JEFFREY BROWN: And now to a legal case watched for its impact on agriculture and new technologies, as the Supreme Court today unanimously found a soybean farmer had violated a patent held by agri-giant Monsanto.

The decision came three months after an Indiana farmer, Vernon Hugh Bowman, had his day before the High Court. He ran afoul of Monsanto’s policy barring farmers from saving or reusing its expensive Roundup Ready soybean seeds from one year to the next.

Seen here in promotional videos, the genetically modified plants are designed to survive being sprayed with Monsanto’s herbicide Roundup. The seeds are patent-protected and the company requires that farmers buy a new batch with each season. Instead, over eight years, Bowman used grain from an elevator that was sold for animal feed and not as seed. He claimed that wasn’t a violation.

VERNON HUGH BOWMAN, Plaintiff: I just looked at it that when they dumped it in there, that they had abandoned their patent.

JEFFREY BROWN: Today, the court rejected that argument with a unanimous decision in favor of Monsanto. The case had been watched for implications in a host of other so-called self-replicating technologies, such as medical research and computer software.

In a statement, Monsanto’s lead lawyer said the outcome “provides assurance to all inventors throughout the public and private sectors that they can and should continue to invest in innovation that feeds people, improves lives, creates jobs, and allows America to keep its competitive edge.”

In fact, though, the justices appear to limit their decision. Justice Elena Kagan, speaking for the court, said it addresses this case only.

And for more on the case and the decision, we’re joined, as always, by Marcia Coyle of the National Law Journal. Marcia is in Chicago tonight.

So, 9-0. The court was quite definitive. What was the winning argument?

MARCIA COYLE, National Law Journal: Well, Jeff, the winning argument really was for Monsanto, which said that the reliance on the so-called patent exhaustion doctrine by the farmer in this case just didn’t carry the day.

I should tell you a little bit about the patent exhaustion doctrine. It basically says …

JEFFREY BROWN: Please do.

MARCIA COYLE: OK.

It basically says that after an inventor authorizes the sale of his patented invention or article, the buyer can use it or sell it. But what the buyer can’t do is make copies of it.

And there’s a very basic reason for that, because if a buyer could make copies and then sell those copies, and somebody else would make copies of the copies, pretty soon, there would be no value to the patent that the inventor holds. And the law allows patent protection now for about 20 years.

So even though Monsanto right now has a monopoly on its soybeans, it won’t have it forever. But this farmer infringed the patent by — he thought he had a way around the agreement with Monsanto. And that was to buy soybeans from a grain elevator and then plant them. He argued that basically he was using the seeds the way they were supposed to be used.

But Justice Kagan, who wrote the majority opinion, said, no, no, the seeds bought from a grain elevator are supposed to be used for consumption, not for planting.

JEFFREY BROWN: Well, so, before we get to the implications for other technologies, just staying on this case, one reason why this got so much attention is Monsanto’s very dominant position in agriculture, very …

MARCIA COYLE: Absolutely.

JEFFREY BROWN: Particularly with threat seeds, right?

MARCIA COYLE: Absolutely.

In fact, I think it’s something like 90 to 95 percent soybean farmers do buy from Monsanto, because the beans are resistant to, again, a Monsanto product that kills weeds. So they’re very valuable to the farmer.

JEFFREY BROWN: Now, the other reason, of course, why it got so much attention was because of the possible implications for other new cutting-edge technologies, specifically so-called self-replicating technologies.

Explain to us what that means.

MARCIA COYLE: Well, Jeff, there — right now, there’s a lot of research and development going on in a number of industries, biotechnology, medicine.

One of them has to do with self-generating cells, genetically modified cells, also, in what they call regenerative medicine that relies on self-replicating stem cells. And so the industries that are involved in this research and development are, of course, you know, very concerned about the kind of patent protection they’re going to get for their inventions.

I think Monsanto spent — spends in general over a billion dollars a year in research and development. And so these companies want to be able to recoup some of this investment. And that is — there is this tension in patent law. Patent law protects the invention long enough so that the companies can recoup their investments. On the other hand, it doesn’t last forever because we also want to encourage new inventions by others.

JEFFREY BROWN: At the same time, though, Justice Kagan went out of her way to say that this case is limited to this case, right, to this particular transaction. So where does that leave the law for all these other technologies?

MARCIA COYLE: Well, I think the other companies and other technology — who do other types of technologies do take some comfort in the fact that the court made clear what the patent exhaustion doctrine really does.

On the other hand, it does leave open for another day whether the invention that they invent, if it is self-replicating, how the Supreme Court is going to view patent protection for that particular invention. So, the court is being cautious here and leaving the door open. On the other hand, I think that companies do take some comfort in the ruling.

JEFFREY BROWN: And the farmer involved, Vernon Bowman, what happens with him?

MARCIA COYLE: Well, Mr. Bowman was found that he had infringed Monsanto’s patent. And he was — Monsanto was awarded about $85,000 dollars for the infringement.

So, Mr. Bowman is either stuck with paying that award. We will have to see what happens when the case goes back between him and Monsanto.

JEFFREY BROWN: All right, Marcia Coyle, as always, thanks so much.

MARCIA COYLE: My pleasure, Jeff.

JEFFREY BROWN: And, online, you can follow our coverage of pending cases on our Supreme Court page. There, you also can watch my conversation with Marcia about her new book on key moments in the Roberts court.

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JUDY WOODRUFF: The U.S. Supreme Court opened three days of arguments today on the nation’s health care reform law.

NewsHour health correspondent Betty Ann Bowser begins our coverage.

BETTY ANN BOWSER: Supporters and opponents of the Affordable Care Act took to the streets early this morning to make their case to the cameras outside of the court. It was a far cry from the subdued atmosphere that would unfold later in the day inside.

WOMAN: Why do you want to argue?

MAN: Why do you want to argue?

BETTY ANN BOWSER: Emotions have run high since Congress passed the law two years ago backed almost by entirely by Democrats and President Obama.

PROTESTER: When do we want it?

PROTESTERS: Now!

PROTESTER: What do we want?

PROTESTERS: Health care!

BETTY ANN BOWSER: One of its primary goals, provide health insurance to more than 30 million uninsured Americans. The law includes an individual mandate requiring most people to buy insurance or pay a penalty, a question at the heart of the case.

Today, the justices were trying to decide whether they could rule on the mandate before it takes effect in 2014 and whether it should be considered a tax.

The tone of questioning from several justices, including Stephen Breyer, suggested they believed so. Since the two sides both oppose the tax designation, the court appointed a Washington private attorney, Robert Long, to argue in favor.

STEPHEN BREYER, associate justice, U.S. Supreme Court: Why is this a tax?

And I know you point to certain sentences that talk about taxes within the code. And this is not attached to a tax. It is attached to a health care requirement.

ROBERT LONG, attorney: Right.

STEPHEN BREYER: So — so, why does it fall within that word?

ROBERT LONG: Well, I mean, the first point is our initial submission is, you don’t have to determine that this is a tax in order to find that the Anti-Injunction Act applies because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it’s a tax penalty and not a tax. So that’s one argument.

STEPHEN BREYER: But that doesn’t mean the AIA applies.

BETTY ANN BOWSER: The hearings have set the stage for a new round of debate in the court of public opinion.

RON POLLACK, executive director, Families USA: This is a teaching moment.

BETTY ANN BOWSER: Supporters like Ron Pollack of Families USA kicked off a three-day blitz by bringing doctors and nurses to the steps of the court.

RON POLLACK: Two-and-a-half million young adults are receiving coverage through their parents as a result of the legislation. Children with preexisting conditions can no longer be denied health coverage by an insurance company due to their preexisting conditions.

BETTY ANN BOWSER: A coalition of health reform groups has taken over this building across the street from the Supreme Court. The groups have brought in nearly 30 radio talk show hosts to broadcast during the three days of arguments.

When the Affordable Care Act was passed in 2010, Americans were sharply divided over whether it was a good or a bad idea. Today, that is still the case. And the individual mandate has never been more unpopular. A recent ABC News/Washington Post poll found that 67 percent of those surveyed want the Supreme Court to strike the mandate down.

PROTESTERS: Repeal the law! Repeal the law!

BETTY ANN BOWSER: No group is more opposed to the individual mandate than the coalition of conservative organizations holding rallies and news conferences this week.

Over the weekend, about 400 demonstrators stood for over two hours in the pouring rain near the Supreme Court to demand the justices find the mandate unconstitutional.

LAURA VANOVERSCHELDE, opposes Affordable Care Act: If the justices do not listen to — they are not really upholding their oath of office to the Constitution and the people that expect the Constitution to be upheld.

WOMAN: Obamacare is like cancer.

BETTY ANN BOWSER: Jenny Beth Martin, who leads the Tea Party Patriots, says the week’s events aren’t just about the Supreme Court.

JENNY BETH MARTIN, co-founder, Tea Party Patriots: We at Tea Party Patriots have promised that we will fight this law and we will get it repealed. And that is what we intend to do. And we’re not putting all of our eggs in any one basket.

BETTY ANN BOWSER: Virginia Attorney General Ken Cuccinelli filed one of the earliest lawsuits challenging the mandate. That case is not part of the one being heard this week. And while he is taking part in some of the media events, he agrees that opponents of the law have a broader message.

Do you expect any of this activity, whether it’s supporters of the law or opponents to the law, have any influence on what’s going on inside the court?

KENNETH CUCCINELLI (R), Virginia attorney general: No. And that isn’t why I’m here today.

But I do expect it to have an influence on this year’s elections, and both the election for president, the elections for the U.S. Senate. So this has a lot of implications well beyond just the case, because ultimately we got here because of choices people made in elections.

BETTY ANN BOWSER: But Republicans and Democrats are using this moment to mobilize their bases. Republican presidential candidate Rick Santorum showed up outside the court today.

RICK SANTORUM (R): There’s no more important issue on the most fundamental issues of the day, which is our economic security and stability, job growth, the size and scale of government.

BETTY ANN BOWSER: And both parties are mounting major campaigns on the airwaves and online. The Republican National Committee is airing this ad in six battleground states. And the passage of the law was a major focus of a video produced by the Obama campaign earlier this month.

PRESIDENT BARACK OBAMA: When my mom got cancer, she wasn’t a wealthy woman and it pretty much drained all her resources.

MICHELLE OBAMA, first lady: She developed ovarian cancer, never really had good, consistent insurance.

BETTY ANN BOWSER: While the court hears the case this week, President Obama is attending a nuclear security conference in South Korea. So selling the law has been left to surrogates.

NEERA TANDEN, president, Center for American Progress: It’s important for us to remember what those benefits are.

BETTY ANN BOWSER: Neera Tanden was a health policy adviser for the Obama administration. Now, as president of the Center for American Progress, she’s trying to persuade people the Affordable Care Act will benefit many Americans. But she says it’s a hard sell because the White House had to make significant compromises to get the law passed and still managed to get only one Republican vote.

NEERA TANDEN: It has become a very polarizing issue, in part because of the way the legislation was passed and the procedural challenges. Sausage-making in Congress is never pretty. And that was particularly unpretty, particularly unattractive sausage-making, the process of the Affordable Care Act.

BETTY ANN BOWSER: More than 150 from the general public had an opportunity to hear the arguments today. The lines are already forming again for tomorrow.

GWEN IFILL: For a closer look at what’s going on with the impact of the law and at what happened inside the courtroom today, we’re joined by the team covering the arguments for us this week, Marcia Coyle of The National Law Journal and NewsHour health analyst Susan Dentzer, editor-in-chief of the journal Health Affairs.

As Betty Ann was just explaining, this is a big, big issue, but today there were fairly narrow arguments, Marcia, pretty much about jurisdiction. Why wouldn’t the court have jurisdiction?

MARCIA COYLE, The National Law Journal: First of all, you’re absolutely right.

This was really more of a meat-and-potatoes argument for the Supreme Court. When is a statute a jurisdictional statute that would deprive them of the power to consider the merits of the arguments here and also, when is a penalty a tax or not? This issue came up in the lower courts.

One federal court of appeals actually held that the Anti-Injunction Act of 1867 did bar federal courts from considering the merits of this litigation. And a judge on another federal appellate court also ruled that way. So the court felt it had to answer this very threshold question.

GWEN IFILL: The difference between a penalty and a tax is what, according to the arguments today?

MARCIA COYLE: Well, there were three lawyers arguing today.

The first lawyer, it’s the court-appointed lawyer, and he was asked by the court to make the argument that this law does bar the federal courts from considering the litigation. And he said that the penalty for not having minimum essential health insurance coverage really is, in all intents and effect, a tax. It operates that way.

Even though it’s called a penalty in the law, that doesn’t matter because the tax code doesn’t define tax. And there are other penalties within the tax code that operate as taxes.

GWEN IFILL: We got to actually hear some audio from inside the court. Their arguments, usually, only you get to hear.

So let’s listen to an exchange about just that topic right now. . .

MARCIA COYLE: All right.

GWEN IFILL: . . . between Justice Kagan — Elena Kagan and attorney Robert Long.

ELENA KAGAN, associate justice, U.S. Supreme Court: It’s your choice. Either buy insurance or pay a — or — or pay a fee. But that’s not the way the statute reads.

And Congress, it must be supposed, you know, made a decision that that shouldn’t be the way the statute reads. That is should instead by a regulatory command and a penalty attached to that command.

ROBERT LONG: Well, I — I would not argue that this statute is a perfect model of clarity, but I do think the most reasonable way to read the entire statute is that it — it does impose a single obligation to pay a penalty if you are an applicable individual and you’re not subject to an exemption.

GWEN IFILL: Not a perfect model of clarity, even Justice Scalia was making that same point today in this argument. So how much does that affect what we’re actually arguing about, the fact that everybody seemed to be kind of muddling through the definitions?

MARCIA COYLE: Well, as Justice Scalia pointed out, the court interprets very narrowly jurisdictional statutes, statutes that take away their power to review. And he said it has to be clear in the statute, and it is not clear at all here.

And so the general sense of the justices was that this act will not apply to this penalty, even if it is a jurisdictional statute. As the government argued today, this penalty is different. It doesn’t operate like a tax.

GWEN IFILL: There’s a practical side to this argument, Susan, which — and it played out in one interesting exchange today between Solicitor General Verrilli and Justice. . .

SUSAN DENTZER: That was Justice Alito.

GWEN IFILL: Justice Alito, right. And they were arguing about what happens if you go to an emergency room and you qualify for Medicaid, you’re not on Medicaid? Does someone force you to do it?

SUSAN DENTZER: That was another kind of confusing moment, because, indeed, Justice Alito said if you’re eligible for Medicaid and you’re not enrolled in Medicaid, but you go to an emergency room when this law is in effect, would you — would the hospital have to enroll you in Medicaid? That’s literally what he asked.

Solicitor General Verrilli said no. It seemed as if he thought he was being asked about the penalty. The actual facts are, under the law, if you are — you are obligated — if you are eligible for Medicaid, you are obligated to enroll in Medicaid as of 2014. You would not have the pay the penalty, however, for not being enrolled.

Those people who are not paying taxes, are not taxpayers, technically do not have to pay the penalty.

GWEN IFILL: Employers are watching this awfully closely, aren’t they, because they were already — this is already law? This is something they’re already supposed to be on the way to implementing. So they’re not waiting for the Supreme Court telling them what to do.

SUSAN DENTZER: Everybody is watching this very closely, mainly because of course, as we know, on day three people are going to be talking about whether the issue of severability applies.

That is to say, if the individual mandate for some reason is found unconstitutional, does the whole law go down along with it? It doesn’t look as if the justices will rule that way. It’s a big, big law. There are many, many sections that have nothing to do with either insurance reform or with the individual mandate or even employer mandates.

So — but people are still nervous about this. And until the court issues the final ruling and says this, that or on the other on these issues of the individual mandate or severability, people are watching.

GWEN IFILL: Well, it’s interesting, because even though the justices spent a lot of time talking about the details of this tax and penalty and definition, none of them seemed to think like they weren’t — or seemed to be behaving like they weren’t going to take this case.

So, they were looking forward a little bit to this mandate argument we’re expecting tomorrow. I want to ask you about that, but I also want to play a little bit of the audio from an exchange between Chief Justice Roberts and Gregory Katsas, who was one of the attorneys who was representing the small business folks.

MARCIA COYLE: Right.

JOHN ROBERTS, chief justice of the U.S. Supreme Court: The whole point of the suit is to prevent the collection of penalties.

GREGORY KATSAS, attorney: Of taxes, Mr. Chief Justice.

JOHN ROBERTS: Well, prevent the collection of taxes, but the idea that the mandate is something separate from whether you want to call it a penalty or a tax just doesn’t seem to make much sense.

GREGORY KATSAS: It’s — it’s entirely separate. And let — let me explain to you. . .

JOHN ROBERTS: It’s a command. A mandate is a command. Now, if there’s nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate, and the answer is nothing, it seems very artificial to separate the punishment from the crime.

GWEN IFILL: So, talking about the punishment and the penalty was leading naturally to the discussion about whether this is a mandate or not.

MARCIA COYLE: Well, a little bit.

The challengers here argue that, at least in terms of the Anti-Injunction Act, that they are not challenging the penalty in their lawsuit. They are challenging the mandate.

GWEN IFILL: Right.

MARCIA COYLE: And Chief Justice Roberts doesn’t see how you can separate the two.

And he did announce at the end that, tomorrow, we would be back in the courtroom to hear the next arguments. And they are about the mandate. Justice Alito at one point did sort of pointedly tease the solicitor general, saying, well, today, you’re arguing that the penalty is not a tax. And, tomorrow, you’re going to argue that the mandate is a tax.

And the government has a very clear argument here, that it involves — these involve two very different analyses. In the case of the Anti-Injunction Act, the court is interpreting a statute and looking at the language of a statute and how it applies to penalties and/or taxes. But, tomorrow, the court is going to be looking at a constitutional argument, Congress’ taxing power. And it’s a very different kind of analysis.

GWEN IFILL: And, as a result, you had two attorneys vs. one today. It was kind of unusual to have three attorneys arguing before the court.

MARCIA COYLE: Well, this is because the government as well as the challengers both agreed that the Anti-Injunction Act doesn’t apply here. So the court wanted to hear the other side of the argument. And that’s why they appointed Mr. Long to make that argument.

GWEN IFILL: Susan, what is already law? What is already in effect? We know that the law is enacted. And we know that it’s rolling out slowly. But as this challenge goes before the court, some things are already real.

SUSAN DENTZER: Yes, indeed.

Dozens of provisions have already gone into effect because, of course, there is much that has nothing to do with the individual mandate or with insurance reform. For example, under Medicare, some changes were made in the law that are already in effect, so that last year alone, a number of Medicare beneficiaries who had hit the infamous donut hole in the Medicare drug coverage were eligible for 50 percent discounts on their brand name drugs once they got the donut hole.

In fact, about 3.4 million beneficiaries, according to the government, got about $2 billion of assistance that way. There is some insurance market reforms that are already in effect. For example, we know that individuals can stay on their parents’ policies now up to age 26, and also that preexisting condition restrictions cannot be held against children on policies.

There’s a whole other set of provisions in the law that are all about what’s called the triple lane, getting us to better health, better health care at lower costs. And those are innovations in the way we pay health care providers and the way those services are delivered.

And a number of experiments under that part of the law have — are playing out. So, for example, accountable care organizations, 32 major organizations have moved forward as pioneer ACOs, as it’s called, to innovate around ways of delivering care and actually drive the costs down.

And throughout the law, there are other innovations that are already rolling out.

GWEN IFILL: Is this already hurting — or are states arguing, these states arguing that this has already created a hardship for them financially?

SUSAN DENTZER: Not at all, because, of course, the big dollars for the states are going to come in really down the road, and not even — if we just step back on the argument of the Medicaid expansion, the federal government picks up 100 percent of the cost of the Medicaid expansion for a couple of years.

So it will be quite some time before the states are experiencing even serious expenditures on the Medicaid portion. . .

GWEN IFILL: But aren’t some states also saying that they still are being forced to pick up some of the extra — the things that the government doesn’t cover?

MARCIA COYLE: I think some states are seeing some costs in terms of setup, getting ready for the act.

But I haven’t heard any major complaints yet about states experiencing heavy costs. And even with the Medicaid, as Susan pointed out, the government pays 100 percent until 2016. And then its share decreases gradually until 2020, when it stabilizes at 90 percent of the cost.

GWEN IFILL: So people are already in line for the big mandate argument tomorrow?

MARCIA COYLE: They are. Some are staying from today, just spending the night, hoping to get into the courtroom.

GWEN IFILL: Well, we will be back to talking about it all right here, same time, same place.

Thank both very much.

SUSAN DENTZER: Thanks, Gwen.

MARCIA COYLE: My pleasure, Gwen.

GWEN IFILL: We will have much more about this week’s arguments online, where you can listen to audio of all today’s proceedings or read the transcript.

Tomorrow and Wednesday, Marcia’s morning blog will preview the day’s arguments. And, tomorrow afternoon, you can join top policy experts from both sides of the issue for a Twitter chat. Click on the links on our home page, NewsHour.PBS.org.

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JEFFREY BROWN: Finally tonight: It’s the first Monday in October, and that means it’s the first day of the U.S. Supreme Court’s term.

There are several high-profile cases on the docket, including one that will be argued later this week involving protests during military funerals. But much of the immediate attention is on a new justice, former Solicitor General Elena Kagan, and the fact that women now make up a third of the court for the first time in history.

We look at the new court now with Paul Butler, professor of law at George Washington University and a former federal prosecutor for the Department of Justice during the George H.W. Bush and Clinton administrations, Paul Clement, solicitor general in the George W. Bush administration, and now an attorney in private practice in Washington, and, as always, Marcia Coyle of “The National Law Journal.”

Welcome to all of you.

MARCIA COYLE, “The National Law Journal”: Thank you.

JEFFREY BROWN: Marcia, this term is already historic, even if nothing else happens, right?

MARCIA COYLE: Absolutely, Jeff.

JEFFREY BROWN: You were at the court today. What — tell us what happened.

MARCIA COYLE: Well, it was a usual and an unusual day, usual in that the chief justice formally closed the old term and opened the new term, and unusual because Justice Elena Kagan stepped through the velvet curtains behind the court’s bench and became the third woman to be sitting hearing arguments today at the court.

The courtroom was full. There were a number of spectators from the public, as well as a number of lawyers, who traditionally come to be sworn into the Supreme Court bar.

JEFFREY BROWN: And did she participate? What happened?

MARCIA COYLE: She did.

JEFFREY BROWN: What do we see?

MARCIA COYLE: She was first out of the gate with a question, as I think Justice Sotomayor was on her first day. But she did ask roughly seven questions in the first hour of arguments.

And then she left, because the second case to be argued involved the United States as a party. And she had been solicitor general at the time participating in that case.

JEFFREY BROWN: All right, that’s a subject I want to get to. But, first, Paul Clement, let me ask you. A new justice always raises questions about how the court will be shaped. What do you look for to know that — the answer to that?

PAUL CLEMENT, former U.S. solicitor general: Well, the old adage is, every time you change one member of the Supreme Court, you get a whole new court.

And I think adding Justice Kagan to the court, I mean, people have focused on the fact that you now have a third of the members are women. It’s also the first time in — since Justice White was on the court that you have a Democratic appointee who held high-level administrative, executive branch positions.

I think there’s a number of different ways in which her presence on the court will change the dynamic of the court and make the dynamic among the justices different from any time previously.

JEFFREY BROWN: And, Paul Butler, one of the questions people are wondering is whether — who steps in for that seat that Justice Stevens had — I mean that position that Justice Stevens had as the champion of liberal causes on the court.

PAUL BUTLER, professor, George Washington University School of Law: And I’m not sure Kagan is the person to do that. She’s more of a moderate.

Stevens was an old-school liberal, and she’s a new-school pragmatist, like the president who appointed her. And it’s important, a lot of progressives think, to have someone who is a left-wing equivalent of Justice Scalia, who is abrasive sometimes, or Justice Thomas, who is committed to this right-wing ideology.

Again, both Justices Sotomayor and Kagan seem to have been selected by the court — by the president in part because they are brilliant, but also because they have great people skills. So the hope I think is that they can kind of rein in some of the right-wing extremism that we see from the chief and other recent Republican appointees.

JEFFREY BROWN: Marcia, you start — we talked about the historic nature of the three women. Clearly symbolic resonance, right?

MARCIA COYLE: Oh, absolutely.

JEFFREY BROWN: Is there a question about a substantive impact of that?

MARCIA COYLE: Well, I think Justice Ginsburg has addressed this, and so has Justice O’Connor in the past. And, in general, they — they would say that it doesn’t make a substantive difference.

But it can make a difference in certain cases. And we have actually seen that. We have seen =- we saw it in the term in which the court took up whether it was reasonable to strip-search a middle school girl.

Justice Ginsburg brought a great perspective to that case, having raised a daughter. Also, I think there have been some political scientists who studied this issue, and they say that female judges often make a difference in sex discrimination cases.

JEFFREY BROWN: You were nodding.

PAUL BUTLER: Sure. You know, three is a magic number when it comes to a group the size of the Supreme Court, because for…

JEFFREY BROWN: It really makes a difference, that number?

PAUL BUTLER: For the first time, yes, there’s a critical mass. So it’s not just Ginsburg speaking for women. We have got three individuals.

But the court has accepted all these corporate cases this year, where they are probably not going to be a feminist point of view. But in issues like civil rights or sex discrimination or privacy, it might really make a difference.

Justice Ginsburg talks about a case where she couldn’t get the men on the court to see why it took so long for a woman who was claiming sex discrimination to bring her case. And Ginsburg said, I know, because I have been there.

Now two of her sister judges have also been there. So, I think it’s good in terms of the process for the court, but it might really lead to some substantive differences in outcomes as well.

JEFFREY BROWN: Let me come back to this question of recusing herself, Justice Kagan, that is, because she has the position that you yourself had as solicitor general.

Does that — and I think it is in a number of cases. You said I think about half the cases, right? Does that have an impact, a practical impact, on the term?

PAUL CLEMENT: Oh, it definitely does, because, in the Supreme Court, a justice recusing herself is not just sort of a simple matter of subbing in another judge, the way it is on the lower courts.

In the way the Supreme Court works, a decision to recuse is really a vote to affirm, because, if the Supreme Court divides 4-4 in a case, it affirms the lower court judgment, whereas, normally, you would take five votes to come out one way or another. So, in that sense, the decision to recuse could have a real impact.

I wouldn’t be surprised to see the justices, in those cases where Justice Kagan is recused, working extra hard maybe to decide the case more narrowly, but to avoid a whole raft of 4-4 results.

JEFFREY BROWN: Do they — do they — go ahead.

MARCIA COYLE: I think, Jeff, it can also have an impact on what cases the justices decide to review. If they know that Justice Kagan may not be able to participate, they may be more careful in what kind of cases they accept.

JEFFREY BROWN: So, they will take that into the consideration?

MARCIA COYLE: I think so.

PAUL BUTLER: I think it’s kind of a geeky legal issue. And it’s cool for us, because we’re legal geeks.

(LAUGHTER)

PAUL BUTLER: But Justice Thurgood Marshall was the last solicitor general to be on the court. And he recused himself in a bunch of cases in the first two terms, and now no one remembers that. That’s not the important thing about his great legacy.

So, I think this is a big deal for now. But, in 10 years — Kagan is going to be on this court probably for decades — no one will even remember that this was an issue.

JEFFREY BROWN: All right. So in terms of — now, we’re talking about what kind of difference she will make and the new court will be. Talk a little bit about the term ahead.

Is there a — is there a — you can start, Marcia — is there a particular theme that we see?

MARCIA COYLE: I don’t think there’s a theme, Jeff. Sometimes, you get a theme, like, oh, a big First Amendment term, or there’s an obvious potential blockbuster, like the term in which we had the court interpreting the Second Amendment and whether there was an individual right to have guns.

JEFFREY BROWN: Last year.

MARCIA COYLE: Right. Exactly. But, this term, there are a number of potentially significant cases and cases that people can understand and probably will find very interesting. I can think right off the bat of two First Amendment cases, the one you mentioned earlier that’s being argued Wednesday involving the Westboro Baptist minister who has been picketing the funerals of members of the military who died in Iraq or Afghanistan.

There, the family of one fallen Marine sued this minister. And the charge, the allegation was intentional infliction of emotional distress. He won a jury award. But the lower appellate court said this speech is protected under the First Amendment.

There are three cases involving job bias in the workplace that will look at the scope of the laws, protection of employees against retaliation by employers. So, there are a of significant cases. We will also hear a lot about preemption, which again is a…

JEFFREY BROWN: Preemption. Dare I ask?

MARCIA COYLE: Go ahead, Paul. It’s all yours.

JEFFREY BROWN: Or do you see a theme or do you want to explain preemption?

PAUL CLEMENT: Well, I will try to do both, which is, I agree with Marcia that I’m not sure that a theme leaps out from this term’s cases so far. And, in some ways, it’s kind of a quiet term. There’s not a blockbuster.

The court does have four different cases, by my count, addressing this issue of preemption, which is the circumstances in which federal law displaces state law. Often, it’s a state tort law, state cause of action for a remedy for an injury. But, sometimes, as in the Arizona employment case, it’s a state law that tries to provide a remedy for — say, in the Arizona cases, for hiring an illegal immigrant as an employee.

The four different cases the court has, a variety of different circumstances, this is one area where I think Justice Kagan’s recusal will be felt, because, in these issues, the position of the federal government, whether the federal government thinks state law should give way, is a very important ingredient. And the federal government therefore participated in three of these four cases.

JEFFREY BROWN: And just in our last minute, you had mentioned before that there’s a number of corporate cases or business cases, right?

PAUL BUTLER: Sure. You know, last term, the court, in this extraordinarily right-wing ideologue case, said that corporations have First Amendment rights, and they can spend all the money they want to influence the outcome of elections. So, what…

JEFFREY BROWN: Citizens United.

PAUL BUTLER: Yes. So, what I’m looking for is to see the difference that Justices Kagan and Sotomayor make now, because this is a right-wing activist court that hasn’t shown a whole lot of respect for precedent or for minimalism.

So, if we see the court now showing a little bit more respect for the settled precedent and not making such sweeping rulings, that will mean that Justices Kagan and Sotomayor are making a difference.

JEFFREY BROWN: All right. Paul Butler, Paul Clement, and Marcia Coyle, as always, thank you, all three, very much.

MARCIA COYLE: Thanks.

PAUL BUTLER: Thank you.

PAUL CLEMENT: Thank you.

The post Kagan’s Seating Marks Supreme Court Milestone, But Poses Recusal Hurdle appeared first on PBS NewsHour.

During his remarks, Mr. Obama made sure to note one of the funnier moments from Ms. Kagan’s confirmation hearing when she told the Senate Judiciary Committee that she was most likely doing what many Jews do on Christmas Day, enjoying a meal at a Chinese restaurant.

The president also highlighted the historic nature of her appointment. “When she takes that seat on the bench, for the first time in history there will be three women serving on our highest court,” he said. Mr. Obama called it “a sign of progress I relish” that the Supreme Court will now be “a little more inclusive, a little more representative, a little more reflective of us as a people as ever before.”

Watch President Obama introduce soon-to-be Justice Kagan:

The post Obama Touts Humor, History on Kagan Victory Lap appeared first on PBS NewsHour.

JUDY WOODRUFF: And to the analysis of Marcus and Gerson. That’s Washington Post columnists Ruth Marcus, and Michael Gerson. Mark Shields and David Brooks are both away.

Thank you both for being here.

RUTH MARCUS: Thank you.

MICHAEL GERSON: Great to be here.

JUDY WOODRUFF: Let’s talk first about these unemployment numbers today, 130,000 jobs, Michael, lost this month. The rate stayed the same. And then we just saw that very disturbing report from Paul Solman a minute ago about the long-term unemployed.

But what is the political impact of this?

MICHAEL GERSON: Well, the reality here is that it makes — this report makes the Democrats’ worst problem even worse.

You know, right now, they’re trying to change the narrative on the employee. And they haven’t been able to do that. This report says that job growth has been stagnant for about seven months. That’s not likely to improve in the reports, the three reports between now and November, although it could some.

And I think it’s a serious problem for the Democrats right now.

JUDY WOODRUFF: And, Ruth, in fact, it’s — what do we get, just two more jobs reports before the midterm elections.

RUTH MARCUS: I think it doesn’t necessarily make the Democrats worst problem even worse, because it’s already pretty bad, and because even a fantastic jobs report this month or next month wasn’t really going to change the dynamic of the way people feel about the economy.

It was a little bit — people’s views are already pretty set about where they think the economy is. And this is making a little bit of lemonade out of lemons. But I will say the one, this bright — this report is not good for Democrats, but the one argument that I can see they have on their side is: We were the guys who were pressing and pressing and pressing to extend unemployment benefits, when the Republicans were insisting that that wasn’t a good idea, at least unless they were paid for.

JUDY WOODRUFF: Can they make an issue out of that?

MICHAEL GERSON: Well, I think that the problem for Democrats is even deeper here. It shows sort of an ideological dead end.

When they are faced with a stagnant jobs picture, the response of Vice President Biden earlier this week was to say, we should have done more stimulus. The response from Nancy Pelosi is, let’s spend more on public employees.

It’s always spending. But this is precisely the concern of independents in America, who are turning against the Republican Party — against the Democratic Party, is this concern about debt, deficits and spending. And so I think the Democrats trying to solve this problem with more spending is actually feeding their political challenge in November.

JUDY WOODRUFF: So, it’s kind of a double bind?

RUTH MARCUS: It — well, it may be feeding their political challenge, but, as an economic matter, I think the vice president is right. More spending in the stimulus, more direct spending, would have been more effective.

And I know it’s not a convincing argument to voters, but it is true that, absent the stimulus, absent TARP funds, things would have been way, way worse.

JUDY WOODRUFF: Let’s turn to something very different, and that is the ruling by the California federal judge, Michael, overturning gay marriage, in effect, in the state of California, Proposition 8. What is the fallout? Where does this go from here from this one ruling?

MICHAEL GERSON: Well, this is a sweeping decision, but it’s a very early one. It’s not — you know, not near the Supreme Court yet.

But I would say that there is a challenge. The gay rights movement has been one of the most successful social movements in America for the last 20 years. They have changed attitudes towards inclusion and tolerance.

But I think that, if the Supreme Court were eventually to adopt the reasoning that’s in this decision, which essentially declares every traditional argument for traditional marriage to be useless and illiberal, I think that there would be a serious problem, because the decision of the Supreme Court wouldn’t just be for California. It would be for Louisiana and Mississippi and South Carolina.

I think it could cause a significant Roe v. Wade-like backlash in America if the Supreme Court were to adopt that approach.

JUDY WOODRUFF: And what would happen in that case?

RUTH MARCUS: Well, I actually don’t — first of all, I am not at all confident that that is where the Supreme Court would come out.

And one thing about this decision, I am very happy with the result, but a lot of the gay rights groups were very concerned that the unlikely duo of Boies and Olson, who brought this, were acting too early, too quickly. Things are going well, but there has been a very concerted effort to keep cases out of federal court, so you might not — because the Supreme Court may well not be ready to count to five.

JUDY WOODRUFF: What do you mean too quickly, too early?

RUTH MARCUS: In other words, just as the population is radically changing its views on gay rights and same-sex marriage, so too are courts.

And you can see the — the change in the Supreme Court, from making sodomy — upholding the legality of sodomy laws to reversing itself. But, sometimes — you saw this in the civil rights movement and with Thurgood Marshall — you have to bide your time and wait for the court to be ready to do it.

So, I am more ready — more worried, actually, that the court won’t rule in favor of same-sex marriage than I am worried about the consequences if they do, and, in part, Michael, because I think that a ruling requiring — making it a constitutional right to have same-sex marriage would not be the same as Roe v. Wade.

There is a legitimate and heartfelt disagreement about whether abortion is the taking of human life. I don’t think people — people are upset about gay marriage, but I don’t think it’s quite that visceral.

MICHAEL GERSON: Well, I would say I don’t think, for example, that conservatives in general want this argument. They’re not spoiling for it. I think that that is true.

But I think, if there were a unitary, national imposed standard, it would raise not just the issue itself, but, for a lot of conservatives, concerns about the imperial judiciary, the role of democracy, all sorts of issues that I think would create a significant backlash in a case like this, maybe not with the intensity of Roe, but some of the same issues would be at stake.

RUTH MARCUS: Sure.

JUDY WOODRUFF: And that’s presuming the court, the Supreme Court…

JUDY WOODRUFF: And we’re not there yet.

MICHAEL GERSON: Right.

RUTH MARCUS: But, you know, Republicans are not itching for this fight. I was at a breakfast this week with Senator McConnell. And he kept being invited by us to make some news and decry this ruling. And he is very clear he didn’t want to talk about it. He wanted to talk about the party’s economic message.

And the Tea Partiers, the most active part of the party, are not — this is not a social conservative culture war movement.

JUDY WOODRUFF: Well, while we’re on the Supreme Court, Elena Kagan was confirmed just yesterday by the Senate. The vote was 63 to 37.

Michael, it’s — she was confirmed, but it was the third lowest…

MICHAEL GERSON: Right.

JUDY WOODRUFF: … number of confirmation votes for any justice to the court. What does that say about the Senate?

MICHAEL GERSON: Well, it’s kind of an interesting moment. I think the last four nominees that we have had, you know, two by a Republican, two by a Democrat, have not been Bork-like controversies. They haven’t been blood feuds.

And I think that is largely because they haven’t changed the composition of the court, just the personality of the court. It might be different if we really had a change going on. But I do think that this is — presents some warning signs for the president.

First of all, this is the most favorable Senate he’s likely to have in a while, OK? He got 63 votes. There were some surprises, people like Bond and Voinovich, who voted against Kagan. And I think, next time around, it could be a much more serious battle.

JUDY WOODRUFF: But — but we’re talking about somebody who is not going to materially change the direction of the court, or — I mean — I mean, replacing Justice Stevens?

RUTH MARCUS: I think, if she materially changes the direction of court, it might be actually more towards the center. We will find out.

But I’m very disturbed by the increasingly just party-line nature of these votes. If you look back through history — and one of the differences between the last four nominees and Judge Bork is that they were no Borks. They were really pretty close to the center, mainstream of judicial legal thought within their ideological home.

And the notion that now we’re creating a situation where Justice Ginsburg was confirmed something like 96 to 3.

JUDY WOODRUFF: Overwhelmingly.

RUTH MARCUS: Judge — Justice Roberts was confirmed 78 to something.

Now it’s just everybody lines up with their side. And the next thing I’m afraid we’re going to see is the actual serious filibustering of a nominee. It’s not a good situation.

JUDY WOODRUFF: All right. While we’re on matters judicial, I want to binge up something that we’re hearing more talk about.

And that is among Republicans, Michael — and you wrote about this, this week — potentially amending the 14th Amendment to the Constitution, which, among other things, says that you are a citizen if are you born in this country — a conversation among Republicans. And you specifically wrote — targeted Lindsey Graham, the senator from South Carolina.

MICHAEL GERSON: I did. And, in fact, Harry Reid quoted what I wrote about…

(LAUGHTER)

MICHAEL GERSON: … which, for a conservative, is a mixed honor, to be honest with you.

(LAUGHTER)

MICHAEL GERSON: But when he — you know, when he quotes me, I agree with him 100 percent.

And the reality here is that Lindsey Graham has engaged in an extraordinary shift here. This is one of the main voices for kind of sanity and generosity in the Republican Party on the immigration issue endorsing really the Holy Grail of immigration restrictionism, which is changing the 14th Amendment.

It is a huge change. It’s like Hillary Clinton coming out for Sarah Palin. It is a big deal. And I think that it’s bad policy, because the 14th — the authors of the 14th Amendment wanted to take the definition of citizenship out of politics. They wanted to make it something firm, rooted in birth.

I think that that is a wise policy. But it’s also really bad politics for Republicans, not in this election, but for decades to come. Alienating this group of voters I think is the most damaging thing that the Tea Party and populist forces are doing to the Republican Party right now.

JUDY WOODRUFF: What is the calculus behind this, Ruth?

RUTH MARCUS: Well, I mean, I think that there is a personal calculus, which is short-term. Lindsey Graham, he has gone out on a lot of limbs in South Carolina, and they may be waving a little precariously for him. I think, in the short-term, it…

JUDY WOODRUFF: I mean, he’s a conservative Republican senator, but facing some conservative…

RUTH MARCUS: He’s a conservative Republican.

RUTH MARCUS: But he’s a maverick conservative Republican senator.

And it’s a — everybody’s nervous, OK, in the Republican Party. And so, short-term, it may help with the base. But, once again, Senator McConnell was at breakfast. He was talking about hearings, but he was saying, “I don’t really — well, I don’t have any views about changing the 14th Amendment,” because it’s crazy.

The only thing I disagree with that Michael said is that it’s not about alienating Hispanic voters. It’s about further alienating Hispanic voters. And the Republican Party, as a long-term strategy, is just crazy on this.

JUDY WOODRUFF: Is that a concern?

MICHAEL GERSON: No, I think it’s a real concern. I mean, I — you look at the symbols. And, you know, politics has — symbols are powerful in politics.

But Proposition 187, you look at the immigration debate, you look at Arizona law, and now you look at reconsidering the fundamental law of the country to essentially turn infants in hospitals into criminals, it really is — I would agree. It’s not only, I think, bad policy, but it’s political suicidal in the long-term.

You can’t be a national party, given the American demographic trends, and be perceived as an anti-immigration party.

JUDY WOODRUFF: You heard it here.

Michael Gerson, Ruth Marcus, thank you both.

RUTH MARCUS: Total agreement.

(LAUGHTER)

The post Marcus and Gerson on Jobless Numbers, Prop 8, Divisive Kagan Vote appeared first on PBS NewsHour.

JUDY WOODRUFF: President Obama now has a second U.S. Supreme Court justice as part of his legacy. Elena Kagan was confirmed today in the Senate by a vote of 63-37.

Five Republicans joined all but one Democrat and two independents in voting yes.

The Senate action came three months after President Obama announced Kagan’s nomination in the East Room of the White House. She will join justices Ruth Bader Ginsburg and Sonia Sotomayor as the third woman serving on the court, the most ever at one time.

Late today, the president hailed the outcome.

U.S. PRESIDENT BARACK OBAMA: Today’s vote wasn’t just an affirmation of Elena’s intellect and accomplishments. It was also an affirmation of her character and her temperament, her open-mindedness and even-handedness, her determination to hear all sides of every story and consider all possible arguments.

JUDY WOODRUFF: Kagan’s assent to the high court came despite sharp criticism throughout the process from most Republicans. They attacked Kagan’s move as dean of Harvard Law School to block military recruiters from the school’s career services office.

She argued the military’s don’t ask, don’t tell policy against gays in the military violated Harvard policy. But Texas Senator John Cornyn said Kagan’s actions raised red flags about her.

SEN. JOHN CORNYN (R-TX): Dean Kagan’s actions in taking every step legally possible to relegate the military to what she herself believed was separate but equal status placed an unmistakable stigma on the military during a time of war.

Now, her decision to stigmatize the military, I believe, is reason enough to oppose her nomination to a lifetime seat on the United States Supreme Court.

But her actions as dean are troubling for another reason as well. I believe her actions as dean indicate strong evidence that, as a justice, someone sitting in judgment on the United States Supreme Court, she would tend to advance her political preferences, rather than take a traditional approach of a judge in following the law.

JUDY WOODRUFF: Other Republicans targeted Kagan’s lack of judicial experience. For the past year, she has served as solicitor general, the nation’s top lawyer. She was also a lawyer and policy adviser in the Clinton White House. She clerked for Supreme Court Justice Thurgood Marshall in the late 1980s.

But she has not served as a judge, as Alabama Senator Jeff Sessions pointed out.

SEN. JEFF SESSIONS (R-Ala.): She has been more deeply involved in politics than law, and has frequently put her politics above law. She’s never been a judge, never argued even a case before a jury. She has practiced law for just three years. She has less real legal experience than any nominee in the last half-century.

JUDY WOODRUFF: New York Democrat Charles Schumer said, Republicans claim Kagan would be an activist, but don’t mind the current court’s wiping away decades of precedent.

SEN. CHARLES SCHUMER (D-N.Y.): This conservative majority has become the most activist court certainly in decades. These truly activist decisions show little respect for Congress, for the executive branch, and for the well-settled understandings that American people commonly hold about our democracy. And, yet, somehow, they label General Kagan as an activist because she wants to follow precedent. That’s not fair and that’s not true.

JUDY WOODRUFF: A handful of Republicans supported the nomination.

Speaking Tuesday night, Senator Lindsey Graham of South Carolina said he gives the president the benefit of the doubt.

SEN. LINDSEY GRAHAM (R-S.C.): I have no problem with Elena Kagan as a person. I have no problem with her academic background. I have no problem with her experience as a lawyer. Even though she has worked for justices that I wouldn’t have ruled like, even though she has taken up political causes I oppose, that, to me, is just part of democracy.

JUDY WOODRUFF: Kagan’s first day on the bench will come in October, when the court begins its fall term.

We get two different views now on how the newly confirmed justice may affect the makeup and the direction of the high court.

Nicholas Quinn Rosenkranz teaches constitutional law at the Georgetown University Law Center. And Paul Butler is a professor of law at the George Washington University Law School.

Gentlemen, thank you both for being with us.

Paul Butler, to you first.

We just heard the president say it’s not just her intellect, but it’s her character and her temperament that she brings. What does she bring? How will she change this court?

PAUL BUTLER, professor, George Washington University School of Law: So, she’s replacing Justice Stevens, who was kind of this old-school liberal in the mold of Thurgood Marshall and William Brennan.

He was an ideologue and, at the end, kind of this angry old man. He would write these opinions saying nobody on the court when I joined it 35 years ago would have thought this.

Elena Kagan, she’s a new-school moderate. She’s a pragmatist, kind of in the mode of the president who appointed her. She’s good at making deals with conservatives. So, she probably isn’t going to take the court in a left direction. But what she will be good at doing is kind of moderating the conservatives, having them go not so far out on a limb in their opinions.

JUDY WOODRUFF: Nicholas Rosenkranz, a moderating force, a pragmatic force on this court?

NICHOLAS QUINN ROSENKRANZ, Constitutional Law professor, Georgetown University Law Center: Well, I think there’s every reason to believe that Justice Kagan will be a reliable liberal vote.

She is replacing a liberal justice, and I think she will end up being a consistent liberal vote. But she’s extremely smart and has — she’s very open-minded, and she’s won the respect of people on both sides of the aisle. So, I think she will, at a minimum, give both sides a fair hearing.

But, at the end of the day, I think we can expect she will be a consistent liberal vote.

JUDY WOODRUFF: A consistent liberal vote. Is that consistent with what you’re saying, Paul Butler?

PAUL BUTLER: Well, you know, it takes a while to grow into your role on the court. So, Justice Sonia Sotomayor and justice-designate Kagan will take some time to kind of grow into themselves.

So, I think, at the end, she will kind of have the same votes as Justice Stevens, but she won’t have the same force in terms of rhetoric. The hope is that, you know, maybe she can use the same kind of skills of persuasion that she used at the Harvard Law School.

So she will invite Justice Roberts out to Starbucks and say, hey, I know I’m not going to change your mind about campaign financing, but maybe could you have a little bit more respect for what the states are doing? Could you have — could you moderate your opinion? Do you have to say that?

And, there, she might really be influential. She’s brilliant and she’s charming. And that’s something that, other than Justice Sotomayor, we haven’t seen with so many of the progressives on the court.

JUDY WOODRUFF: Nicholas Rosenkranz, is that the way it works, that she by — not just by force of her intellect, but the personality, the skills of persuasion, could affect her ability to make a difference on this court?

NICHOLAS QUINN ROSENKRANZ: Well, I’m sure that that’s what President Obama is hoping. And she is undoubtedly very charismatic and very persuasive.

But the other justices have been doing this for quite a while, and they’re very much their own people. It’s hard to imagine that she’s going to arrive at the court and instantly be changing minds in any sort of dramatic way.

But she is very charismatic and very persuasive. So, she will — I’m sure she will be having such conversations with the other justices.

JUDY WOODRUFF: But, staying with you, not instantly change minds, but, over time, does she have the potential to change thinking, change the direction of the court, do you think?

NICHOLAS QUINN ROSENKRANZ: She’s very smart and very charismatic and very persuasive. So, I’m sure she will have an effect at the court and I’m sure she will have an effect in her conversations with the other justices.

JUDY WOODRUFF: What about, Paul Butler, just the sheer force of her intellect? You have both commented on that she’s smart. How much difference does that make on the court?

PAUL BUTLER: Well, Justice Sotomayor is brilliant as well. So, it takes something more than just being smart.

You know, some people hope that Justice Kagan will be the liberal Justice Scalia. So, no one can deny Scalia’s brilliance. But he doesn’t have a lot of force in the court. He writes these opinions where he throws these flames, and it’s kind of red meat for the conservatives, but not a lot of other people are persuaded by him.

So, one role for Justice Kagan might be that, to just kind of rile up the progressives. But, again, a probably more practical role and one suitable for her temperament is to reach out to the conservatives, to kind of make deals with them in the way that you can do as a justice on the highest court in the land.

JUDY WOODRUFF: It’s been noted recently, especially in a piece in The New York Times recently, Nicholas Rosenkranz, that — the thesis of that piece was that this is a very conservative court and an activist conservative court. As a baseline, do you agree with that premise?

NICHOLAS QUINN ROSENKRANZ: I don’t really agree with that premise.

I would say, if you read an article like that, or if you hear the claim that the court is particularly conservative or particularly liberal, two questions to ask yourself, first, how are we defining those terms?

So, what quite do we mean by a liberal decision or a conservative decision? You might, for example, think that a liberal decision was a decision that defended civil rights or took a broad reading of the Bill of Rights, but then liberals don’t actually always mean all of the Bill of Rights. So, they don’t quite mean the Second Amendment, for example.

You might think that a liberal decision is a decision striking down acts of discrimination, but then liberals will define that idea to mean just discrimination against certain groups, but not other groups.

JUDY WOODRUFF: So…

NICHOLAS QUINN ROSENKRANZ: We have to be careful to see exactly how these terms are being defined. And I think the piece that you’re referring to played some games with the definition of those terms.

JUDY WOODRUFF: Well, Paul Butler…

NICHOLAS QUINN ROSENKRANZ: And the second thing…

JUDY WOODRUFF: Let me just — let me just…

NICHOLAS QUINN ROSENKRANZ: Sorry.

The second thing you — you need to keep your eye on is quite who is making these claims. So, oftentimes, you will hear from legal academics that the court is extremely conservative. You have to remember that the legal academy itself is extraordinarily liberal. So, 90 percent of them are to the left of Nancy Pelosi. So, from where they sit, the court looks quite conservative.

JUDY WOODRUFF: Paul Butler, I ask this question because it, of course, has bearing on where Elena Kagan may or may not take the court.

PAUL BUTLER: Sure, Judy.

And if you look at Chief Justice Roberts in the last term, an extremely conservative leader of the court who got his way 90 percent of the time. And, so, if you look at the significant opinions, where the court gives corporations First Amendment rights, where it restricts gun control, we see a court that’s really taking the country outside the mainstream in areas like corporate power, abortion, civil rights.

So, you know, I don’t think it’s a direction that most of the country wants to see us go in.

JUDY WOODRUFF: And so, given that, Elena Kagan can do what on this court?

PAUL BUTLER: Well, one, she, I hope, will be a consistent, reliable vote. And, again, she can temper the rhetoric of the court.

Rhetoric’s real important. They put a line in one opinion, and it later turns out to have a whole lot of force in another opinion.

PAUL BUTLER: And, you know, she can be — she can be a face, a kind of nice face for the progressive movement, to show that what progressives want isn’t really so scary; it’s not out of the mainstream; it’s just good old-fashioned civil rights, civil liberties, American values.

JUDY WOODRUFF: Very quickly, Nicholas Rosenkranz, the fact that she will be the third woman serving at the same time on the court, will her gender have a bearing on what this court does?

NICHOLAS QUINN ROSENKRANZ: No, I — I doubt that it will.

The job of a Supreme Court justice is to read carefully and parse carefully the words of the U.S. Constitution and the words of U.S. statutes. And it really shouldn’t have an effect on that project, what your gender is.

I think Justice Kagan is a superb lawyer, and she will be an excellent reader of legal texts. And that’s what matters, really.

JUDY WOODRUFF: And, Paul Butler, quickly, a word on that.

PAUL BUTLER: You know, she will vote, I think, a lot like Justice Sotomayor and Justice Ginsburg. So, there will be some temptation for scholars to look at a feminist jurisprudence. But it’s usually different from how Justice O’Connor would have voted.

Some people say that women justices are more consensus-builders. For the first time, we will have a critical mass of women on the court, so, if nothing else, it’s great news for the over half of law students who are women. It’s another crack in that glass ceiling.

JUDY WOODRUFF: Paul Butler, Nicholas Rosenkranz, thank you both.

NICHOLAS QUINN ROSENKRANZ: Glad to be with you.

PAUL BUTLER: Great to be here.

The post Kagan Confirmed: ‘Reliable Liberal Vote’ or ‘New-School Moderate’? appeared first on PBS NewsHour.

President Obama said from Chicago that Kagan’s confirmation was”an affirmation of her character and her temperament; her open-mindedness and evenhandedness; her determination to hear all sides of every story and consider all possible arguments.”

Kagan is not expected to dramatically change the ideological balance of the court. She was appointed by President Obama to replace retiring associate justice John Paul Stevens, a reliable vote in the liberal bloc of the court.

The vote was mostly along party lines, with five Republican senators and two independents voting with Democrats for her confirmation. Nebraska Democrat Ben Nelson was the only senator in his party to join Republicans in voting against her.

We’ll have more about the confirmation proceedings on Thursday’s NewsHour broadcast. You can follow our full coverage of her nomination and confirmation process here.

Here’s the roll call for Thursday’s vote. A “yes” is a vote to confirm the nomination.

The post U.S. Senate Approves Kagan to Join Supreme Court appeared first on PBS NewsHour.

The vote was along party lines with one exception — South Carolina Republican Lindsey Graham voted for Kagan.

“I’m going to vote for her because I believe the last election had consequences and this president chose someone who is qualified, who has the experience and knowledge to serve on this court,” Graham said. “At the end of the day, it wasn’t a hard decision. I think she did a very good job and she will serve this nation honorably.”

Kagan is expected to be confirmed by the Senate, where newly appointed interim West Virginia Sen. Carte Goodwin gives Democrats a 59 to 41 advantage over Republicans. If confirmed, Kagan would be the fourth female justice ever and the third currently serving.

President Obama released a statement praising the committee’s vote:

Elena Kagan is one of this country’s leading legal minds, and has shown throughout this process that, if confirmed, she would be a fair and impartial Supreme Court Justice who understands how decisions made by the Court affect the lives of everyday Americans. Today’s vote by the Senate Judiciary Committee is a bipartisan affirmation of her strong performance during her confirmation hearings. I want to thank the Judiciary Committee for giving her a thorough, timely and respectful hearing, and I look forward to the full Senate taking up and voting on this nomination before the August recess.

Arizona Republican Sen. Jon Kyl criticized Kagan for not being more open during her confirmation hearings and said he thought Kagan’s personal views on policy issues would have too much influence on her decisions as a judge. He voted against her.

In declaring his support for Kagan, Pennsylvania Democrat Arlen Specter said he wasn’t surprised that the vote was divided along party lines because of the ideological battle between liberal and conservative justices on the Supreme Court.

Specter also criticized Kagan for dodging several questions posed during her confirmation. We examined how open Kagan was during the hearings in this Rundown post.

A Washington Post/ABC poll found that a majority of Americans, 53 percent, support her confirmation.

But how much do Americans really know about the nominee? Another poll by the Wall Street Journal and NBC News in late June showed that 47 percent didn’t know enough about her to form an opinion.

An online poll from C-SPAN found only 19 percent of respondents could name Kagan as President Obama’s nominee to replace retiring Justice John Paul Stevens. Sixty-seven percent could not name a single case heard by the Supreme Court.

The post Graham Lone Republican Voting ‘Aye’ as Senate Committee Approves Kagan appeared first on PBS NewsHour.

But to Sen. Arlen Specter, she was far less candid: “You have followed the pattern which has been in vogue since Bork,” he told the supreme court nominee.

Overall, Kagan was about as candid as recent nominees and she received about as many questions, according to political science professors Dion Farganis and Justin Wedeking in a just-published study of the Supreme Court nominee’s hearings. Here’s how often (as a percent of questions asked) she was “very forthcoming” with each senator:

Her 680 exchanges (basically, a question and answer, or possibly some banter back and forth), was slightly higher than Sonia Sotomayor (546) and just lower than George W. Bush’s nominees, John Roberts (717) and Samuel Alito (781).

After the jump, we check in with to the two professors about their Kagan analysis, and what might make the hearings better.

You write that Kagan was about on par with recent nominees: She got a similar number of questions and was about as candid. Is this just the way Supreme Court confirmation hearings are going to be for the foreseeable future?

Dion Farganis, Elon University: It certainly seems that the hearings have found their groove, so to speak. The fact that the number of questions, the type of questions, and the candor level have all remained very stable over the past several hearings certainly suggests that what we saw last week is likely to be repeated the next go-around. Taking an even longer view, nominee candor has held fairly steady for more than a half-century. So it’s unlikely, based on what we’ve seen up to this point, that things would change too much in the future. But it’s always important to remember that under different political conditions, or with a very controversial nominee, things could change — and we could get a “new normal.”

Justin Wedeking, University of Kentucky: For the most part, yes, this is how hearings will be for the foreseeable future. We are starting to see some indicators of a routine developing that were not present in the earlier hearings. For example, for the past 25 years, the percentage of questions coming from opposing party senators has been consistently in the 50-60% range. A few other things to consider:

Some of this “routinization” can be attributed to what we call “selection effects,” due to the fact that nomination hearings were highly salient in the past. Presidents are now guaranteed that nominees will be heavily scrutinized at the hearings, regardless of who is nominated. Presidents want to avoid something embarrassing from surfacing during these hearings (or have it lead to an unfavorable Senate vote). Knowing this, presidents are more likely to select a nominee that has been thoroughly vetted and less likely to have any “skeletons” in the closet. Thus, “selection effects” can contribute to a more “normalized” hearing process by influencing who ultimately gets nominated. Consistent with this, Harriet Miers withdrew her nomination before the hearings, likely because it would have been much different than say the recent four hearings (Roberts, Alito, Sotomayo, and Kagan) because of the gap in perceived qualifications.

One factor that may lead to a particular hearing “heating up,” is Divided vs. Unified Government. For the last six hearings, we have had unified government. If the president nominates someone agreeable to senators of his party, then the president can usually expect a relatively “normal” hearing. Senators from the opposing party generally know they have little leverage during the hearings if they are in the minority party, their only real option is to keep asking probing questions about the nominee’s views in hopes to get them to stumble. In sum, divided government would likely lead to a hearing that will deviate from the routine.

With recent nominees learning from earlier hearings, it is likely that nominees believe these hearings will do little to “win” votes, with their answers more likely to “lose” votes if they “trip-up” or “stumble.” Knowing this, and based on what we’ve seen in our study, nominees are increasingly likely to offer the reason of “the issue will be before the Court” as an excuse for being evasive. This is usually acceptable to most senators, as evidenced by several of the senators not pressing on when Kagan gave this as a reason for not answering questions.

What would make these hearings more productive for nominees, senators and those of us watching and trying to understand the process?

DF: For nominees, I suspect they would just as soon not have to answer anything beyond basic questions of biography and qualifications. Questions about substantive issues are like land mines.

In terms of senators, they probably know the hearings would be more productive if they were held behind closed doors. But given how much of a platform the hearings provide, it’s unlikely any senator would want to shut out the cameras. Also, I think there are some senators who believe that the hearings would be more productive if the committee as a whole agreed to vote against nominees who did not answer all of its questions. But again, that’s unlikely — if only because at least some of them recognize that nominees do have legitimate constraints on what they can talk about in terms of unsettled issues.

As for the public, there’s no doubt that knowing one’s way around constitutional law really helps appreciate the hearings — or at least makes it easier to tell when the nominee is dodging questions. But anyone can easily keep an eye out for discussions of past Supreme Court rulings. Those are the places where the nominees and the senators seem to butt heads quite a bit.

JW: I’ve seen some major changes discussed as well: make the hearings private or confidential (exclude media and public), or even do away with them altogether. I’ve also heard some suggestions that nominees be held accountable for things they say if they behave inconsistently once getting on the bench, but might be difficult and costly for senators to enforce. On the other hand, one could argue this relatively “normalized” process is a healthy sign for our democratic government and system of checks-and-balances when there are no major controversies.

For those watching, I would emphasize two basic points to consider: First, a basic principle of our justice system is that our cases will not be prejudged. Americans should ask themselves if they want to take a case before a judge who has already expressed an opinion on it? The answer, I suspect, is that the vast majority of Americans would not want this. Given this, we have to understand that nominees (whether it’s Kagan, Sotomayor, Alito, or Roberts) should not answer every single question because it will essentially disqualify them from hearing that case, or one similar to it, once on the court. If a recusal happens, this may leave the court split 4-4, with any decision then lacking the force of precedent and failing to resolve conflict in the lower courts.

Second, observe the questions that nominees do answer candidly. For example, there were several examples from Kagan’s hearing where she told us bits about her political and ideological background that spoke to her philosophy: she said she was proud of her work in two Democratic administrations, that she had a progressive philosophy, and that she clerked for Justice Thurgood Marshall. All of those things point to her having a liberal-leaning philosophy. Now, that does not mean she will be liberal on every single case or issue that comes before the court, but it is an excellent cue for distilling her general ideological beliefs.

Kagan didn’t treat all senators equally, you write. She was forthcoming with some and held back with others. What made the difference? Did any senator get her to say more than she might have meant to?

DF: In terms of what made the difference, we still have some work to do to sort all that out. At this point, I think we feel confident saying that the kinds of questions that different senators asked probably made a big difference in how Kagan responded. Leahy’s questions, for example, were mostly basic inquiries about judicial philosophy. Specter, by contrast, wanted to know how Kagan would approach specific issues, and he didn’t let up when she spoke in generalities. So, the differences in the questioning probably accounts for most of the differences in candor.

JW: To build on Dion’s point, the type of question matters. The data show that if it was a question ascertaining Kagan’s viewpoint, she was less forthcoming. If it was a factual question, she was more fully forthcoming. For example, approximately 60% of Senator Leahy’s questions were of a factual nature, this helps explain why she was 100% candid with him. On the opposite end, 0 percent of Senator Specter’s questions were factually based, they were all on her views. This helps explain why Kagan only gave fully forthcoming answers approximately 32 percent of the time.

DF: As for whether any senator got Kagan to say too much, it’s of course impossible to know for sure. Having said that, I was a bit surprised by Sen. Graham’s ability to get Kagan to characterize her politics as “progressive.” Graham has a gift for being disarming, so once again, the explanation for the difference in candor may be tied to the senator who asked the question.

JW: I don’t think there were any major bombshells dropped at the hearings, though I was slightly surprised to hear Kagan so readily admit to Senator Leahy that the two recent decisions on gun rights were “binding precedent in… any case.” That is where I would have expected some qualification, depending on the facts of the next gun right case that approaches the Supreme Court.

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