fully completed only when we also form
opinions about his public persona, his statements, his actions.

From Elvis Presley to Bob Dylan to Michael Jackson to Madonna to Bruce
Springsteen to Kurt Cobain, pop music has a history of both sincerity and
assuming a pose that takes on its own authenticity. This 60-year-old tradition
finds its current embodiment most glowingly in Kanye West.

GROSS: Ken Tucker is editor-at-large at Entertainment Weekly. He reviewed “My
Beautiful Dark Twisted Fantasy” by Kanye West.
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Must-See Movie Selections For The Giving Season

TERRY GROSS, host:

Our critic-at-large, John Powers, who often reviews new DVDs for us, has some
recommendations of new releases on DVD and Blu-Ray that would make good holiday
gifts or that you just might want to watch yourself over the holidays.

JOHN POWERS: You hear a lot of talk these days about how home video sales are
being murdered by online streaming. Maybe so, but you wouldn't know it from all
the people who ask me which new DVDs or Blu-rays they should give as holiday
gifts. Although I try to tailor my replies to whoever I'm talking to - yes, I'm
a boutique critic - my general rule is always the same: A good disc is one you
can watch over and over, because it takes you into a whole new reality.

That's why I start by recommending “Sherlock Jr.,” Buster Keaton's buoyant 1925
comedy in a gorgeous new version from Kino. Keaton plays a movie projectionist
who steps into the film he's projecting and becomes the great detective
Sherlock Jr. What follows is a triumph of visual imagination.

In the most amazing sequence, Keaton sits on the handlebars of a motorcycle and
drives himself through Los Angeles as cars whiz around him and trains nearly
flatten him. Each time I see it, I'm dazzled by how much more inventive comedy
was back then, back when comedians had to be able to, you know, do funny
things, rather than rely on digital effects or adolescent quips about sex.

Of course, you can't recommend Keaton without also recommending Charlie
Chaplin, whose own 1936 classic “Modern Times” is just out from Criterion.
Chaplin grew up poor and more than anyone in Hollywood history made movies on
the side of those without money. Here his Little Tramp plays a factory worker
who gets involved with the gamine Paulette Goddard. While the story is simple,
“Modern Times” contains some of the great iconic sequences in film history -
everything from the Tramp being literally sucked into the gears of a machine to
the sublime poetry of Chaplin and Goddard roller-skating through a closed
department store that’s filled with the things they can't afford to buy.

There's far darker poetry at work in my next recommendation, “The Night of the
Hunter,” Charles Laughton's masterpiece, which in Criterion's new edition looks
better than I've ever seen it. The story centers on two children, John and
Pearl, whose mother marries a psychotic preacher, played with sinister charisma
by Robert Mitchum. The preacher's true aim is getting his hands on the 10 grand
their real father stole in a robbery.

And here he calls John a meddler for telling Pearl not to reveal where the
money is hidden. By way of persuading her to talk, he pulls out his knife.

(Soundbite of movie, “Night of the Hunter”)

Mr. ROBERT MITCHUM (Actor): (as Harry Powell) Want to see something cute? Now,
lookee.

(Soundbite of knife opening)

Mr. MITCHUM: (as Harry Powell) How about that? This is what I use on meddlers.
John might be a meddler. No, no. No, little lamb. Don’t touch it. Don’t touch
my knife. That makes me mad. Makes me very, very mad. Now, just tell me, where
is the money hidden?

Ms. SALLY JANE BRUCE (Actor): (as Pearl) But I swore, I promised John I
wouldn't tell.

Mr. MITCHUM: (as Harry Powell) John doesn't matter. Can I get that through your
head, you poor silly, disgusting little wretch?

POWERS: “Night of the Hunter” is about the battle between love and hate.
Preacher famously has these words tattooed on his hands - and what makes this
one of the greatest American movies is the way it uses talismanic imagery and
haunting music to conjure up a child's-eye view of a world that's at once
terrifying and magical. Certainly few screen characters are more wondrously
benevolent than the kids' savior, a radiant old woman played by Lillian Gish.
As loving as the preacher is hateful, she likes to quote the Bible's
injunction: Beware of false prophets.

The cost of ignoring this warning is clear in A&E's remastered Blu-ray re-
release of “The World at War,” a 26-hour series that remains the best thing
television has ever done on World War II. Made in the 1970s, this is
documentary in the grand old style. You'll find no bogus re-creations, no
flashy editing, no trendy Oxford historians walking around and preening for the
camera. Instead, “The World at War” - with its well-written voice-over read by
Laurence Olivier - actually tells you what happened in World War II.

And it does it with archival footage that takes your breath away. Cameramen
were seemingly everywhere back then, and so we get to see how things happened -
Nazi rallies more spookily surreal than anything in Harry Potter, Siberian
soldiers skiing into battle, and radio announcers watching planes bombing ships
and calling the action as if it were a prizefight. We also see a reality our
government and media don't like us to see anymore - the actual cost of war, be
it dead bodies or the boundless devastation of ordinary lives.

If any one man casts a shadow over “The World at War,” it is, of course,
Hitler, who used economic bad times to turn populist resentment into murderous
dictatorship. Watching this great dictator in action reminds us to beware those
who are eager to stoke political hatreds. You see, that's the thing about false
prophets. There are always plenty to go around.

GROSS: John Powers is film critic for Vogue and Vogue.com. There's a longer
list of John's gift recommendations on our website, freshair.npr.org, where you
can also download podcasts of our show.

(Soundbite of music)

GROSS: We have some good news to end our show with. Our producer John Myers and
his wife Megan have a new baby boy. His name is Owen McClintock Myers.
Congratulations. We're so happy for you.
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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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