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Supreme Court Unanimously Rules to Uphold Monsanto's Soybean Patent

Mon, 13 May 2013 18:18:00 EDT

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.

An Inside Look at Backstories of Big Decisions in Chief Justice Roberts' Court

Thu, 09 May 2013 18:46:00 EDT

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JEFFREY BROWN: And finally tonight, a news flash: Marcia Coyle wasn't in the courtroom today, only because there were no Supreme Court arguments or decisions.

But she is with us, because, in her spare time from covering the court on a daily basis for the National Law Journal and, of course, regularly with us, she's written a book that takes a larger look at the justices and key cases since 2005, the year that John Roberts became chief justice.

It's called "The Roberts Court: The Struggle for the Constitution."

And, Marcia, welcome.

MARCIA COYLE, "The Roberts Court: The Struggle for the Constitution"/ National Law Journal: Thanks, Jeff.

JEFFREY BROWN: First, what were you trying to do here that you don't do normally with us and for the -- and in your daily job?

MARCIA COYLE: I saw the book as an opportunity to really explore the court in-depth.

I think I and many journalists today feel that we have fewer opportunities to write in-depth about just about any subject because of the Internet, where we're writing for our newspapers, we're writing for the Web, we're writing for blogs. And a book was an opportunity to really do that and also to just add to what I do on the NewsHour. And that's try to shed some light, more light on what the court does.

JEFFREY BROWN: Well, when you look at the big picture, the big issue of the last years, one we have talked about and one you focus on here is the conservative shift in the makeup of the court and how that affects many of the decisions here. Right?

MARCIA COYLE: That's right.

And the court has had a conservative majority for some time. But with the Roberts court in particular, we saw the court become a little more conservative than its predecessor court, mainly because of the addition of Justice Samuel Alito, who replaced Justice Sandra Day O'Connor. She often was more of a moderating force on the court, and he is much more conservative

JEFFREY BROWN: And one of the things you're looking at -- and, again, this comes up in the sort of politicization of the court. We talk about it, is it a more -- and it's because of the times we live in, right, that everything is politicized.

MARCIA COYLE: That's true.

JEFFREY BROWN: How do the justices see that and how does that play into their work, if at all?

MARCIA COYLE: I did interview a good number of the justices.

And in the book, they -- some of them do talk about whether politics enters into their decision-making. And, obviously, they all feel that it does not. But they talk about how they approach cases.

One, they don't think in terms of a liberal bloc and a conservative bloc. As one justice explained to me, we all do the same thing. We read the lower court opinion. We read the brief. We listen to the arguments. We look at prior decisions and we make our decisions. But, as this justice also said, the results are what the results are.

We shouldn't be so naive, I think, to believe, when you have five justices appointed by Republican presidents and four by Democratic presidents, that there is going to be ideological empathy with the politics of the president.

JEFFREY BROWN: And the way you have done this is to look at four areas -- big areas, right, where very important decisions, cases, I mean, were decided by 5-4.

MARCIA COYLE: That's right, Jeff.

It's a story of the Roberts court in general, but, more specifically, it's the story of four great divides on the court in the areas of race, guns, money in campaigns and elections, and health care. And ...

JEFFREY BROWN: All very much with us still, right? Yes.

MARCIA COYLE: Oh, yes. They have -- these decisions have shelf lives. We're going to see more litigation.

And we're seeing it right now in the current court ...

JEFFREY BROWN: Yes. Yes. Right.

MARCIA COYLE: ... but also in the struggle within the court and outside of the court for the meaning of the Constitution in those areas.

JEFFREY BROWN: And -- and you get to tell the backstory, which is what makes it so sort of intriguing and takes us beyond the daily news, right?

MARCIA COYLE: Yes.

JEFFREY BROWN: I mean, including how a lot of cases just get to the court, what's going on behind the scenes.

MARCIA COYLE: That was really important to me, because when we talk about cases, we briefly go through the facts, and then we deal with the law.

JEFFREY BROWN: Yes.

MARCIA COYLE: But it's hard to get to the Supreme Court.

JEFFREY BROWN: Yes.

MARCIA COYLE: And, in the book, you're going to meet people like a Seattle mother who sued the Seattle School District in the race cases.

And you're going to meet a political activist who was involved in the Citizens United case. And, at the same time, you're going to meet some very smart, creative, conservative and libertarian lawyers who have an eye on the court, a more sympathetic court, and push these cases up to the Supreme Court, young lawyers like Alan Gura, who argued and won the Second Amendment gun case.

JEFFREY BROWN: It's the Roberts court, right, at the center.

MARCIA COYLE: Yes.

JEFFREY BROWN: And you have -- and you have -- and you have started it with the beginning of Chief Justice Roberts.

How is he involved in these years? What -- what role do you think he plays in sort of controlling the shape of and the outcome of the court now?

MARCIA COYLE: I think he's very committed to trying to reach consensus on the court, because when the court can speak with one voice or nearly one voice, it sends a clear message to the lower courts into how they should apply and interpret the law.

And he's had some success with that. And one of the things I point out in the book is that even though I'm focusing on 5-4 decisions, more than 50 percent of the court's decisions are unanimous or by 7-2 or 8-1.

JEFFREY BROWN: That doesn't get that much attention, right, because we don't tend to look at those cases.

MARCIA COYLE: Right, not at all.

And by picking the 5-4 decisions that I do focus on, I pick them mainly because we learn, when they divide like that, the most about individual justices. And I try to show the reader that even within the five bloc or the four bloc, there are differences among those justices as to how they approach and interpret the law.

JEFFREY BROWN: And personally, do they seem to -- well, we talked about this after the health care decision, for one, which you write about here.

MARCIA COYLE: Yes.

JEFFREY BROWN: Did that leave any strains personally among the justices, or can you tell just in their working life how much they do get along?

MARCIA COYLE: OK.

Well, I did talk to two justices after the health care ruling. And they were very honest that it was a very tense, tough time. In fact, they compared it to the Seattle, Louisville school cases that I discussed that were in 2007. It was that difficult.

But they also were very confident that the emotions and the passions would be eased by the following September. And I have seen no evidence of continued strain among the justices. This is a group of justices that -- that, actually, they do like each other, and they work well. It's a very -- it's a very collegial court. It's not nine scorpions in the bottle that we know historically.

JEFFREY BROWN: And John Roberts came as a young man. He's -- he could be there for a long time. There are a number of young justices now. This is very much a work in progress, right?

MARCIA COYLE: That ...

JEFFREY BROWN: I mean in the long term, but even in the short term. As of next week, we will have some new decisions, yes?

MARCIA COYLE: That's right.

And that's another point in the book, that, by historical standards, this is a young court.

JEFFREY BROWN: Yes.

MARCIA COYLE: And also by the age of at least four of the justices.

JEFFREY BROWN: Yes.

MARCIA COYLE: And the changes, the turnover that's been on the court, in just five years, they had four new justices, that the justices also talk about in book how that affects their own jurisprudence and also their interpersonal relationships.

JEFFREY BROWN: All right, the book is "The Roberts Court: The Struggle for the Constitution."

Marcia Coyle, as always, thank you.

MARCIA COYLE: Thank you, Jeff.

JEFFREY BROWN: And we will continue this conversation online. Please join us there later. And you can also read excerpts from Marcia's book and coverage of this session's major cases -- all that on our Supreme Court page.

Read an Excerpt From 'The Roberts Court' by Marcia Coyle

Thu, 09 May 2013 13:34:00 EDT

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Marcia Coyle, author the "The Roberts Court," explains how she reports on the Supreme Court. "It's also a very heavy reading beat, and that's what I spend a lot of my time doing. You have to do that in order to understand the arguments." Watch the video for a behind-the-scenes look at the nation's highest court.

Justice Elena Kagan's confirmation hearings before the Senate in 2010 marked an early peak of recent interest in the Supreme Court. Since then, blogs, Twitter, traditional print media and broadcast outlets have demanded extensive coverage of the justices and their decisions -- from the Citizens United and the Affordable Care Act cases to this year's arguments on same-sex marriage. And with Kagan's appointment, the court had seen rapid change with four new justices in five years.

The time was right. Marcia Coyle needed to write a book.

Coyle had been a longtime newspaper reporter, earned a law degree and has written for the National Law Journal for a dozen years. When a Simon & Schuster editor contacted her during Kagan's confirmation hearings, the opportunity wasn't one Coyle had long desired, she said. But she felt it would offer a professional challenge.

"The book presented another chance to dig into a subject and, of course, it was a subject that I love and an institution that I deeply respect," Coyle told the NewsHour.

Coyle began work on the "The Roberts Court" in January 2011. She finished 19 months later.

She interviewed six justices, mostly on background so she could include nuggets of candid insight into the court. For instance, one unnamed current justice is quoted near the end of the book about his or her colleagues: "There are only eight people in the world I can talk to about politics, about a lot of things ... To a large extent on a large number of subjects, we are the only choice of friends we have, so you find a way to get along."

When the Supreme Court is in session, Coyle regularly appears on the PBS NewsHour. She walks viewers through the finer points of cases and decisions of the high court, and provides overviews of terms at the beginning and end.

Rarely do we hear sweeping multi-year perspectives about the court from Coyle. But in "The Roberts Court," out May 7, she examines how Chief Justice John Roberts has influenced the justices and major, controversial cases' outcomes. She includes case studies on disputes in Seattle and Jefferson County, Ky., over school segregation; a case regarding gun rights in the District of Columbia, known commonly as Heller; the Citizens United campaign finance case; and the challenge to the Affordable Care Act in 2012.

You can watch Coyle explain many of the major cases this term on our Supreme Court page. And here she explains common questions about how the court works and how the justices interact with each other.

We'll see her again this month and next, as the court closes its 2012-2013 term and issues decisions on topics including the Voting Rights Act, affirmative action and same-sex marriage. Be sure to tune in to the NewsHour Thursday, when senior correspondent Jeffrey Brown discusses with Coyle "The Roberts Court."

The Roberts Court by Marcia Coyle - Excerpt by PBS NewsHour

Coyle provided this correction to the above text: The former chief justice's name on the first page is Melville Fuller.

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Supreme Court Rules Foreign Human Rights Cases Can't Be Tried in U.S.

Wed, 17 Apr 2013 18:40:00 EDT

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GWEN IFILL: We turn now to the Supreme Court, which ruled today that foreign nationals cannot sue U.S. corporations in human rights disputes.

Marcia Coyle of the National Law Journal joins me with more.

Start by explaining the parameters of this case. We talked about it briefly some time ago.

MARCIA COYLE, National Law Journal: OK.

Well, this started actually in 2002. Twelve Nigerian nationals brought a lawsuit in federal court here in the United States against three oil companies. They claimed that the oil company had enlisted the aid of the Nigerian military to suppress opposition to the oil company's drilling in a region in Nigeria called the Ogoni region, and that the military had used torture, executions, and arbitrary detentions to do that.

And they brought their lawsuit under a 1789 federal law called the Alien Tort Statute, probably one of the oldest laws on the books in the United States. It was enacted by the first Congress of the United States.

GWEN IFILL: And what was that designed to do?

MARCIA COYLE: Well, it's -- there's some debate as to really what its purpose was, but the statute is very simple.

It has one sentence that says that federal courts have jurisdiction when aliens bring claims for basically injuries caused by violations of international law or treaties.

GWEN IFILL: The court said today that didn't apply in this case? Was it a question about, is there was really a human rights dispute or a jurisdictional one?

MARCIA COYLE: It is a human rights dispute, but it also very much involved interpretation of this very old statute.

The chief justice wrote the main opinion for the court. And he applied a canon of statutory interpretation that's a judge-made doctrine known as a presumption against extraterritoriality. And what that means is that the court looks at a statute, and says unless it's really clear on the face of the statute that Congress intended the law to apply to conduct that happened outside of the United States, there's a presumption against it applying that way.

So the chief justice examined the history of the statute, the text, and the purposes, and he said there was no indication that it should apply to conduct that happened outside of the United States.

GWEN IFILL: Have there been examples in the past where this act has been used for cases like this?

MARCIA COYLE: Oh, absolutely.

In fact, it has become a major tool of human rights organizations and human rights lawyers to try to bring, in most recent years, multinational corporations into court when, as the claim was here, they have apparently worked or allegedly worked in concert with foreign military or foreign governments that engaged in human rights abuses.

And it's been -- the law itself wasn't used much until 1980, and that's when the Supreme Court itself found that -- it upheld the law being used by Paraguayan citizens who sued a Paraguayan military officer for torture that occurred in Paraguay.

GWEN IFILL: So in not allowing it to be used that way this time, was the court -- this was a blow to human rights activists, I presume?

MARCIA COYLE: Absolutely.

As I said, it's become a major tool to bring corporations and others to justice in the United States. The court said today that it doesn't apply to conduct that occurs abroad, outside of the United States. And so, human rights groups see this as a serious blow.

But they do see a ray of hope in some of what was written in the different opinions today.

GWEN IFILL: Well, I want to get to that in a moment, but I'm curious, unless this is the answer to that question. Is there another legal path for redress? If you still -- if you are a foreign national, and you feel that somehow a U.S. corporation has wronged you in another country, other than the Alien Tort Act, is there another way?

MARCIA COYLE: There aren't many ways.

There is a possibility that they may be able to find something under state laws in this country. But this -- this is really the major tool. And it's not just U.S. corporations. We're talking about multinational corporations, some really foreign-based corporations that have maybe a small presence in the United States.

The chief justice said it's not going to be sufficient that you just -- that a foreign corporation has an office in the United States for you to be able to bring this suit in U.S. court. This presumption is a big bar, and you have to show that there are sufficient contacts with the United States in order to overcome that presumption.

GWEN IFILL: I assume what you were alluding to just now is the unusual unanimity of the ruling, yet not all for the same reasons.

MARCIA COYLE: No, no.

All of the justices agreed that this particular case could not go forward because it involved foreign plaintiffs, foreign defendants, and conduct that happened abroad.

Chief Justice Roberts and four other justices, Justices Kennedy, Scalia, Alito, and Thomas, all agreed with the chief's analysis that this presumption against the law applying outside the United States was the right way to analyze it. But Justice Breyer, writing for the three remaining justices, thought that wasn't the right way to analyze this.

He would apply the -- he would say federal courts can hear these claims, one, if the defendant in the case is an American national, if the conduct occurred in the United States, but also -- and this is where he really differed with the other justices -- also if there was danger that the United States was going to become a safe harbor for torturers or, as he called them, the common enemy of mankind.

So he saw it as a little broader. Justice Kennedy, who agreed with the chief justice's analysis, also wrote separately to say that he thought the opinion was cautious and left open many questions as to how to really interpret the Alien Tort Statute, and there might be a small category of cases that the court's opinion today doesn't cover.

GWEN IFILL: In the future.

Marcia Coyle of the National Law Journal, thank you so much.

MARCIA COYLE: My pleasure, Gwen.

Supreme Court Hears Custody Case for Child of Native American Descent

Tue, 16 Apr 2013 18:37:00 EDT

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GWEN IFILL: Tribal law, federal law, and the fate of a young girl. The Supreme Court heard a rare child custody case today.

Ray Suarez has that.

RAY SUAREZ: The little girl at the center of this case is known as Baby Veronica. She's caught in a custody battle, the kind normally heard in local courts. But the case was heard today by high court justices since it raises larger questions about federal law because the girl is part Cherokee Indian.

The Indian Child Welfare Act was passed in 1978 to protect children and the stability of Indian tribes. It allows tribal involvement in custody decisions, so Indian children aren't unnecessarily removed from their ethnic origins.

Marcia Coyle of the National Law Journal was in the courtroom this morning, and is back with us tonight.

And, Marcia, when people hear custody battle, they tend to think mother vs. father, but this was kind of a three- or even four-way legal argument, wasn't it?

MARCIA COYLE, National Law Journal: Absolutely, Ray.

You had the lawyer for the adoptive couple here who had custody of the child for about 27 months. You had the lawyer for the guardian ad litem for the child. And then on the other side, you had a lawyer for the biological father of the child and a lawyer for the United States arguing.

RAY SUAREZ: So why was the Indian Welfare Act -- Child Welfare Act passed in the first place, and does the biological father clearly fall under its provisions?

MARCIA COYLE: The act was passed in response to a real crisis.

It's estimated that roughly 35 percent of Indian children were being removed from Indian families by abusive child welfare agencies and being placed in -- either in adoptive homes or in foster care and generally non-Indian foster care or adoptive homes.

So Congress responded to that with this act, which does provide special protections for Indian families, as well as for Indian tribes.

RAY SUAREZ: Was there any argument over what makes someone an Indian?

MARCIA COYLE: There really wasn't specific argument about that, but there were questions raised, some skepticism about how much of an Indian this child is.

Chief Justice Roberts, Justice Alito raised questions about, well, this child is three-and-256ths of Cherokee blood. What if you had a tribe, for example, that decided that it would allow anyone to enroll who didn't have any Cherokee blood, and someone did enroll like that, had a child; would that child then be considered an Indian child?

They posed several hypotheticals trying to get at how far the act really reaches. But, as the lawyer for the biological father explained, there are federal requirements for recognition of tribes, and those hypotheticals are rather extreme. But, also ...

RAY SUAREZ: But this is an issue in this case, isn't it, because it's the father's status as an Indian which he's arguing trumps other kinds of claims and other findings in state courts, which normally handle custody battles.

MARCIA COYLE: That's right.

And there are no blood tests under this act. He -- because he is the biological father, he does fall under the definition of an Indian parent. But the parties do dispute how the act applies in the situation where they claim -- at least the adoptive couple claims that the biological father here, he was an unwed father. There's an exclusion under the act for parents, unwed fathers who do not assert or establish paternity.

The dispute is that the biological father says that he did do that as soon as he was made aware of the adoption proceedings. The adoptive couple's attorney claims too little, too late.

RAY SUAREZ: The non-Indian couple, the Capobiancos from South Carolina ...

MARCIA COYLE: Yes.

RAY SUAREZ: ... who adopted the little girl, it appeared from the transcript as if some of the justices weren't altogether comfortable with having to make a call in this case.

MARCIA COYLE: I think there really was some discomfort.

Justice Kennedy at one point pointed out that federal -- I'm sorry -- state courts, family courts deal with these kinds of problems all the time. And he said the first family judge really was King Solomon, and if they could appoint King Solomon as a special master here, they would, but they can't.

So it clearly is posing some difficult issues for them. There seemed to be almost a divide on the court between justices who felt that the language of the law is quite clear, that the father is a parent under the law, and that special protections kick in because he is an Indian parent and this is an Indian child, and other justices concerned about whether the best interests of the child were -- are really considered in this situation. Does state law apply at all in making the decision as to who should have custody?

So, yes, I would say that they're uncomfortable with this.

RAY SUAREZ: There were separate arguments from the lawyers for the adoptive couple ...

MARCIA COYLE: Right.

RAY SUAREZ: ... for the biological father, Dusten Brown, and for the guardian appointed by the South Carolina state government.

MARCIA COYLE: Right.

RAY SUAREZ: What were the central conflicts from these three separate views of the law?

MARCIA COYLE: Well, on the adoptive parents' side -- and they are supported by the guardian ad litem in this case -- they argue that, even if the father -- even if the father is a parent under the law, he has no legal rights. He had no relationship with this child, that the Indian Child Welfare Act presumes an existing Indian family. It's all geared to preserving an Indian family, and there was no family here.

On the other side, the father and the United States argue that the father does fit the definition of parent, and the South Carolina Supreme Court, as well as the state family court, applied the federal law accurately in refusing to terminate his parental rights. They found that he would provide a loving home and family for the child and met the other requirements of the law.

RAY SUAREZ: The Obama administration and many Indian tribes came in on the side of the biological father. We will find out how it all turns out later in the term.

Marcia Coyle, thanks a lot.

MARCIA COYLE: My pleasure, Ray.

Supreme Court Tackles Case of Patent Law, Human Genetics

Mon, 15 Apr 2013 18:20:00 EDT

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JEFFREY BROWN: We will continue to follow developments in Boston, but for now to another story.

Today, the Supreme Court heard arguments in a case at the intersection of law and science, specifically, genetic research, one that may well have major consequences for the future of medicine. The question, can human genes be patented?

We turn, as always, to Marcia Coyle of the National Law Journal, who was in the courtroom today and is back with us tonight.

Marcia, first, some background on this case.

MARCIA COYLE, National Law Journal: OK.

Myriad is a Utah-based genetic research company. And Myriad holds patents on two genes with mutations that are linked to a very high risk of breast and/or ovarian cancer. Its patents also give it exclusive control over diagnostic testing for those genes.

About four years ago, a group of scientists, researchers, civil rights organizations, women's health organizations decided to challenge Myriad's patents in federal court. They filed a lawsuit. They lost. Two courts, two lower courts have upheld Myriad's patents. Today, they brought -- the challengers brought the case to the Supreme Court.

JEFFREY BROWN: OK. So the legal issue here is, what can be patented?

Now, we made a graphic of patent law just to help you out here.

MARCIA COYLE: OK. All right.

JEFFREY BROWN: We will put that up.

Tell us -- tell us what the law says. And then we can go into this case.

MARCIA COYLE: OK.

Well, the law says that you can get a patent for any new and useful process, machine, manufacture, and composition of matter or any new and useful improvements on that invention. But what you can't get a patent for is the application of a product of nature or natural phenomenon.

And I think Justice Breyer today put the case in context in explaining the law by saying, if you develop a process for extracting sap from a plant in the Amazon, you can get a patent for the process. If you take the sap and you manipulate it and you come up with a new use, you can get a patent on the use. But what you can't get a patent on is the sap itself.

JEFFREY BROWN: So the justices reaching for an analogy, I guess, to help them understand it.

MARCIA COYLE: Right. Exactly.

JEFFREY BROWN: So what happened in these arguments? What kind of questions were they pursuing?

MARCIA COYLE: Well, the question for the court is whether these genes are products of nature or a human-made invention.

And so first up at the lectern today was the attorney for the challengers, Chris Hansen of the American Civil Liberties Union. And he said, basically, Myriad has invented nothing here. He said Myriad deserves credit for unlocking the secrets of these two genes. But the isolation of these genes from a strand of DNA is something that is routine and done all across the country.

But the genes themselves, how they work, what they do, what they fail to do, those are decisions made by nature. And while Myriad deserves credit for unlocking the secrets, it doesn't deserve patents.

JEFFREY BROWN: And what reaction did that get from the justices?

MARCIA COYLE: The justices are concerned about the inherent tension in patent cases.

And that is, on the one hand, we want to encourage investment in research and invention. Myriad, for example, spent roughly $500 million dollars until it found these two genes. And then, on the other hand, you don't want to lock up that invention for years to prevent further research and new uses.

So the justices were asking Mr. Hansen, well, what incentive will Myriad have to do this or any company have to do this kind of research? And he said there are lots of researchers who want these genes in order to do research. And also, he said, Myriad and other companies can issue licenses to researchers to do that kind of work.

JEFFREY BROWN: And the attorney for Myriad was able to make those arguments himself, I guess, about why it is important for the company to have the patent.

MARCIA COYLE: Absolutely.

Myriad's attorney was Gregory Castanias. And he told the court that the human invention here is -- was in Myriad's identifying and isolating these genes from the strand of DNA. And he gave as an analogy of a baseball bat. He said a bat doesn't exist until it's isolated from a tree. But the invention is in deciding where to begin the bat and where to end the bat.

But he faced skeptical questions from Chief Justice Roberts, who said, well, now, wait a minute. What's involved here is snipping this strand of DNA. You cut here, you cut there, and you have got the genes. But a bat is different. You don't -- you have to invent the bat. You don't look at a tree branch and say, if I cut here and cut there, I have a baseball bat.

JEFFREY BROWN: And what is the feeling among the interested parties -- because a lot of people joined into this -- about the implications here for the outcome beyond this case, right?

MARCIA COYLE: This case has really pitted biotechnology, agricultural, a whole slew of research organizations against civil rights groups, individual scientists.

They're all concerned about how broadly the court might rule here. Lots of genes have been patented. And what the court says in terms of this type of gene vs. maybe a more narrow decision will have many implications for how research is done in the future, as well as for individualized medicine.

JEFFREY BROWN: Marcia Coyle, thank you, as always.

MARCIA COYLE: My pleasure, Jeff.

JEFFREY BROWN: And we continue our look at this case and the larger implications with Ellen Matloff, director of cancer genetic counseling at Yale -- Yale Cancer Center -- excuse me. She's a plaintiff in today's case. And Kevin Noonan, an intellectual property attorney and founder of the blog PatentDocs.org.

Ellen Matloff, you heard Marcia talk about the legal arguments. As someone involved in genetic counseling and research, what's the essence of this case for you? What's at stake?

ELLEN MATLOFF, Yale Cancer Center: Well, I have really seen from the ground floor what this has done to patient care over the last 15 years.

And keep in mind that when these genes were cloned, many laboratories were offering this testing. There was nothing novel here, no invention, no special process, no special machine. We were doing this testing in our laboratory at Yale. And then, when the patents became -- when they clamped down on the patents, our labs and all others were shut down.

JEFFREY BROWN: Well, Kevin Noonan, same question to you. As someone involved in the patent world and research, what do you think is the essence of this?

KEVIN NOONAN, PatentDocs.org: Well, I think that that is true, that you're looking at what is going to enable the technology to get to the most patients the quickest and the most reliably.

And, frankly, Myriad has done a great job of doing that because there are more people who have gotten this test than I think would have gotten it otherwise more consistently and more reliably than if it had been scattered among hundreds of thousands of individual research labs.

JEFFREY BROWN: Well, Ellen Matloff, address that specifically, because that claim has been put out there, that scholarly work has hardly been stopped. There's been plenty of research done -- I mean, studies of the research done on this.

ELLEN MATLOFF: Yes. I think those of us in the know will tell you that this has had a chilling effect on research, and not as much research has been able to be done.

One company has had a monopoly on this testing. And so for companies and laboratories that wanted to find better ways to look for mutations, faster ways, less expensive ways, they have been stopped. And, yes, Myriad has done a great job of marketing this test to a lot of people because they have a huge financial incentive.

But many patients who really didn't need the tests were frightened into thinking they did by Myriad's marketing. And insurance companies clamped down on who could have the test. And it's made it difficult for some of my patients who need the test to actually get it.

JEFFREY BROWN: Well, so, Kevin Noonan, where should the line be drawn that Marcia Coyle just raised and the justices clearly raised today between allowing the company to reap a reward from its investment and getting the information out to those who need it?

KEVIN NOONAN: Well, I think what you have to realize is what happens in these instances is that, if you don't permit people to patent, which is something that will end up with full disclosure of what the invention is so that when the patents expire, which will happen in about two years, everybody gets to use the invention, if you don't do that, for most genes, for most diseases, it won't be as simple or straightforward as it with the BRCA genes, and what will happen is that people won't disclose it.

And then they will hide it. They will figure out ways that they can do this testing without disclosing what the basis is. And if they did that, then the monopoly, if you will, would last for a much longer time.

One thing I will say is that there have been more than 10,000 basic research papers that have been published since the Myriad patents were issued, and -- in about 12 or 15 years. That sounds like a lot to me. I think basic research is being done. What's not being done is clinical work charging patients for the tests in the face of Myriad's patents.

JEFFREY BROWN: What about that, Ellen Matloff, I mean, about the argument that the work might not get done if the patent isn't given?

ELLEN MATLOFF: I think those of us who work in genetics know that that just isn't true.

Before BRCA1 and 2, there were hundreds and hundreds of genes discovered, and patents on many of those genes. None of them were used in this way.

Testing was available for all of those genes. This is just a company that has done something unprecedented in the way they have clamped down on this patent.

And, quite frankly, there is no invention here. They didn't invent anything.

JEFFREY BROWN: Staying with you, Ellen Matloff, if you go beyond this case, where else in the world of research and testing would this have consequences?

ELLEN MATLOFF: Huge consequences.

We have really come to a fork in the road here. And moving forward, we're going to be able to do whole genome sequencing on one DNA sample, a tiny tube of blood. We're going to be able to look at 30,000 genes. And people are estimating that that might even cost $1,000 dollars to look at 30,000 genes.

With Myriad and their monopoly, they're charging $4,000 dollars per patient for two genes. Imagine if every one of those genes was patented. Think about the cost of this testing. It wouldn't reach the average consumer. It wouldn't reach anyone.

JEFFREY BROWN: Kevin Noonan, what about that?

KEVIN NOONAN: First of all, that's probably not going to be the case.

Secondly, the whole genome sequencing wouldn't infringe the patents at issue here. In fact, the sad thing is that the genes -- the gene claims at issue, even if the Supreme Court were to rule in its entirety that the petitioners win, if a doctor were to or if Yale started to do this testing the day after that decision, Myriad has lots of other patents with lots of other claims that are directed not to the genes, but to the methods themselves, and things that the court seemed not to think were a problem.

And they would be able to sue them for those -- on those patents. So the problem is that the answer you get, that our genes are patentable or not, are really not -- is really not going to impact the issue that's been raised about whether patients will get care.

JEFFREY BROWN: Kevin Noonan, just to stay with you, one of the issues, questions I have seen raised is whether the pace of change in the field of genetic research is outstripping the law. How relevant is a case like this?

You watch these developments. What is your answer to that?

KEVIN NOONAN: Well, I would say that the case is about 30 years too late.

JEFFREY BROWN: Thirty years?

KEVIN NOONAN: Yes, because that's when genes were first patented. It was 1980 or so.

And so, right now, if you look at just the procedural aspects of patent law, a patent is granted with a term of 20 years from when the application was filed. Most of the gene patents that are out there, most of the new ones, were filed around the turn of the century. So, by 2020, they will all expire just by the nature of the way that the patent system works.

And so many of the -- for these claims, many -- or these types of claims, many of the putative problems, many of the things that people are afraid of just won't come to pass.

JEFFREY BROWN: A brief last word from you, Ellen Matloff, on that very issue, whether the science is outstripping the law.

ELLEN MATLOFF: I think we're finding new ways around things like isolated DNA, but moving forward, this is a bigger issue.

Are we going to let people patent things that occur in the human body that they didn't invent, because, if we do, do that, it's going to hinder the future of personalized medicine? I don't think we want that.

JEFFREY BROWN: Ellen Matloff and Kevin Noonan, thank you both very much.

ELLEN MATLOFF: Thank you.

KEVIN NOONAN: Thanks very much.

Sandra Day O'Connor Explores Supreme Court History, Inner Workings

Thu, 04 Apr 2013 18:36:00 EDT

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JUDY WOODRUFF: Next: a look at the inner workings of the Supreme Court and her own approach to service there, as told by former Justice Sandra Day O'Connor.

I sat down with her recently to talk about her new book, "Out of Order: Stories From the History of the Supreme Court."

Justice Sandra Day O'Connor, welcome back to the NewsHour.

FORMER SUPREME COURT JUSTICE SANDRA DAY O'CONNOR: Thank you. I'm honored to be here.

JUDY WOODRUFF: So the book, "Out of Order," you suggested at one point that this was done in an effort to bring the Supreme Court to life for people who view it as a sort of distant, forbidding place, to make it more human.

Why did you think that was important?

SANDRA DAY O’CONNOR: Well, I don't know that it is, but I think people no very little, really, about the court, how it works and its history. And both of those things are important in our country, but they're not things that most citizens know much about.

JUDY WOODRUFF: Well, you write -- you tell so many wonderful stories and you write about the court in the very early days when some of the justices were riding circuit on horseback.

SANDRA DAY O’CONNOR: Yes.

That was a terrible and lengthy period of time for the court. Imagine being assigned from some distant place to be on the court, and then ordered to travel 90 percent of your time. And they had no trains, no buses, no airplanes. And they had to go horse and buggy or horseback, long distance.

JUDY WOODRUFF: It might have been a disqualifier today.

SANDRA DAY O’CONNOR: Oh, it would have been horrible.

I think most people didn't want to do court duty.

JUDY WOODRUFF: You write about some -- you also write about some fascinating choices for the court.

Andrew Jackson picked one justice who ran for president four times while he was serving on the Supreme Court.

SANDRA DAY O’CONNOR: Yes. Can you imagine? It was very different in those days. That's for sure.

JUDY WOODRUFF: In all your -- you did a lot of research for the book, Justice O'Connor.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: Was there -- as you looked at the presidents over time and how they made their choices for the Supreme Court ...

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: ... was there some -- was there a set of qualities or a set of judgments that you think lent themselves to better choices for the court than others?

SANDRA DAY O’CONNOR: Well, yes. I can pick out a few grounds that would improve the chances of getting a good one, but I don't think that was primary in the case of most appointments.

I think a great many of those appointments were really influenced a lot by the political situation. They wanted to put somebody on that the president himself thought was politically a wise choice and wouldn't give him problems, by virtue of poor appointments. I think a lot of consideration was given to things like that.

JUDY WOODRUFF: Do you think that's still the case today?

SANDRA DAY O’CONNOR: Well, maybe to some extent, but much less so.

JUDY WOODRUFF: You have spoken about this before, and that is the fact that American public opinion of the Supreme Court has declined. I mean, just recently, there was a poll that ...

SANDRA DAY O’CONNOR: Apparently, it has.

It had historically -- for many years, it had been higher than that of the other branches. And in very recent polls, I have seen a rather steep decline. And it may relate a little bit to the Bush/Gore case and all the unpleasant publicity that that produced. I don't know.

JUDY WOODRUFF: Do you think, in the after ...

SANDRA DAY O’CONNOR: You might have a better guess about it than I do.

JUDY WOODRUFF: But do you think, in the aftermath of that case and some other controversial cases, like the health care decision of last year on the president's health -- Affordable Care Act, that the court could do a better job of explaining to the American people why it did what it did, including in Bush v. Gore?

SANDRA DAY O’CONNOR: I don't think it's the court's perceived role to do some explaining of a political nature.

They aren't politicians. They aren't running for reelection. And what they do need to explain is the legal reasoning for a particular decision. That needs to be done. But it doesn't make for very exciting reading for people to read legal technicalities. But, often, it turns on that.

JUDY WOODRUFF: Do you think it matters how high the court is held in public -- in the public's regard?

SANDRA DAY O’CONNOR: I don't know. It matters to me, as a former member of the court. I like to think that the court will continue to be held in high regard by the public. I think it should be.

It's an institution that depends on making tough decisions in close cases for reasons that it explains well and that, in the past at least, have proven satisfactory to the public.

JUDY WOODRUFF: When it comes to sensitive cases, I notice that you did another interview recently with Rachel Maddow on MSNBC.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: And she asked you if you feel sometimes that the court's legitimacy is threatened.

And you answered -- and I'm going to quote -- you said, "It's always threatened if there's an issue out there on which public opinion is divided. You want to be particularly careful about how you decide it not to offend people."

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: So, my question is, how do you decide which group you don't want to offend?

SANDRA DAY O’CONNOR: Well, you don't want to offend anyone particularly.

But the decisions in many cases will bother a great segment of the public, of necessity. Some of these decisions are drawn by pretty fine lines, and on the basis of legal arguments that don't have much resonance with the public.

JUDY WOODRUFF: So ...

SANDRA DAY O’CONNOR: So I think it's inevitable that some of the court's decisions will be found by a segment of the public to be not the right decision or subject to criticism.

JUDY WOODRUFF: So how much should a justice take that into consideration?

SANDRA DAY O’CONNOR: Well, you can't.

You have to answer the question, like it or not. And the questions deserve a valid legal response, even if the response isn't one that will be easily understood. You have an obligation as a member of the court to do what you are bound to do under federal law, even if it isn't an attractive resolution from a public standpoint.

JUDY WOODRUFF: I want to ask you about you -- one of the things you write in the book, Justice O'Connor, is you write about women, the role of women, of course, as first on the court, the first woman justice.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: But you also write about the role of women as law clerks, very important ...

SANDRA DAY O’CONNOR: Yes. Yes.

JUDY WOODRUFF: ... appointments by the justices ...

SANDRA DAY O’CONNOR: Very much so.

JUDY WOODRUFF: ... and how there have only been -- I guess, recently, there have only been as few of a third of them were women.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: But more than half of the women coming out of law school -- of the students coming out of law school ...

SANDRA DAY O’CONNOR: Are women.

JUDY WOODRUFF: ... are Women.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: Why ...

SANDRA DAY O’CONNOR: The number of law clerks ...

JUDY WOODRUFF: Why is that, though, that it isn't keeping up at the court?

SANDRA DAY O’CONNOR: I don't know.

But, historically, it took a long time before the court took any women law clerks. Finally, it did, but the numbers have never matched very effectively the percentages of law graduates out of graduating classes. We have far more than we ever did before and it's continued to grow, but it isn't a nice match yet.

JUDY WOODRUFF: Did you -- do you -- is it something you ever discussed this with other justices?

SANDRA DAY O’CONNOR: Oh, I think it comes up on occasion, but not frequently.

Each justice hires their own clerks, and applications are made individually to the justices. It isn't a group decision.

JUDY WOODRUFF: Excuse me. I didn't mean to interrupt.

Was it something that was important to you to do, to bring in women law clerks?

SANDRA DAY O’CONNOR: Very much so. Very much so.

I like to have a pretty even distribution, and did.

JUDY WOODRUFF: I have one last question, because one of the reviewers I was reading of your book said he's still looking for book from Sandra Day O'Connor that explains her judicial philosophy.

Is that a book that's coming?

SANDRA DAY O’CONNOR: I don't think so.

JUDY WOODRUFF: Why not?

SANDRA DAY O’CONNOR: Because I think it's not necessary.

I'm not on the court anymore, so no use looking for my philosophy. If somebody's waiting for that, they can wait for another justice.

JUDY WOODRUFF: All right, we will leave it there.

Former Justice Sandra Day O'Connor, thank you very much for talking with us.

The book is "Out of Order: Stories From the History of the Supreme Court."

SANDRA DAY O’CONNOR: And I didn't want to be out of order answering any questions.

JUDY WOODRUFF: Thank you.

SANDRA DAY O’CONNOR: Thank you.

JUDY WOODRUFF: Thank you.

Debating Discrimination, Extent of Federal Authority in Defense of Marriage Act

Wed, 27 Mar 2013 18:19:00 EDT

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JUDY WOODRUFF: And we return to today's Supreme Court arguments involving the federal Defense of Marriage Act with a debate of our own.

Supporting the law is Ken Klukowski. He's the director of the Center for Religious Liberty at the Family Research Council and a Breitbart News legal columnist. And Mary Bonauto opposes DOMA. She is special counsel for the group Gay and Lesbian Advocates and Defenders.

And welcome to the you both to the NewsHour.

KEN KLUKOWSKI, Center for Religious Liberty, Family Research Council: Thank you.

JUDY WOODRUFF: So, we were just saying before this conversation began there was some discussion at the court today about jurisdiction, but we're going to set that aside and talk about the core of the argument today.

First of all, in the -- Mary Bonauto, in the analysis I have been reading, there is -- there are a number of folks who are concluding that there are enough votes now on the court to strike down DOMA. How did you read generally what you heard from the justices today?

MARY BONAUTO, Gay and Lesbian Advocates and Defenders: Yes, I'm not prepared to make any predictions based on an oral argument.

But, clearly, the questions were going to two key issues. One is when the federal government has for so long deferred to a state's determination about who is married, why in 1996 did they change the rules when it looked like same-sex couples might begin to marry and impose a federal definition?

And then, secondly, when you have all these protections that are available to married people, you know, why are you taking people from Massachusetts, Connecticut, Vermont, and saying their marriages don't count for Social Security and family medical leave and treating them like they're single, even though they're legally committed in marriage?

JUDY WOODRUFF: Well, let's talk about those two different streams of argument today, one, loosely, discrimination, the other one, loosely, the federal vs. the states.

And, Ken Klukowski, does one of those strands of argument have greater weight, did you think, today in what you heard?

KEN KLUKOWSKI: Well, the reality is that I think it's -- looking at it from a different aspect, the reality is, DOMA -- DOMA filled in the blanks -- and there's a lot of blanks.

About 1,100 provisions of federal law reference marriage. But it wasn't the first one. Regarding, for example, filing taxes, if you're going to file a joint married tax return, it's the tax code that specifies that if you are married, but separated from your spouse -- now, you're still legally married under the state, but it's illegal for you to file a married tax return. You must file an unmarried person tax return.

Also, if you are married to someone who is not a citizen and they're not in the country, you have to file a single tax return. There are aspects of immigration law. So, there are many areas of law going back decades where Congress has had the definition of marriage.

JUDY WOODRUFF: You're saying there is a legitimate role for the federal government, you're saying, in regulating these relationships?

KEN KLUKOWSKI: That's exactly right.

Who can get married is a state issue. But what federal benefits, mainly, usually entitlements, what federal benefits go to which sort of unions, that's a legitimate exercise of federal power, so long as it's one of Congress' powers in Article One, Section Eight of the Constitution.

JUDY WOODRUFF: And we heard Justice Kennedy today questioning that in particular, didn't we, the role of the federal government in overriding the states in determining how these laws are going to be interpreted.

MARY BONAUTO: We did.

And just to respond quickly, we have never had a situation where the Congress has wiped out a whole class of marriages for purposes of every federal law and program, and that's what DOMA is. In the context of any particular program, yes, there's play in the joints, but there's never been a law that just said, oh, these people who were actually married by a state are not married for any federal purpose.

That's what is so different about DOMA, which gets into the equal protection issue. And then Justice Kennedy had another set of questions about, does the federal government even have the power to do this, not even from an equal protection standpoint, but isn't this something that solely belongs with the states?

JUDY WOODRUFF: And what about -- and what's the answer to those questions -- to that question?

KEN KLUKOWSKI: There are federal issues.

It's a great question. The federal government required several states, as a condition for becoming a state, that they must adopt the state standard that they wouldn't allow polygamy. The Supreme Court dealt with marriage other than one man and one woman in Reynolds v. United States in 1878, where they said there is no constitutional right to polygamy.

DOMA defines marriages for federal law purposes, only federal law. A state is free to create polygamy or same-sex marriage or anything. But the federal government recognizes one man and one woman also has an impact right now on current immigration efforts. It's something that spreads throughout the federal law.

And the reality is, federalism has two parts. States are sovereign where they are sovereign. But where the federal government is properly in the Constitution, the federal government gets to set its own rules.

JUDY WOODRUFF: What's the response to that?

MARY BONAUTO: There's a few responses to that.

On the polygamy thing, just to be really clear about the historical record, these were territories. And the territories, as a condition of statehood, had to agree to something. It has never been the case that the U.S. government has, again, invalidated a whole class of existing state-licensed marriages.

DOMA is an anomaly. And I don't think there was any disagreement about that on the court today, at least in terms of what one could hear about the questions.

JUDY WOODRUFF: Now, what -- the other strand of this -- and you touched on this, Mary Bonauto, a minute ago -- and that is whether there is out-and-out discrimination here.

We heard that from Justice Sotomayor. We heard it from Justice Kagan. We heard her ask at one point that whether -- she talked about moral disapproval of homosexuality. How did that play out in the court today and how important is that, Ken Klukowski, to deciding this case?

KEN KLUKOWSKI: Well, more important is that the Obama administration rejected it. They readily said in court, no, this was not -- DOMA wasn't driven by animus.

In fact, they said DOMA, if -- what is called rational basis review, which is the federal law -- federal standard under equal protection when we evaluate laws -- the Obama solicitor general, Don Verrilli, who we just heard, said if rational basis review is the test, DOMA would survive. There are legitimate interests here. This law is rationally related to advancing them.

And this law, they said Congress made a mistake in passing it, but wasn't trying to discriminate.

JUDY WOODRUFF: So what role do you see discrimination playing in the outcome here?

MARY BONAUTO: I see it as playing a role.

This is not about naming -- calling people names or anything else. But, in 1996, it was really clear that the law was, you take state marriage laws as you find them. You fold married people, whether they have differences in racial restriction in the past or first cousins, or second cousins, or how many marriages you can have -- if you were married by your state, you got folded into that system for the federal government.

And they changed the rule to make sure that married same-sex couples wouldn't be included. That is the situation. So then the question becomes, well, is there a justification for making a new rule? And the justification that's been advanced by Mr. Clement is really around this idea of uniformity, that it's important to treat all gay people alike.

But we have a system, when we're talking about federal marital benefits and burdens, of treating married people. And we have now an anomaly where we're treating married gay people as though they're unmarried, as opposed to treating all married people alike, whether they're gay or non-gay. So, the uniformity thing just doesn't seem to make a lot of sense.

JUDY WOODRUFF: And how do you -- how do you answer that?

KEN KLUKOWSKI: Well, I think there is a legitimate federal role here.

The reason I raise polygamy isn't to raise some far-off issue. Legislation is actually -- I'm sorry -- litigation has already started. Jonathan Turley, a professor at George Washington, is right now pursuing litigation in Utah, saying if there is a right to same-sex marriage, then there is a right to polygamy.

Now, and he's saying, I'm all for that. I don't think the government should discriminate on that base either. So, I think both sides here agree that there is a role for the government to draw lines. We're just debating where -- where those lines are. And I think, as we understand the different combinations that could be involved, then people will understand what the Obama administration conceded in court and in their briefs today, that -- that DOMA does serve legitimate interests and is reasonably related to it.

The Obama administration said the law will only be struck down if a court applies what's called heightened scrutiny to this law.

JUDY WOODRUFF: You want to quickly respond?

And I want to just clarify with you both that you're both saying then -- do I hear you saying that it's the federalism argument that's going to hold more weight here?

MARY BONAUTO: I think the equal protection argument is going to hold more weight ultimately.

And I say that because, even if you take the situation where -- let's just even say, even though it's so far-fetched, that some state did authorize multiple-person marriages, again, on equal protection, the question is, what are the government's interests here in saying we're not going to respect those marriages, where there's an acknowledged harm to women and subordination and so on?

There's a lot of reasons. The question in this case is, let's not change the topic. Let's say, what's the interest in saying that these committed couples who are joined in marriage by their states, many of whom are raising kids, should be cut out of the whole federal safety net?

JUDY WOODRUFF: A very quick response.

KEN KLUKOWSKI: The quick response is, in that one part, I agree with the Obama administration. And I would encourage people to look at their filings of what the legitimate interest is and why they agree that DOMA does in fact advance them.

JUDY WOODRUFF: Ken Klukowski, Mary Bonauto, we thank you both.

MARY BONAUTO: Thank you.

KEN KLUKOWSKI: Thank you, Judy.

Supreme Court Considers Legality of Denying Benefits to Married Same-Sex Couples

Wed, 27 Mar 2013 18:02:00 EDT

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KWAME HOLMAN: The crowds were thinner, and made up mostly of gay marriage supporters. And, for some, the reasons for being there were intensely personal.

Nicole Connolly is a teacher from New York married to a woman who's a captain in the U.S. Marines.

NICOLE CONNOLLY, Supporter of Same-Sex Marriage: I am here for housing allowance. I am here for medical. I am here for death benefits. I'm here for next of kin qualifications, a plethora of reasons.

KWAME HOLMAN: On this second day of arguments, the justices turned their attention to a federal law, the Defense of Marriage Act. The 1996 law signed by President Clinton specifically limits marriage to one man and one woman.

Known as DOMA, it prevents same-sex couples from receiving federal marriage-related benefits, even if they have been legally married by a state. The principal in today's case, Edie Windsor of New York, married Thea Spyer in 2007.

EDIE WINDSOR, Plaintiff: We lived together for 40 years. We were engaged with a circle diamond pin because I wouldn't wear a ring because I was still in the closet. I am today an out lesbian, OK, who just sued the United States of America, which is kind of overwhelming for me.

KWAME HOLMAN: Spyer died in 2009 and left her estate to Windsor, but the marriage wasn't recognized under federal law, so Windsor faced the full estate tax burden $360,000 dollars.

Windsor challenged DOMA and won in the lower courts. The Obama administration then declined to defend the law further. With that, House Republican leaders intervened, asking the Supreme Court to uphold DOMA. Today, even some who support the law say they favor legal rights for same-sex couples, but not actual marriage.

Jim McDonald is from Alexandria, Va.

JIM MCDONALD, Alexandria, Va.: If people in civil unions were to get federal benefits that were equivalent to what other married people get, that doesn't bother me at all. But the word marriage, I think, needs to maintain its traditional meaning.

KWAME HOLMAN: The court is expected to decide the DOMA case and yesterday's case involving Proposition 8 in California by June.

RAY SUAREZ: Marcia Coyle of the National Law Journal was in the courtroom this morning and is back with us tonight.

And for people who don't follow this very closely, know that the two big arguments had to do with gay marriage, what are the main differences between yesterday's argument and today's?

MARCIA COYLE, The National Law Journal: Well, I think there is an inherent tension here for those who support gay marriage.

In the DOMA case today, one of the arguments is that the federal government has intruded on what is a traditional state prerogative, and that is to define and regulate marriage. And yet, in the Prop 8 case, the opponents of Prop 8, which bans same-sex marriage, are attacking the voters, the state's prerogative to define marriage.

But they have a common bond, though, and that is that the opponents of DOMA and Prop 8 see both as discrimination under the equal protection guarantees of our Constitution, and are arguing for a much tougher kind of scrutiny of what the state did in California -- what California did and what the federal government did in DOMA.

RAY SUAREZ: There are so many juicy and interesting aspects to today's argument.

It began with Vicki Jackson, a lawyer appointed by the court to do what?

MARCIA COYLE: Well, one of the -- two of the roadblocks in the DOMA case, similar to the roadblock in the Prop 8 case, has to do with whether key parties in the case are properly before the Supreme Court, and whether the court has jurisdiction to hear the case.

The United States doesn't defend DOMA. It believes it's unconstitutional. It agrees with Edith Windsor. It agrees with the lower federal appellate court. The bipartisan Legal Advisory Committee of the House ...

RAY SUAREZ: Representing the House majority, the Republicans.

MARCIA COYLE: Right, exactly -- believes that it's rightfully before the court, as does the United States.

The court needed somebody to argue the other side. They want to hear all the arguments. Do those -- are those two parties properly before us? Do we have jurisdiction? So they appointed Professor Jackson.

RAY SUAREZ: So, in effect, if I understand this, they appointed a lawyer to argue to them that they had no jurisdiction to hear the case?

MARCIA COYLE: Exactly, exactly, to make those arguments. That way, they get the full picture, Ray.

RAY SUAREZ: A lot of back and forth between justices and lawyers today went to whether the Obama administration declining to enforce the law created a situation that makes this, in some sense, impossible to judge.

Tell us more about how this -- how this hit the justices, because a lot of them had a lot of questions about it.

MARCIA COYLE: They did.

In fact, they are troubled by the jurisdictional problems here, not just with the United States, but also with the House Republican leadership. But most of Professor Jackson's argument was devoted to responding to questions about the United States.

And there was some hostility. Chief Justice Roberts said, well, if the president decided that this law was unconstitutional, and yet is going to enforce it until the Supreme Court says otherwise, why didn't the president have the courage of his convictions, if he believes the law is unconstitutional, and not enforce it?

And so there was also this feeling that this was something unprecedented, that the court was being asked to allow the United States to continue in the case when it basically agrees. Is there really a case or controversy here if the two main parties, the United States and Windsor, agree with each other?

RAY SUAREZ: We're going to hear a lot of the interesting back and forth, because, as with many big cases, we have an audio transcript of the arguments.

First, let's hear from Justice Sotomayor bearing down on the House Republicans' lawyer, Paul Clement, on the motivation for the original law.

Take a listen.

ASSOCIATE JUSTICE SONIA SOTOMAYOR, U.S. Supreme Court: What gives the Federal Government the right to be concerned at all at what the definition of marriage is?

Sort of going in a circle, you're saying -- you're saying, we can create this special category -- men and women -- because the states have an interest in traditional marriage that they're trying to protect.

How do you get the federal government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the States?

PAUL CLEMENT, Attorney for U.S. House Of Representatives: Well, at least two -- two responses to that, Justice Sotomayor.

First is that one interest that supports the federal government's definition of this term is whatever federal interest justifies the underlying statute in which it appears. So, in every one of these statutes that affected, by assumption, there's some Article I Section 8 authority ...

JUSTINCE SOTOMAYOR: So they can create a class they don't like -- here, homosexuals -- or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis, when they themselves have no interest in the actual institution of marriage as married? The states control that?

PAUL CLEMENT: Just to clarify, Justice Sotomayor, I'm not suggesting that the federal government has any special authority to recognize traditional marriage.

RAY SUAREZ: So, how did that encounter finish?

MARCIA COYLE: First of all, this is one of the overriding issues in the case, one of two, actually, what we put under the broad rubric of federalism.

Who has the power under the Constitution to deal with marriage? And, traditionally, it has been the states. But Mr. Clement's argument is that, OK, DOMA affects 1,100 federal laws, and the -- those laws that have a reference to marriage, there is a federal interest in the programs that those laws deal with.

He is arguing as well that DOMA doesn't regulation marriage. It's just defining the boundaries of those programs that refer to marriage. So he also believes that there is a role for the federal government when it comes to marriage, not -- not regulating it, but ensuring that there's uniformity of federal law, and that citizens in different states are treated the same way.

RAY SUAREZ: Justice Elena Kagan also was interested in following up on this idea of animus, of discrimination, of distaste for gay people in America.

Let's listen.

ASSOCIATE JUSTICE ELENA KAGAN, U.S. Supreme Court: So we have a whole series of cases which suggest the following, which suggest that when Congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some -- even if they're not suspect -- with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress' judgment was infected by dislike, by fear, by animus, and so forth?

And I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on.

PAUL CLEMENT: A couple of responses, Justice Kagan.

First of all, I think I would take issue with the premise, first of all, that this is such an unusual federal involvement on an issue like marriage. If you look at historically, not only has the federal government defined marriage for its own purposes distinctly in the context of particular -- particular programs; it's also intervened in -- in other areas, including in state prerogatives.

I mean, there's a reason that four state constitutions include a prohibition on polygamy. It's because the federal Congress insisted on them. There is a reason that, in the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union.

In order to do it, it essentially had to create state law marriages, because, in the Confederacy, the slaves couldn't get married. So they developed their own state -- essentially, a federal, sort of, condition to define who was married under those laws. So where there are the needs in the past to get involved, the federal government has got involved.

RAY SUAREZ: Did it sound like Paul Clement had many supporters elsewhere on the bench for his reading of why this law exists in the first place?

MARCIA COYLE: That's a hard read.

I think that at least four justices, or possibly five, have a problem with his arguments. Justice Kagan was getting at the second major issue in this case, and that's whether the law discriminates under the Equal Protection Clause guarantee of the Fifth Amendment.

She wasn't satisfied with his answer. In fact, she followed up by reading specifically from the House report on DOMA where the legislators said that they were expressing their moral disapproval of homosexuality. So she was making a point that it appeared there was another reason.

And Mr. Clement's response is that maybe some were motivated that way, but -- and if the court believes that the whole statute was based on that, then it should strike it down. But he claims there are -- that was -- it's really not sufficient, because there are many other interests that justify DOMA.

RAY SUAREZ: We also have the solicitor general, Donald Verrilli, who normally would be arguing defending the federal government's application of a law, so was in a sort of unusual role today, arguing that a law signed by the president of the United States, passed by the Congress should be struck down. Let's take a listen.

SOLICITOR GENERAL DONALD VERRILLI, United States: Now, this statute is not called the federal Uniform Marriage Benefits Act; it's called the Defense of Marriage Act.

And the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. All -- there is two equally uniform systems, the system of respecting the state choices and the system of -- that BLAG is advocating here.

And what BLAG's got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other, and the difference between the two is that the Section 3 choice is a choice that -- Section 3 choice is a choice that discriminates.

And so it's not simply a matter sufficient to say, well, uniformity is enough. Section 3 discriminates.

CHIEF JUSTICE JOHN ROBERTS, U.S. Supreme Court: So, as soon as one State adopted same-sex marriage, the definition of marriage throughout the federal code had to change?

Because there is no doubt that up until that point every time Congress said marriage, they understood that they were acting under the traditional definition of marriage.

DONALD VERRILLI: Well, I don't know, Mr. Chief Justice, why you wouldn't assume that what Congress was doing when it enacted a statute, particularly a statute that had the word marriage in it, was assuming that the normal rule that applies in the vast majority of circumstances of deference to the state definition of marriage would be the operative principle.

RAY SUAREZ: It sounded like there like the chief justice had a little discomfort with the sweeping nature of what the court was being asked to do.

MARCIA COYLE: Right.

Mr. -- Solicitor General Verrilli, he was telling the chief justice that these 1,100 statutes may well have been enacted by Congress with the traditional state definition in mind, but when Congress enacted DOMA, it made a choice between deferring to how states handle marriage and singling out a category of people who wouldn't benefit under federal laws.

And that choice, he said, has to be justified under equal protection principles. There is some concern -- the chief justice did press him and others did, I think, on whether, under his argument, if DOMA falls under equal protection principles, does that mean the state laws that prohibit same-sex marriage also have to fall?

And Mr. Verrilli said not necessarily, although they would have a very difficult time justifying them under the kind of scrutiny that Mr. Verrilli hopes the court will apply here.

RAY SUAREZ: Marcia Coyle, thanks for joining us.

MARCIA COYLE: My pleasure.

JUDY WOODRUFF: There's much more about the same-sex marriage cases on our website. You can hear audio of today's full arguments and also watch reaction from outside the courtroom.

High Court Skeptical of Federal Defense of Marriage Act

Wed, 27 Mar 2013 14:14:00 EDT

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Following the oral arguments at the Supreme Court challenging the Defense of Marriage Act, known as DOMA, attorney Roberta Kaplan and plaintiff Edith Windsor, among others, spoke outside the court. Defenders of the act did not appear outside the court to make a statement after Wednesday's arguments.

WASHINGTON -- In a major gay rights case, the Supreme Court indicated Wednesday it could strike down the law that prevents legally married gay couples from receiving a range of federal benefits that go to other married people.

Justice Anthony Kennedy, often the decisive vote in close cases, joined the four more liberal justices in raising questions about a provision of the federal Defense of Marriage Act that is being challenged at the court.

Read a transcript of the oral arguments Wednesday.

Kennedy said the law appears to intrude on the power of states that have chosen to recognize same-sex marriages. Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and "skim-milk marriage."

The federal law affects a range of benefits available to married couples, including tax breaks, survivor benefits and health insurance for spouses of federal employees.

It still is possible the court could dismiss the case for procedural reasons, though that prospect seemed less likely than it did in Tuesday's argument over gay marriage in California.

The motivation behind the 1996 federal law, passed by large majorities in Congress and signed by President Bill Clinton, was questioned repeatedly by Justice Elena Kagan.

She read from a House of Representatives report explaining that the reason for the law was "to express moral disapproval of homosexuality." The quote produced an audible reaction in the courtroom.

Paul Clement, representing the House Republican leadership in defending the law, said the more relevant question is whether Congress had "any rational basis for the statute." He supplied one, the federal government's interest in treating same-sex couples the same no matter where they live.

Clement said the government does not want military families "to resist transfer from West Point to Fort Sill because they're going to lose their benefits." The U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal.

Opposing Clement was the Obama administration's top Supreme Court lawyer, Donald Verrilli, who said the provision of DOMA at issue, Section 3, impermissibly discriminates against gay people.

"This statute is not called the Federal Uniform Benefits Act," Verrilli said. The administration wants the court to apply a level of scrutiny it applies to discrimination against other disadvantaged groups and that makes it harder for governments to justify those laws.

Both Verrilli and Roberta Kaplan, the lawyer for the 83-year-old New Yorker who sued over DOMA, told the court that views about gay people and marriage have shifted dramatically since 1996.

"Why are you so confident in that judgment? How many states" allow same-sex unions? Justice Antonin Scalia asked Kaplan.

Nine, she said.

"So there's been a sea change since 1996," Scalia said, doubtfully.

But Chief Justice John Roberts jumped on the idea of a rapid shift in opinion to suggest that perhaps gays and lesbians do not need special protection from the court.

"As far as I can tell, political leaders are falling all over themselves to endorse your side of the case," Roberts said.

The justices stepped into the dispute after lower federal courts ruled against the measure.

The DOMA argument followed Tuesday's case over California's ban on same-sex marriage, a case in which the justices indicated they might avoid a major national ruling on whether America's gays and lesbians have a right to marry. Even without a significant ruling, the court appeared headed for a resolution that would mean the resumption of gay and lesbian weddings in California.

Marital status is relevant in more than 1,100 federal laws that include estate taxes, Social Security survivor benefits and health benefits for federal employees. Lawsuits around the country have led four federal district courts and two appeals courts to strike down the law's Section 3, which defines marriage. In 2011, the Obama administration abandoned its defense of the law but continues to enforce it.

Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. It was legal in California for less than five months in 2008.

The justices chose for their review the case of Edith Windsor, 83, of New York, who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009.

Windsor, who goes by Edie, married Thea Spyer in 2007 in Canada after doctors told them that Spyer would not live much longer. She suffered from multiple sclerosis for many years. Spyer left everything she had to Windsor.

There is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero.

The U.S. 2nd Circuit Court of Appeals in New York agreed with a district judge that the provision of DOMA deprived Windsor of the constitutional guarantee of equal protection of the law.

Like the Proposition 8 case from California, Windsor's lawsuit could falter on a legal technicality without a definitive ruling from the high court.

The House Republicans, the Obama administration and a lawyer appointed by the court especially to argue the issue spent the first 50 minutes Wednesday discussing whether the House Republican leadership can defend the law in court because the administration decided not to, and whether the administration forfeited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional.

If the Supreme Court finds that it does not have the authority to hear the case, Windsor probably would still get her refund because she won in the lower courts. But there would be no definitive decision about the law from the nation's highest court, and it would remain on the books.

Roberts and Scalia seemed most interested in this sort of outcome.

On Tuesday, the justices weighed a fundamental issue: Does the Constitution require that people be allowed to marry whom they choose, regardless of either partner's gender? The fact that the question was in front of the Supreme Court at all was startling, given that no state recognized same-sex unions before 2003 and 40 states still don't allow them.

But it was clear from the start of that argument in a packed courtroom that the justices, including some liberals who seemed open to gay marriage, had doubts about whether they should even be hearing the challenge to California's Proposition 8, the state's voter-approved gay marriage ban.

Kennedy suggested the justices could dismiss the case with no ruling at all.

Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.

There was no majority apparent for any particular outcome, and many doubts were expressed by justices about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favor of same-sex marriage rights. The administration's entry into the case followed President Barack Obama's declaration of support for gay marriage.

Reflecting the high interest in the cases, the court was releasing an audio recording of Wednesday's argument, just as it did Tuesday.

A somewhat smaller crowd gathered outside the court Wednesday, mainly gay marriage supporters who held American and rainbow flags. "Two, four, six, eight, we do not discriminate," a group chanted at one point. "If this isn't the time, when is the time? When does equality come into play?" asked Laura Scott, 43, of Columbia, Md.

In Second Day on Gay Marriage, Supreme Court Takes Up DOMA

Wed, 27 Mar 2013 09:57:39 EDT

Kris and Lyssa White, a married couple from Manassas, Va., kiss Tuesday in front of the Supreme Court protesting for marriage equality. Photo by Melina Mara/The Washington Post via Getty Images.

For a second day, the topic's the same. The Supreme Court will again examine the constitutionality of a case related to same-sex marriage, this time on whether a federal law violates the Fifth Amendment's equal protection clause.

However, Wednesday's challenge to the Defense of Marriage Act, known as DOMA, presents a more subdued day at the court, one lacking the level of fanfare seen Tuesday, which highlighted supporters and proponents of California's Proposition 8 ban on same-sex marriage.

Significantly less ppl at #scotus this am twitter.com/dePeystah/stat...
— Allie Morris (@dePeystah) March 27, 2013

Inside the court Wednesday, the conversation before the nine justices will have a more technical focus, examining the story of Edith Windsor, an 83-year-old New Yorker and widow who married her female partner in Canada, a marriage also recognized by the state of New York. She now seeks federal recognition of their marriage so she won't have to pay $363,000 in estate taxes because the federal government does not recognize their marriage as valid. A survivor in a heterosexual marriage would not have to pay this tax.

DOMA, signed by former President Bill Clinton in 1996, leaves recognition of same-sex marriage up to individual states. It allows the federal government not to recognize gay marriages for taxes, entitlement programs or other legal purposes, and it allows states that don't support gay marriage to ignore the unions as well.

The potential outcomes of this case, compared with Tuesday's, could be far less reaching. While the Proposition 8 case gives the court an opportunity to impose nationwide recognition of same-sex marriage, the DOMA case disputes application of federal law.

Nationwide recognition was summed up as exceedingly unlikely by a number of court-watchers Tuesdays, including the website SCOTUSBlog, known for its live and thorough coverage of the court. The site tweeted:

Arguments done. #scotus won't uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.
— SCOTUSblog (@SCOTUSblog) March 26, 2013

Even the name of the case, United States vs. Windsor, forces more legal explanations. The United States government sides with Windsor in supporting an end to what it calls discrimination on marriage for gay couples. Because the attorney general's office chose not to defend the law in this case, a group called the Bipartisan Legal Advisory Group of the U.S. House of Representatives, composed mostly of mostly Congressional Republicans, will.

Attorney Paul Clement will present BLAG's side in court, repeating the matchup between himself and Solicitor General Donald Verrilli during the Affordable Care Act case.

NPR's Supreme Court correspondent Nina Totenberg noted on Wednesday's "Morning Edition" that neither Clement nor a number of congressional leaders would agree to interviews on the DOMA case.

Marcia Coyle of the National Law Journal will visit the NewsHour again Wednesday night to describe the case in full. To hear her summary of Tuesday's arguments regarding Proposition 8, including exchanges with justices about alleged harm caused by gay marriage and whether the institution of marriage exists for the purpose of procreation, watch here or below:

Watch Video

Gwen Ifill followed that conversation by hosting a debate on Proposition 8 with California Attorney General Kamala Harris, an opponent of the law, and Austin Nimocks, who was part of the legal team of Alliance Defending Freedom, which supported the California measure in court.

Find the debate is here or below.

Watch Video

We also have audio of the arguments here. The court chose to release the audio a few hours after the close of Tuesday morning's session, a rare decision saved only for the most important cases. The court will post same-day audio of Wednesday's arguments.

Our coverage spanned both coasts this week. On Monday -- ahead of oral arguments, NewsHour correspondent Spencer Michels spoke with gay rights supporters in San Francisco marching from the Castro District to City Hall.

Watch Video

LINE ITEMS

A new poll from The Washington Post-ABC News shows a majority of Americans favorably view President Barack Obama and the Supreme Court. For Congress, not so much -- though the legislative body's positive impression among Hispanics is growing, to more than 50 percent favorability.

Taking his first step back into the spotlight after resigning as the director of the CIA in November, Gen. David Petreaus apologized for the scandal that led him to resign, speaking at a USC dinner Tuesday night honoring ROTC students and veterans. "Needless to say, I join you, keenly aware that I am regarded in a different light now than I was a year ago," he said. He authored an op-ed in Wednesday's Wall Street Journal about helping veterans reintegrate into civilian life.

Mr. Obama named Julia Pierson as the first female director of the U.S. Secret Service on Tuesday. Pierson had served as the agency's chief of staff. Her appointment comes as the Secret Service looks to rebuild its image following last year's prostitution scandal.

On Tuesday, Mr. Obama also signed the six-month continuing resolution approved last week by Congress. The $984 billion spending plan will fund the government through the end of September.

North Dakota Republican Gov. Jack Dalrymple signed into law Tuesday the nation's most restrictive abortion law, which bans abortions as soon as a fetal heartbeat is "detectable," which can be as early as six weeks.

Organizing for Action is stepping into the push for campaign finance reform in New York, advocating a matching fund system. OFA is expected to hold a conference call Wednesday with Gov. Andrew Cuomo, Attorney General Eric Schneiderman and grassroots supporters of the "fair elections" fight.

Homeland Security Secretary Janet Napolitano announced Thursday her opposition to email, text messaging and tweeting.

Add Montana's Sen. Jon Tester to the list of Red State Democrats who have announced support for gay marriage.

An automated survey from the left-leaning Public Policy Polling finds the race for South Carolina's 1st Congressional District may be close between Democrat Elizabeth Colbert Busch and former GOP Gov. Mark Sandford.

Former New Jersey Democratic Gov. Jim McGreevey's time in office has helped him relate to the felons he works with. "For many of them, it was a bag of dope; for me, it was politics and political survival and enhancement," he told Politico. McGreevey's life after politics is the subject of Alexandra Pelosi's latest documentary, "Fall to Grace," which airs Thursday on HBO.

SEIU is debuting $300,000 worth of cable TV ads Wednesday pushing for a comprehensive immigration overhaul.

The Fix drew our attention to a National Conference of State Legislatures map that compiles all of the states' voter ID laws, with a few updates on the most recent and pending bills.

Mr. Obama and Secretary of State John Kerry showed off their soccer talents in separate events Tuesday. The president bounced a ball on his head during an event at the White House honoring the L.A. Galaxy, last season's Major League Soccer champion, and the Los Angeles Kings, the reigning Stanley Cup champion. Kerry, meanwhile, demonstrated his skills at "The Beautiful Game," heading a ball at a meeting with the Afghan women's soccer team during a trip to Kabul.

Democracy for America says it will spend more than $750,000 this year to unseat Republicans in vulnerable districts in the Virginia House of Delegates. As part of its "Purple to Blue Project," the Burlington, Vt.-based group founded by former Gov. Howard Dean, will support five candidates, including activist Jennifer Boysko and retired Air Force officer John Bell for two seats in Northern Virginia. In 2014, DFA plans to go after seats in state legislatures in Pennsylvania, Michigan and Ohio. "Winning these state races is how you win on the national level," Dean said in a conference call Tuesday.

In what Politico reports is an unusual move, Sen. Richard Shelby, R-Ala., has purged staff members from Senate Appropriations Committee.

David Miliband, brother of the leader of Britain's Labour Party and himself a prominent member of the House of Parliament, is stepping down and moving to the U.S.

Beyonce got in on the marriage equality on Facebook action Tuesday with a post to the 44.6 million people who like her page: "If you like it you should be able to put a ring on it."

Today's tidbit from NewsHour partner Face the Facts USA: The longer immigrants remain in the United States, the more likely they are to own a home, and of those who arrived befoe 1980, their home ownership rate is higher than that of native-born Americans.

NEWSHOUR ROUNDUP

Ray Suarez sat down with author Denise Kiernan to talk about her book, "The Girls of Atomic City," which is about a group of women who worked on a secret mission during World War II to enrich fuel for the first atomic bomb used in combat.

Margaret Warner spoke with NPR's Howard Berkes about a new investigation looking at the dangerous working conditions in grain storage bins.

"Pandora's Lunchbox" author Melanie Warner will participate in a live chat about processed food Wednesday at 1 p.m. ET. Tweet comments to @NewsHour using #foodchat.

TOP TWEETS

Equality Jellybot. instagram.com/p/XWDtasw2rX/
— Ben Azzara (@benazzara) March 27, 2013

Coming April 1 to @msnbc at 8pm All In with Chris Hayes. Official handle @allinwithchris.
— Christopher Hayes (@chrislhayes) March 26, 2013

Hayes of our Lives
— Ben White (@morningmoneyben) March 26, 2013

Up with Rutherford B. Hayes
— Andrew Kaczynski (@BuzzFeedAndrew) March 26, 2013

Why not 'Sup with Chris Hayes?
— Elise Foley (@elisefoley) March 26, 2013

Yes, please to enjoy getting the jokes out of your system...
— Christopher Hayes (@chrislhayes) March 26, 2013

Was in line with Kris Perry and Sandy Stier, the couple at center of the #Prop8 case #SCOTUS twitter.com/ryanjreilly/st...
— Ryan J. Reilly (@ryanjreilly) March 26, 2013

Cassie M. Chew, politics desk assistant Simone Pathe and Christina Bellantoni contributed to this report.

For more political coverage, visit our politics page.

Questions or comments? Email Christina Bellantoni at cbellantoni-at-newshour-dot-org.

Follow the politics team on Twitter:

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Supreme Court Takes Up Gay Marriage for First Time

Tue, 26 Mar 2013 09:19:25 EDT

Justin Kenny of Akron, Ohio, holds a flag Tuesday morning in front of the Supreme Court building. Photo by Mark Wilson/Getty Images.

Tuesday's arguments before the U.S. Supreme Court involving California's ban on same-sex marriage, known as Proposition 8, boil down to this: Can a popular vote revoke a privilege already granted by a state government? Does the 14th Amendment prevent California from defining marriage as between a man and a woman?

These are simple legal questions, among dozens heard by the Supreme Court each year testing state laws and constitutional rights. But the fervor surrounding this one is different.

For some, it's a case that challenges civil rights or that questions the traditions of heterosexual marriage. Those viewpoints are reflected in two opposing rallies Tuesday near the court building. Gay marriage supporters will gather at the Supreme Court Plaza as part of a United for Marriage Coalition's equality rally. And marriage traditionalists led by the Coalition of African American Pastors USA and the National Organization for Marriage will march as well.

Especially for the pro-gay rights side, Tuesday's case marks a cultural milestone of sorts. Many Supreme Court watchers have speculated that the justices chose to take the case partly because cultural momentum for gay rights has risen to a point where legal questions need answers. That momentum has continued to grow this week, with a new public opinion poll, fresh support from moderate Democrats and a Peter Baker story on former President Bill Clinton's history with the issue.

The 42nd president signed into law the Defense of Marriage Act in 1996, setting the court up for the second of its two gay marriage cases this week. Baker writes about Clinton's anxiety after he signed DOMA late at night with little fanfare and how he changed his mind to the point of criticizing his own action (The NewsHour searched for footage of Clinton signing the bill, and indeed, there's none to be found.)

A Columbus Dispatch/Saperstein poll released Sunday found that 54 percent of Ohioans support an amendment to repeal the state's 2004 ban on same-sex marriage, which passed with 62 percent support.

Sen. Mark Warner, a moderate Democrat from Virginia, announced Monday that he now backs same-sex marriage. Alaska Sen. Mark Begich, a Red State Democrat, added his support for gay marriage as well.

The shifts by Warner, Begich and others come after Sen. Rob Portman, R-Ohio, announced last week that he no longer opposes same-sex marriage after learning that his college-aged son is gay. Portman's son, Will, penned an opinion piece Monday in the Yale Daily News titled "Coming Out," in which he wrote:

In February of freshman year, I decided to write a letter to my parents. I'd tried to come out to them in person over winter break but hadn't been able to. So I found a cubicle in Bass Library one day and went to work. Once I had something I was satisfied with, I overnighted it to my parents and awaited a response.

They called as soon as they got the letter. They were surprised to learn I was gay, and full of questions, but absolutely rock-solid supportive. That was the beginning of the end of feeling ashamed about who I was.

Politico added to the pro-gay rights chatter Tuesday morning with a Josh Gerstein story that asserts possible defeats for the movement -- including the court upholding both Proposition 8 and the Defense of Marriage Act -- wouldn't devastate supporters:

But gay rights activists say this wouldn't have the impact of Plessy v. Ferguson -- the 1896 decision that left "separate but equal" the law of the land until Brown v. Board of Education six decades later.

Instead, they say, they still leave the court in a better position than when they started their legal trek, since public opinion has swung in their favor, supporters have been galvanized, and about 100 prominent Republicans signed a brief publicly endorsing gay marriage.

With little other news on the legal front breaking before the arguments, D.C.-based journalists turned their attentions to the line forming outside the Supreme Court building. The Associated Press reported those in line included college students, a substitute teacher and an Army veteran, and that some arrived last Thursday to wait for a seat at the arguments. One man, there since Friday morning, has done about 200 interviews with inquiring reporters, he told National Journal. He's there on his own, though many are paid to wait in line in place of others.

A guaranteed seat to watch the Supreme Court hearings on gay marriage this week could cost between $864 and $1,200, according to the AP. This figure is based on the cost to hire someone to stand in line for a day at the going rates of $36 or $50 an hour charged by two line-standing firms. A line for the free tickets began on Thursday. The court seats about 500 with about 60 seats for the general public. Another 30 seats reserved for the public will rotate every three to five minutes, the AP notes.

It wouldn't be a major news event without a Buzzfeed listicle. Matt Stopera visited the site across from the court building Monday, where he says nearly 70 people camped. He produced these observations, which honor the obscene amount of garbage bags needed for sitting all day on concrete in the rain.

The NewsHour will have you covered from every angle with in-depth coverage on the broadcast and online this week. Bookmark our Supreme Court page and keep an eye on our staff Twitter feed for updates outside the court.

Marcia Coyle of the National Law Journal will join us Tuesday and Wednesday nights.

On Wednesday, the court will hear a case on the Defense of Marriage Act, which questions a federal law allowing states not to recognize legal ties between gay couples made elsewhere. The case involves a gay widow and asks what to do about her payments to the federal government on her deceased partner's estate -- payments she wouldn't have had to make had they been a straight and married. However, the case could have legal implications for gay couples that are far more reaching if their side wins. For instance, S.P. Sullivan of NJ.com profiles a gay couple who struggles with one partner's immigration status.

In this NewsHour segment, Coyle outlined both the DOMA and Proposition 8 cases.

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If you missed it, politics editor Christina Bellantoni hosted a Google Hangout with four faith leaders about religion's role in this public policy debate:

LINE ITEMS

Reuters reports that Sen. Tim Johnson, D-S.D., will not run for re-election in 2014, bringing the number of Senate Democratic retirements in next year's midterm cycle to five. Johnson, the current chair of the banking committee, is expected to announce his decision Tuesday at the University of South Dakota.

The Office of Congressional Ethics is interviewing former campaign staff of Rep. Michele Bachmann, R-Minn., about alleged intentional campaign finance violations from her failed 2012 presidential bid.

The National Review's Robert Costa reports that Gov. Scott Walker, R-Wis., is writing a book with former George W. Bush speechwriter Marc Thiessen. The project is expected to focus on Walker's gubernatorial experience.

Sen. Mark Pryor, D-Ark., responded Monday to a new ad campaign from New York City Mayor Mike Bloomberg's group Mayors Against Illegal Guns, which seeks to push lawmakers to back expanded background checks for gun purchases. "I don't take gun advice from the mayor of New York City. I listen to Arkansans," Pryor said in a statement.

Speaking with current and former city officials, the New York Times takes a close look at New York City Council Speaker Christine Quinn's "habit of hair-trigger eruptions of unchecked, face-to-face wrath."

Resurrecting "Robin Hood" from last year's election, the DCCC is out with a new video attacking GOP Rep. Paul Ryan's budget.

Sen. Ted Cruz, R-Texas, spoke with Todd Gillman of the Dallas Morning News about his first 10 weeks in the Senate. When it comes to immigration reform, Cruz accused President Barack Obama of wanting the effort to fail because it would be politically beneficial to Democrats. "What he wants is for the bill to crater, so that he can use the issue as a political wedge in 2014 and 2016," Cruz charged.

Clinton has taken sides in the upcoming Los Angeles mayoral runoff, endorsing city controller Wendy Greuel over city council member Eric Garcetti.

Roll Call's Daniel Newhauser finds that Rep. James Lankford of Oklahoma has become a suprising go-between for GOP leaders and the party's rank-and-file.

Rep. Phil Gingrey, R-Ga., is expected to kick off his Senate campaign with events in Atlanta and Augusta on Wednesday.

The Kansas City Star's Dave Helling reports that the city is making a bid to host the 2016 Republican National Convention.

The Los Angeles Times reports on a dog that mauled a sea lion in Laguna Beach, Calif., Saturday. The dog belongs to a relative of former Rep. Gabby Giffords.

Georgia state senators have voted to take some land from Tennessee.

"Being the leader of the free world is an expensive proposition. But the costs don't stop once you leave the White House," the AP reports about a Congressional Research Service study showing the federal government spent nearly $3.7 million on former presidents last year. George W. Bush was the costliest.

President Obama on Monday declared five sites national monuments, using powers granted by the 1906 Antiquities Act. The sites include Rio Grande Del Norte National Monument in New Mexico; San Juan Islands National Monument in Washington; the Harriet Tubman Underground Railroad National Monument in Maryland; the Charles Young Buffalo Soldiers National Monument in Ohio; and the First State National Monument in Delaware. Critics say the designation of new federally protected areas burdens taxpayers. The White House, citing a 2006 study, noted in its announcement that "each federal dollar spent on national parks generates at least four dollars of economic value to the public."

ABC News' Jilian Fama writes that Baltimore Ravens wide receiver Torrey Smith is doing an internship with the office of Rep. Elijah Cummings, D-Md.

Del. Eni F.H. Faleomavaega, a Democrat representing American Samoa, introduced legislation last week that would ban current and future use of the trademark "redskins." Besides affecting Washington's football team, the Non-Disparagement of American Indians in Trademarks Registrations Act of 2013 is reviving debate over other sports teams' names.

A group at Towson University that calls itself the White Student Union plans to patrol for crimes on the campus, Daily Caller reports. One groupmember was the man who made segregationist comments at a CPAC presentation earlier this month.

NBC's Ann Curry forgot her driver's license to the White House Christmas party, and Matt Lauer had to wait for her outside the security gates. It's one among many juicy anecdotes in New York Magazine's fascinating tale of politics, power and hubris on Lauer and his former co-host at the "Today Show."

Comedian Jim Carrey mocks the late Charlton Heston in a new pro-gun-control spoof video.

You can thank us later for this one. Or just thank Chris Moody.

Today's tidbit from NewsHour partner Face the Facts USA: In 2011, 28 percent of married women -- a growing percentage -- earned more than their husbands.

NEWSHOUR ROUNDUP

Gwen Ifill looked at Secretary of State John Kerry's unannounced visit to Afghanistan to meet with Hamid Karzai and spoke with Michele Dunne, head of the Middle East Program at the Atlantic Council, and Susan Glasser, executive editor of Foreign Policy magazine, about the challenges he faces.

Judy Woodruff got an update on the state of play in the immigration debate with Sara Murray of the Wall Street Journal.

Ray Suarez reported on the turnaround in Ireland's economy led by local businesses.

Jeffrey Brown spoke with Martin Clancy and Tim O'Brien, authors of "Murder at the Supreme Court: Lethal Crimes and Landmark Cases," a new book that explores the evolving debate about the death penalty.

NewsHour regular commentator Michael Beschloss (@beschlossDC was named one of Time magazine's top tweeters. He explained a few select tweets as illuminating history lessons last year on the NewsHour:

A programming note: We'll bring you the Morning Line this week through Thursday, and then will take a little recess of our own. We'll return April 8.

TOP TWEETS

Definition of a slow news day: people live Tweeting Newt Gingrich "class" on driverless cars.
— Ben White (@morningmoneyben) March 25, 2013

Stop what you're doing and watch Mike Bloomberg dancing on stage with the cast of "Rock of Ages" youtu.be/GWcNbwWIAuM
— Mike Hayes (@michaelhayes) March 25, 2013

Obama gets #Biden'd at today's national monument signing ceremony: yfrog.com/nhfprj
— Igor Bobic (@igorbobic) March 25, 2013

So #nvleg may legalize betting on federal elections. Hope they do. I need a way to fund my golden years.
— Jon Ralston (@RalstonReports) March 25, 2013

It's 38 degrees and raining, but the line to get into #SCOTUS tomorrow is down the block twitter.com/dePeystah/stat...
— Allie Morris (@dePeystah) March 25, 2013

Happy Birthday to the one and only @arethafranklin!
— James E. Clyburn (@Clyburn) March 25, 2013

Stephen Glass wrote this story 15 years ago: nytimes.com/2013/03/25/tec...#ianrestil #jukt #iwantamiata
— Ryan Lizza (@RyanLizza) March 25, 2013

!!! RT @alykat: The NPR sign is coming down off the old building. A little bittersweet. twitter.com/alykat/status/...
— Ibrahim Balkhy (@ibalkhy) March 25, 2013

We have snow! On spring break! Even our pandas can't believe it. twitter.com/NationalZoo/st...
— National Zoo (@NationalZoo) March 25, 2013

Opening day at NPR's new HQ in DC!Great things willhappen here even during Spring snow! twitter.com/NPRgaryknell/s...
— Gary Knell (@NPRgaryknell) March 25, 2013

Tonight's White House seder will use the plate that Mrs. Netanyahu gave Mrs. Obama in Israel last week, says @jearnest44
— Ari Shapiro (@arishapiro) March 25, 2013

Christina Bellantoni, Cassie M. Chew and politics desk assistant Simone Pathe contributed to this report.

For more political coverage, visit our politics page.

Questions or comments? Email Christina Bellantoni at cbellantoni-at-newshour-dot-org.

Follow the politics team on Twitter:

Follow @cbellantoni

Follow @burliji Follow @kpolantz Follow @elizsummers Follow @indiefilmfan Follow @tiffanymullon Follow @dePeystah Follow @meenaganesan

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Support for Gay Marriage Grows as Supreme Court Cases Near

Tue, 19 Mar 2013 09:26:00 EDT

Chris and Renee Wiley pose for a wedding photo last year in Times Square. Photo by Emmanuel Dunand/AFP/Getty Images.

A new national poll reflecting a major evolution on attitudes toward gay marriage highlights the continued cultural shifts on the issue one week before it faces a monumental test at the Supreme Court.

The Washington Post/ABC News survey released Monday found that 58 percent of Americans believe it should be legal for gay couples to get married. The survey showed 36 percent of respondents opposed making same-sex marriages legal.

The Post's Greg Sargent breaks down in detail the dramatic splits on the issue among certain demographic groups: Voters ages 18-29 support legalizing gay marriage, 81 percent to 15 percent; non-white voters support legalizing gay marriage by 61-32; and college-educated whites support legalizing gay marriage by 65-29.

All of these constituencies have favored Democrats in national elections.

As David A. Fahrenthold and Jon Cohen note in their story, the survey "reflects a remarkable -- and remarkably fast -- turnabout in American public opinion on one of the most emotionally raw and politically divisive issues of the past decade."

It also found "a broader shift in American attitudes about homosexuality," they write. "Two decades ago, fewer than half of all Americans said being gay was an identity people are born with, not a choice; today, a sizable majority, 62 percent, says so."

Consider that a decade ago, strategists with former President George W. Bush's re-election campaign helped the party plot state-by-state marriage votes they knew would boost the Republican's chances at securing a second term. They worked with state parties to make sure efforts to ban gay marriage were on 2004 ballots, which brought out evangelical voters and others who overwhelmingly backed Bush. That strategy wouldn't work today.

Ten years ago, Virginia lawmakers hosted a major event around the 50th anniversary of Brown vs. the Board of Education. They stood on the steps of the portico and apologized on behalf of the commonwealth's forefathers for segregating schools and for the "Massive Resistance" movement in Virginia attempting to thwart desegregation.

Some Democratic lawmakers were joined by the first openly gay delegate to implore their colleagues to remember the moment. They compared the issue to the civil rights movement and argued that by banning marriage at the state level they might be setting up another apology decades in the future.

Those comments were seen as dramatic at the time, and the majority of the country opposed gay marriage and overwhelmingly backed state efforts to enshrine marriage as between a man and a woman. There have been all sorts of studies examining the issue, but over the years the nation has seen a slow shift in the other direction, as evidenced in Monday's Post poll.

With just one week until the Supreme Court hears arguments in two major cases addressing gay rights -- California's Prop 8 law and the Defense of Marriage Act -- more and more public figures are starting to declare their support for gays having the same marriage rights as everyone else.

There were all the Republicans who signed amicus briefs in favor of same-sex marriage, plus corporations coming forward to say it's a recruitment issue that could boost the economy.

Former President Bill Clinton penned an op-ed earlier this month explaining why he no longer agrees with the Defense of Marriage Act he signed into law in 1996. Ohio Republican Sen. Rob Portman declared his position changed last week, telling his constituents that he evolved after his son came out to him.

And on Monday, in a possible overture for a 2016 presidential bid, Hillary Clinton announced in a long web video why she supports gay marriage.

She outlined what she had seen abroad as secretary of state and said she believes it is "in our DNA" to "champion the freedom and dignity of every human being."

"I support marriage for lesbian and gay couples. I support it personally and as a matter of policy and law embedded in a broader effort to advance equality and opportunity for LGBT Americans and all Americans," Clinton said. She even acknowledged marriage can be challenging.

On his new political blog, David Catanese gets reaction to Clinton's announcement from hotshots in early presidential primary states. When she ran in 2008, Clinton had wide support in the gay community but only backed civil unions. Early-state reaction was generally positive, but it's important to note she's actually one of the last possible contenders to embrace same-sex marriage. Vice President Joe Biden, and Govs. Andrew Cuomo of New York and Martin O'Malley of Maryland were out front on the issue last year.

Watch Clinton's video here or below:

The release of the Post poll on this major cultural issue came as the Republican National Committee released a forensic examination of its challenges connecting with younger and minority voters, as previewed here. (The report, which you can read in full here, actually makes no mention of marriage despite some officials acknowledging the party is losing younger voters on the issue.)

Politics desk assistant Simone Pathe was at the RNC's Washington rollout and filed this report looking at the blueprint for the GOP's path forward.

On the NewsHour, Gwen Ifill talked with Stuart Rothenberg of the Rothenberg Political Report and Susan Page of USA Today about the splits among Republicans and how they can work to win the next national election.

Watch the segment here or below:

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LINE ITEMS

The Senate Democrats' gun bill won't include California Sen. Dianne Feinstein's assault weapons ban proposal as part of its core legislation. Instead, the assault weapons ban will be offered as an amendment to a bill that could include gun trafficking, school safety and background check measures.

Politico rounds up the five things to watch for in Tuesday's primary for South Carolina's 1st Congressional District. Republican former Gov. Mark Sanford may not grab enough votes for a clean win of his party's nomination, so he and another candidate could advance to an April runoff. The winner there likely will face Democrat Elizabeth Colbert Busch ( comedian Stephen Colbert's sister) in the election to fill the seat left vacant when Republican Tim Scott was appointed to the Senate.

Three women have now retracted claims that they were paid to have sex with Sen. Robert Menendez, D-N.J. They admitted a Dominican lawyer paid them to fabricate the allegations.

President Barack Obama's approval rating has dipped to 47 percent in a new CNN/Opinion Research survey. Fifty percent of respondents said they disapproved of his job performance. The poll also shows the Republican Party's brand in bad shape, with 54 percent of respondents holding an unfavorable view of the GOP. Just 38 percent said they have a favorable view of the party.

Sen. Rand Paul, R-Ky., will announce his support for a path to citizenship Tuesday morning before the U.S. Hispanic Chamber of Commerce.

Immigration reform has become the top political issue for Latino voters, according to a Latino Decisions poll released Monday. Latino voters who say that new policy on immigration is their top priority has risen to 58 percent, compared with 35 percent in November. Nearly two-thirds of the 800 who participated in the telephone survey conducted last month said that either a member of their family or a close personal friend is an undocumented immigrant.

The Senate's bipartisan Gang of Eight plans to unveil its immigration reform legislation after a two-week recess in early April, although members claim they're on target to finish by the end of March.

Former Democratic U.S. Senate candidate Richard Camona announced Monday he will not run for governor of Arizona in 2014.

Chris Cillizza uses seven charts to illustrate the Republican Party's challenge with Hispanic voters.

The Miami-Dade County online elections system faced a cyberattack in an August primary last year. The attack requested thousands of absentee ballots and is the first known attack of its kind on a U.S. election.

Reproductive rights groups plan a big rally Wednesday against anti-abortion measures in Raleigh, N.C..

Acting Commerce Secretary Rebecca Blank announced Monday she will leave the post to become the next chancellor at the University of Wisconsin-Madison.

Former Washington state Gov. Booth Gardner has died.

Sen. Ted Cruz, R-Texas, objected last week to a resolution commemorating Multiple Sclerosis Awareness Week over what an aide said was insufficient time to review the measure.

Rep. Michele Bachmann, R-Minn., is turning her attention to the homefront, forgoing interviews with Hill publications for a profile in the Minneapolis Star Tribune, in an effort to bolster support in her district. She was re-elected in 2012 by one percentage point.

Baltimore Magazine profiles the city's former mayor, Maryland Gov. Martin O'Malley, and gets him on record regarding that little TV show he doesn't like to acknowledge. He calls it "David Simon's whinings."

Stuart Rothenberg gets ""in the weeds" for a district-by-district look at what each party has going for them to win control of the House in 2014.

Poop cruise is not a joke. Sen. Chuck Schumer, D-N.Y., plans to introduce legislation for a "cruise-ship bill of rights," which would protect passengers in case of an on-board emergency.

Need a pick-me-up? The Washingtonian posts letters from children welcoming the new elephants to the National Zoo.

Today's tidbit from NewsHour partner Face the Facts USA totals billions of pounds of pollution caused by traffic congestion.

NEWSHOUR ROUNDUP

Marcia Coyle of the National Law Journal joined Gwen Ifill on Monday's NewsHour to discuss a voter registration case heard by the Supreme Court. The case questions whether Arizona's Proposition 200 measure, which requires registering voters to prove their U.S. citizenship, oversteps the National Voter Registration Act. Still, the ongoing controversies over voter rights and Arizona's immigration crackdown provided a backdrop for the case.

Watch the discussion here or below.

Watch Video

We livestreamed Pope Francis' installation Tuesday. Watch video of the festivities here.

Our final coverage of the Conservative Political Action Conference includes Allie Morris' profile of the man who has sold buttons there for four decades and Cindy Huang's behind-the-scenes video showcasing the activists running booths to attract young conservatives.

We reflect back on 10 years since the Iraq War began. You can join in the conversation by tweeting @NewsHour using #Iraq10.

Ray Suarez blogs from Ireland about the evolution of the country's economy.

Kaiser Health News looks at how hospitals rank.

TOP TWEETS

#ff RT @simonmaloy: Protecting Our Ocean Passengers' Civil Rights Under Inconvenient Sailing Environments Act
— Igor Bobic (@igorbobic) March 18, 2013

Schumer's poop cruise bill shall be known as the FECES Act: Fully Ending Cruise Excrement Situations Act
— Sam Stein (@samsteinhp) March 18, 2013

As of 3:30 pm, there have been 324,960 views of the RNC's Growth & Opportunity Project report, per an RNC source
— Abby Livingston (@RollCallAbby) March 18, 2013

The President has submitted a #NCAA bracket on time every year, but has been late with his #budget 4 out of 5 years. -- @gopwhip
— Bob Goodlatte (@RepGoodlatte) March 18, 2013

Scoop: Fmr Rep Bono Macl joins FaegreBD Consulting, will focus on entertainment, media & tech. Me @politicopro: politico.pro/16Gh5m2"
— Tony Romm (@TonyRomm) March 19, 2013

A mug celebrating @barackobama #israel visit, and a warning of the traffic and parking nightmares that come with it! twitter.com/JohnKingCNN/st...
— John King (@JohnKingCNN) March 19, 2013

From press bus at Ben Gurion International Airport in Tel Aviv. Brought Nikon. Will have better snaps later. twitter.com/MajorCBS/statu...
— Major Garrett(@MajorCBS) March 19, 2013

Terence Burlij, politics desk assistant Simone Pathe and Cassie M. Chew contributed to this report.

For more political coverage, visit our politics page.

Questions or comments? Email Christina Bellantoni at cbellantoni-at-newshour-dot-org.

Follow the politics team on Twitter:

Follow @cbellantoni

Follow @burliji Follow @kpolantz Follow @elizsummers Follow @indiefilmfan Follow @tiffanymullon Follow @dePeystah Follow @meenaganesan

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High Court Hears Case on Conflict Between State, Federal Voter Registration Law

Mon, 18 Mar 2013 18:02:00 EDT

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GWEN IFILL: Today's Supreme Court arguments pitted a national law against a state law, Arizona's 2004 voter registration statute. The case explores the extent of state powers against the controversial backdrop of voting restrictions.

Arizona's Proposition 200 requires state residents to provide either a driver's license, passport, birth certificate, or physical proof of citizenship before they can vote. But an existing federal law requires only a sworn statement of citizenship on a voter registration form.

Supporters say the Arizona measure cuts down on voter fraud by keeping non-citizens from voting. But opponents argue the law unfairly targets minorities, immigrants, and the elderly. The case is only the most recent dispute between Arizona and the federal government related to immigration issues.

Over the summer, the Supreme Court upheld part of a tough state law that allows police to check for immigration papers. Other states, including Alabama, Georgia, Kansas and Tennessee, have similar laws on the books and a number of other states are also considering comparable measures. The Obama administration supports the challenge to the Arizona law.

And today's arguments on the heels of another case that could roll back a key portion of the Voting Rights Act of 1965.

For more on today's arguments, we turn as always to Marcia Coyle of The National Law Journal. She was in the courtroom this morning, and is back with us again tonight.

So the outcome, Marcia, of this could actually tip the federal-state balance on how -- who gets to govern how we vote.

MARCIA COYLE, The National Law Journal: That's true, Gwen, because the question really before the justices is, where do you draw the line between who has the authority to regulate elections?

The election clause of the Constitution actually gives authority to both. But where is the line when one crosses or goes too far than the other does? So that's the issue before the court. And it wasn't clear today that it's going to be an easy line to find.

GWEN IFILL: The reason why this Arizona law exists is because Arizona officials say there's a problem involving illegal or undocumented immigrants registering to vote fraudulently. Is there any evidence -- did they present evidence today that that's a big problem?

MARCIA COYLE: No, not today.

In fact, there was more argument on the other side, that there is no problem. But what Arizona is saying is that there is also a problem with the federal law. The federal law doesn't require proof of citizenship. But the way it deals with citizenship as eligibility for registration is it requires the applicant who wants to register to vote to sign under oath that the applicant meets all of the requirements of the federal law.

Arizona's attorney general, Thomas Horne, today told the court that that was an honor roll system that doesn't do the job. And he claims and argues that what Arizona is trying to do here is provide additional information that doesn't conflict with the federal law's purpose or objective, which, as you know, was to streamline and make uniform voter registration across the nation and basically make it easier to register to vote.

GWEN IFILL: This sworn statement, this "I pledge that I am a citizen," is only on federal mail-in forms. It's not any other way that you register to vote. So, there's some inconsistency.

MARCIA COYLE: Well, there is the conflict which brought the case to the Supreme Court between what Arizona is doing and what the federal form does.

In fact, Justice Ginsburg said during the argument to General Horne, she said Congress expressly said in the federal law how citizenship is to be managed. And that's by the signature. The deputy solicitor general of the United States who also argued today supporting the challenger said signature attesting to -- you know, that you meet requirements is something that's common on many forms. And you can be prosecuted for perjury if you lie. So there is enforcement capability here.

GWEN IFILL: Did the justices seem to be interested in debating among themselves the degree to which this is really about who gets to say, whether it's the federal government that trumps state law or the state law which has the right to make its own state-by-state, if-the-shoe-fits adjustments?

MARCIA COYLE: They were -- that was always in the backdrop of the arguments. They were very interested in how both requirements work.

They focused on the language of the federal law, which says that a state must accept and use the federal form. On the other hand, the federal law also says that there can be state-specific requirements that are approved by the Federal Election Assistance Commission. Arizona's special requirement here wasn't approved by the commission, and a federal appellate court agreed with the commission that it conflicted with federal law.

And that's what we call running afoul of -- that's what we -- the result of that is that federal law rules, the state law is preempted.

GWEN IFILL: But last time you were here talking about the Voting Rights Act Section 5 challenge, one of the things that seemed to come up in court that day was a dispute between Justices Scalia and Justice Sotomayor. Did we see any of that play out again today?

MARCIA COYLE: There is a -- Justice Scalia has a long-running disdain for legislative history. And at one point during the argument, Justice Sotomayor referred -- said she was going to refer to the legislative history of the federal law, which indicates that Congress considered a proof of citizenship requirement and rejected it.

And she said -- she prefaced her question by saying that there are those who do not agree or believe in legislative history. And at that point, Justice Scalia raised his hand.

And that did get a laugh throughout the courtroom that day. But it wasn't a conflict, so much as ...

GWEN IFILL: A little dig.

MARCIA COYLE: Absolutely.

GWEN IFILL: So, explain to me the extent that the justices debated this today among themselves or that the lawyers did how much a change in the way business is done here would affect other states who may be lined up also with laws which preempt or somehow trump federal law?

MARCIA COYLE: OK.

Well, as Deputy Solicitor General Sri Srinivasan said, if the federal law is just viewed as a floor here, for example, if Arizona wins, then he said states can impose additional requirements on registration, and the federal law itself becomes a nullity. And that is the fear of a lot of organizations, from the Mexican American Legal Defense and Education Fund, which brought the challenge, to the League of Women Voters, which filed an amicus brief supporting the challengers.

Congress' intent here was to make registration easier. And they fear that, if Arizona wins, then other states are going to impose other kinds of requirements, not just proof of citizenship. So that is the real concern. If Arizona loses, there is no change. On the other hand, the final word may rest with Congress.

Whatever the Supreme Court does, Congress could go and amend the National Voter Registration Act.

GWEN IFILL: It still sounds like it could be a consequential ruling when we see it.

MARCIA COYLE: Oh, it's definitely a very important case. And it's playing out against this backdrop, as you mentioned, of concerns about problems with voting and vote suppression.

GWEN IFILL: Marcia Coyle of The National Law Journal, thanks, as always.

MARCIA COYLE: My pleasure, Gwen.

Is Discrimination History Provision of Voting Rights Act Still Relevant?

Wed, 27 Feb 2013 18:10:00 EDT

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JUDY WOODRUFF: And now each side gets a chance to weigh in.

Hans Von Spakovsky is a senior legal fellow at the Heritage Foundation and he filed a brief in this case alongside former Justice Department officials. And Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Educational Fund. An attorney from her group argued before the court today.

Full disclosure: She is Gwen's cousin.

And welcome to you both.

SHERRILYN IFILL, NAACP Legal Defense and Educational Fund: Thank you.

JUDY WOODRUFF: So, Hans Von Spakovsky, here first -- to you first. What is the best argument for keeping the Voting Rights Act -- for getting rid of Section 5 of the Voting Rights Act?

HANS VON SPAKOVSKY, Heritage Foundation: Section 5 was an emergency provision. It was supposed to be temporary, only supposed to last five years.

And it was put in place because of widespread and persistent discrimination. The conditions that justified it in 1965 don't exist today. And, in fact, the Supreme Court said back in 1966 that it was an extraordinary intrusion into state sovereignty, but it was justified by the unique circumstances.

That kind of widespread, systematic official discrimination doesn't exist. There are still incidents of discrimination, but those can be remedied by Section 2 of the Voting Rights Act. That's the nationwide permanent provision that bans racial discrimination in voting.

JUDY WOODRUFF: Sherrilyn Ifill, his argument is widespread racial discrimination doesn't exist anymore; therefore, that provision, Section 5, isn't needed.

SHERRILYN IFILL: Well, Congress had to take up that question in 2006, and they did. And over the course of nine months, they determined that it does exist.

The 15,000 pages of testimony that were described earlier, the 90 witnesses who testified, the 1,200 objections that the Justice Department had to make to voting changes, the 650 objections, over 400 of which were a determination that there was discriminatory purpose in voting changes throughout the jurisdictions that are covered by Section 5, that was the evidence that was before Congress in 2006.

And based on that evidence, not opinion, they determined that we still do need Section 5.

JUDY WOODRUFF: How does that square, Hans Von Spakovsky, with what you are saying, that there is no widespread racial discrimination? If there are that many examples of violations or alleged violations, how does that square with what you're saying?

HANS VON SPAKOVSKY: Let's talk about Alabama for just a second.

In the last 12 years, there's been exactly one objection made in Alabama. And over the last 20 years ...

JUDY WOODRUFF: When you say objection, objection to?

HANS VON SPAKOVSKY: An objection to a voting change that was submitted to the Justice Department for pre-clearance.

Out of the 12,000 jurisdictions that are covered, that's all states, municipalities, counties, city governments, in the last 10 years, there have only been 37 objections. In fact, today, the chief justice asked the solicitor general, in 2005, the year before renewal, how many submissions were made of voting changes? Thirty-seven hundred. How many objections were made? Just one.

The point of that is, there is no longer systematic widespread discrimination. And the record that Congress established didn't show that.

JUDY WOODRUFF: Sherrilyn Ifill?

SHERRILYN IFILL: That's simply too narrow a vision of what Section 5 does.

Objections are when the community or the jurisdiction proposes a plan, the Justice Department reviews it, and determines that that plan is going to discriminate against minority voters. But there are other things that happen as well. Sometimes, the jurisdiction submits a plan. The Justice Department says, we think this plan is problematic. Give us more information.

And the jurisdiction at that point will decide to withdraw the plan. There are over 800 instances in the period that Congress studied in which a jurisdiction did precisely that.

JUDY WOODRUFF: So what about that point, Hans Von Spakovsky?

HANS VON SPAKOVSKY: Look, over the lifetime of Section 5, there have been something like over 120,000 submissions. The number of objections is extremely small, even when taking into account that particular factor.

And the point is ...

JUDY WOODRUFF: When a provision was -- when a jurisdiction brought -- took it back and changed it; is that what you're saying?

HANS VON SPAKOVSKY: Yes.

But the point of that is those instances can be remedied through Section 2. That's when the government or private citizen goes to court and proves discrimination. Section 5, like I said, it's an intrusion into state sovereignty, because you can't make a change without getting the pre-approval of the government.

And that violates basic notions of sovereignty. And you can only do it if you have extraordinary circumstances. Those don't exist anymore.

JUDY WOODRUFF: Sherrilyn Ifill, why isn't Section 2 -- I know we're using a lot of terminology here.

SHERRILYN IFILL: Yes. Yes.

JUDY WOODRUFF: But the provision that applies to the whole country, why isn't that ...

SHERRILYN IFILL: Right. The provision that applies to the whole country enables you to sue after discrimination has happened.

But what do you do in a circumstance in which the polling place, as happened in a native Alaskan village just in 2008, that the jurisdiction decides to move the polling place out of that native Alaskan village to a location that would require those villagers to take either a plane or a boat to vote?

What do you do when that polling place change happens right before an election? Is it enough to say, I can file a lawsuit? What Congress wanted under Section 5 was to stop the discrimination before it happened. And what they said in 1965 wasn't just that they recognized that it was an intrusion, but what they said is, we need something that allows us to get at voting discrimination we can't even imagine yet, that will allow us to capture all of the ingenious methods that jurisdictions might use to discriminate against minority voters.

JUDY WOODRUFF: So, why isn't it better to move ahead of time, rather than waiting until after a violation has happened?

HANS VON SPAKOVSKY: Well, that issue came up in the court today. And one of the justices said, well, apparently the government hasn't heard of the fact that you can go immediately to court and get a temporary restraining order to stop that kind of behavior.

The point of this is that, under Section 5, we do something that is just unique in American jurisprudence. The burden of proof is not on the government is to show that discrimination has occurred. The burden of proof is on submitting jurisdictions to somehow prove a negative that they didn't discriminate.

And you can only put that kind of burden on if you have the kind of circumstances that justify it. And under the Supreme Court's own holding in 1966, that doesn't apply today.

JUDY WOODRUFF: How do you answer that?

SHERRILYN IFILL: This is precisely what Congress intended.

What Congress wanted was for the burden to be removed from the victims of discrimination and placed on the jurisdiction. And the Supreme Court has looked at this four times. The Voting Rights Act and the constitutionality of Section 5 has been challenged four times -- four times -- and each time, they have upheld the authority of Congress, who has the power under the 15th Amendment to protect the right to vote and to keep denials of the right to vote based on race and color from being enacted.

And what Congress tried to do was to make sure that not the victims of discrimination could bring lawsuits, costly lawsuits, but that instead the jurisdiction would have to submit to the federal authority to determine whether or not that voting change was discriminatory.

JUDY WOODRUFF: What about his other point about the option of doing a temporary injunction?

SHERRILYN IFILL: That still requires those native Alaskan villagers to find a lawyer, to go into court and to find a lawsuit.

And that's what Congress didn't want. It's actually ironic that people are saying it's better to have costly litigation that lasts years than to have an administrative process in which a jurisdiction can simply submit the documentation to the Department of Justice and get pre-clearance.

JUDY WOODRUFF: She's talking about what Congress intended when it wrote this law.

HANS VON SPAKOVSKY: I know, but what Congress said when it wrote this law was that this was supposed to be a temporary provision that would only last five years.

We have now renewed it for a fourth time. It is going to last until 2031. And an important issue we haven't discussed is the triggering formula. The jurisdictions that are covered today are covered based on registration and turnout data in the 1964, 1968, and 1972 elections. If you updated it, they would no longer be covered, because registration and turnout is now so good.

JUDY WOODRUFF: Just quickly, what about this out-of-date point?

SHERRILYN IFILL: We're talking about reauthorization.

In 2006, what Congress did was, they looked at these jurisdictions to determine what is happening in those jurisdictions now. That's the 15,000 pages of testimony. And it's based on that determination of the ongoing nature of discrimination in those jurisdictions that they reauthorized.

Moreover, the act has built into it a process for getting out from under Section 5. It's called bailout. And every jurisdiction that's sought bailout has been granted bailout. You have a clean voting record for 10 years, you can get out from under Section 5. New Hampshire has a pending bailout petition right now. Many people think that the state of Virginia is very close to be able to bail out.

All the jurisdiction has to do is have clean hands, which Alabama -- and almost every justice on the court conceded that today -- does not.

JUDY WOODRUFF: We are going to leave it there.

Sherrilyn Ifill, Hans Von Spakovsky, we thank you both.

HANS VON SPAKOVSKY: Thanks for having us.

SHERRILYN IFILL: Thank you, Judy.

GWEN IFILL: You can listen online to a collection of viewer stories about the Voting Rights Act as part of our special oral history project.

Supreme Court Hears Arguments Against Key Provision of Voting Rights Act

Wed, 27 Feb 2013 18:02:00 EDT

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JEFFREY BROWN: The nine justices of the U.S. Supreme Court pondered a central piece of civil rights legislation today, at issue, whether it's still needed 48 years after it first became law.

REP. JOHN LEWIS, D-Ga.: We are not there yet.

JEFFREY BROWN: Georgia Congressman and civil rights leader John Lewis was one of many who rallied outside the court this morning for the Voting Rights Act. They were there on a day the justices heard a challenge to a key section of the law. It requires states with a history of discrimination, mainly in the Deep South, to get federal approval, or pre- clearance, before changing voting procedures or districts.

Lewis argued that the provision known as Section 5 must be preserved.

JOHN LEWIS: There are still forces in this country that want to take us back to another period, but we're not going back. We have come too far. We have made too much progress to go back.

The literacy test may be gone, but people are using other means, other tactics and techniques. So we still need Section 5, and that's why we are here today standing up for the voting rights of all Americans.

JEFFREY BROWN: In 1965, Lewis helped lead 600 people across the Edmund Pettus Bridge in Selma, Ala., where police beat them with nightsticks and state troopers fired tear gas. The event became known as Bloody Sunday and proved a tipping point.

President Lyndon Johnson and Congress responded with the Voting Rights Act. Lawmakers have renewed the law ever since, most recently in 2006, with overwhelming support. But Shelby County, Ala. says the law has outlived its time. Frank Ellis is the county attorney.

FRANK ELLIS, Shelby County Attorney: And we ask for some recognition that we and these other covered jurisdictions have made great strides over the last 48 years.

I was 24 years old. I have been the county attorney since 1964. I was 24 years old when we came under Section 5. I'm 73 last weekend, and we're still under the same formula, none of which has applied to us in many, many, many, many years.

JEFFREY BROWN: President Obama has recently voiced support for upholding the provision of the Voting Rights Act. He said that if part of the law is struck down, it will be harder to prevent acts of voting discrimination.

The case provoked some tough questioning at the court today.

And, of course, Marcia Coyle of the National Law Journal was there and she is back with us tonight.

So, Marcia, tell us first a little bit about the challenge from Shelby County. Why this particular county? What's their argument?

MARCIA COYLE, National Law Journal: OK.

Well, this case actually was teed up by an organization here in Washington, D.C., known as the Project for Fair Representation. The organization's goal is to eliminate racial and ethnic preferences. The head of the organization looks for clients to bring lawsuits targeting racial or ethnic preferences.

It found Shelby County. The organization also finds a lawyer. It found Bert Rein, a well-known, well-respected lawyer here in Washington, D.C. And it funds the litigation. Shelby County agreed to do it, challenged Section 5. They went through the lower courts in May. A three-judge panel of the federal appellate court here in Washington upheld the law 2-1.

JEFFREY BROWN: Essentially saying that we just don't -- we don't need it anymore, and we want to be -- we don't need this federal inquisition.

MARCIA COYLE: You mean Shelby County?

JEFFREY BROWN: Shelby County, yes, yes.

MARCIA COYLE: Yes.

Today in the court, Mr. Rein's main argument is that the formula used to determine which jurisdictions in the country should be subject to Section 5's requirement that any voting change be pre-cleared by the Department of Justice or a federal district court here in Washington is outdated, that it did serve its purpose when it was designed first in 1964 to target that kind of discrimination prevalent at the time.

But when Congress took up the act in 2006, it didn't reexamine the formula. It didn't do a state-by-state analysis, as it should have, he believes, to determine whether certain states should newly be covered or old covered states be taken out.

JEFFREY BROWN: Well, and this sounds like very heated and dramatic questioning.

MARCIA COYLE: It was very intense.

JEFFREY BROWN: Intense is your word.

MARCIA COYLE: Yes.

JEFFREY BROWN: And it sounds as though that argument found a lot of favor from the conservative justices.

Tell us about that, what you heard from them.

MARCIA COYLE: All right.

Well, they really focused for their questions on the lawyer for the United States, Solicitor General Donald Verrilli. And, there, Justice Scalia made a point. He said that when Congress first enacted the Voting Rights Act in the Senate, there were double-digit votes in opposition to it. And with each reauthorization of the Voting Rights Act, the number of opposing votes decreased until, in 2006, there were no opposing votes, and the House had a similar record.

And he said this wasn't attributable, he didn't think, to the need for the Voting Rights Act, but to what he called the phenomenon of racial entitlement, that once a society gives a racial entitlement, he said, it can never get out of it.

JEFFREY BROWN: And, therefore, that the courts needed to act, right, step in?

MARCIA COYLE: Step in, that's right.

He said it wouldn't end unless a court found that the entitlement no longer comported with the Constitution. Chief Justice Roberts pointed out to Mr. Verrilli that the state that had the worst disparity in registration and voting between African-Americans and whites was Massachusetts, and one of the best with that record is Mississippi.

He asked at one point, are the citizens in the South more racist than the citizens in the North? Mr. Verrilli's main argument is, well, Congress built a record. It built a record of 15,000 pages to show that there was current discrimination and it had a right to look at past discrimination. Great deference is owed to Congress in this area.

JEFFREY BROWN: Well, and on the other side, the more liberal justices -- I saw Justice Breyer, he referred to this as an old disease, something that's gotten better, but is still there and we still should keep the...

MARCIA COYLE: Right. Yes, he asked Mr. Rein, why wouldn't we keep a remedy that was working in place, as we would with an old disease we were trying to get rid of?

And, again, Mr. Rein responded that the remedy worked for the disease that the act was targeted at in 1965. A new remedy is needed.

JEFFREY BROWN: In a case like this, is one of the justices considered the key swing? It's often Justice Kennedy who plays the role.

MARCIA COYLE: In race cases, it really is, but I would have to say that today he sounded very skeptical of the government's arguments.

You really can't predict how this sort of thing is going to turn out. In 2009, everybody thought Section 5 in another case would be struck down, but the court didn't.

JEFFREY BROWN: And is there, as then, a kind of narrow way out of this, or do you get the sense that they have sort of signaled that they really want to resolve the big question here?

MARCIA COYLE: Well, since so much of the focus was on this coverage formula, how Congress determines who has to be covered, it's possible the court could find that the formula is outdated, strike that down, and leave Section 5, the pre-clearance obligation in place.

But many believe that, without the coverage formula, Section 5 won't work.

JEFFREY BROWN: All right, Marcia, thanks, as always.

MARCIA COYLE: My pleasure.

Remembering the Voting Rights Act of 1965

Tue, 26 Feb 2013 21:00:00 EDT

The Supreme Court's attention on the Voting Rights Act of 1965 allows PBS NewsHour to look back in history, too. We asked viewers to share memories surrounding the passage of the law and the civil rights era. We received nearly 70 calls from 26 states.

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Case on Police Collecting DNA From Criminals Reaches Supreme Court

Tue, 26 Feb 2013 18:22:00 EDT

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GWEN IFILL: Now: a Supreme Court case involving genetic data and privacy rights.

Ray Suarez has the story.

RAY SUAREZ: A man was arrested. The police swabbed his cheek for DNA and connected him to another crime. But did the police cross a line? The state of Maryland argued in court today against Alonzo Jay King Jr. in a case about the Fourth Amendment to the Constitution that bars unreasonable search and seizure.

Marcia Coyle of the National Law Journal was in the courtroom this morning for the arguments, and joins us now.

So, they take their suspect. They give him a cheek swab, as required by Maryland law, submit that to a federal database. How does it end up in front of the Supreme Court?

MARCIA COYLE, The National Law Journal: Well, Mr. King was ultimately convicted of the crime that that swab revealed, a six-year-old unsolved rape crime. And he was indicted, convicted.

He initially at trial moved to suppress the evidence of the first swab because he said it violated the Fourth Amendment. The trial court didn't agree. But Maryland's highest court did agree with him and reversed. It was Maryland then that brought the case to the Supreme Court.

RAY SUAREZ: So, they didn't have a warrant to take the DNA.

MARCIA COYLE: Right.

RAY SUAREZ: And they didn't consider him a suspect in that six-year-old rape. Were those key questions in today's arguments?

MARCIA COYLE: Well, yes. Obviously, Ray, we say that the Fourth Amendment protects us from unreasonable searches and seizures.

And the main way that protection is enforced is through a warrant. Well, today, Maryland was arguing that the DNA swab here is not very intrusive. It's very comparable to fingerprinting, which has been around for almost a century, and also that an arrestee has a reduced expectation of privacy, which is one of the things that the court balances.

It looks at whether there was a reasonable expectation of privacy in the things searched vs. what interest is served for the government in doing this particular search.

RAY SUAREZ: So, if you have been arrested, there's a difference between taking your DNA and, for instance, locking down a whole block and taking a sample from every man in there?

MARCIA COYLE: Well, Maryland would say yes, because Maryland law has limits on how that DNA is to be used. Maryland argued that it's used primarily for identification purposes, but it also serves an interest in giving judges more information to make bail decisions. And, yes, it does help solve unsolved crimes.

So, the justices were pushing back a bit at Maryland. Justice Sotomayor did ask, what makes an arrestee a special category that should be exempt from the warrant, that police don't have to have a warrant? And the United States also had an attorney arguing today. And he said that an arrestee is at the gateway to the criminal justice system. An arrestee is not a free citizen. The arrestee has a reduced expectation of privacy.

And they're also repeat offenders. The only information at stake, he argued, is the identity of the arrestee. That, of course, didn't satisfy Mr. King's attorney, who said that, first of all, DNA sampling is not fingerprinting. Fingerprinting, there's no intrusion into the body.

And, also with fingerprinting, we really don't have a legitimate expectation of privacy in our fingerprints. They're everywhere. He argued that Maryland's primary purpose here is to solve unsolved crimes.

RAY SUAREZ: What does Maryland do with that evidence if a person is not convicted? Do they keep it on file forever?

MARCIA COYLE: No, they don't. Maryland law requires that if the person is found innocent, that the DNA sample is destroyed.

RAY SUAREZ: And is that an important distinction in the arguing over this case?

MARCIA COYLE: I think it is important in terms of limits here, but it really didn't play largely in the arguments.

I mean, the justices were really concerned about how much information could be analyzed from the DNA sample. Chief Justice Roberts brought that up as well. The government's argument, that it's limited to identification purposes only, Mr. King's attorney called that the "trust us" argument, because a lot of information is revealed from a DNA sample.

The chief justice then countered by saying, well, a lot of intimate information is left on a glass from which we drink water. But, still, Mr. King's attorney said, even though we leave DNA on a glass of water, that still would be a search if the police used that glass in order to test our DNA.

RAY SUAREZ: Instead of being an abstract question about the right to privacy and bodily intrusion and interesting back corners of the Fourth Amendment, this DNA did connect this man to an unsolved rape.

Did that weigh heavily on the arguments that both the state was making for the legitimacy of its policy and his own attorney was making about the admissibility of that evidence?

MARCIA COYLE: Well, it did, in the sense that the police didn't have any reasonable suspicion or probable cause before they took that first swipe of Mr. King's mouth.

And that is what we expect under the Fourth Amendment, that they do have reasonable suspicion, probable cause, in order to do the search. But ultimately the justices were looking again for boundaries here to what's going to be done, how much testing. Some of the justices raised questions that, if you follow the state and the federal government's argument to its logical end, you may end up testing people -- that the police may end up testing people who are stopped on the highway because they want to solve an unsolved crime, so they will take everybody's DNA.

Justice Sotomayor mentioned that you may even end up testing school children some day. So, really, they were very concerned about limits, about what kind of expectation of privacy we have in our DNA, and how that information is going to be used.

RAY SUAREZ: Are there a lot of states that are looking on with interest because they have laws on the books that are similar to Maryland's?

MARCIA COYLE: Oh, absolutely, Ray.

There are 28 states that have laws similar to Maryland. And in this particular case, Maryland drew support not just from those 28 states, but every state in the country. Every other state joined in an amicus brief. The federal government has a law similar to Maryland, the District of Columbia and Puerto Rico. So it drew a lot of support from state governments.

It also drew support obviously from law enforcement agencies. Mr. King drew support from some privacy organizations concerned about the long-term implications of collecting DNA information this way, as well as criminal defense organizations.

RAY SUAREZ: This is still a pretty new area of science and law. Has this question ever been tested before the court before?

MARCIA COYLE: I don't believe, in the Fourth Amendment context, it has.

And, also, Ray, there is a very interesting dynamic across the bench during the arguments. You had, for example, Justice Alito, a very conservative justice, who seems to have no problem with what the police are doing here. In fact, he called DNA collection the 21st century fingerprinting. And you had Justice Scalia, his conservative colleague, saying that sometimes the Fourth Amendment has to stand in the way of what police do.

RAY SUAREZ: Marcia Coyle, thanks a lot.

MARCIA COYLE: My pleasure, Ray.

Our Past Still Speaks: Re-examining the Voting Rights Act

Tue, 26 Feb 2013 18:12:00 EDT

President Lyndon Johnson discusses the Voting Rights Act with civil rights leader Martin Luther King Jr. in 1965, the year it was signed into law. Photo by Hulton Archive/Getty Images

Let me begin this discussion of the landmark Voting Rights Act and its less-than-secure future with a couple of propositions, the way a geometry problem starts with givens:

In the century after the Civil War, black political aspirations were thwarted and stunted through a variety of techniques ranging from murderous criminality to white-collar dirty tricks.

In the 1960s, minority political representation was a faint echo of minority population numbers, meaning a hundred years of suppression had worked.

1960s-era civil rights legislation assumed that white Americans were less likely to vote for a black or Latino candidate for local and federal office -- even a nominee of their own party -- than they were for a white nominee, so minority- heavy districts needed to be mapped to insure elected representation.

While the United States had plenty to live down in its history of race relations, the most severe, systematic and consistent trampling of minority rights were found in many of the states of the Confederacy.

In those four unremarkable propositions lived much of the power of the Voting Rights Act. When President Johnson spoke to a joint session of congress after the passage of the Act, he reminded his audience, "This Act flows from a clear and simple wrong. The only purpose of this Act is to right that wrong." Among those supporting the law it was assumed that more black representation was a goal, that more was better than less, and that the states covered in the law were places that could not be trusted to do the right things themselves, that is, without federal oversight.

The decades that followed meant that the ebb and flow of local lawmaking, boundary drawing and elections would be different in the states covered by the Voting Rights Act. With the life and death struggles of the civil rights movement still fresh in American memory, people well understood what Washington was overseeing, even if they could not always bring themselves to drop the pose of disingenuousness that came with all the talk of "tradition" and "way of life."

The Voting Rights Act tore down the rotten framework of literacy and civics tests, tricky voter qualification, lines that split minority neighborhoods into five different districts, at-large elections to dilute minority voting power, refusal to supply bilingual voting materials, and all the other techniques that kept minority voters out of polling booths and out of power.

In his historic address President Johnson told congress that the histories of Americans and black Americans had flowed "through the centuries along divided channels." The milestones of the early United States meant little to black Americans, Johnson said, until the Confederate surrender at Appomattox, when "an American victory was also a Negro victory."

Think about this: in the years after the Second World War, there were two black members of congress. Two. William Dawson from Chicago's South Side, and Harlem's Adam Clayton Powell were the black congressional caucus! Today there are more than 40 black members of congress, including two U.S. senators. Behind them are mayors, county commissioners, state senators and state representatives, sheriffs, aldermen, committeewomen, and on and on. Black Americans are full participants in American political life and their votes sought by politicians of all colors.

The changes in American politics in the decades since the Voting Rights Act have emboldened the states living under its strictures to wonder out loud whether the law is now a 20th-century relic, unnecessary in a continent-sized country of more than 300 million people led by a black president. Across the South, and in Arizona, Alaska and scattered areas across the country (including my own home town of Brooklyn, N.Y.), federal oversight is required for elections and electoral maps. Increasingly, states like Texas are bridling under the requirements imposed by the Act as it approaches its 50th anniversary.

Black mayors have run many of the biggest cities in the states still regulated by the Voting Rights Act: Charlotte, Atlanta, New Orleans, Houston. South Carolina has a black U.S. Senator. Rep. James Clyburn of South Carolina is one of the most powerful men in the House. Mission accomplished, right?

Yes ... and no. File under "unintended consequences" -- the way forming minority "supermajority" districts helped the Republican Party march toward dominating the South by concentrating minority voters in districts that knit together towns dozens of miles apart. Rep. Mel Watt's old North Carolina district marched across a hundred miles of the state, grouping black voters together into a district a black politician could win, and at the same time diluting the Democratic vote in surrounding districts. It can be argued, and many have, that the house members who ran in districts emptied of black voters no longer had to spend much time worrying about college access, economic opportunity, and progress for black Americans.

While they've quietly taken advantage of Voting Rights Acts era mapping, Republican politicians have also complained about the continued imposition of the Act as Washington interference in local affairs. Even in 2013, it's never too late to bang the States Rights drum. Black and Latino politicians across the South and the Southwest insist that the Act is still necessary. The gross, violent oppression of Mexican-American and black voters is no longer a central part of our politics. On that much, all sides agree. But the lines that snake through polling places and stretch out the door and into the parking lot, the new laws that minority advocates say make it harder to vote, speak to continued tension over race and political power. After Texas' huge increase in Latino population garnered four new congressional seats since the 2010 census, voting rights advocates wondered how many new districts the state would create where Latinos could win ... four? Two? One? Texas tried none. Finally, the Texas congressional candidates ran under a map drawn by a federal court.

And another thing: the belief that minority supermajority districts are necessary to elect minority legislators rests on the belief that white voters won't vote for minority candidates. Unless these special districts are created, the logic runs, minority candidates won't win even in areas where most voters are from their own party. If that's true, is it still as true as it was in 1965 when the Voting Rights Act was passed? Would veteran black and brown legislators running inside less race-conscious district lines all lose? How much representation should minority voters be willing to lose?

Whether or not you support the continued renewal of the Voting Rights Act, these are all questions worth pondering because the answers are not binary -- yes/no, black/white, stop/go. This is a better country than it was in 1965. This is a country where plenty has changed in race relations since 1965. If the requirements of the Act were suddenly lifted, would majority populations in state after state be prepared to use the naked power of numbers to wipe out minority representation in state houses, on county boards, in the U.S. Congress?

The states willing to be rid of the Voting Rights Act are right, the Civil War is over. Minority voters are right when they insist the vestiges of Jim Crow still play some role in shaping daily life in America. Our past still speaks. Now it's up to the Supreme Court to decide how loudly.

Oral history: Remembering the Voting Rights Act of 1965

We want to hear from you. What are your memories of the Voting Rights Act?

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Gwen's Take: Inside the Supreme Court with Sonia Sotomayor

Thu, 21 Feb 2013 17:21:00 EDT

There are few places in Washington as grand as the Supreme Court. The staircases sweep, the marble columns soar, and the carved archways inside guide visitors down hushed hallways. The chamber itself, with its velvet drapes, elevated bench and rich history, makes you drop your voice to a whisper once you're inside.

When Justice Sonia Sotomayor enters the lawyers' lounge down the hall, it's easy to hear her coming. Her voice arrives before she does, as she greets the guards by name, calls every other person she passes "sweetie," and generally brings gusts of fresh air with her wherever she goes. On a tour of her upstairs chambers, she describes the art on her walls in detail.

It's as if the Bronx has come to Washington.

But as we sat down to talk about her intensely personal biography, "My Beloved World," (Knopf) there was little talk about her work on the highest court in the land.

That was in part by design. Experience has taught me that most justices -- with the most notable exception being Antonin Scalia -- are notoriously squeamish about weighing in on anything that might seem to betray their opinion on a matter that might come before the court.

Sotomayor -- so honest and forthright about issues as personal as her father's alcoholism and her cousin's drug addiction -- also knows better than to be that candid when it comes to talking about her work on the court.

I did ask her about affirmative action -- an approach she heartily endorses in her book. "To doubt the worth of minority students' achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try," she writes.

But as we sat at the court this week, hours after she shed her robe from a morning spent on the bench, she would not even go that far.

"Be careful about using that word," she warned when I suggested she supports affirmative action. Even though she benefited from 1970s-era affirmative action recruiting efforts, she wants to cast it differently.

"It's just that...people approach everything in life with its worst," she said. "And I do something very different in life. I try to find the best in everything. And if you try to find the best in people, they will usually rise up to your expectation. And if you look for the worst, you're going to find it, because there is no perfect thing."

It's hard to argue that point with a woman who grew up in a home where English was scarcely spoken, and who began administering her own insulin injections at the age of seven.

When she sweeps through the hallways of the Supreme Court now -- more than three and a half years into a lifetime appointment -- it's fair to say expecting the best has been a winning formula for the 58-year old justice.

And along the way, she has instinctively learned when to temper her opinions. During her Senate confirmation hearings, the former federal appeals court judge said permitting cameras in the court's august chambers sounded like a good idea. But now she hesitates.

"I haven't made up my mind finally," she said, with a smile that suggested she would not tell me if she had. "But I'm now beginning to see the other side of the arguments."

"It helps being in the room, doesn't it?" I said.

"It certainly does, on so many different levels," she replied.

Indeed.

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Sotomayor: 'Every Day We Live Our Life, We Make a Choice'

Wed, 20 Feb 2013 19:20:00 EDT

Supreme Court Justice Sonia Sotomayor tells the story of her childhood growing up with a difficult mother, an alcoholic father and a deeply loving grandmother. Her new memoir, "My Beloved World," gives an exceptionally personal portrait of the justice from youth to judgeship.

But before she put her story to paper, she faced choices. How intimately should she describe her experiences? How much should she share?

In one situation, she asked her cousin and aunt if she could write about a cousin who died after struggling with AIDS and a drug addiction. For writing about her mother, the choice came more easily.

"We had come to that decision in our life together. We've done a lot of talking through the years, this book chronicles that. And we've come to peace with the things that I felt and experienced.... That's what the book describes, how we walked my life together," she said.

On Wednesday's NewsHour, Sotomayor talks more with Gwen Ifill about her past and her experience as a Supreme Court justice. You can watch a web-only excerpt here:

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Photos courtesy Sonia Sotomayor's collection. This video was edited by Justin Scuiletti.

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Justice Sotomayor Talks Life Before and on the Bench in 'My Beloved World'

Wed, 20 Feb 2013 18:17:00 EDT

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GWEN IFILL: One of the Supreme Court's most junior members, Sonia Sotomayor, steps from behind the black robe to tell the story of her rise from an impoverished childhood to the nation's premier bench. The memoir is "My Beloved World."

I sat down with the justice after the court handed down decisions today to talk about how her life informs her jurisprudence.

Justice Sotomayor, welcome. Thank you for joining us.

JUSTICE SONIA SOTOMAYOR, U.S. Supreme Court: Thank you for having me here today.

GWEN IFILL: In your book, you write an interesting thing, which I just want to read back to you.

You say: "I was 15 years old when I understood how it is that things break down. People can't imagine someone else's point of view."

I would like to start there. Explain what you meant by that.

JUSTICE SOTOMAYOR: Well, I think the book does that.

I was talking there, I believe, about an incident involving one of my places of work that included my aunt, because I worked in her shop -- she didn't own it personally, but she worked there as well -- and about how they thought they were playing a prank on a family by having the supervisor call the home to tell a false story, that the husband in the home was having an affair with her.

And I was in a state of shock that neither my aunt, who I loved dearly, or the other women, whom I respected on so many levels, couldn't imagine what havoc they were causing in that home. And I see that pattern repeating itself so often when people do things without imagining the impact it's having on the other person.

And it was a lifelong lesson. I spend so much of my life sort of thinking about, what are other people thinking?

GWEN IFILL: It certainly comes in handy for a judge to be able to look at ...

JUSTICE SOTOMAYOR: Absolutely. But I don't think it's just for a judge.

I think it's for anybody in any life situation. If you don't imagine what the person you're speaking to might be thinking, you can't anticipate how that's person is reacting to you.

GWEN IFILL: You have now been on the court how long?

JUSTICE SOTOMAYOR: Oh, it's my third-and-a-half year.

GWEN IFILL: Wow.

JUSTICE SOTOMAYOR: And it's sort of -- you just said wow. It's what I feel each passing year. It flies by.

GWEN IFILL: I want to talk to you about your first year that you write about here in the book. I wonder if you would just read the part I have outlined there.

JUSTICE SOTOMAYOR: "The first year that I face the challenges of any new environment has always been a time of fevered insecurity, a reflexive terror that I will fall flat on my face. In the self-imposed probationary period, I work with compulsive intensity and single-mindedness until I gradually feel more confident. Some of the looming panic is no doubt congenital. I often see in my reaction something of my mother's irrational fear of being unequipped for nursing school. I have gone through the same kinds of transition since becoming a judge, first on the federal district court, then on the appeals court, and finally on the Supreme Court."

GWEN IFILL: OK, let's -- you don't look like a person prone to reflexive terror, but tell me about that.

JUSTICE SOTOMAYOR: But I am, Gwen.

Just what the book describes, which is, in every new experience, I'm anticipating the worse, and doing everything humanly possible to master the situation -- well, first to learn it, to understand what in my environment means and what it needs to be successful.

It's not something that -- and this is what the book is talking about to every reader. We're not born anything. We're not born a lawyer. We're not born a judge. We're certainly not born a justice, which is something that Justice John Paul Stevens reminded me during my first year on the bench one day, when I was actually disclosing to him how anxiety-ridden I was about being a justice.

And he just touched upon a reality for me. He said, "Sonia, none of us is born a justice. We grow into becoming one."

GWEN IFILL: Have you grown into it?

JUSTICE SOTOMAYOR: Not yet, but I'm growing.

GWEN IFILL: Not yet?

JUSTICE SOTOMAYOR: Not yet, but I'm growing.

GWEN IFILL: That's good that we see it all ahead of you.

One of the things you write about also in the book is your learned habit for building bridges and seeing bridges where other people see chasms. Talk about that.

JUSTICE SOTOMAYOR: Well, that's also part of the lessons that I share in the book, which is, if you build bridges and not chasms, if you don't build that sort of pool in front of you, but look at ways of sort of connecting with others, rather than seeing your differences, that you accomplish so much more.

GWEN IFILL: That seems like kind of anathema in Washington.

JUSTICE SOTOMAYOR: I'm told it is.

GWEN IFILL: Just you're told?

JUSTICE SOTOMAYOR: I'msmiling because, remember, I just got to Washington three-and-a-half years ago.

But I think it's really a life lesson, which is if you approach life looking immediately at how people or situations are different, you're never going to find a solution to a problem.

GWEN IFILL: I want to talk to you about affirmative action. It is something that you support, that you speak of, of...

JUSTICE SOTOMAYOR: Be careful about using that word.

GWEN IFILL: OK. Be careful. You have court cases which may come before you.

JUSTICE SOTOMAYOR: No, it's not just that, though...

GWEN IFILL: What is it? Tell me.

JUSTICE SOTOMAYOR: ... which is, it's that people approach everything in life with its worst, and I do something very different in life. I try to find the best in everything. And if you try to find the best in people, they will usually rise up to your expectation.

GWEN IFILL: Well, there is ...

JUSTICE SOTOMAYOR: And if you look for the worst, you're going to find it, because there is no perfect thing.

GWEN IFILL: The reason I ask you that question is because -- that is a perfect example. Some people look at affirmative action as it's come to be known and they think of it as a crutch, as a negative, as a scar. And you don't.

JUSTICE SOTOMAYOR: Well, some forms of it.

If you look at some other forms of it, quota systems, which our court years and years ago said was a bad thing and struck that down, there are forms of anything that can be bad. But there are ways of doing almost anything that can be positive and good. And if you look at affirmative action as I experienced it in the earlier parts of my years, as only a challenge to institutions not to limit their looking to those fora that they were used to, you know, everybody finds it very deeply comforting to look for people in the places that they think are going to produce the candidates they want, not realizing that there are people with the same skills, the same abilities, and perhaps the same promise in other places, then you're not going to have as much diversity if you're looking only in one little corner of life.

If you're willing to say, you know, there are capable students, capable potential employees that come from a lot of different backgrounds than the ones I'm accustomed to, well, if you think that way, that I have to look more broadly, then you might have a more diverse population in your schools and in your workplaces.

GWEN IFILL: As you were writing this book, you were forced to kind of think about your personal beliefs and your personal upbringing and your personal grounding, and blend it with your professional path, which has been, I think, by -- without argument, fairly successful.

JUSTICE SOTOMAYOR: Thankfully.

GWEN IFILL: How do you draw that line? Do you draw a line?

JUSTICE SOTOMAYOR: Do I draw a line between how I rule as a judge from my personal experiences? Absolutely. Every judge has to.

Every judge comes to the bench with personal experiences. If you assume that your personal experiences define the outcome, you're going to be a very poor judge, because you're not going to convince anybody of your views. You have to be a judge that is able to step aside and determine when their personal bias is influencing the way they're thinking about a case.

You're not a very good judge if you're incapable of that. And, in fact, I have spoken previously about the fact that, as judges, we have to be sensitive to that. We have to know those moments when our personal bias is seeping in to our decision-making. If we're not, then we're not being very good judges. We're not being fair and impartial.

But that doesn't mean that our personal experiences can't permit us and don't permit us to see arguments that others might miss. It's a sort of fine walking that we're always doing between, when are we listening with an open mind and when has our mind been closed because of a bias?

GWEN IFILL: I have to ask you one final question which is -- comes out of the news. During your confirmation hearings, you said that you didn't -- you thought it was a grand idea, a good idea -- you had experience with cameras in the court.

Now you're rethinking that now that you're actually on the bench.

JUSTICE SOTOMAYOR: Keep an open mind about everything, including that.

And I haven't made up my mind finally. But I'm now beginning to see the other side of the arguments.

GWEN IFILL: It helps being in the room, doesn't it?

JUSTICE SOTOMAYOR: It certainly does, on so many different levels.

GWEN IFILL: Justice Sonia Sotomayor, thank you so much for joining us.

JUTICE SOTOMAYOR: Thank you.

GWEN IFILL: You can find more of my interview with Justice Sotomayor, including why she thinks the idea of women having it all is silly, online.

Supreme Court Case on Monsanto Seeds Tests Limitations of Patent Law

Tue, 19 Feb 2013 18:17:00 EDT

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GWEN IFILL: Now we have two looks at a case argued before the Supreme Court today that could have wider implications in the world of patents and technology.

In 1996, Monsanto came up with a formula to develop herbicide-resistant soybeans, able to survive being sprayed with the company's popular weed killer, Roundup. The resulting Roundup-ready seeds seen here in promotional videos were more costly, but they would dramatically increase crop production.

MAN: What we have observed this year is outstanding yield potential.

GWEN IFILL: But the seeds are patent-protected and Monsanto prohibits farmers from saving or reusing them. Instead, they must buy new seeds each year.

In 1999, Indiana farmer Vernon Hugh Bowman bought genetically modified soybeans intended for animal feed from a small grain elevator, but instead of using them as feed, he replanted them. Monsanto sued and the dispute has now made its way to the Supreme Court.

Bowman, speaking to reporters on the steps of the court today, said he still believes he did nothing wrong.

VERNON HUGH BOWMAN, Farmer: I didn't look at it as a loophole because I had always been able to go to the elevator and buy the seed, you follow me? So I just looked at it that when they dumped it in there that they had abandoned their patent. If they want to protect their patent, then it looks to me like it would be required -- they'd be required to have to separate it at the elevator and keep it separate.

GWEN IFILL: Bowman also argues that Monsanto, an agribusiness giant, is trying to bully small farmers. But the company says it spent 13 years developing Roundup-ready seeds and it must defend its patents. So far, Monsanto has won in lower courts and the Obama administration filed a Supreme Court brief supporting the company.

It argues that the case has implications for patent rights, extending far beyond soybeans, to include medical research, computer software, and a host of other self-replicating technologies.

The Monsanto case reached its final stop at the Supreme Court today, where justices listened to the pros and cons.

Marcia Coyle of the National Law Journal, as always, was in the courtroom. She joins us now.

Marcia, you can look at this and think David v. Goliath, individual farmer vs. big agribusiness, but it's a lot more than that.

MARCIA COYLE, the National Law Journal: Well, it's a lot more complicated than that, Gwen.

Under patent law, if a patent holder authorizes the sale of a patented article or invention, after that first sale, the patent holder's rights in that invention or article or product are what we call exhausted. And the purchaser can do whatever he wants with it.

If I buy a Sony TV or a Sony computer, I can sell it to somebody else, I can put it out on my front yard. But what the law says -- also says is that what I can't do is I cannot make a copy of the patented invention. And during the arguments today, the justices were focused on just where these seeds that are self-replicating after they're planted, where they fit under that law.

GWEN IFILL: So the judges were focusing on what piece of this in the questioning?

MARCIA COYLE: OK.

Mr. Bowman's lawyer was arguing first that farming is using seeds, not making seed. So the farmers were not making copies of Monsanto's seed here. He said that the rule of the first sale of a patented invention should apply to this process, because these seeds are designed to grow and replicate themselves.

There was nothing exceptional about it. Monsanto argues that -- and he's also arguing that Monsanto wants an exception to the rule of the first sale of the seeds. And that is something he said that Congress should decide, not the Supreme Court. But he immediately ran into skeptical questioning.

Chief Justice Roberts, for example, right away said to him, well, what incentive in the world would anybody have to spend years and millions of dollars improving a seed if, after the first sale, anybody could take the seed and make copies of it? And also other justices questioned what incentive there was for a company to do this if that -- if the result that Mr. Bowman is arguing for were to prevail.

The United States was in the arguments as well and they were supporting Monsanto. And the attorney for the United States said, well, what would happen, if Monsanto loses, is that research dollars will go elsewhere.

GWEN IFILL: So in order for more to get this to the Supreme Court, obviously, Monsanto had to win -- to have been the last one standing, the last one winning. So this was -- were the justices sympathetic to what the lower court had to say in this and was it the same reasoning that brought this to this point?

MARCIA COYLE: Yes. The justices were sympathetic to Monsanto's argument ...

GWEN IFILL: Right.

MARCIA COYLE: ... and seemed to feel that the lower federal court here did have the right approach.

On the other hand, some justices did see some concerns with Monsanto's argument. Justice Scalia said, well, you know, it is a harsh result that research dollars will go elsewhere, but here's another harsh result. Farmers won't buy grain, seeds from grain elevators for second planting for fear that in those undifferentiated seeds there are some patented seeds, they will be sued for infringement, and as in the case of Mr. Bowman, damages are very hefty in situations like that.

Justice Kagan raised a concern, too. She said, well, seeds drift, they scatter. So it could be that some of Monsanto's patented seeds could go onto the land of an unwitting farmer and suddenly that unwitting farmer is a patent infringer.

GWEN IFILL: So even though they were talking about seeds, this is really about larger issues, including this -- what you described as the kind of replicate-ability of a patent.

MARCIA COYLE: That's right.

It was clear in the arguments that -- in the justices' comments that they knew they were dealing with a new technology here, and this case is going to have ramifications for other replicated technologies like software that's very easily replicated, and that's why you saw groups filing amicus briefs in the case, groups like the software industry and biotechnology industry, as well as the agricultural industry.

On the other side, for Mr. Bowman, the farmer, were consumer and food safety groups that are concerned about almost the monopoly power that Monsanto has here and how its pervasive influence in the market for soybeans is increasing prices for farmers.

GWEN IFILL: This is not the only court the Supreme Court is going to take up this term that have to do with patents and the same kind of issues.

MARCIA COYLE: No, it's not. You're right.

In fact, in April, they're going to hear a fascinating case that very simply asks whether human genes can be patented. And this grows out of a dispute over a company's patenting of a gene process that shows the breast cancer and ovarian cancer gene mutation.

GWEN IFILL: About so much more than just farming and seeds.

MARCIA COYLE: Absolutely.

GWEN IFILL: Marcia Coyle, thanks, as always.

Ray Suarez picks up on some of the broader implications now of the case.

RAY SUAREZ: And we turn to two people who followed the case closely.

Bert Foer is the president of the American Antitrust Institute, which filed a brief in favor of Mr. Bowman. And Todd Dickinson is executive director of the American Intellectual Property Law Association. His group filed a brief on behalf of Monsanto.

And, gentlemen, I would like to hear from both of you to start from your various perspectives. What was at stake in today's argument for business and for the consumer?

Todd Dickinson?

TODD DICKINSON, American Intellectual Property Law Association: Well, broadly speaking, this case could have significant ramification, this case and the Myriad case that was eluded to in the run-up.

In some ways, intellectual property rights are a bit of a whipping boy these days, and the need for strong intellectual property rights, strong patent rights is embedded in our Constitution. There's a reason for that. That's because they lead to economic growth and development. They reward and incent innovation, and they nurture that innovation by protecting it.

RAY SUAREZ: Bert Foer?

BERT FOER, American Antitrust Institute: Well, Todd is right that intellectual property is a very important part of our economy.

On the other hand, there's a lot of questions that have been raised in recent years about whether it is working well and whether it is creating too many monopolies, whether we have a good grasp on the system and can balance the different values that are also in our system, or whether intellectual property should have something of an absolute nature to it, which is the direction that we have been moving in. It's kind of a scary direction.

RAY SUAREZ: Well, why would being able to protect your invention be anti-competitive? Aren't other agricultural companies free to develop a competitor to Monsanto's soybean seed?

BERT FOER: Well, you should be able to protect an invention. The question is, how far? What is the scope? And that's what the court is being asked to talk about.

What is the use in this case? What is making? What is the difference? And when we get to self-replicating technologies, whatever that ends up meaning -- it could mean a lot of things in the future -- but the question is where to draw the line. And there is a doctrine, which is what was being argued about today, called first sale, or exhaustion, which means at some point in time the rights of the owner, the patentee, come to an end, and we move on.

RAY SUAREZ: Well, I mentioned that you both are from organizations that filed amicus briefs.

Todd Dickinson, why there are so many amici in this case from fields that have nothing to do with agriculture?

TODD DICKINSON: Well, as you suggested before, because the implications for this go far beyond this particular case.

There are other self-replicating technologies out there which would apply directly to it. I think the broader implications to the biotechnology industry in particular are very significant in this and the Myriad case. Another federal judge recently, another case said we have the broadest and strongest protection for biotechnology and intellectual property in the world, and we have the strongest biotechnology industry in the world.

Europe, by contrast, has weaker protection and a weaker industry. I think that's a very compelling argument.

RAY SUAREZ: Well, before, you talked about exhaustion. Can a company control what happens to a self-replicating product, any one, a gene, an organism, a plant, aspects of software or a musical recording, once the customer walks out the door having purchased this thing?

BERT FOER: Well, that's the question. How far does that control go?

Because both competition policy, which is antitrust, and intellectual property are -- both have as an objective fostering innovation in the economy. The question is how much of this incentive do you need in the form of monopoly and how much in the form of firms competing with each other to build that better mousetrap?

RAY SUAREZ: So, when does that right run out? Does it ever?

TODD DICKINSON: Let me give you an analogy in the copyright area, which is related, that others might understand.

You have a right to buy a phonograph record. You have the right to play it yourself as many times as you want. You have the right to sell it or give it away to your friend and neighbor. What you don't have the right to do is make a million copies of it online and distribute them.

I think that's similar to what you said here. Here, the farmer had the right to use that product for whatever he wanted. As Justice Breyer said today, could I make tofu turkey out of it? Of course you can. He can use it as feed. There are many, many other uses he can make of that.

RAY SUAREZ: He just can't let it grow into a soybean.

TODD DICKINSON: He can't make a copy. No, he can't make the copy of it and then sell that copy for the purpose that was claimed in the patent.

RAY SUAREZ: Well?

BERT FOER: Well, that's what's at stake here.

RAY SUAREZ: Is a soybean seed like a photograph record, if anybody can still play a phonograph record? Maybe not the most modern example.

TODD DICKINSON: Dating ourselves, right.

BERT FOER: I don't know. Legally, it seems to me that, if I were writing the laws, I would put some limitations on the types of conditions that can be placed on an initial sale.

And I would say, after the initial sale, you're subject to any contracts, licensing contracts. And those can be reviewed by courts under such laws as the antitrust laws. And we can get some sort of a balance in the public interest, whereas if you say that it's only subject to patent infringement, you're putting all the cards with the patentee and very few with the consumers or with all the other parties in the economy who are going to be affected.

The result of an extreme interpretation -- who knows what we might get out of this in this decision -- but the results of something extreme could be the guarantee of a very major long-term monopoly in food production.

RAY SUAREZ: In the short time that we have left, this world has charged ahead. And I'm wondering if the law has kept up with it. Can the law keep up with biotech, big pharma, software in 2013?

TODD DICKINSON: Well, that's an excellent question.

And, for example, last year, the Congress for the first time in 60 years revised the U.S. patent law. And part of the rationale for why they did that was because of the need to keep up with changes in technology. However, our patent law has almost always done that. There's always the next big thing. There's always the cutting-edge technology, whether it's the telephone, or the automobile, or the personal computer.

The patent law in the United States has by and large kept up with that and continues to.

RAY SUAREZ: Bert Foer?

BERT FOER: And we are more and more than ever dependent on high technologies that are highly patented. And so we're seeing these clashes between antitrust and intellectual property which have in common, as I said, an interest in innovation, but two different ways to get there.

And more and more, we're seeing clashes. There are a couple of other cases in front of the court. There are a lot of issues right now involving things like standard essential patents, commitments to make nondiscriminatory licensing, something new on the scene called patent assertion entities. And we have got a lot of problems here that need to be worked out in order to answer your question of whether the law is keeping up.

RAY SUAREZ: Bert Foer, Todd Dickinson, thank you both.

BERT FOER: Thank you.

TODD DICKINSON: Thank you.

Roe v. Wade's Influence Felt on 1992 Abortion Case

Tue, 22 Jan 2013 14:28:00 EDT

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Today marks the 40th anniversary of the landmark decision Roe v. Wade. On Jan. 22, 1973, the Supreme Court ruled 7-2 that the due process clause of the 14th Amendment extends to a woman's decision to have an abortion. The decision limited state and federal restrictions on abortion. It's a topic that has been heavily debated both in and out of the high court since then.

In 1992, the Supreme Court revisited the Roe v. Wade decision when it took up Planned Parenthood v. Casey in a case to determine the constitutionality of several Pennsylvanian restrictions on abortion. On June 29 of that year, the Supreme Court released their decision upholding Roe v. Wade and adopting a rule of "undue burden" to regulate the constitutionality of regulations.

That day, the PBS NewsHour, then The MacNeil/Lehrer NewsHour, dedicated the entire show to the court's decision, the country's reaction and the future of the debate around abortion.

Watch an excerpt of a discussion led by Judy Woodruff between Kate Michelman of the National Abortion Rights Action League and Susan Smith of the National Right to Life Committee.

Related: History of the Abortion Debate

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High Court Examines Whether the Police Need a Warrant to Test Blood Alcohol

Wed, 09 Jan 2013 18:14:00 EDT

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JEFFREY BROWN: Can a police officer force a drunk driving suspect to take a blood alcohol test without a warrant? That was the question before the Supreme Court today in a case involving Fourth Amendment rights.

Marcia Coyle, as always, of The National Law Journal was in the courtroom and she joins us now.

Welcome back, Marcia.

MARCIA COYLE, The National Law Journal: Thanks, Jeff.

JEFFREY BROWN: All right, start, as always, with the facts of this case.

MARCIA COYLE: OK.

A Missouri state police officer stopped Tyler McNeely on the highway because he was speeding. The officer discerned that he might be under the influence of alcohol because he had bloodshot eyes, slurred speech, and the odor of alcohol on his breath.

JEFFREY BROWN: All clues, right?

MARCIA COYLE: All clues, right. McNeely failed several field sobriety tests. He refused to take a breath test. The officer put him in the car, arrested him, was going to take him to jail, but then decided to take him to a hospital for a blood alcohol test, which Mr. McNeely also refused to give consent to.

Mr. McNeely, of course, he had been arrested and charged. He moved in court to suppress the evidence of the blood alcohol test, which showed that his alcohol level was way above the legal limit.

JEFFREY BROWN: All right, so the legal issue is whether the warrantless blood test violates the Fourth Amendment right.

MARCIA COYLE: Exactly.

JEFFREY BROWN: And that is the unreasonable search.

MARCIA COYLE: Exactly. Warrantless searches are considered unreasonable, unless they fall within an exception to the warrant requirement.

And that's what the state of Missouri was arguing today. The state of Missouri lost its case in the Missouri Supreme Court.

So they're appealing. And they were urging the court to adopt a categorical per se rule that police officers do not need warrants to do blood alcohol tests.

And Missouri argued that it was constitutional because it fell within the exception to the warrant requirement that the court has called exigent circumstances.

JEFFREY BROWN: And that's because?

MARCIA COYLE: Those circumstances exist when, for example, the time it would take a get a warrant would endanger someone's life, or, as Missouri argued here, there's the risk of destruction of evidence.

The Missouri attorney said, with every minute, alcohol dissipates in the blood, so there's not only a risk that evidence will be destroyed, but a certainty that any delay will destroy the evidence.

JEFFREY BROWN: And the argument on the other side is or was today?

MARCIA COYLE: Right.

Steven Shapiro of the ACLU represented Mr. McNeely, and he said the warrant requirement should not be dispensed with, unless there were specific facts in a case that showed that it was unreasonable to require the warrant.

And he looked to a 1966 Supreme Court decision in which the court OKed a warrantless blood alcohol test, because, in that case, there were specific facts. The officer was at the scene of the accident.

The suspect who was suspected of drunken driving had to go to the hospital. It took a while until the officer could get to him, and it would have taken too much more time to get a warrant.

JEFFREY BROWN: All right, so how did the justices take this all in? What kind of questions, what kind of concerns did they show?

MARCIA COYLE: It was pretty clear that the justices look at a blood draw as a much more intrusive search than, say, a breath test.

For example, Chief Justice Roberts said that it presents this image of someone at a hospital under restraint and the state coming at him with a needle.

JEFFREY BROWN: Because it involves the needle and the intrusion in that sense.

MARCIA COYLE: Absolutely. Absolutely.

And even Justice Sotomayor pointed out that it's more intrusive than a breath test. So the questions for Missouri's lawyer who was arguing for this rule really focused on, how impractical is it to get a warrant here? And Missouri's lawyer said the trouble is not getting a warrant. The police can get the warrant.

The trouble is the time it takes. In this case in particular, he said, it would have taken 90 minutes to two hours. And he was backed by the Obama administration, whose lawyers said every minute counts and the alcohol number counts as well.

JEFFREY BROWN: So were there justices who were skeptical of that argument then?

MARCIA COYLE: Oh, yes, absolutely.

In fact, Justice Breyer pointed out that in many jurisdictions today, police can get a warrant over the telephone.

But Mr. Shapiro, when his time was up to defend the warrant in these situations, Justice Alito, for example, did point out that rural jurisdictions don't often have a neutral magistrate or a district attorney on duty 24 hours a day, seven days a week in order to look at the warrant request.

And he asked, well, should all of the country operate the way New York City does?

And Mr. Shapiro said, well, no, but, in the absence of any evidence that warrant -- getting a warrant is cumbersome and time-consuming or that having the warrant requirement -- or not having the warrant requirement affects the conviction rate, you shouldn't dispense with the warrant requirement.

JEFFREY BROWN: So, does a case like this fit into ideological sides that you can, you know, compare to other cases, or is this somehow different when you get into a Fourth Amendment search?

MARCIA COYLE: Sometimes, the Fourth Amendment does show an ideological divide on the court, but in this argument in particular, I didn't see that.

I thought, across the board, the court was leery of dispensing with the warrant requirement, and they were looking for, perhaps, some kind of a compromise here, saying that the police, at least, have to try to get the warrant.

And if they don't get the warrant, then maybe the courts in general should look at the totality of circumstances, and perhaps not getting the warrant was reasonable and justified.

JEFFREY BROWN: And this is one that state courts have split on, I gather, right?

MARCIA COYLE: They have.

JEFFREY BROWN: They have been like three and three or something.

MARCIA COYLE: They have split, and they have split over how to apply that 1966 Supreme Court decision. Some limit it, read it narrowly, to requiring specific facts to justify no warrant. Others look at it as saying no warrant is required.

I should point out that Missouri is supported in this case by 32 states, the District of Columbia and Guam, as well as, not surprisingly, Mothers Against Drunk Driving.

JEFFREY BROWN: All right, Marcia Coyle of "The National Law Journal," as always, thank you.

MARCIA COYLE: My pleasure, Jeff.

Health Reform May Be Headed Back to Supreme Court in 2013

Tue, 01 Jan 2013 13:22:00 EDT

Tea Party activist William Temple, protests in front of the U.S. Supreme Court, on June 28, the morning the justices ruled to uphold the vast majority of the health care reform law. Photo by Mark Wilson/Getty Images.

Should old acquaintance be forgot and never brought to mind? Maybe not for the Affordable Care Act.

Looks like 2013 will include many of the characters who made 2012 such a nerve-racking year for the health care reform law -- everyone from state-level leaders hoping to prevent its full implementation to Supreme Court justices deciding the law's fate. The nation's highest court may have upheld a central pillar of the law last summer -- the so-called "individual mandate" that most Americans either purchase health insurance or pay a fine -- but that doesn't mean the rest of the ACA is free from debate.

Questions are slowly percolating through the lower courts -- with some possibly headed toward the Supreme Court -- about contraception coverage, the Senate's ability to "originate" a tax and the legality of the online insurance marketplaces known as exchanges.

For an overview of where all these new challenges stand, we turn once again to Marcia Coyle of the National Law Journal.

NewsHour: Marcia, how do these new lawsuits relate to the Supreme Court's decision last summer?

Coyle: The justices last June decided two core questions about the law's constitutionality. A 5-4 majority held that the minimum insurance requirement, the so-called individual mandate, was a valid exercise of Congress' taxing power, but not its commerce clause power. A 7-2 majority also held that the expansion of the federal-state Medicaid program for the poor and disabled unconstitutionally coerced the states into participating in the expansion by threatening to withhold states' Medicaid funds. But the justices' decision in that case -- National Federation of Independent Business v. Sebelius -- did not stop lawsuits challenging other aspects of the health care law.

NewsHour: What types of lawsuits are now working their way through the courts?

Coyle: There are several types. The largest group, about 42 cases, challenge a federal regulation under the law that requires all group health plans and health insurance issuers, unless grandfathered or otherwise exempt, to cover preventive care and screenings for women. The Department of Health and Human Services issued an interim rule in August 2011 that exempted certain organizations with religious objections to contraception. A number of religious colleges and other employers sued, claiming the contraception mandate violates their deeply held religious beliefs.

NewsHour: Have any of those lawsuits been successful?

Coyle: A number of the lawsuits have been dismissed as premature because the Health and Human Services Department interim rule created a safe harbor from enforcement of the contraceptive coverage requirement for employers with religious objections, which remains in effect until the first plan year that begins on or after August 1, 2013. The department also said it intended to "develop and propose changes to these final regulations that would meet two goals": providing contraceptive coverage without cost-sharing to covered individuals and accommodating the religious objections of nonprofit organizations. Two notable developments occurred in December, one of which may lead directly to the Supreme Court.

The U.S. Court of Appeals for the 10th Circuit on Dec. 20 denied a request for an injunction to halt enforcement of the contraception mandate in a case brought by Christian-owned and operated Hobby Lobby craft stores. The family owners claimed they had no moral objection to the use of preventive contraceptives and would continue covering preventive contraceptives for their employees. However, they said their religious convictions prohibit them from providing or paying for abortion-inducing drugs, the "morning-after" and "week-after" pills. The federal court held that the religious burden on them was "indirect and attenuated."

Their lawyers went to the Supreme Court for an injunction to block enforcement of the contraception coverage mandate while they pursued their court challenge. On Dec. 26, Justice Sonia Sotomayor, who handles emergency requests from the 10th Circuit, denied the injunction, explaining that Hobby Lobby did not meet the rigorous standard for this type of court order. She said Hobby Lobby could seek Supreme Court review after its lower court appeals were finished, if it wished to do so.

Just two days later, another federal appeals court -- the 7th Circuit -- temporarily barred enforcement of the contraception mandate against an Illinois construction company whose Roman Catholic owners also claimed it violated their religious beliefs.

Hobby Lobby and the Illinois company are for-profit businesses. The Obama administration has argued that the Religious Freedom Restoration Act, relied on by the two companies in their lawsuits, does not insulate secular, for-profit businesses from this regulation.

Both cases may reach the Supreme Court in 2013.

The District of Columbia federal appellate court put on hold lawsuits by two religious colleges challenging the contraception insurance mandate. That court said the lawsuits will be held in abeyance until the federal government makes good on its promise to issue a final new rule that exempts employers like the religious colleges. The court also ordered the government to provide it with status reports every 60 days.

NewsHour: Do those lawsuits have the potential to strike down the health care law?

Coyle: No. They raise important issues, but do not involve a central issue of Congress' authority to enact the law.

NewsHour: What other lawsuits are percolating in the lower courts?

Coyle: There is a constitutional challenge involving the process used by Congress to enact the health care law. The conservative Pacific Legal Foundation has sued, arguing that if, as the Supreme Court held, the individual mandate is a tax, then it is an unconstitutional tax because it originated in the Senate and not in the House of Representatives as required by the Constitution for bills raising revenue. This lawsuit is based on the Constitution's origination clause. The challengers say the Senate inserted the health care law's provisions into a "shell" bill, a House-passed bill whose contents were stripped and replaced by the health care amendments. Some court scholars see this lawsuit as a long shot because courts in the past have given Congress a lot of deference with legislation passed in a similar fashion.

NewsHour: What are the lawsuits involving the insurance exchanges?

Coyle: There is a tax case brought by the attorney general of Oklahoma that could create problems for the federal government in the operation of those exchanges. The attorney general challenges a recent IRS rule which extends tax credits and subsidies to the purchase of health insurance in federally operated health insurance exchanges created in states that have refused to establish their own exchanges. The federal law, according to the lawsuit, authorizes those credits and subsidies only to state-operated exchanges. Oklahoma, which has refused to create an exchange, says the IRS rule violates state sovereignty.

NewsHour: When do you think the Supreme Court may look at some of these cases?

Coyle: Any of the losing parties in these lawsuits can petition the Supreme Court for review once their case is finished in the lower courts, and that includes the federal government. But petitioning the Court is no guarantee that the justices will agree to take any of the cases. A case raising religious objections to contraception coverage may have the best chance of eventually being reviewed, but we will have to wait and see.

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Democrats Set Stage for Supreme Court Defense of Voting Rights Act Provision

Thu, 20 Dec 2012 09:22:00 EDT

The U.S. Supreme Court building. Photo by Chip Somodevilla/Getty Images.

With the Supreme Court set to hear a challenge to a main provision of the Voting Rights Act in February, advocates argued Wednesday that the November elections only underscored the need for the law and its protections of minority voting rights.

The high court will hear a challenge by Shelby County, Ala., that the so-called "pre-clearance" portion of the act, which requires jurisdictions with a history of racial discrimination to get approval of the Justice Department before making changes to their voting rules, is unconstitutional.

But opening a Senate Judiciary Committee hearing, Chairman Patrick Leahy, D-Vt., said he was concerned even before Election Day about a "renewed effort in many states to deny millions of Americans access to the ballot box through voter purges and voter identification laws," adding, "what we saw during the election shows that we were right to be concerned. Purges of voter rolls, restrictions on voter registration, and limitations on early voting...led to unnecessary and avoidable problems."

Before and after Election Day, Democrats charged that Republican state officials and their advocates pushed tactics including new voter identification requirements, elimination of early and weekend voting -- sometimes successfully, sometimes not -- to encumber participation by blacks, Latinos, the elderly and the poor -- groups that disproportionately favored President Obama and other Democrats.

Leahy said even though many people managed to vote despite hours' long lines at the polls and administrative hang-ups, the "barriers...remind us of a time when discriminatory practices such as poll taxes, literacy tests, and grandfather clauses were commonplace...barriers that seem to fall heaviest on African-Americans, Hispanics, military veterans, college students, the poor, and senior citizens."

The 1965 Voting Rights with its pre-clearance provision was renewed most recently in 2006 by an overwhelming vote of Congress.

Sen. Charles Grassley, R-Iowa, supported it then and in earlier iterations. As one of only a handful of senators at today's hearing and the only GOP member, Grassley said, "it seems to me in any discussion of voting rights, the terms 'disenfranchisement' and 'suppression' are thrown about sometimes in a cavalier fashion."

Grassley said Republican-led efforts to clean up voter rolls of ineligible voters and require voters to present identification at the polls were aimed at improving the election process.

"Comparing commonsense voter I.D. requirements which enjoy support of three-quarters of the electorate and even a majority of Democrats to poll taxes or worse trivializes the suffering of minority Americans who were denied the right to vote."

But Gilda Cobb-Hunter, a member of the South Carolina state House, testified that an I.D. to vote is indeed "something difficult to come by when you don't have documentation" like some of her poor, rural constituents.

She said even "a free I.D. in reality is not simple for a woman who is divorced and the name change [requires an] expense. If you were delivered by a midwife and [the only birth record is] in a family Bible...the issue for us not the I.D. It's the difficulty of documentation."

Cobb-Hunter also said securing an I.D. to vote is "very difficult if you're 75 miles from the county seat. So the barriers are there."

Also testifying was Arizona Secretary of Atate Ken Bennett, who said there's been no empirical evidence to prove state officials' actions toward "cleaning up the rolls" diminished voting by eligible Latinos there, as some have charged.

Bennett also told the committee that even though two-thirds of Arizonans voted by mail in the last election, his state would like to institute "voting centers" where voters from a wide geographical area could come to vote avoiding long lines at some precincts.

He said voting equipment paid for under the federal Help America Vote Act is "ending its life cycles" and while Arizona has plans to find ways to pay for elections "resources are getting very thin."

Closing the hearing, Sen. Dick Durbin, D-Ill., who held field hearings before the election about voter I.D. laws and other changes, said Democrats and their allies remain "concerned" about the effect of voting changes in some states.

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Remembering Robert Bork: Law-and-Order Conservative, Supreme Court Nominee Judge

Wed, 19 Dec 2012 18:48:00 EDT

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JUDY WOODRUFF: Finally tonight: an obituary.

We take a look at the man whose nomination to the Supreme Court in the 1980s dramatically changed that process.

KWAME HOLMAN: As a nationally known jurist and legal scholar, Robert Bork was a mainstay of conservative jurisprudence for more than half-a-century.

ROBERT BORK, former Supreme Court nominee: It is not a cliche to make a distinction between interpreting a document as law and making up new principles that are not in the Constitution.

KWAME HOLMAN: Those views fueled a titanic struggle over his 1987 nomination to the U.S. Supreme Court, a fight that became a seminal moment in altering the process for all future nominees.

Bork had first gained notoriety years earlier as President Nixon's solicitor general. On Nixon's orders, he carried out the so-called Saturday night massacre in October 1973, firing Watergate special prosecutor Archibald Cox, who had sought access to the White House tapes.

ROBERT BORK: The president said, "It is my expectation that the Department of Justice will continue with full vigor the investigations and prosecutions that had been entrusted to the Watergate special prosecution force.”

KWAME HOLMAN: Robert H. Bork was born in 1927, and graduated from the University of Chicago Law School. His economic libertarianism evolved into law-and-order conservatism during the upheaval of the 1960s.

In 1982, President Reagan named him to the U.S. Court of Appeals for the District of Columbia. There, he applied his conviction that the founders' original intent in the Constitution didn't include a right to privacy, abortion rights and some civil rights protections. And then came the fight of his life.

PRESIDENT RONALD REAGAN: And I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork.

KWAME HOLMAN: Bork's Supreme Court confirmation hearings unfolded in September 1987, and heralded a historic struggle over the ideological composition of the federal courts.

ROBERT BORK: The judge's responsibility is to discern how the framers' values, defined in the context of the world they knew, apply in the world we know.

SEN. EDWARD KENNEDY, D-Mass.: In Robert Bork's America, there is no room at the inn for blacks, and no place in the Constitution for women. And, in our America, there should be no seat on the Supreme Court for Robert Bork.

SEN. ORRIN HATCH, R-Utah: It is hard to understand why your nomination would generate controversy. The answer is found in one word, which is tragic in this judicial context, and that word is politics.

KWAME HOLMAN: But Bork refused to withdraw, and the Senate rejected his nomination 58-42, with six Republicans joining all but two Democrats in opposition.

Along the way, his very name was turned into an active verb, to Bork, which meant rejection based on political grounds. And it became a conservative rallying cry.

Afterward, the judge resigned his appeals court seat, and wrote books on what he saw as the moral decline of America, a subject he described on the NewsHour in 1996 with David Gergen.

DAVID GERGEN, NewsHour: When you titled your book "Slouching Towards Gomorrah," you were intentionally drawing upon the poem of William Butler Yeats, "Second Coming," those final lines, "What rough beast, its hour come round at last, slouches toward Bethlehem to be born."

ROBERT BORK: Mm-hmm.

DAVID GERGEN: Why do you think we're heading toward Gomorrah, and not Bethlehem?

(LAUGHTER)

ROBERT BORK: Well, if present lines continue, where our culture continues to decline, and becomes increasingly vulgar, chaotic, and dangerous, it sounds more like Gomorrah than it does Bethlehem. Yeats' poem was about a culture unraveling.

DAVID GERGEN: Right. Right. But yours is bleaker, in effect, than even Yeats.

ROBERT BORK: Well, maybe neck-and-neck.

KWAME HOLMAN: Robert Bork died this morning in Arlington, Va. He was 85 years old.

Robert Bork, Supreme Court nominee, dies at 85

Wed, 19 Dec 2012 13:04:00 EDT

Judge Robert Bork testifies at his Supreme Court confirmation hearing in 1987. Photo by CNP/Getty Images

On Sept. 18, 1987, President Ronald Reagan nominee for the Supreme Court, Judge Robert Bork, testifies on the fourth day of his Supreme Court confirmation hearing in Washington D.C. (Photo by CNP/Getty Images)

Federal judge and former solicitor general Robert H. Bork died Wednesday at Virginia Hospital Center in Arlington, Va., of complications from heart disease, according to the Associated Press. He was 85.

He is best known for his failed nomination to serve on the nation's highest court. In 1987 President Ronald Reagan nominated the conservative jurist to fill a vacancy on the Supreme Court left by the retirement of moderate Justice Lewis Powell.

Congressional Democrats derailed the nomination with an aggressive campaign that branded him as an extremist.

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is, and is often the only, protector of the individual rights that are the heart of our democracy," the late Sen. Edward M. Kennedy, D-Mass., said on the Senate floor in opposition to Bork's nomination.

The negative campaign added a new word to the American lexicon. "Borked," emerged as a verb used to describe the attack of a nominee based on his or her political ideology.

The nomination of Bork was a major turning point on how we have hearings today, said Marcia Coyle of the National Law Journal. She spoke with PBS NewsHour's Hari Sreenivasan in June, 2010, just before the confirmation hearings for Supreme Court nominee Elena Kagan. You can watch their conversation below:

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Bork served this year as senior judicial adviser to the campaign of Republican presidential nominee Mitt Romney, according to news reports.

As a jurist, Bork adopted a strict interpretation of the U.S. constitution. His writings include, "The Tempting of America: The Political Seduction of the Law" (1990), "Slouching Towards Gomorrah: Modern Liberalism and American Decline" (1996) and "Coercing Virtue: The Worldwide Rule of Judges" (2003).

Robert Heron Bork was born in Pittsburgh, Mar. 1, 1927, to Harry Bork, a purchasing agent with a steel company and his wife, Elizabeth Kunkle, an English teacher. He enlisted in the Marine Corps in 1944. After the war, he attended the University of Chicago, interrupting his studies to serve as an officer in the Korean War, according to news reports. He eventually earned his law degree in 1953.

Bork then maintained a private law practice and taught at Yale Law School between 1962 and 1975 and again between 1977 and 1981, according to news reports. His students included Bill Clinton, Hillary Rodham Clinton, Anita Hill and Robert Reich.

Bork's survivors include a second wife, Mary Ellen Pohl of McLean, Va.; three children from his first marriage, Robert H. Bork Jr. of McLean, Va., Charles Bork of Seattle, Wash., and Ellen Bork of Washington, according to news reports. He also is survived by two grandchildren.

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Supreme Court Agrees to Review Laws Banning Same-Sex Marriage

Fri, 07 Dec 2012 18:19:00 EDT

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JUDY WOODRUFF: The U.S. Supreme Court announced today that for the first time in its history, it would review the contentious issue of same-sex marriage.

For more on the story, we turn to Margaret Warner.

MARGARET WARNER: The justices agreed to hear arguments in two cases.

One is California's constitutional ban on same-sex marriage, adopted by voters as referendum Proposition 8 in 2008. It was challenged on grounds that gay citizens have the same constitutional right to marry as heterosexuals. The justices will also review a provision of the federal Defense of Marriage Act, or DOMA.

That deprives legally married gay couples of federal benefits that are available to heterosexual couples.

Same-sex marriage is legal or will be soon in nine states and the District of Columbia. But 31 other states have amended their constitutions to bar gay unions.

Here with us to explain today's decisions and where they could lead is Marcia Coyle of The National Law Journal.

Welcome back, Marcia.

MARCIA COYLE, The National Law Journal: Thanks, Margaret.

MARGARET WARNER: So, is it fair to say, first of all, that the court's decision to hear these first two cases in itself a momentous decision?

MARCIA COYLE: Absolutely.

A number of gay rights organizations, particularly as it relates to the federal Defense of Marriage Act, have been working towards that point. And, yes, whatever the court says will probably -- if it reaches the merits of these cases, will probably be extremely important.

MARGARET WARNER: Now, let's take them one by one.

Let's take Prop 8 in California first. Remind us briefly of how what started out as a state issue ended up in the Supreme Court.

MARCIA COYLE: OK.

Well, the California Supreme Court a number of years ago ruled that same-sex marriages were constitutional under its state constitution. Voters disagreed by passing Proposition 8 in 2008 banning those marriages.

Proposition 8 was challenged by gay and lesbian couples who were represented by former opponents Ted Olson and David Boies. It ultimately reached the federal appellate court, which found that Proposition 8 was unconstitutional because it took away a right once given. And it did that on the basis of animus. So it was...

MARGARET WARNER: Animus toward gay people.

MARCIA COYLE: Towards, right, homosexuals, right.

So it was the proponents of Proposition 8, the supporters, who brought the case to the U.S. Supreme Court.

And they asked the Supreme Court whether the 14th Amendment of the U.S. Constitution prohibits California from defining marriages as between a man and a woman.

MARGARET WARNER: And so how sweeping are the issues then that the court could rule here or must rule on here?

MARCIA COYLE: Well, the court has a number of options with this particular challenge.

The court could simply affirm the lower federal appellate court, which would leave that ruling in place, the Proposition 8 was unconstitutional. It would only affect California. It was a narrow ruling. It wouldn't affect any other state or states' laws.

The court could decide that Proposition 8 does violate the federal Constitution. That would be the broadest ruling that it could make. And that would possibly -- well, if the court said that the 14th Amendment does prohibit California from defining marriage as between a man and a woman, then other state laws would certainly be at risk, other than just California.

MARGARET WARNER: So, you mean even the 31 states that have put in their own state constitutions, as Prop 8 tried to do, could be affected potentially if the ruling was very sweeping?

MARCIA COYLE: That's right, exactly.

MARGARET WARNER: So now let's go to the Defense of Marriage Act case. And this came out of New York.

First of all, explain how the Defense of Marriage Act works, and how did this one case involving, I gather, an 83-year-old woman named Edie Windsor raise the issues?

MARCIA COYLE: OK.

Well, the challenge here is to a provision in the Defense of Marriage Act, Section 3. And that defines for all federal purposes marriage as between one man and one woman. And by doing that, it affects more than 1,000 federal laws, everything from tax laws to Social Security and health and welfare benefits.

The Defense of Marriage Act was challenged by Edie Windsor from New York. She had a partner for over 40 years. They were married in 2007 in Canada. New York recognized their marriage. When Ms. Windsor's partner, her spouse, died, her spouse left her entire estate to Edie Windsor.

Because of the Defense of Marriage Act, Edie Windsor was left with almost a $400,000 federal estate tax that someone who was the spouse of an opposite sex couple would not have had to pay. So, there, the Defense of Marriage Act is being challenged as violating the equal protection guarantee in the Fifth Amendment.

MARGARET WARNER: And how sweeping -- if the ruling were in favor of Edie Windsor, how widely would that apply nationwide?

MARCIA COYLE: Well, the challenge here to DOMA really is only that this provision in DOMA is unconstitutional as applied to legally married same-sex couples.

The argument is that that provision discriminates against them by treating them differently from legally married opposite sex couples. So if the court found in favor of Edie Windsor, as the lower federal appellate court here did, it wouldn't affect any state's law that prohibits same-sex marriage.

So this is more of a yes-or-no question. There aren't as many options as there are with the California Prop 8 case for the court.

MARGARET WARNER: Very briefly, the court did also raise so-called standing issues in each one. Is it fair to say that, if they rule on these standing issues, they could be incredibly narrow rulings?

MARCIA COYLE: They could.

The standing questions have to do with whether parties, including the United States government, are properly before the court in these cases. If the court finds that they are not properly before them, the court will never even get to the merits. The cases will be dismissed.

MARGARET WARNER: Marcia, thank you so much.

MARCIA COYLE: My pleasure, Margaret.

Hinging on Supervisor Definition, Supreme Court Reviews Work Harassment Case

Mon, 26 Nov 2012 18:32:00 EDT

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JEFFREY BROWN: Next tonight: Who qualifies as a supervisor in the workplace? That might seem obvious most of the time, but as a legal matter, courts have come to different conclusions, some saying it's confined to someone with powers such as hiring and firing, others deciding on a broader definition.

The Supreme Court looked at the issue today in a case where a woman claims a co-worker harassed her because of her race.

Marcia Coyle of "The National Law Journal" was in the courtroom to hear the arguments and is here with us tonight.

Welcome back, Marcia.

MARCIA COYLE: Thank you, Jeff.

JEFFREY BROWN: So, first, the facts of the case, Vance v. BallStateUniversity.

MARCIA COYLE, "The National Law Journal": Right.

Well, Jeff, first of all, this case involves Title VII of the Civil Rights Act, which, as you know, is our nation's major job anti-discrimination law. And under that law, an employer can be held liable if a supervisor harasses an employee. And that's because the supervisor is imbued with the employer's authority.

JEFFREY BROWN: Key word being supervisor, right?

MARCIA COYLE: Exactly.

But an employer also can be held liable if a non-supervisor employee harasses another employee.

But it's tougher to prove. You have to show the employer knew or should have known about the harassment and failed to act.

Maetta Vance, brought this lawsuit against BallStateUniversity. She's an African-American woman working in the dining services division of the university, claimed she was harassed by a white co-worker, was slapped on the head, blocked at the elevator, racial epithets were used such as "Sambo" and "Buckwheat" in her presence.

She complained, and, finally, she brought her lawsuit against the university. She lost below in the lower courts. The lower court, federal appellate court said that this co-worker wasn't a supervisor, and took the definition that is probably the most restrictive, that is, the supervisor has to be somebody who can make a tangible employment decision, such as hiring and firing.

JEFFREY BROWN: All right, so, today, it made its way to the Supreme Court, and her argument -- her lawyers are arguing for something broader than that.

MARCIA COYLE: Absolutely.

In fact, there was an interesting argument because, not only her lawyer, but the lawyer for the federal government and the lawyer for the university, didn't support the lower federal court's definition of supervisor.

JEFFREY BROWN: Even though they had won down there?

MARCIA COYLE: Yes, even though.

JEFFREY BROWN: OK.

MARCIA COYLE: But there were nuances here.

First of all, Miss Vance's lawyer believes the correct approach or standard is to say that anyone who controls your daily activities is a supervisor for liability purposes.

And the federal government argued, Deputy Solicitor General Sri Srinivasan argued that the court should accept the EEOC, the Equal Employment Opportunity Commission's approach, which is either/or. You either do make tangible employment decisions or you control an employee's daily activities.

The university argued, basically, we will accept the broader definition, but there has to be some meaningful limits on it. The other employee -- the harassing employee cannot be somebody who occasionally controls your activities. It has to be a meaningful control.

JEFFREY BROWN: So, on the side of -- in this case, it's university is the employer.

MARCIA COYLE: Yes.

JEFFREY BROWN: The implications for -- wider implications for other companies? They would be arguing against the broader definition. Right?

MARCIA COYLE: Oh, absolutely. The U.S. Chamber of Commerce and a number of...

JEFFREY BROWN: It's a big deal for them, right?

MARCIA COYLE: It is. It's all about money liability.

If the court accepts the stricter definition, the lawyers and organizations that represent workers fear that employers will start moving categories of workers into the supervisor category in order to avoid liability, whereas employers are concerned with a broader definition that they will have greater potential liability.

JEFFREY BROWN: And did the justices tip their hands or any interesting questions that...

MARCIA COYLE: Well, I didn't see a lot of support for the strict definition, although Chief Justice Roberts pointed out that there is an advantage to that, and that is you know -- clearly, it's a bright-line rule -- what the analysis is going to be.

He worried that a broader definition creates sort of a continuum of employees who fall on that continuum as to, you know, individual facts of each case are going to matter, and courts are going to be drawn into endless debates as to who is a supervisor.

JEFFREY BROWN: All right, we will await that decision.

In the meantime, the court also took another action today, not arguments. But they sent back to the lower courts a case that goes -- concerns the Affordable Care Act, of course, the big event from last session.

MARCIA COYLE: Yes.

JEFFREY BROWN: Right?

MARCIA COYLE: Yes. Well, LibertyUniversity was one of four cases last term that challenged the Affordable Care Act.

Today, the court sent LibertyUniversity's case back to the Fourth Circuit Court of Appeals because LibertyUniversity had raised other claims that the Supreme Court didn't decide last term.

LibertyUniversity wants to challenge the individual mandate to purchase insurance and the law's employer mandate to provide insurance on religious grounds.

LibertyUniversity, as you know, was founded by the Reverend Jerry Falwell.

JEFFREY BROWN: Right.

MARCIA COYLE: And it claims that the Affordable Care Act, those two mandates in particular, violate the free expression of religion.

JEFFREY BROWN: So, the court is saying that was not something we took up last time, send it back to the lower courts. Let them hear it.

MARCIA COYLE: Let them rule, right.

The lower court was the only federal appellate court that refused to let Liberty University's lawsuit go forward at all because of that old anti-injunction act. That was the only court that found that that law blocked challenges to the Affordable Care Act.

And the Supreme Court in its final health care ruling said that that act didn't apply.

JEFFREY BROWN: But, briefly, so now there's a chance it will come back to the Supreme Court eventually, huh?

MARCIA COYLE: I will bet you dollars to donuts...

JEFFREY BROWN: You will?

(LAUGHTER)

MARCIA COYLE: ... if LibertyUniversity loses, that LibertyUniversity will be back at the Supreme Court probably next year.

JEFFREY BROWN: All right, I'm not taking a bet against you.

(LAUGHTER)

MARCIA COYLE: OK.

JEFFREY BROWN: But we will talk about it if it happens, of course.

MARCIA COYLE: All right.

JEFFREY BROWN: Marcia Coyle, thanks again.

MARCIA COYLE: My pleasure, Jeff.

Supreme Court Devotes Day to Hear Cases on Drug-Sniffing Dogs and Privacy Rights

Wed, 31 Oct 2012 18:38:00 EDT

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JUDY WOODRUFF: Is an alert from a drug-sniffing dog enough to justify police searching a home or a car? That's the question the Supreme Court explored today in two cases.

Marcia Coyle of "The National Law Journal" was in the courtroom this morning to hear the arguments. And she's here with us tonight.

Welcome back.

MARCIA COYLE, "The National Law Journal": Thanks, Judy.

JUDY WOODRUFF: So, I imagine it's not that often that the court hears a case about a dog, much less two cases.

MARCIA COYLE: Well, it is a little unusual.

And, in a sense, we have gone from high-tech questions under the Forth Amendment, like the attachment of GPS devices to cars, to very low-tech questions under the Fourth Amendment. These two cases come in two very different factual situations.

The first case that was argued this morning, a police officer was acting on an anonymous tip that marijuana was being grown in a house. He took his narcotics-trained dog up the driveway to the front door of the house. After a time, the dog alerted by sitting at the base of the front door. The police officer left the dog with another officer to go get a search warrant.

The question for the Supreme Court is, should he have had a search warrant with him before he allowed the dog to sniff? Was the dog's sniff a search under the Fourth Amendment?

The second case doesn't involve a house. It involves a pickup truck. A police officer stopped the pickup truck for a traffic violation, noticed that the driver was sweaty and very nervous. And when he went to check the driver's license, he brought out his dog, Aldo, a German shepherd, and had him do a sniff around the truck.

The dog alerted on the handle of the door. And the police officer used that to search the truck. The question for the court is whether the dog sniff itself gave the police probable cause in order to search the truck.

The Florida Supreme Court ruled against law enforcement in both cases, so it was the state of Florida that brought the cases to the Supreme Court today.

JUDY WOODRUFF: So the justices heard these different -- heard these separately.

MARCIA COYLE: Yes.

JUDY WOODRUFF: And what kinds of questions were they asking, the first about the case involving the house?

MARCIA COYLE: The house, right. Well, the state of Florida was actually represented by the same lawyer in both cases, former Solicitor General Gregory Garre.

And he told the justices that in prior cases at the Supreme Court, the court had found that dogs -- drug-sniffing dogs were rather unique and they could search luggage, open containers because we don't have a reasonable expectation of privacy in contraband. And he said this was really no different here.

But he ran into trouble across the bench from justices. The home, it appears, is different in the eyes of the court.

Justice Ginsburg, for example, said, under your theory of the case, couldn't police then take drug-sniffing dogs into neighborhoods that have drug problems and go door by door, having the dog sniff the front door, or into an apartment building and go door by door?

Justice Scalia pointed out that there is a rule that police cannot come within the curtilage of a home -- that's the area immediately surrounding the home -- in order to get a better view of what's inside of the house with their binoculars. And why, he said, is a dog any different?

So there was a lot of skepticism about Florida's position.

JUDY WOODRUFF: And how did the Florida attorney respond?

MARCIA COYLE: Mr. Garre said, you know, under court precedents, under the law, police officers alone can walk up to front door, knock on the door and talk to the resident in order to uncover evidence of a crime. It's no different with a dog.

JUDY WOODRUFF: Now, what about in the other case, Marcia? Again, this was the dog -- on the handle of the door of the car, the dog smelled something.

MARCIA COYLE: Right. And there the question is, was that probable cause for the search?

And probable cause has to be more than a suspicion. And the courts, when they try to determined whether there was probable cause because a criminal defendant is challenging the search, looks at all the circumstances.

Here, the Florida Supreme Court looked at the reliability of the dog, Aldo, and wanted the government and law enforcement to produce evidence that this dog was reliable. How was it trained? Was the handler trained? Was it certified?

And Mr. Garre for the state of Florida said that these were extraordinary requirements. And he was supported by the Obama administration's lawyer, who also said what would happen if the court constitutionalized these requirements was that you would start having mini-trials with expert witnesses, and dogs would be put on trial to determine their reliability, and it just wasn't necessary.

The court seemed to have trouble trying to find what kind of requirements would ensure reliability and therefore probable cause for a search?

And Justice Sotomayor, for example, noted that there have been some recent studies that show these dogs aren't infallible. There's one that she noted that had a 12 percent accuracy rate.

And she said she was a little troubled by that. But it wasn't as clear in the house case that the justices were going to have a problem.

JUDY WOODRUFF: We're going to focus on the accuracy or the track record for those dogs.

MARCIA COYLE: Right, and it's just hard to measure how reliable a trained dog is.

JUDY WOODRUFF: And just quickly, Marcia, so there's a precedent here, but the court is taking a whole other look at these two cases?

MARCIA COYLE: Yes, it is. It's never really confronted head on a dog-sniff of the front door of the house...

(LAUGHTER)

MARCIA COYLE: ...believe it or not, in this day and age.

(LAUGHTER)

JUDY WOODRUFF: All right, an interesting day in the court, Marcia Coyle of "The National Law Journal."

MARCIA COYLE: Thank you. It was my pleasure.

News Wrap: Supreme Court Hears Arguments Challenging Surveillance Law

Mon, 29 Oct 2012 18:15:00 EDT

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HARI SREENIVASAN: Americans are showing greater confidence in the economy and buying more. The Commerce Department reported today that consumer spending rose .08 percent last month, the best showing since February. Consumer spending accounts for nearly 70 percent of the U.S. economy.

The potential for government eavesdropping on Americans was back before the U.S. Supreme Court today. Lawyers, journalists, and human rights activists argued they should be allowed to challenge parts of the Foreign Intelligence Surveillance Act.

They argued innocent Americans could be caught up in electronic spying on foreign targets. The Justice Department called that claim -- quote -- "a cascade of speculation."

In Syria, heavy air raids pounded the suburbs of Damascus after a temporary truce collapsed over the weekend. This was supposed to be the fourth and final day of a U.N.-backed cease-fire, timed to coincide with a Muslim holiday.

But, today, as many as 60 government airstrikes hit rebel targets around the country. A car bomb also went off in the capital city, killing at least 15 people and wounding more than 40 others. Activists also reported at least 150 people were killed in violence on Sunday.

The city of San Francisco celebrated the Giants' latest World Series championship today. Fans poured into the streets last night after their team swept the Detroit Tigers.

The Giants won 4-3 in 10 innings to take their second title in three years. And no National League team had swept a World Series since the 1990 Cincinnati Reds.

Those are some of the day's major stories.

Supreme Court Hears Affirmative Action Challenges by Public College Applicants

Wed, 10 Oct 2012 18:02:00 EDT

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GWEN IFILL: The Supreme Court heard arguments today in one of the most closely watched cases of the term. It marked a return to the decades-long legal debate over affirmative action.

The scene outside the Supreme Court building made clear just how anticipated this case has been.

For the first time in nearly a decade, the justices are considering whether it's constitutional for universities to use race in deciding who they admit.

The suit was brought by Abigail Fisher, a white honor roll student who was denied admission at the University of Texas at Austin in 2008.

Fisher, now 22, was in the court chamber today and later spoke briefly to reporters.

ABIGAIL FISHER, plaintiff: I hope the court rules that a student's race and ethnicity shouldn't be considered when applying to the University of Texas.

GWEN IFILL: Her lawyer, Bert Rein, said it comes down to equal protection under the law.

BERT REIN, attorney For Abigail Fisher: We have recognized that there are some interests in diversity that are beneficial in the educational sphere.

But we have said and we continue to say that is not an overriding consideration that has to be administered very narrowly, because -- because it's an odious and dangerous classification.

GWEN IFILL: ButUniversity of Texas president Bill Powers argued that concern is trumped by the need for a diverse student body.

BILL POWERS, University of Texas: We believe the educational benefits of diversity are so important that they're worth fighting for all way to the United States Supreme Court.

Our lawyers this morning effectively made the case to the justices that diversity, ethnic and otherwise, benefits all of the students on our campus.

GWEN IFILL: The high court last visited the issue in 2003, deciding 5-4 to let the University of Michigan Law School could use race as one factor in its admissions process.

Before then, the University of Texas guaranteed acceptance for the top 10 percent of students at every high school in the state. But after the Michigan decision, Texas and other schools added race as a factor for applicants who are not guaranteed admission under the top 10 percent plan.

The eight justices who heard today's arguments must now decide whether that two-tiered system passes constitutional muster. Justice Elena Kagan is not taking part. She recused herself after working on the case as solicitor general under President Obama.

For more on today's arguments, we turn, as always, to Marcia Coyle of "The National Law Journal." She was in the courtroom this morning and she is back with us again tonight.

Marcia, so how did the University of Texas attorneys defend their policies?

MARCIA COYLE, "The National Law Journal": Well, the university said that race under its plan is one of roughly a dozen factors that are considered when a student is going to be considered for admission into the university, that there is no quota, that the plan as constructed and administered and implemented follows all of the guidelines that the Supreme Court set down under the Grutter decision in 2003.

The justices, Gwen, have divided by race in the past. And so it wasn't surprising that that divide played out again during the arguments today.

You heard the justices that are more moderate to liberal, such as Justices Breyer and Sotomayor and Ginsburg, being concerned that Abigail Fisher was asking the court to overrule the Grutter decision.

Justice Breyer, for example, pointed out that two lower courts here had looked at Texas' plan and found that it did meet all of the requirements under Grutter.

And so he pressed Ms. Fisher's lawyer as to why do you say it doesn't satisfy Grutter.

And here Mr. Rein, representing Ms. Fisher, argued that Texas never considered race-neutral alternatives after the 10 percent plan went into effect to see if it could achieve what Grutter calls a critical mass of under-represented students.

I use that word critical mass because it became very important during the arguments when the more conservative justices began started quizzing the university's lawyer, Greg Garre.

GWEN IFILL: So they were questioning basically whether this idea of a critical mass is even worthwhile or constitutional in itself?

MARCIA COYLE: Yes, and how -- as Chief Justice Roberts said, how do you measure critical mass?

Under the 14th Amendment, when classifications are made on the basis of race, the court applies its strictest scrutiny and it says to the public entity, here the university, the racial classification has to be narrowly tailored to achieve a compelling state or governmental interest.

And Chief Justice Roberts said, how do you define critical mass, and if you can't define it, how can we measure whether your plan is narrowly tailored?

GWEN IFILL: And how do you measure a compelling state interest in this case or government interest?

So, how is the court different than it was in 2003, when affirmative action was upheld then, and now there's a possibility it won't be because of this particular -- the terms of this particular case? What's different about the court?

MARCIA COYLE: Well, the composition of the court has changed.

The Grutter decision was 5-4 which Chief Justice Rehnquist was chief. And the court was divided back then. It was a decision by Justice Sandra Day O'Connor, who, by the way, was in the courtroom today in the guest seats of the justices.

GWEN IFILL: Is that unusual?

MARCIA COYLE: Well, she has come occasionally, but I think she has a special interest in this case.

You have new justices. You have four new justices on the court. But with the absence of Justice Kagan in this case, you're dealing with eight justices, the possibility of a 4-4 split.

Also, Justice Kennedy has always been the key vote in these race-based cases. He asked very few questions today, so he didn't really reveal...

GWEN IFILL: You couldn't really read him.

MARCIA COYLE: No, you couldn't.

But I will say this about Justice Kennedy in these types of cases. He has never found an affirmative action plan that he feels is constitutional. But he always holds out the hope that there is one out there.

GWEN IFILL: So this is not -- this would basically take the power away from colleges to make the decision about what's acceptable, and let the courts decide it?

MARCIA COYLE: It depends on how the court -- how the court views the Grutter decision.

Mr. Rein, for Abigail Fisher, was talking about how Grutter needs to be I guess you could almost say tweaked, reworded to make clear when race can be used.

Justice Sotomayor said she thought he was saying Grutter ought to be gutted. I think the court is -- we will just have to wait and see how the court applies Grutter this case.

GWEN IFILL: Whether it's possible for any of it to stand if they rule in fact against the university.

MARCIA COYLE: Exactly.

And it's important to remember that Texas' 10 percent plan is not being challenged here, and it has resulted in some increased diversity.

GWEN IFILL: Go ahead.

MARCIA COYLE: Most universities don't have the 10 percent plan.

GWEN IFILL: Exactly.

MARCIA COYLE: Right.

GWEN IFILL: A fallback plan, in other words...

MARCIA COYLE: Exactly.

GWEN IFILL: ... to achieve maybe the same end.

If Justice Kagan has recused herself, and there's a possibility of -- possibility at least of a 4-4 decision, what would happen?

MARCIA COYLE: That would leave in place the lower court's decision, and that was by the U.S. Court of Appeals for the Fifth Circuit, which, by the way, is one of the more conservative federal appellate courts in the country.

That court ruled in favor of the university. Not surprisingly, too, Gwen, this case has attracted a large number of amicus briefs, more than 90 amicus briefs.

GWEN IFILL: Wow.

MARCIA COYLE: And they have come across the spectrum on the side of the university, roughly 70 of those 90 briefs. And they have come from military leaders, businesses, as well as civil rights organizations.

GWEN IFILL: And this will be a test about whether any of those kind of things matter, I suppose.

MARCIA COYLE: Absolutely.

GWEN IFILL: Marcia Coyle of "The National Law Journal," thanks again.

MARCIA COYLE: My pleasure, Gwen.

GWEN IFILL: Now Ray Suarez has more on the larger stakes and potential fallout arising from today's arguments.

RAY SUAREZ: And for that, we turn to two people who have been a big part of the national conversation surrounding this case.

Debo Adegbile is acting president and director-counsel of the NAACP Legal Defense and Educational Fund, which filed an amicus brief in this case.

And Richard Kahlenberg is a senior fellow at The Century Foundation. He wrote a recent report arguing for race-neutral admission policies that he says foster diversity.

You were at the court, Debo. What's at stake for coming classes of rising freshmen and their families seeking admission to public universities in this case?

DEBO ADEGBILE, NAACP Legal Defense and Educational Fund: Well, the stakes are very high.

It's clear that everybody recognizes today that diversity in higher education is a compelling interest. It's something that benefit -- all the all the students benefit from, black, white, Latino, Asian. Everybody benefits from these cross-racial interactions.

And, more importantly, too many of our high schools are racially identified. There's lots of residential segregation, which leads to segregation in schools, not by law, but by practice.

And the result of this is that too many kids don't have these interactions until they get to college and are able to learn from each other and break down stereotypes.

So, the ramifications of this case could be far-reaching, depending upon how the court rules.

RAY SUAREZ: Richard Kahlenberg, far-reaching consequences?

RICHARD KAHLENBERG, The Century Foundation: Oh, absolutely. This case really goes the question of what we mean by equal opportunity in our society.

Should race count in deciding who gets ahead? How do we create racial diversity in our universities? I agree with Debo that it's very important that our leading institutions of higher education have students of all different racial and ethnic groups.

My concern with the current affirmative action is that, essentially, universities assemble wealthy kids of all colors. And we're not getting that genuine diversity that has to do also with socioeconomic status.

RAY SUAREZ: Well, Debo Adegbile, you mentioned the use of residential patterns as a way of organizing high schools. By using the 10 percent plan, by basically taking the top finishers in senior classes, didn't Texas take race out of the equation by just saying, look, the top students from this high school, whatever color they are, are in?

DEBO ADEGBILE: In some sense, it did. Using the top 10 percent plan is racially neutral on its face. Of course, it's based in a history of segregation and discrimination in Texas that gives us the housing pattern that you find.

For a long time, the schools in Texas were segregated by the rule of law. And, indeed, the last time, many decades ago, that the University of Texas was in the Supreme Court on its admission policy, it was on the wrong side of history.

It was trying to keep Heman Sweatt, an African-American who wanted to attend law school at the flagship institution, out. And Thurgood Marshall took up his case.

And so the history of the 10 percent plan is that you get some measure of diversity, but you get it because of our history of separating each other.

What this plan is trying to do is to say, look, we need to come together in the classrooms, on the fields of competition, and in the dining hall to be able to have interactions that don't happen as much as we would like them to in our neighborhoods and schools.

RAY SUAREZ: Well, you have argued, Mr. Kahlenberg, for race-neutral or race-blind methods. If Texas is using this unfortunate legacy that Mr. Adegbile identifies, but using it in a non-race-conscious manner, don't you get where you want to get without using race as a yardstick?

RICHARD KAHLENBERG: Well, absolutely. That's been the dilemma all along. How can you get racial diversity without using race? And for years, the defenders of affirmative action said it is simply impossible.

Justice Blackmun said there is no other way than counting by race.

And Texas showed there is another way. Here, they have a 10 percent plan which allowed kids who had -- were from high schools that had never sent anyone to U.T. Austin now had the opportunity to go.

The other piece of Texas plan is an affirmative action program based on socioeconomic status. So economically disadvantaged students of all races were able to get into the University of Texas.

RAY SUAREZ: But didn't race come in, in a second phase? After they waved in the 10 percent, they then started using these various other filters to fill the rest of the classes in the U.T. schools. Isn't that the case?

DEBO ADEGBILE: That is exactly right.

And to Mr. Kahlenberg's point, it is both socioeconomic and race and leadership and a range of other factors. So, Texas, in many respects, is doing it in a way that is consistent with everything that you care about.

Our fundamental contention is that the history of discrimination is such, and the practical experience is such that if you have two things that are important, socioeconomic diversity and race, you shouldn't blow up the bridge that has allowed people to get to college in -- to follow one direction that won't get you all the way there.

We can do more and need to do more.

RAY SUAREZ: Is part of the problem that we're trying to achieve broadly social goals using individuals, so that what might be good for Texas or U.T. might be bad for Abigail Fisher?

RICHARD KAHLENBERG: Well, that's right.

And you saw the conservatives in the oral argument today really focusing on the means by which Texas was trying to achieve its diversity. So, Texas had a successful plan without using race. Then they threw race into the mix. And that's where people have real troubles.

By contrast, if you look at the polls, by 2-1, Americans support the idea of giving a leg up to low-income students of all races.

There's research to suggest that, today, the socioeconomic obstacles to a student's doing well on the SAT are about seven times as large as the racial obstacles.

And I think the court is likely to take account of those types of facts and suggest, OK, if you want to try to create equal opportunity in our society, go after those class disadvantages, and then the racial issue will take care of itself, given that African-Americans and Latinos are disproportionately low-income in our society.

RAY SUAREZ: You have said you both want to get to the same place.

DEBO ADEGBILE: Right.

RAY SUAREZ: What would be wrong with using Mr. Kahlenberg's formula, given that blacks and Latinos are disproportionately poor in the United States? You would still get to diversity if you didn't use race, if you used socioeconomic measures, wouldn't you?

DEBO ADEGBILE: So we have the perfect test case, which is there was a period in Texas when a lower court struck down the consideration of race and Texas could only have the top 10 percent plan.

And under that plan, the freshman class at U.T. only had 4.5 percent African-Americans, despite a 11 percent, 12 percent, 13 percent graduation rate from high school.

And so there was a measurable and appreciable gap that led to students on campus feeling racially isolated and feeling like they were spokespeople for their race, that there weren't other students like them.

That inhibited the cross-racial interactions and the learning from one another. That is the educational goal.

So, Texas, having had that experience, decided to add on this additional piece to try and get more benefits from the goal of diversity.

RAY SUAREZ: Quickly, Mr. Kahlenberg, if Abigail Fisher prevails, what would face incoming freshman classes over the next several years?

RICHARD KAHLENBERG: Well, I think the research suggests that if Abigail Fisher prevails, we will see universities pursue a better kind of affirmative action, one that gets at these issues of class more deeply than they do today.

Right now, under race-based affirmative action, 86 percent of African-Americans at the selective colleges are upper-middle-class or even quite wealthy.

And at the same time, rich kids outnumber poor kids by 25-1. So we need to more aggressively address this class issue.

And I wish that universities would care about that for its own sake.

But the experience in our country suggests that, for a variety of reasons, universities do care about racial diversity, and they will use class or economic status only as a way of indirectly getting at race.

RAY SUAREZ: Richard Kahlenberg, Debo Adegbile, gentlemen, thank you both.

DEBO ADEGBILE: Thank you.

RICHARD KAHLENBERG: Thank you.

SCOTUS Preview: Looking at Affirmative Action

Mon, 01 Oct 2012 18:36:03 EDT

A line forms up to attend the opening day of the Supreme Court. Since 1917 the first Monday in October has been the official opening day of the Court. Photo by Chris Maddaloni/CQ Roll Call.

The Supreme Court was back in session Monday after a three-month recess, and Marcia Coyle, chief Washington correspondent for The National Law Journal, spoke on the NewsHour to preview the court's new term.

None of the 40 cases currently on the docket are blockbusters on the level of last term's review of the Affordable Care Act. Still, some of the cases are already attracting wide attention, and Chief Justice John Roberts in particular will be under the microscope after he provided the surprise fifth vote to uphold the individual mandate in the health care law.

Coyle walked us through a quick primer on what to expect from the court over the next nine months.

AFFIRMATIVE ACTION

It has been years since the court handled its last major affirmative action case: Grutter v. Bollinger in 2003. Five justices voted to uphold the University of Michigan Law School's race-conscious admission policy, with Justice Sandra Day O'Connor writing for the majority that the Fourteenth Amendment's Equal Protection Clause does not prevent a university from considering an applicant's race during its admission process, so long as each applicant is evaluated holistically.

The court will revisit the issue Oct. 10, when it is scheduled to hear oral arguments in Fisher v. University of Texas at Austin, sure to be one of the term's highlights. The Fisher case involves a challenge to the race-conscious admission policy used by the University of Texas at Austin to evaluate applicants for some of the seats in its new freshman classes. Abigail Fisher, a white applicant who was rejected by the school, filed suit, asserting that the policy violates the Equal Protection Clause.

Many are watching for a significant shift in the court's stance toward affirmative action, given the changes in the court's roster since the Grutter decision was handed down. O'Connor, the author of the Grutter decision, has since been replaced by Justice Samuel Alito. And Justice John Paul Stevens, another of the five justices in the Grutter majority, has since been replaced by Justice Elena Kagan, the former Solicitor General who already recused herself from the court's deliberations over whether to even hear the Fisher case.

ROLE OF U.S. COURTS IN HUMAN RIGHTS CASES

The court kicked off the new term with the second round of oral arguments in Kiobel v. Royal Dutch Petroleum, a case with significant implications for multinational corporations and human rights groups.

The Kiobel case was originally brought to federal court by a group of 12 Nigerians who alleged that Royal Dutch Petroleum, a foreign subsidiary of Royal Dutch Shell, was complicit in human rights abuses committed by the Nigerian government.

At issue during the first round of oral arguments was whether corporations could be held liable in suits brought by foreign nationals for violations of international law committed overseas. But the ensuing discussion was dominated instead by a more fundamental question -- whether U.S. courts even had jurisdiction over such suits -- and the court ordered a second round of arguments devoted to that very question.

Multinational corporations and human rights groups are paying close attention to the Kiobel case, since they are often parties to suits brought up under the Alien Tort Statute. Human rights groups have relied on the statute over the last few decades to take individuals and corporations to court for unlawful conduct allegedly committed outside U.S. territory.

PETITIONS TO WATCH

The justices have been petitioned to take on several other high-profile cases this term, but so far it has held off on deciding whether to add them to the docket.

Among those: challenges to aspects of the federal Defense of Marriage Act that block legally wed gay couples from receiving various benefits under federal law, as well as challenges to California's Proposition 8, which amended the state's constitution to prohibit gay marriage.

It is also possible the court will perform another review of the 1965 Voting Rights Act. It is still considering whether to take up challenges to the landmark civil rights legislation brought by municipalities in Alabama and North Carolina, and a dispute over South Carolina's voter identification law may reach the Court before the new term ends.

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New Session of Supreme Court Expects Cases on Voting Rights, Same-Sex Marriage

Mon, 01 Oct 2012 18:02:00 EDT

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JEFFREY BROWN: The first Monday in October, three months after upholding President Obama's health care law, the Supreme Court was back with a docket that may even rival last year's term for drama.

The justices will decide a case on affirmative action in higher education, and are expected to take up disputes on same-sex marriage, civil rights law, and more.

The term opened today with arguments in another controversial case: whether businesses can be sued in U.S. courts for human rights violations that occur in foreign countries.

Marcia Coyle of "The National Law Journal" was in the courtroom this morning and is back with us tonight.

And welcome back after three months.

MARCIA COYLE, "The National Law Journal": Thank you, Jeff. Nice to be back.

JEFFREY BROWN: Now, let us stipulate, as the lawyers say, that last year was a blockbuster.

(LAUGHTER)

MARCIA COYLE: Absolutely.

JEFFREY BROWN: And now this term has some potential itself as well, right? Affirmative action.

MARCIA COYLE: Yes, it does, Jeff.

And it would be a different kind of blockbuster term. Last term was really a lot about the structure of government under the Constitution. Did Congress exceed its lawmaking powers under the Constitution when it enacted the health care law? What role do state governments have in enforcing immigration laws?

This term, a lot of the questions, either on the docket or pending, whether the court will take them, really involve equality issues, issues arising under the Equal Protection Act.

JEFFREY BROWN: So, affirmative action is on the docket.

MARCIA COYLE: It is. It's going to be argued next week.

It involves the University of Texas and whether it can use race as a factor in its admissions policy in order to increase diversity within its student body.

JEFFREY BROWN: All right, we're definitely going to look at that next week.

MARCIA COYLE: Yes.

JEFFREY BROWN: But pending, as you say, use the word, same-sex marriage.

MARCIA COYLE: Yes.

There are seven petitions that have been filed in the court, but they really break down into two cases, first, challenges involving the federal Defense of Marriage Act. A key provision defines marriage for all federal purposes as between a man and a woman.

And then the second set involves California's Proposition 8. And that proposition banned same-sex marriage in California.

JEFFREY BROWN: Right, so wading into an area where states are voting all the time on this.

MARCIA COYLE: Absolutely. There are referendums on a number of state ballots involving same-sex marriage.

JEFFREY BROWN: And just a couple of other cases we might see, civil rights, the Voting Rights Act of 1965?

MARCIA COYLE: Yes. Yes.

There are challenges to what is considered the crown jewel of the civil rights movement.

Section 5 of the 1965 Voting Rights Act requires jurisdictions that have a history of past discrimination in voting to get pre-approval from the Justice Department or a federal court in Washington whenever they make changes in their voting practices.

That section is being challenged in two cases already at the court, although the court hasn't said it will review them. And, also, we may see Section 5 being challenged in cases involving voter I.D. laws.

As you know, the Justice Department has filed a number of suits in states that have enacted voter identification laws.

JEFFREY BROWN: All right.

Now, when we last talked...

MARCIA COYLE: Yes.

JEFFREY BROWN: ... things ended with tension, with questions about the role of the chief justice, whether somehow he had switched to becoming, you know, somehow closer to the center, whether he might be the deciding vote on a lot of different cases.

How much of that you -- you were able to talk to a couple of justices over the summer.

MARCIA COYLE: Yes. Yes.

JEFFREY BROWN: Some of them have been appearing on television occasionally.

MARCIA COYLE: They have, yes.

JEFFREY BROWN: How much of that seems to linger on? What can you tell?

MARCIA COYLE: Well, I can tell you from at least opening day today that there didn't appear to be any lingering tensions. This was a court that was business as usual.

But also I can tell you just from personal experience, I remember Bush v. Gore and the aftermath. That decision, there was a lot of bitterness and anger. And yet the court moved very quickly into doing business.

Under the Roberts court, the high point I think for the emotion and anger was the last day of the 2006-'07 term, when they issued a ruling again on race involving whether school districts could use race to assign students to public schools.

But over the summer, that dissipated as well. And as one of the justices said, we move on.

And this court does. It actually has almost two decades now of being perhaps the most collegial court in modern times.

JEFFREY BROWN: Of course, that won't stop us from watching every vote, especially by Chief Justice Roberts.

MARCIA COYLE: No, that's right.

Chief Justice Roberts is a very conservative justice. And I don't think his rule -- ruling in the health care law changes that one bit.

JEFFREY BROWN: All right, now, the case that they did argue today, it's about using U.S. courts to bring international human rights law into effect against -- in multinational corporations.

MARCIA COYLE: Right.

JEFFREY BROWN: Trying to spit it out.

MARCIA COYLE: I know.

JEFFREY BROWN: Multinational corporations is what I'm trying to say.

MARCIA COYLE: Right.

It involves a 1789 law, the Alien Tort Statute, very simple, straightforward law that says federal courts have jurisdiction over actions brought by aliens who have been basically injured by violations of international law or violations of treaties of the United States.

This is old business. The court heard arguments last term on whether corporations could be held liable under that statute. Then it later ordered re-argument on a broader question.

And that is whether these cases can be brought in U.S. courts against any defendant who committed a violation in a foreign country. And, today, the court heard arguments on that.

And it's hard to tell. They weren't -- it seemed a number of justices were not happy with business' approach, which is to say there is no extraterritorial application of this law, period.

And yet also we're not too crazy about the human rights groups' argument that federal courts should be open when -- to cases where there's absolutely no connection to the United States.

JEFFREY BROWN: So what are the stakes? You have got the stakes for business, clearly, doing business abroad, and stakes for human rights law application.

MARCIA COYLE: Right. Right.

Business looks at these cases as very costly to defend. They don't like to be labeled, either correctly or not correctly, as human rights violators. They want to see them ended in terms of events occurring in foreign countries.

Human rights organizations have used this law as a very effective tool, even if they don't win these cases. And many times, it has the effect of changing the behavior of corporations that are operating in countries with repressive regimes.

JEFFREY BROWN: All right, one more quick question about the term...

MARCIA COYLE: OK.

JEFFREY BROWN: ... because, of course, it comes against the backdrop of the presidential campaign...

MARCIA COYLE: Ah, yes.

JEFFREY BROWN: ... that might impact the future of the court.

MARCIA COYLE: Right. Right.

JEFFREY BROWN: There are several older jurists, although they still seem to be quite vigorous, I guess, right?

MARCIA COYLE: I believe they are.

We have four justices who in their mid to late 70s.

And there is the potential for either candidate, President Obama or Mitt Romney, to change the direction of the court if -- depending on who may retire in the next four years. There's no indication that any one of them wants to retire. But you never know.

JEFFREY BROWN: And I wonder if that keeps everybody watching these cases even more carefully against that backdrop.

MARCIA COYLE: It always does. It will be very interesting, the next four years.

JEFFREY BROWN: All right, Marcia Coyle of "The National Law Journal," welcome back. Thanks, as always.

MARCIA COYLE: My pleasure, Jeff.

David Souter Gets Rock Star Welcome, Offers Constitution Day Warning

Mon, 17 Sep 2012 18:20:49 EDT

Former Supreme Court Justice David Souter speaks with Margaret Warner at 'Constitutionally Speaking' in Concord, N.H. on Sept. 14, 2012. Photo Courtesy David Wolowitz for the N.H. Supreme Court Society.

Not since comedian Bill Cosby visited Concord, N.H.'s Capitol Center for the Arts, has a celebrity been welcomed there with same the thunderous and sustained applause that greeted former Supreme Court Justice David Souter last Friday. Even after he and I had taken our seats on stage, ready to begin our extended conversation, the hearty clapping continued for another full minute and more. The intensely private Souter, who hasn't made any extended public remarks in his state since retiring three years ago, looked abashed at first -- then beamed. "Thank you, thank you," he said.

More than 1,300 people had come to hear Souter's thoughts on how the Constitution --celebrating the 225th anniversary of its adoption, September 17, 1787 -- has managed to "keep up with the times." Not exactly the sort of Friday night fare that usually attracts a sold-out crowd to any city's largest public space. But this is New Hampshire after all, and civic-minded folks here are immensely proud of the distinguished jurist who's called New Hampshire home since he was a boy.

Souter wasted no time taking on the theory of Constitutional interpretation advanced by his former colleague Justice Antonin Scalia that judges must adhere to a "fair reading" of the meaning the words in the Constitution had at the time they were adopted. That argument works just fine, Souter said, when it comes to what he called the "structural constitution" -- which lays out the three branches of government and their powers, and mandates clear-cut rules like the requirement that a president be at least 35 years old.

You can watch excerpts of our conversation after the jump.

But this country also has "call it the 'Liberty Constitution,'" he said, composed of the Bill of Rights and other provisions guaranteeing certain freedoms. "You get into terms like 'unreasonable searches and seizures,' which are prohibited," he said. "References to the freedom of speech, without any further definition. Security in people's houses. These general terms are best understood as a listing or menu of approved values, the application of which has to be worked out over time.... The problem of trying to make them work in practice, was an assignment that was left to the future," he added, to the Congress and the ultimate arbiter, the Supreme Court.

The thrust of our more than hour-long conversation was his earnest effort to explain how the meaning of the Constitution must be constantly refined and reapplied by the Court to new fact situations. It was also a rejoinder to critics who decry "activist judges." Take the Court's expansion of the First Amendment's guarantee of freedom of speech to include freedom of association, the right to join political parties or advocacy organizations like the NAACP. "Nobody in his right mind in 1791 when the Bill of Rights was adopted ever thought freedom of speech" would include the right to join organizations. But "without the power to come together and have someone speak for them, their right to speak really isn't worth much," he said. The Court recognized freedom of association, he said, "to give practical value to the general right of speech." That's the job of the Supreme Court, "to figure out how these things work, and the Constitution does not tell you that."

But what about a more controversial set of cases, in their times and even today, concerning racial segregation? I asked. Plessy v Ferguson in 1896 held that despite the Equal Protection Clause of the 14th Amendment, a state law requiring separate railroad cars for blacks and whites was constitutional as long as the cars were physically the same. Sixty years later, the Court's unanimous 1956 Brown v Board of Education decision held that separate schools for white and black children were unconstitutional because they were "inherently unequal." "What is the public to make of that?" I asked.

"It's natural, I've done it myself. I've gone around saying Plessy was wrong the day it was decided," he said. "But in fact that's unrealistic and I think it's unfair." The ruling has to be understood in the context of those justices' life experiences, he said. "The court that decided Plessy v Ferguson consisted of judges that remembered slavery," he said. To them, the idea that "a formerly enslaved population and their children...were entitled to exactly equal facilities on a railroad with the formerly dominant white population, that looked like real progress." So in assessing equality, they focused only on the physical facilities. Was the upholstery of the same quality in the cars? Was the service?

But 60 years later, he said, the justices had vastly different life experiences. In assessing equality, they saw that "the facts were not simply things like nice buildings and clean textbooks. They looked beyond the measurable facts to what the facts meant." And it was clear to them that the states requiring separate schools "were enforcing separation because they believed that the black group was not as good as the white group."

It's an argument that Souter returned to time and again, that the meaning of the Constitution is found not only in its literal words or concepts, but in how they apply to Americans of the current era. "What we learned from Brown is that the facts can include the meaning of facts as people experience them, as long as we have the eyes to see that," he said. "And our capacity to see that changes over time."

This argument wasn't entirely new. Souter laid it out in a commencement speech at Harvard in 2010. In that same speech two years ago, he argued -- as he did again Friday -- that the Court often has to decide between two "legally Constitutionally recognized values that can be in conflict with each other. They both can't win all the time. The paradigm examples are the guarantees of liberty and equality."

But Souter, who still sits as a part-time federal appellate judge, broke new ground Friday night in venturing comment on a couple of controversial Supreme Court rulings issued after he left that bench. On the 2010 Citizens United decision, which struck down restrictions on independent campaign expenditures by corporations on First Amendment grounds, he noted that anyone who reads his former opinions in campaign finance cases "will know perfectly well that I would have gone the other way." The majority was too purist, too single-minded in upholding the free speech guarantee to the exclusion of others, he said.

Former Justice Souter on the Supreme Court's Citizens United decision:

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"There was a play of Constitutional values going on there," he said, between the "liberty model of free expression" and the "equality model," which would recognize "the possibility of a limitation on corporations so they do not drown out other speech." No constitutional guarantees can be seen as absolute when they conflict with other guarantees. "If speech always wins, even if it's an atomic secret that's going to be broadcast to our enemies, it's easy to make a decision. Speech always wins. But it doesn't....Liberty doesn't always trump equality or quality always trump liberty. " A principled decision is not merely one that rests on a principle, but one in which "the court candidly and convincingly explains why this principle prevailed over that principle. It is the choice of principles that is the tough part."

The Souter Seminar on Constitutional law had been underway 45 minutes when audience questions began. He carefully opined on one aspect of the recent decision on the Obama health care law; on prospects for a same-sex marriage if it reaches the Court (he took a pass); and on gun control under the Second Amendment.

Former Justice David Souter reflects on the Health Care Reform Law:

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But he grew most passionate when asked about the schools' responsibility to teach young people the basics about their government and its founding principles. It's a subject close to his heart. Since retiring, he's joined a national commission to bolster teaching in the humanities and social sciences, as well as a new N.H. Institute for Civic Education. The greatest threat to America's republican form of government won't come from foreign invasion, or military coup, he said, but from what he described as "the pervasive civic ignorance" of Americans today.

Former Justice Souter discusses 'pervasive civic ignorance' in America:

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Because of cutbacks in civic education from the 1970s onward, and exacerbated by the No Child Left Behind law, two-thirds of Americans today don't even know that their country has three branches of government, he said. So they don't know whom to hold accountable for the country's festering problems. "What I worry about is that when problems are not addressed, people will not know who is responsible," he said. "And when the problems get bad enough - another serious terrorist attack, another financial meltdown - some one person will come forward and say, 'Give me total power, and I will solve this problem.' That is how the Roman republic fell....That is how democracy dies. And if something is not done to improve the level of civic knowledge, that is what you should worry about at night."

Hoping against hope to end on an upbeat note, I asked: "Do you think we're losing our ability -- which has always animated our belief in the Constitution and our country -- that we are always perfecting our democracy?"

His reply was anything but hopeful. "I don't think we have lost it. I think it is in jeopardy. I am not a pessimist, but I am not an optimist about the future of American democracy," he said. "We're still in the game, but we have serious work to do, and serious work is being neglected right now."

Former Justice Souter on whether our democracy can endure:

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Does he think we still have the capacity to do what the Framers did over the hot Constitutional Convention summer 225 years ago, which was compromise to overcome our differences? Souter paused. "I would like to think that enough examples of non-compromise are going to start people thinking that there must be a better way to try to govern the country," he replied.

Another round of thunderous applause swelled the room. But they were sobering words from a sober and deeply worried man.

The Souter conversation was part of a year-long project, Constitutionally Speaking, designed to spur dialogue about the nation's founding document, and provide materials for New Hampshire schools and teachers on the study of civics. The project is jointly sponsored by the N.H. Supreme Court Society, the University of New Hampshire School of Law, the N.H. Humanities Council and the NH Institute for Civic Education.

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Watch Margaret Warner Talk With Former Supreme Court Justice David Souter

Fri, 14 Sep 2012 17:54:18 EDT

Watch NewsHour correspondent Margaret Warner host a conversation with retired U.S. Supreme Court Justice David Souter starting at 6 p.m.

The sold-out event is being held at the Capitol Center for the Arts to kickoff a new project called Constitutionally Speaking.

The full event will be posted on the Constitutionally Speaking project website on Monday, which is Constitution Day.

And don't miss Margaret's August interview with Justice Antonin Scalia. You can track the NewsHour's coverage of the Supreme Court here.

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Justice Scalia Writes How-to Read Guide for Interpreting the Law

Thu, 09 Aug 2012 18:31:00 EDT

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JEFFREY BROWN: And now to a rare and very inside look at the philosophy and practice of a hugely influential and sometimes provocative Supreme Court justice.

Margaret Warner talks with Antonin Scalia.

MARGARET WARNER: Well, for 26 years on the Supreme Court, Justice Antonin Scalia has long grounded his opinions in the words of the Constitution and the law.

Now he and lexicographer Bryan Garner have issued a 567-page book laying out for other judges how and why they should do the same. It outlines nearly 60 must-do canons of interpretation and dismisses another 13 notions as wrong-headed.

The new book is "Reading Law: The Interpretation of Legal Texts."

And Justice Scalia joins me now.

And thank you for being here.

JUSTICE ANTONIN SCALIA: Thank you. Good to be here.

MARGARET WARNER: Now, you're a busy man, judging 75, 80 major cases a year. What drove you to write this, some have called it a tome?

ANTONIN SCALIA: Oh, no. It's not a tome.

Well, I have been very much devoted to textualism and to that branch of textualism that's called originalism. That is, you not only use the text, but you give the text the meaning it had when it was adopted by the Congress, or by the people, if it's a constitutional provision.

Although I have written a lot of opinions on the subject and spoken on the subject, and even written on the subject, I have never done hit in the depth that this book does.

The book is in two parts. one is -- expresses, you know, my philosophy of judging and Bryan's philosophy of judging. And the second part is a how-to-do-it part. Assuming you are a textualist, how do you go about doing it?

The process is not novel. I didn't make it up. It shows that it is historically what American judges did, what English judges did. And it's the other modes of interpretation that are novel and have to justify themselves.

MARGARET WARNER: What made you think there's a need? What's wrong with the -- you see, I guess, hundreds of appellate decisions that come before you. What's wrong with the judging you see today that they would need this book?

ANTONIN SCALIA: Even those who would be textualists don't know how to do it very well because it has not been taught in law schools.

Of course, you know, none of them is absolute. This particular canon looks in this direction. Another canon may look in the other direction. And the trick for a judge is to see where the balance lies. It's like a murder mystery. There are clues pointing one way, pointing another way. Which clues are the most persuasive, that's what the canons are all about.

MARGARET WARNER: When you call yourself a textualist, that's not the same thing as the popular notion or the popular term that I think many laypeople know, which is strict constructionist.

Can you explain that?

ANTONIN SCALIA: Oh, yes.

I have never been a strict constructionist and advise no one to be a strict constructionist. Strict constructionism gives a bad name to textualism.

For example, if you were to interpret the First Amendment strictly, you would come to the conclusion that Congress can censor handwritten letters, because it says Congress shall make no law abridging the freedom of speech or of the press.

A handwritten letter is not press, it's not speech, so Congress can -- of course, not. That -- that's not what it means. Speech and press is meant to cover the ground of expression.

MARGARET WARNER: Let me cite a critique of your -- your fair reading of the text sort of rule from a former colleague of yours, retired Justice David Souter.

And he said he thought the fair reading model was -- had a tenuous connection to reality. He said it's one thing to have the Constitution say senators must be 30 years old, but that there are these broad guarantees in the Bill of Rights, like freedom of speech, freedom of religion, equal protection of the law, that the application has to evolve over time and that, otherwise, the Constitution cannot fit the modern age.

ANTONIN SCALIA: It doesn't have to evolve over time.

If it was up to the courts to make it evolve over time, there wouldn't have been a provision for amendment. It contains a provision of amendment precisely because the framers understood that they may find some provisions in the future are not good and additional provisions are needed.

Look, what the Constitution does, those provisions especially that guarantee individual rights, it takes certain matters out of the background rule of democracy, which is, the majority rules. Now, there are exceptions to that. And most of them are in the Bill of Rights. The majority won't rule about -- about speech, about religion, about quartering troops in homes and so forth.

Every one of those things is taken out of democratic self-government. And whenever you leave it up to the courts to read in a new exception, you're leaving it up to the courts to limit the scope of self-government.

So it is not that I think the Constitution cannot be applied to new phenomena, such as television, such as telephones, as far as free speech is concerned.

Of course it can. You have to figure out how those principles apply to new phenomena. But as to the phenomena that existed at the time, that is -- this is what originalists would consist of -- with respect to those phenomena, it doesn't change.

MARGARET WARNER: So that's why you would say, with the death penalty, which you have said often, that because it existed at the time of the Eighth Amendment against cruel and unusual punishment, the fact they didn't mention it means...

ANTONIN SCALIA: Well, it isn't just that they didn't mention it. They said cruel and unusual punishments.

But nobody at the time believed that that proscribed the death penalty, because every state had it, and every state continued to have it for several centuries. Now, it may be a very bad idea, in which case, pass a law. You don't need the Constitution to get rid of it, which lets the court...

MARGARET WARNER: But you just mean the court will never declare it unconstitutional?

ANTONIN SCALIA: That's right. But the court doesn't have to.

ANTONIN SCALIA: If the people really don't want it, pass a law, as many states have done.

MARGARET WARNER: Let me take another modern sort of situation.

We just had a couple horrendous mass shootings. You have told Chris Wallace on FOX television in an interview recently that you didn't -- you thought it was an open question whether, under the Second Amendment, you could even ban someone from carrying their own rocket launcher.

Really?

ANTONIN SCALIA: Oh, yes. And read the opinion in Heller.

It didn't purport to say everybody can carry whatever weapons he wants. In fact, it mentioned that there was a misdemeanor in ancient times called affrighting. Affrighting consisted of carrying a frightening weapon, a head axe or something like that, to scare people.

So, it's clear that certain restrictions on the bearing of arms are traditional and can be enforced. What they are, it will have to be decided in future cases.

MARGARET WARNER: Let me ask about one recent decision that you were actually in the minority on.

And that was the Obama health care reform act decision, in which, as we know, Justice Roberts agreed with you that the Commerce Clause didn't apply, but he found it constitutional under the government's power of tax.

Now, do you think he was following the text? Was he following these canons?

ANTONIN SCALIA: I obviously didn't think so, because I dissented. I wouldn't have dissented if I thought that was a proper application of textualism. I did not.

And the reasons I did not are set forth in my dissent.

MARGARET WARNER: But, I mean, the power to tax is in the Constitution.

ANTONIN SCALIA: Oh, the issue is not whether Congress has the power to tax. The issue is whether, in this particular law, Congress was exercising the power to tax.

And in all of our prior cases, we said that, even if you call it a tax, if it's being imposed for the violation of a law, it's a penalty. And this one wasn't even called a tax. It was called a penalty.

MARGARET WARNER: I have to ask you about these reports, which I know you have dismissed, about there being some sort of a rift between Justice Roberts, Chief Justice Roberts, and the four -- quote, unquote -- "conservative members of the court."

And much has been made of the fact that, in your dissent, you didn't associate yourselves with Justice Roberts on the Commerce Clause, even though, essentially, your opinion was very similar.

Was that a slap at the chief justice? Were you distancing yourself from...

ANTONIN SCALIA: Well, we were certainly distancing ourselves from the opinion. That doesn't mean we are suddenly enemies of the chief justice or anything. That is silly. That doesn't happen at the court. That's -- that's childish.

MARGARET WARNER: Now, you say you don't always follow your own rules.

ANTONIN SCALIA: No, I'm saying I fear that I may have broken some of my own rules.

(LAUGHTER)

ANTONIN SCALIA: I certainly didn't fail to follow them intentionally.

MARGARET WARNER: And would you...

ANTONIN SCALIA: But I just wanted to cover my back, because people go, oh, Scalia, you wrote this in the book, but in this case, you didn't do that. Well, I...

MARGARET WARNER: Justice Antonin Scalia, thank you so much.

ANTONIN SCALIA: Thank you. I'm glad to have been here.

Examining the Supreme Court Session Through the Lens of History

Wed, 04 Jul 2012 18:25:00 EDT

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GWEN IFILL: Now: the recently concluded Supreme Court session, and its impact on the law, policy and politics.

Judy Woodruff has that.

JUDY WOODRUFF: It was a term marked by major decisions on health care, immigration, criminal sentencing, and other big decisions.

We take a look at how it played and some historical context.

And for that, I'm joined by Marcia Coyle, the Washington bureau chief at The National Law Journal, and Michael Beschloss, a presidential historian.

They both join us now.

It's good to have you both with us.

MICHAEL BESCHLOSS, Presidential Historian: Thank you.

MARCIA COYLE, The National Law Journal: Thanks, Judy.

JUDY WOODRUFF: So, Marcia, let me start with you.

What is this court term mainly going to be remembered for? Clearly, health care. Everybody's talking about that, but what else?

MARCIA COYLE: Well, I think I would add to that, Judy, it's also going to be remembered because of health care and, largely through the efforts of Chief Justice John Roberts, a term in which the court really extricated itself from one of the most politically charged terms in decades.

But, aside from health care, we also had a major politically charged case in the Arizona immigration challenge. And there, the court, in a divided decision, found the federal law preempted most of Arizona's anti-immigration statute.

There also were major decisions in the criminal justice area. If you recall, we talked about the decision -- again, it was a 5-4 decision, though -- invalidating mandatory life sentences without parole for juveniles convicted of murder.

The court also ruled that a fairly recent federal statute, the Fair Sentencing Act, which reduced sentences for crack cocaine offenses, did apply to a band of offenders who committed their crimes before the act took effect, but were sentenced afterwards.

A couple of major First Amendment cases -- the Stolen Valor Act, which makes it crime to lie about getting a medal, the court continued a trend of not wanting to carve out of First Amendment protection speech that a lot of us find very distasteful. They struck down that act.

JUDY WOODRUFF: Michael, what about that first point that Marcia made, the court noted for wanting to -- or succeeding in extricating itself from this perception that it was politically divided?

MICHAEL BESCHLOSS: That's...

(CROSSTALK)

JUDY WOODRUFF: How common is that, how ordinary is that in the history of our Supreme Court?

MICHAEL BESCHLOSS: Usually, it doesn't extricate itself. It usually lends itself to charges like that at crucial moments, because, Judy, you look at what happened last week, this had all the makings of being FDR in 1936, when big parts of the New Deal were overruled by the Supreme Court.

And the American people, who were voting that year for or against Roosevelt, took that as meaning not that the justices had applied legal theory and said this is not within the Constitution, but they took it to mean the New Deal's illegitimate, Roosevelt is a bad man, he shouldn't do anything else that extends the reach of a federal government.

It was something that was very damaging, and could have been to President Obama, I think, had this happened.

JUDY WOODRUFF: And, Marcia, just by saying extricating itself, you're really talking about a conscious decision on the part of one or more justices to do that.

MARCIA COYLE: Well, I think so, Judy, although I think -- I wouldn't say that the court, that the justices, for example, the chief justice, who formed a majority to uphold the health care act and also was part of the majority striking down much of the Arizona act, made a political decision.

I really believe that he found a way consistent with his own view of the law to uphold the health care act, and that was through the taxing power of Congress. I don't think he would have signed an opinion otherwise.

But I think what he did was, he -- he and the other justices -- and it did take give on the part of the more liberal wing of the court as well on the Medicaid part of the act. But they made -- they were able to show that this was more of a bipartisan, non-political decision. And that's how they were able to remove the court from really what's going to be a political debate concerning the election.

JUDY WOODRUFF: And, Michael, back on the historical perspective, looking at this, have -- to what extent have courts in the past felt or believed, to the extent we can know this, that it was damaging to be perceived as having a political divide, a divide along ideological lines?

MICHAEL BESCHLOSS: Sure.

Maybe the best example I can think of is 1974, U.S. v. Nixon, when the court was ruling on whether Nixon, Richard Nixon, should have to give up his tapes which were subpoenaed. And it was a 8-0 vote, including people whom Nixon had appointed.

And some thought perhaps, we should recuse ourselves. And, actually, there was some discussion on the court at the time, we now know from diaries and later records, that, no, it's better for us to have this ruling including Nixon appointees to show that this is not something that was on political lines.

JUDY WOODRUFF: Marcia, you mentioned a couple of other decisions here.

And I think one question that's come out of the decisions of this term is, what have we learned about the relationship of this court to other branches of government? Clearly, that question rises -- arises from the health care decision, but it does about some of these other decisions as well.

MARCIA COYLE: Well, it does.

Health care in particular, the Arizona immigration case, I think, Judy, even though the court upheld the individual mandate in the health care law, you have to look at the rest of the decision. You had the court putting some limits on Congress' power under the Commerce Clause, as well as its powers under the tax and spending clause.

In Arizona, though, you see Justice Kennedy writing an opinion that is very strong on the role of the national government in enforcing immigration laws. So, I think it's hard to say this is a states' rights court, or this is always a national government court. It really depends on the issue that comes up.

This is a conservative court, though, Judy.

JUDY WOODRUFF: Is it -- has it -- how easy has it been, Michael, to classify courts in the past on the basis of whether they are a states' rights court or...

MICHAEL BESCHLOSS: Usually, it's been easy because they have tended to be categorized on the basis of their major rulings.

Earl Warren's court, the Warren court, was thought to be this wild -- by its opponents, this wildly liberal, usually big-government-oriented court that was doing everything it could to legislate from the bench and extend the realm of the federal government.

But if you microanalyze a lot of decisions that were issued during those years, they don't really meet that template.

JUDY WOODRUFF: And, Marcia, in terms of what the court did this term and the last couple of terms, what do you look for, for the next term? Are there clear markers, or can we really draw no conclusions about what cases are coming...

(CROSSTALK)

MARCIA COYLE: I wish we could.

This term was unusual in a couple of respects. There were some non-traditional alignments among the justices. You saw several justices going over to the left or to the right depending on the particular issue, more so than we saw last term.

You saw Justice Kennedy, who is obviously the swing vote and always in a majority of the 5-4 decisions -- in the past, he pretty much dominated the majorities on the right. But this term, he swung evenly to the left and the right.

So what does this mean for going forward? I would hesitate to say, because next term, it's a whole different round of issues that the court may face, for example, affirmative action, voting rights, gay marriage. Those are issues that some of the justices, including the chief, have very strong feelings about.

JUDY WOODRUFF: Do we err, Michael, too often in trying to read these alliances...

MICHAEL BESCHLOSS: We sure do.

JUDY WOODRUFF:... on the part of the justices...

(CROSSTALK)

MICHAEL BESCHLOSS: Absolutely. Sometimes, it gets really cartoonish.

And one reason is the political atmosphere, because I guarantee you supporters of both Barack Obama and Mitt Romney this year, you will hear them saying, most important election in probably not American history, but world history, and the fate of the court hangs in the balance.

And the premise there is that Romney will, if he gets appointments to be made, will appoint robots will always do what was considered to be the conservative ruling, and the same thing on the Obama side.

So, as long as the court discussed in such a sloppy way that really doesn't fit reality very well during a campaign, people expect, I think, this to happen on the court. And, as Marcia said, when you analyze the history, oftentimes, it doesn't.

MARCIA COYLE: I think Judy, too, someone said this term should show most people that you can't really cover or read the court like you do Congress. It's a very different branch of government.

MICHAEL BESCHLOSS: Right.

MARCIA COYLE: And one other point. This is a young court, in the sense that the chief justice has only been chief for seven terms. And when you thank you about a legacy, he's got probably 20 more years to serve.

JUDY WOODRUFF: It's good to be reminded about that.

(LAUGHTER)

MICHAEL BESCHLOSS: We're trying.

JUDY WOODRUFF: It's not like covering the Congress.

Marcia Coyle, Michael Beschloss, thank you both.

MARCIA COYLE: My pleasure.

MICHAEL BESCHLOSS: Thank you, Judy.

GWEN IFILL: On our website, you can find a slide show that highlights other major cases decided by the Supreme Court over the years.

The Supreme Court's Political Legacy

Wed, 04 Jul 2012 16:02:00 EDT

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Last week the Supreme Court issued a decision on the Affordable Care Act, sending reverberations through the political sphere. But it wasn't the first time. Landmark Supreme Court cases, like Roe v. Wade or Citizens United v. Federal Election Commission, have also contributed to the ongoing political dialogue.

In tandem with Judy Woodruff's conversation Wednesday on the political impact of this year's Supreme Court term, NewsHour's slideshow chronicles over 150 years of politically charged Supreme Court cases.

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For more coverage, visit the NewsHour Politics page.

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The Intersection of Politics and the Supreme Court

Wed, 04 Jul 2012 16:00:00 EDT

A slide show of Supreme Court decisions impacting national politics.

Scott v. Sandford (1857)

The Dred Scott case appeared on the front page of "Frank Leslie's Illustrated Newspaper."

In the landmark 7-2 decision, the Supreme Court ruled that blacks, whether free or slaves, were not and could not become citizens of the United States. The ruling played into a growing national debate about slavery in the years running up to the American Civil War.
Photo: MPI/Getty Images

Brown v. Board (1954)

In an unanimous 9-0 decision, the Supreme Court overruled the "separate but equal" doctrine that had been the basis for segregation in public schools.

Linda Brown, the daughter of lead plaintiff Oliver Brown, attended a segregated elementary school in Topeka, Kan., and was refused entry to a white grade school.
Photo: Carl Iwasaki//Time Life Pictures/Getty Images

Loving v. Virginia (1967)

The Lovings were arrested in 1958 in violation of Virginia's anti-miscegenation law. Nine years later, their case was brought to the Supreme Court, which ruled unanimously to put an end to laws that prohibited interracial marriage. Photo: Francis Miller/Time & Life Pictures/Getty Image

Roe v. Wade (1973)

Norma McCorvey (left), aka Jane Roe, holds a sign outside the Supreme Court. The court's 7-2 ruling paved the way for abortion rights in the United States. The case ignited fierce national debate over the procedure and gave way to the pro-life and pro-choice movements. Photo: GREG GIBSON/AFP/Getty Images

Bush v. Gore (2000)

Protesters gathered outside the Supreme Court leading up to the justices' ruling on Bush v. Gore that effectively named the winner in the 2000 presidential election.

The court decided 5-4 to halt a statewide recount in Florida and as a result, George W. Bush secured the state's electoral votes, allowing him to win the presidency and beat out his Democratic challenger, then-Vice President Al Gore.
Photo: Mark Wilson/Newsmakers

Citizens United v. FEC (2010)

President Obama greeted Chief Justice John Roberts the night of his 2010 State of the Union address, one week after the Supreme Court handed down a decision on Citizens United v. Federal Election Commission -- a ruling that did away with limits on corporate and labor union spending in political campaigns. President Obama criticized the verdict in his speech that night.

"Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests --- including foreign corporations --- to spend without limit in our elections," Obama said. Justice Alito appeared to mouth, "not true" during the President's critique.
Photo: Getty Images

NFIB v. Sebelius (2012)

In one of the year's most anticipated Supreme Court decisions, the justices ruled 5-4 to uphold most of the Affordable Care Act, including the law's so-called individual mandate which requires nearly all Americans to have health insurance or face a fine.

Protestors gathered outside to await the decision, which was delivered on the last day of the Court's term.
Photo: SAUL LOEB/AFP/GettyImages

Chief Justice Roberts' Key Role in Health Care Ruling

Mon, 02 Jul 2012 18:31:00 EDT

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JEFFREY BROWN: Since the Supreme Court handed down its landmark health care decision last week, legal scholars and commentators have honed in on the role of Chief Justice Roberts, who sided with the court's liberals to allow the individual mandate to stand and on the decision's wider impact on future attempts to assert or restrain federal powers in this and other areas.

We are going to explore all this now with Laurence Tribe, professor of constitutional law at Harvard Law School, where he once had John Roberts as well as President Obama as students, and David Rivkin, a partner at the Baker Hostetler law firm in Washington. He represented the 26 states that challenged the constitutionality of the Affordable Care Act.

Professor Tribe, I think -- let's start with your former student. There's been continuing speculation as to whether he changed his vote. And it was reported by Jan Crawford at CBS that there had been a big internal battle from conservatives to get him to change back.

Does any of this matter? What does it say to you, that there's this speculation?

LAURENCE TRIBE, Professor, Harvard Law School: Well, the main thing it says is that somebody in the Supreme Court is leaking or that Jan Crawford Greenburg has her facts wrong.

I think she's a pretty good reporter, so I would suspect that some law clerk has some pretty loose lips. And I think that's terrible, because even though in some prior cases over the 40 years or so that I have watched the court, there have been leaks four or five years after a decision, for somebody to go tattling on what justices said to each other or to law clerks just a day after a decision is really horrendous.

I mean, there really are important principles of confidentiality, of internal deliberations that were compromised. But the underlying point, that the chief justice might not have had his mind firmly fixed on his final conclusion at the outset, is hardly scandalous.

Certainly, Earl Warren, during the time that I clerked at the court, changed his mind on a number of occasions. And I think a chief justice whose mind is so rigidly and firmly fixed that he's not open to persuasion wouldn't be a very good chief justice.

Besides that, I noticed while I was watching the argument some pretty clear signals from the chief justice, although I was surprised others didn't seem to note these, that he was considering the possibility that, although this was called a mandate, since it operates exactly like a tax -- it simply increases the tax liability of people otherwise eligible to pay taxes for those who would impose a free ride on others -- that it's really a tax after all.

JEFFREY BROWN: All right.

LAURENCE TRIBE: And that's why I predicted before the decision that it would come out in favor of the Affordable Care Act, and that the chief justice would probably, as I said on the air on a couple of stations, conclude that it was a tax. That didn't surprise me.

JEFFREY BROWN: All right, let me bring in David Rivkin.

First on the question of the -- whether the chief justice changed his vote, is that important?

DAVID RIVKIN, Former Associate White House Counsel: No, it's not. I agree with Professor Tribe. Justices do change their minds, sometimes shortly after the oral arguments, sometimes later.

But what I wanted to emphasize is how remarkably well the Constitution has done. And this is where I disagree with Professor Tribe. I think it's a defeat for the Obama administration.

Let's not engage in historical revisionism. For over two-and-a-half years, the administration and every supporter of the Obamacare has been justifying the individual mandate on the basis of a Commerce Clause and the necessary and proper clause in a way that essentially devalued the constitutional architecture in this country.

Five justices, Jeff, five justices have said, that is not correct. The taxing power argument, which I'm not very happy, is an afterthought. And even those people like Professor Tribe who said that the mandate is supported by the taxing power have never said it's supported by the taxing power alone.

So, the very ship that the administration has been sailing has sunk. Second, seven justices, seven justices, including Justice Kagan and Justice Breyer, have said the other center piece of Obamacare, the forced Medicare restructuring that imposed tremendous burden on my 26 states, is unconstitutional. That is a stunning victory. The fact that the mandate still stands is unfortunate. It doesn't detract from that.

JEFFREY BROWN: All right, but let me -- Professor Tribe, come back in here, but let -- try to move it ahead here about the larger implications of this.

There is some analysis after this that the conservative scholars like yourself, Mr. Rivkin, lost the immediate battle, but won a larger constitutional war in terms of limiting the federal government in the future on other issues. What do you think of that argument, Professor Tribe?

LAURENCE TRIBE: Well, I think the court by a vote of 5-4 reaffirmed the existing limits on the commerce power. They didn't really impose any new limits.

They simply said that there has never been a prior compulsion to purchase a commercial product and that they were going to draw the line there. I don't think we're going to see lots of attempts by Congress to regulate that way. And because of the breadth of the taxing power, it won't be necessary.

As the chief justice pointed out, instead of actually compelling someone, on pain of imprisonment, to, for example, install energy-efficient equipment in her home, what you do is increase the tax liability of such a person.

And I do want to correct something that David said. It's not true that the administration or I or others said that you have to blend and mix all of the sources of congressional power. The argument was made by the solicitor general. And I argued, as did some others, that there were separate stools on which Congress could stand.

One of them on which we argued that Congress could stand alone is the taxing power. And, indeed, in the fall of 1977, when Chief Justice Roberts was a student in my course, I was finishing up a treatise on constitutional law whose main chapter on the taxing power argued that that power was alone sufficient, given its breadth, to provide all of the incentives that Congress needed.

And the chief justice made a point in his opinion of saying that, unlike the regulatory power, which perhaps needs some active involvement by people before it can kick in, the taxing power is specifically designed so that it can apply -- for example, under a direct tax, it can apply simply for -- as the chief justice said, for existing.

JEFFREY BROWN: All right.

LAURENCE TRIBE: It's very clear that the taxing power is broad enough to suffice here. So it doesn't matter who won or who lost.

(CROSSTALK)

JEFFREY BROWN: OK. But let me come back to you, David Rivkin.

Where specifically do you see -- again, looking beyond the health care act, the decision, where do you see it affecting the power of the federal government in this or other areas?

DAVID RIVKIN: This decision involved a joined dissent and the court's majority opinion, re-articulates...

JEFFREY BROWN: The majority on the Medicaid part?

DAVID RIVKIN: Well, not just Medicaid, Chief Justice Roberts opinion' for the court -- re-articulates in the most elegant fashion the importance of a dual-sovereignty system, its connection to individual liberty, the proposition that the federal government cannot exercise general police power.

I have been saying from the very beginning this is not about health care. This is not about individual mandate. It's about constitutional architecture. The fact that this decision does it with vigor I have not seen since the Lopez decision, where it was only a concurring opinion by Justice Kennedy, is remarkable.

And even on the taxing power, Professor Tribe misses the point, with respect, that there are limiting factors that the chief justice hung his hat on, for example, the total size of a penalty. I think if a penalty was in the thousands of dollars, the decision may have come out differently.

But what's important in the long run again, to correct this mistaken impression which this administration has unfortunately propounded, that somehow the structural separation of powers issues are archaic, this is not important, only matters what was good for a matter and policy and politics.

JEFFREY BROWN: So, the way I characterized it earlier...

LAURENCE TRIBE: Oh, no, no.

(CROSSTALK)

JEFFREY BROWN: Wait. Hold on just a second, Professor Tribe.

The way I characterized it for your side as a loss in the immediate sense, but you see a victory in the larger...

DAVID RIVKIN: A strong victory that is going to rebound through decades of case law.

JEFFREY BROWN: All right, Professor Tribe?

LAURENCE TRIBE: For 40 years, I have been teaching that the constitutional structure of separation and division of powers was important. I supported decisions like Lopez.

It is simply a bum rap to say that the Obama administration cares only about this law. But even if it only cared about this law, that would be millions of people that need to get covered. The Obama administration took the position that it's important to recognize the difference between the police powers of the states and the limited powers of the federal government, but it simply argued that this law was within those powers, and it turns out that it was.

You know, we don't have a rule in the Constitution of just one clause per case. Something can be valid because of several possible sources of power.

DAVID RIVKIN: Professor Tribe...

JEFFREY BROWN: Wait. Hold on. Hold on. Hold on.

(CROSSTALK)

JEFFREY BROWN: Hold on. Hold on.

LAURENCE TRIBE: When Congress created...

JEFFREY BROWN: Go ahead.

LAURENCE TRIBE: When Congress created the first national bank, the Supreme Court in McCulloch vs. Maryland in 1819 said that it was permissible because of several different sources of power.

JEFFREY BROWN: OK.

(CROSSTALK)

DAVID RIVKIN: How is it possible that in every round of oral argument, in every brief, the Obama administration, which I had the pleasure and privilege of litigating in the lower courts, has argued repeatedly, while paying lip service, Professor Tribe, lip service to the proposition that the federal government doesn't exercise general police powers, has been arguing that compelling inactive individuals to enter into a commercial transaction, not just purchasing health insurance, but any commercial transaction, is OK?

That view has been decisively rejected by five justices. There's got to be some accounting for that. It's not just a pedantic point.

JEFFREY BROWN: All right, well, we are not going to resolve this tonight.

(LAUGHTER)

JEFFREY BROWN: We're not going to resolve this one for a long time, but we will continue looking at the legal issues. So, I want to thank you both, Laurence Tribe and Mr. Rivkin.

Thanks, both, very much.

DAVID RIVKIN: Good to be with you.

JEFFREY BROWN: And for our complete health care coverage on the impact of last week's decision, you can visit our home page. And we will continue the Supreme Court discussion on air on Wednesday, when we hear more about the term as a whole, from historian Michael Beschloss and Marcia Coyle of The National Law Journal.

Has the Health Care Ruling Upped the Ante for Election Contenders?

Fri, 29 Jun 2012 18:18:00 EDT

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JUDY WOODRUFF: Now to American politics.

Ray Suarez has two different takes on what yesterday's Supreme Court ruling on health care policy will mean in the presidential contest.

RAY SUAREZ: Maryland Gov. Martin O'Malley is chairman of the Democratic Governors Association and a top surrogate for the president.

Governor, welcome.

Yesterday, during his address following the release of the decision, the president kidded about the political value of the Affordable Care Act, almost implying there wasn't much. But looking at it now, is this a win politically for the president?

GOV. MARTIN O'MALLEY, D-Md.: Well, I think, ultimately, it will be.

What we have to do a better job of as a party is explaining the benefits and the rationale here. I mean, not only do we need to stop wasting money on a broken health care system, but we need to improve wellness and bring down costs, so that we can grow our economy, so that we can create jobs, and so that we can expand opportunity.

And that's the golden opportunity now that we have to better explain this important step in America's journey.

RAY SUAREZ: Well, in advance of that explanation, the public opinion research implies that the law is still pretty unpopular, even though the public says it likes parts of the overall legislation.

How is that an asset going forward to November?

GOV. MARTIN O'MALLEY: Well, again, I think we have to do a better job of explaining it than the detractors have done in attacking it.

Look, all of us, I think, have a natural inclination to be against any sort of expansion of government. And the critics of this Obamacare have tried to portray it as if it's some sort of welfare expansion, when it's not.

They use coded words like Medicaid or federal spending or government programs, when, in point of fact, what this allows us to do for the first time now, to join other industrialized nations. Instead of wasting money on a much more expensive system, where fewer and fewer people every year are covered, we can now use those dollars, as we bend down the cost curve, to reinvest and to allow family-owned businesses to reinvest in their own businesses and expand jobs, instead of cutting an ever larger check to insurance companies for insurance premiums.

RAY SUAREZ: The public has already started to see some changes. What is in the pipeline? If I live in Maryland and I'm watching nervously as my bills come in from time to time or if there is a check-off on my pay stub, what is going to change about acquiring health care?

GOV. MARTIN O'MALLEY: Well, for those who already have health care, I mean, they will see no perceptible change, except that, over time, those premiums will not increase, as they had been skyrocketing over the last 10 years.

But important changes are the fact that, soon, no one will be able to have their insurance denied because of a preexisting condition. Now, that could affect half of the people of Maryland under those old insurance company definitions.

Kids up to the age of 26 will be able to continue to receive health care under their parents' plans. And, also, the preventive care, the wellness that seniors are able to receive free of charge, those things will continue.

The most important thing that this does is, it allows us, with some finality and some clarity, to finally move forward, beyond this sort of ideological campaign against Obamacare, and instead actually see that it will benefit our economy, will allow us to stop wasting money on increased health care costs, and instead start to grow our economy again.

RAY SUAREZ: More than half the governors in the United States -- you were not one of them -- went to court to block implementation of the law.

Do you worry that some of the mechanics of the Affordable Care Act will be undermined if some states opt out after the high court's pronouncement on Medicaid yesterday?

GOV. MARTIN O'MALLEY: Well, those other governors will have to respond and have to be held accountable to their public for their decisions.

I can tell you that, in Maryland, we decided early on that we wanted to be an early implementer of Obamacare, because we realized that that will be a competitive advantage for our family-owned businesses, for our startups.

You know, Mr. Suarez, the U.S. Chamber of Commerce named Maryland number one in innovation and entrepreneurship. So we foresee the benefits that will come to our small businesses and our startups by being able to finally bring down those health care costs, so they can bring up the jobs that come from their talents and their hard work.

RAY SUAREZ: Are you ready for the exchanges? Are you ready to bring people who meet some of these income requirements into the system and get them a new way of buying insurance?

GOV. MARTIN O'MALLEY: We are. I mean, it's required a lot of work. We had to bring stakeholders in from private sector, insurance companies, nurses, doctors.

But we have already passed through the Maryland General Assembly the law that sets up our health care exchange. We have already set up the I.T. infrastructure that will allow this to work. And we also have core staff in place that will be able to manage this new marketplace where family-owned businesses can obtain more affordable health care moving forward.

These are all steps that we took because we wanted Maryland to be a winner and wanted Maryland to take advantage of this opportunity. And we're very excited about it, and we are certainly willing and able to help other states that will now see the benefits and also want to serve their people.

RAY SUAREZ: Martin O'Malley is the governor of Maryland.

Thanks for joining us.

GOV. MARTIN O'MALLEY: Thank you.

RAY SUAREZ: For the other side, we're joined by Tevi Troy, a senior fellow at the Hudson Institute and a special adviser to Gov. Mitt Romney's presidential campaign.

What's your reaction to what Gov. O'Malley had to say?

TEVI TROY, Hudson Institute: Well, first of all, thanks for having me. And it's great to sea my home state governor, Gov. O'Malley, on screen.

I do have some issues with what he had to say, especially this notion that it is a communications problem, that they haven't communicated enough. The problem is not the communication strategy about the Affordable Care Act. The problem is the policies of the Affordable Care Act.

It is a tax-hiker. It will cost jobs. It will not bend the cost curve down. It doesn't cover everybody. It creates an IPAB which gets between an individuals and their doctors. There are so many problems. And that is why the American people have been rebelling against it.

RAY SUAREZ: Gov. Romney promised repeal in his message yesterday. If it is not a blowout for the governor and the Republicans in November, as a practical matter, is repeal even possible?

TEVI TROY: Well, I am not sure where we are going with blowout, but if Gov. Romney. . .

RAY SUAREZ: Well, I mean, if you have more than 40 Democratic senators who are members of the United States Senate in January. . .

TEVI TROY: So you are talking about if Gov. Romney wins and there is a Republican House and there's a Republican Senate, but not 60 votes.

In that instance, there are an enormous number of opportunities. If you remember, the Affordable Care Act in the end was passed through a reconciliation-type process. That is why they couldn't handle things like severability in the final version of the bill.

So, I think Gov. Romney has said very clearly -- in fact, his statement yesterday was a lot clearer than the Supreme Court decision which people are still trying to sort through. So Gov. Romney said country clearly in his statement yesterday that he would pursue repeal from his first day in office.

And if there is a Republican House and a Republican Senate, there is a real opportunity to do so.

RAY SUAREZ: The governor has also implied that he would try to retain the parts of the bill, eventually, that people like. But the insurers are saying, sorry, reform won't work unless we have it all. The numbers just don't work.

TEVI TROY: Well, look, there's a 2,700-page bill, and it's hugely complicated and hugely problematic.

That is why Gov. Romney says we have to repeal the whole thing and start from scratch, try and find a bipartisan way to go forward with market-based reforms that give individuals more flexibility, that give states more flexibility, and still preserve safeguards for individuals who need them.

Gov. O'Malley was talking about preexisting conditions. Well, Gov. Romney yesterday talked about preexisting conditions and making sure people who maintain continuous coverage can get coverage if they have preexisting conditions.

RAY SUAREZ: But preexisting conditions is a. . .

TEVI TROY: I don't think there is a real disagreement there.

What I think is that you need to start from scratch with a market-based bill.

RAY SUAREZ: But that is a perfect example -- 2,700 pages or not, you have to have countervailing money coming in if you are going to make a promise that you're going to cover people that you didn't used to cover because they were expensive. Money has to come from somewhere else now.

Can you do that?

TEVI TROY: Yes, absolutely. That's a really good question.

And I found it interesting how Gov. O'Malley talked about code words like federal spending. Well, federal spending is not a code word. If the Affordable Care Act spends $2 trillion, well, that is not a code word. That is $2 trillion that the American people are going to have to pay for.

And I think the Affordable Care Act is so expensive and so outlandish that there are opportunities to find better, cheaper ways of doing this, especially if you use market mechanisms, if you let people purchase across state lines. If you have tort reform, that would save $50 billion over 10 years, that one reform alone. So, Gov. Romney has a whole host of ideas, a whole host of reforms.

He has specific ideas, but also general principles that would govern how he would go forward.

RAY SUAREZ: The governor has promised to cut taxes and balance the budget. The Congressional Budget Office says repeal would cost the government $300 billion. Can you do all of that?

TEVI TROY: Well, you know, the question of repeal is a question of how much it spends based on the CBO score at the time.

So I think we are going to look at the CBO scores if and when Gov. Romney becomes president and figure out the best way to do that. But it is quite clear that the $2 trillion that the Affordable Care Act is going to spend, and originally seemed to be $1 trillion, that number keeps going.

And as the cost estimates for the Affordable Care Act get worse and worse, I think is less and less of a saver to -- less and less of a coster to repeal it.

RAY SUAREZ: Does it remain a difficulty that the first elected official in the United States to sign a health care bill with a mandate is criticizing the second one for doing the same thing?

TEVI TROY: Look, they're very -- I know you are talking about Gov. Romney's plan in Massachusetts. It was very different from what President Obama has done.

RAY SUAREZ: How so?

TEVI TROY: Gov. Romney didn't impose something on all 50 states of the nation. Massachusetts, as we know, is a more liberal state and wanted a different type of approach.

Gov. Romney wouldn't have imposed that on all 50 states. Also, President Obama's plan cut $500 billion from Medicare without doing anything to shore up Medicare financing. Gov. Romney didn't do anything along those lines, nor did Gov. Romney create an IPAB, an independent payment advisory board, which is very unpopular and will also lead to getting -- bureaucrats getting in between patients and their doctors.

RAY SUAREZ: Tevi Troy, we will keep watching the numbers and we will keep talk. Thanks for joining us.

TEVI TROY: Thanks for having me.

JEFFREY BROWN: On our website, we continue our coverage of the Supreme Court's ruling with a blog from Gwen Ifill on how the momentous day's events unfolded and how many in the news media initially got things all wrong.

Washington's 100-Degree Day of Contempt, Constitutionality and the Rule of Law

Fri, 29 Jun 2012 09:00:00 EDT

Photo by Taylor Weidman/The Christian Science Monitor via Getty Images

I can say quite honestly that Thursday was among the most dramatic days I've ever seen unfold in Washington.

Understanding that I was too young to witness the Kennedy funeral or the Nixon resignation firsthand, watching the Supreme Court uphold a sweeping health care law hours before the House of Representatives voted to find an attorney general in contempt of Congress - for the first time ever - was riveting.

On the steps of the Supreme Court, conservatives swore at Chief Justice John Roberts, who provided the tipping-point vote to uphold the Affordable Care Act, while one young woman, according to Slate's Dave Weigel, shrieked with happy joy at the decision because, she said, she suffers from lupus.

Hours later, on the floor of the House of Representatives, former House Speaker Nancy Pelosi, D-Calif., told her colleagues they should be ashamed for moving to condemn Attorney General Eric Holder for withholding documents in the Fast and Furious gun-walking investigation. Republicans, striking back, accused their colleagues of - in effect - conspiring to cover up a murder connected to the investigation.

Down the street at the White House, aides said the president first learned of the health care news while watching a muted bank of televisions. Two cable networks were reporting that the health care law's individual mandate had been struck down. Within minutes, the inaccuracies were corrected by reporters who took the time to actually read the ruling.

By the time President Obama and presumptive Republican nominee Mitt Romney went before the cameras to claim vindication and call for repeal, their responses seemed all arcane ritual.

This ritual extended to the days and weeks before both events, as observers felt compelled to predict the outcome.

Much attention was paid to who got what wrong in the first few moments after the health care decision was read from the bench. But we, and the people we cover, got a lot else wrong. Or, as National Journal's Matt Cooper wrote more succinctly: "The conventional wisdom was shockingly, pathetically wrong."

Journalists run out of the Supreme Court building after receiving the decision.

Among those things that defied that conventional wisdom:

Wrong: That the mandate would be struck down.

Wrong: That the House would never censure a sitting attorney general.

Wrong: That the Medicaid portion of the health care law would most easily be upheld.

Wrong: That President Obama cuts loose anyone whose role becomes a distraction.

And Wrong: That this election will ultimately be defined by the actions of the Supreme Court. Or by Congress.

The truth is we don't do absolutes well. Is John Roberts a neutral umpire or a conservative ideologue? Neither, it turns out.

Is the dispute over Fast and Furious a valiant effort to defend the sacrifice of a murdered border agent? Or is it a witch hunt designed to bring an uppity attorney general to his knees? This, too, depends on one's partisan point of view.

House Democrats protest contempt vote.

But we can say this much about Thursday, June 28, 2012. On at least one broiling hot day in the nation's capital, all three branches of government worked overtime on matters of history and consequence.

All that, and there was not one word about the economy.

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Emotions Run High Outside Supreme Court

Thu, 28 Jun 2012 18:23:00 EDT

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JEFFREY BROWN: Beyond the political response, there were many other voices reacting to the court's ruling today. We're going to hear some of that now, beginning with the highly charged scene just outside the Supreme Court.
Betty Ann Bowser is back with that.

PROTESTERS: Hey, hey, ho, ho, Obamacare has got to go.

BETTY ANN BOWSER: The chaotic scene outside the Supreme Court stood in stark contrast to the solemnity inside.

PROTESTERS: We love Obamacare! We love Obamacare!

BETTY ANN BOWSER: A kind of impromptu street theater played out on the court steps. There were belly dancers, prayer circles, people dressed in colonial attire...

MAN: The Constitution doesn't allow for mandates.

BETTY ANN BOWSER: ... and others sporting surgical masks, and, of course, there were plenty of cameras.
Throughout the morning, there was a circus-like atmosphere, with supporters and opponents of the law competing for the attention of the crowd. And there were hundreds of people here. At one point, they stretched all the way to the sidewalk and halfway around the corner.
And then the moment everybody had waited for. Reporters ran out of the courtroom with news of the decision. Supporters of the Affordable Care Act were thrilled it had been upheld.

MAN: We're the only industrialized nation that doesn't provide health care for everybody in our country. And I think that's something that needs to change. And I think we're moving toward that.

LAURA BRENNAMAN, Supports Supreme Court Decision: I see people with severe chronic health care problems, debilitating problems that could have been prevented had they had access to primary and preventative services. And I am so thrilled that this law was upheld, so now those people will get that care that they need.

BETTY ANN BOWSER: But for many who opposed the law, the decision came as a shock.

KELLI CARENDER, Opposes Supreme Court Decision: I think it was a momentous blunder and that historians are going to look back and regard it as such and place it alongside other giant mistakes the court has made in the past. President Obama, before the decision came out, kept saying they shouldn't be rewriting legislation. That's exactly what they just did.

BETTY ANN BOWSER: Other opponents promised to pour their all into the campaign to repeal the law in Congress.

BEN GRACE, Opposes Supreme Court Decision: I will be going door to door. I will also be making phone calls. I will be donating. And I will also be manning the polls also.

BETTY ANN BOWSER: And so will many of those who turned out today, as the focus shifts from the court to the ballot box and the November elections.

Rep. Hoyer and Sen. Cornyn React to the Ruling

Thu, 28 Jun 2012 18:10:00 EDT

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JUDY WOODRUFF: And now we have two takes on the court's judgment from senior members of Congress.

First, we are joined by Representative Steny Hoyer of Maryland. He is the Democratic whip in the House. I talked to him this evening.

Congressman Steny Hoyer, thank you for joining us.

REP. STENY HOYER, D-Md.: Good to be with you, Judy. Thank you.

JUDY WOODRUFF: What does the Supreme Court ruling mean for the country?

REP. STENY HOYER: Well, I think it means that people can have confidence that they are, in fact, going to have access to affordable, quality health care and that we will bring prices down, as CBO has said, over the long run, over a trillion dollars of savings that will be effected, that people will not be precluded from getting insurance because of a preexisting condition, that seniors will be able to get prescription drugs at reduced prices, that young people who are under 26 who can't find a job can stay on their parents' policy, and that people who get really sick won't be told that they have lifetime limits and, gee whiz, your illness is too expensive and we're dropping you from our policy.

So, that and much more, I think, will be beneficial for the American people.

JUDY WOODRUFF: So, the court did rule that it's constitutional, but, as you know, many Americans -- it's still unpopular with many people. What do you say to Americans who are worried about the costs going up, worried about less choice?

REP. STENY HOYER: Well, actually, their choices I think are going to be expanded, not diminished.

Furthermore, I think their costs will be contained.

I think nobody could say actually that their costs are going to go down, but we know that health care costs have been going up at two, three times inflation. Actually, they have already slowed. We think this action by the Supreme Court will help over the long term.

And CBO, our Congressional Budget Office, nonpartisan office, has said that as well. So we think it's going to help contain costs, make health care more affordable for people, and give access to people who can't afford health insurance. And they will get some help in order to have that insurance and security.

JUDY WOODRUFF: What about, though, the Republican argument that employers, that many employers are now going to be incentivized to drop coverage, that it's going to be cheaper for them to take their employees off the rolls, pay the penalty, frankly, leaving people in the lurch with insurance that they can't afford to buy?

REP. STENY HOYER: Well, clearly, we're going to have to make sure that doesn't happen.

And we're going to have to be looking at and talking to employers between now and 2014 to ensure that the program works as expected. And that is that people will be able to keep their insurance, that employers will keep their employees insured, as they are now, and that people won't be losing their insurance.

But if they do lose their insurance, if somebody becomes unemployed, laid off, they will be able to have access to a policy through the exchanges, so that they will have more security, not less.

JUDY WOODRUFF: What about, Congressman Hoyer, what the court said in upholding this, but only as a tax? Does that make it harder to sell this to the American people?

REP. STENY HOYER: Well, I think the Republicans have made much of that. They sustained a loss. They were absolutely positive that the bill was unconstitutional. They said so on a regular basis, but the fact of the matter is, the court upheld it, said it was constitutional.

Now, the tax that we're speaking of is a contribution, from my standpoint, to purchasing health insurance, taking personal responsibility for your own health insurance so that others paying their health insurance premium don't have an extra $1,000 on their bill to pay your costs.

It's very much like having to have car insurance when you drive a car to make sure that if you injure somebody through an accident, that you have the ability to compensate that individual for their injury, in this case to make sure that, if you get sick, if you get in an accident, if something happens to you that you need health care that you will have the ways and means to compensate for that health care and have access to affordable, quality care, and not have the reliance on the rest of America to pay your bill.

JUDY WOODRUFF: And one other question.

What about in terms of Medicaid, what the court has said about the ability of states frankly to opt out of expanding Medicaid coverage? What about those people whose income level is above poverty level who may not have a choice now of what to do?

REP. STENY HOYER: Judy, we're going to have to -- I haven't read that part of the opinion. As you can imagine, it just came out. And we have been very busy on the floor of the House, so I haven't read that portion of it

But clearly one of our efforts was to make sure that everybody did have access to insurance, particularly those who could not afford it, the poor. And so we're going to have to look at that to make sure that we don't have people who are poor who can't afford insurance don't fall through the cracks.

So I can't say specifically because I haven't read that portion of the opinion. But, clearly, we're going address that and make sure that people are protected.

JUDY WOODRUFF: As you know, Republicans are saying they are going to continue to try to repeal this. They have called for a vote in the House in the middle of July. And they say, if they can't do it under this president, they will do it under a President Romney.

REP. STENY HOYER: Well, of course, President Romney proposed a program almost exactly like the program that the Supreme Court said was constitutional.

So it's a little ironic that a program that was almost exactly like the one President Obama proposed was proposed by Governor Romney, that he would say it was -- what was good for Massachusetts wasn't good for the nation.

In fact, as Governor Deval Patrick said this morning, they have wide coverage now. Almost everybody in Massachusetts does have insurance and availability of quality, affordable health care. The Republicans have been very quick to say, A., this is unconstitutional, B., we want to repeal it, but very, very slow -- and, in fact, have not offered an alternative to make sure that people have access to affordable, quality health care.

And I think that's going to be their challenge. And it's very easy to say we don't like what you have proposed, but much, much more difficult to come up with a proposal that will work.

JUDY WOODRUFF: We will leave it there. Congressman Steny Hoyer, the House minority whip, thank you very much.

REP. STENY HOYER: Thank you, Judy.

JUDY WOODRUFF: And for the other side, we turn to Texas Senator John Cornyn. He is a member of the Senate Republican leadership team. I also talked to him earlier this evening.

Senator Cornyn, thank you very much for joining us.

SEN. JOHN CORNYN, R-Texas: Glad to do it.

JUDY WOODRUFF: What is your view of what this ruling by the court means for the country?

SEN. JOHN CORNYN: Well, the Supreme Court has done its job, which means now the ball's back in Congress' court.

While the court said this mandate is constitutional, as you know, it's very, very unpopular, as is this law in general. And so I believe it's now incumbent on Congress to take up health care reform once again. And I think we need to start over and to build a system that doesn't take over the health care system, but one that's more responsive to consumers, doesn't interfere with the doctor/patient relationship, and focuses on reducing costs.

That's one thing Obamacare didn't do. In fact, it raised premiums for most people that already had health insurance.

JUDY WOODRUFF: Well, let me ask you about that, because the court has now ruled the act is constitutional. It passed both houses of Congress. The president signed it. The debate has gone on for several years.

Why does Congress -- why do you and other Republicans think it needs to be voted all over again?

SEN. JOHN CORNYN: Well, we can't afford it.

And that's one reason. And the problem is that while the Supreme Court can say what's legal, what's constitutional, it doesn't make policy. That's given to -- the responsibility is given to the elected representatives of the people in Congress. And the American people don't like this bill. They don't like the individual mandate.

And, of course, we're learning -- we continue to learn that many of the promises that were made by the president and others that if you like what you have, you can keep it, that premiums will be reduced by family, per families of -- by $2,500 -- we're seeing that prices for their premiums are going up.

So I think this comprehensive health care reform has proven largely to be a failure. And that's why I think we need to start again.

JUDY WOODRUFF: Well, the president said today, as I'm sure you know -- he said the 250 million Americans who already have health care insurance are going to be able to keep it. He said it's just going to be more secure and it's going to be more affordable.

SEN. JOHN CORNYN: Well, I'm sorry to say this, but the president's wrong. That's not true.

Indeed, most of the predictions by groups like McKinsey, the business consulting group, is that once these state-based insurance exchanges are created, that all of the incentives are going to be for employers to drop their employees from their coverage -- we're already beginning to see that -- and that as many as 30 percent, maybe as high as 60 percent or more will find themselves dropped from their employer-provided coverage.

And this is in addition to the fact, Judy, that in order to finance this, we have seen new taxes now, as the Supreme Court's called this a tax on the middle class, in effect, for the mandate. And we have seen other taxes that have gone up. And this is contributing to the slow growth, the recovery of the economy, because employers are telling me, we don't know what the rules are, we don't know how much this is going to cost, and we simply are not hiring new people.

So this has really been a real wet blanket on job creation in the country.

JUDY WOODRUFF: So, Senator, what would Republicans replace it with? If you were able to repeal it, what would you replace it with, and how quickly, and does that depend on President Obama being defeated?

SEN. JOHN CORNYN: Well, no.

He could work with us to do something that would be more popular, but, frankly, I'm not optimistic about that. This has made sure that this will be front and center for the presidential election and in Senate elections across the country. But what we need to do is to focus on holding down the costs.

One of the innovations that has done a good job of that is things like high-deductible insurance and health savings accounts, so people actually understand what costs are. We have also seen in the Medicare program with the prescription drug program this has really been one of the few successes we have seen in a government program like Medicare, where we actually have competition and transparency, and providers compete based on price and the quality of service.

And we have seen prices 40 percent below what was originally projected. Our friends on the other side of the aisle simply don't believe in competition and using the market to help discipline prices for consumers. Well, we know that works. And I think it ought to be given a chance.

JUDY WOODRUFF: At the same time, we're seeing nonpartisan research out there that shows health care costs in many parts of the country, that the dramatic rise that had been there has started to slow down. As you say, in some cases, the costs are even coming down.

So how does that square with the Republican argument that what the president is doing is going to raise the cost of health care?

SEN. JOHN CORNYN: Well, we can simply point to the cost of health care going up ever since the Obamacare bill was passed and signed into law and the fact that many costs don't become implemented or obvious until 2014.

Many employers, as I indicated earlier, will be incentivized to drop their employees from what is now a fringe benefit provided by the employer into these taxpayer-supported or supplemented insurance exchanges. And the costs there, Congressional Budget Office estimated that only about 7 percent of employers would do that.

As I indicated, McKinsey and others thinks it will be much higher. And indeed I think the incentives are such that no employer will maintain their employee-provided health care coverage if they could pay the penalty and get off cheaper, unless they have some legal or other obligation to their employees that prevents them from doing that.

So the costs are going to explode under these state-based insurance exchanges far beyond what we have seen already.

JUDY WOODRUFF: Senator, finally, does this replace the economy, jobs as the most important issue in this presidential campaign?

SEN. JOHN CORNYN: I think it certainly elevates health care to the top tier of issues.

But, really, I think what we're going to be talking about is the impact of this failed health care policy on job creation and on the economy generally, what an impediment it's been and why our economic growth is so slow, in part because of government overreach and big policies like this, which have increased the costs and made it harder on small businesses to create jobs and hire more people.

JUDY WOODRUFF: Senator John Cornyn of Texas, thank you very much for talking with us.

SEN. JOHN CORNYN: Thank you, Judy.

Supreme Court Upholds Health Care Law: Mandate Is Constitutional

Thu, 28 Jun 2012 18:01:00 EDT

Watch Video | Listen to the Audio

JUDY WOODRUFF: The many months of speculation finally came to an end today. The U.S. Supreme Court on the last day of its term issued a landmark decision on health care reform.

NewsHour health correspondent Betty Ann Bowser begins our coverage.

BETTY ANN BOWSER: The crowd gathered outside the Supreme Court broke into applause when the 5-4 decision was announced this morning.

(CHEERING AND APPLAUSE)

BETTY ANN BOWSER: The court upheld the centerpiece of the 2010 health care law: the individual mandate. It requires nearly all Americans to get health insurance or pay a fine.

The goal is to expand coverage to 32 million Americans who don't have it now. Conservative Chief Justice John Roberts joined the court's four liberals, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, in the majority.

Roberts wrote: "The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it or to pass upon its wisdom or fairness."

President Obama hailed the court's finding when he appeared later at the East Room of the White House.

BARACK OBAMA, President of the United States: I know there will be a lot of discussion today about the politics of all this, about who won and who lost. That's how these things tend to be viewed here in Washington.

But that discussion completely misses the point. Whatever the politics, today's decision was a victory for people all over this country whose lives will be more secure because of this law and the Supreme Court's decision to uphold it.

BETTY ANN BOWSER: Republican presidential hopeful Mitt Romney was also in Washington for the decision.

MITT ROMNEY (R), Presidential Candidate: What the court didn't do on its last day in session, I will do on my first day if elected president of the United States.

And that is, I will act to repeal Obamacare. What the court did today was say that Obamacare doesn't violate the Constitution. What they didn't do was say that Obamacare is good law or that it's good policy.

BETTY ANN BOWSER: Today's decision was the result of lawsuits brought by Florida, 25 other states, the National Federation of Independent Business, and several individuals.

The justices also ruled on another key provision of the law that requires states to expand the Medicaid program, which provides health care to the poor. The court said that exceeded the federal government's constitutional authority, but ruled states could refuse to participate in the expansion, and they could not be penalized for doing so.

JEFFREY BROWN: Marcia Coyle of The National Law Journal was in the courtroom this morning and, of course, is here with us tonight.

Marcia, yes to the mandate, but not on the grounds that had been the focus of so much attention. Explain.

MARCIA COYLE, The National Law Journal: That's right.

Five justices, the conservative justices, this time, led by Chief Justice Roberts, did accept the opponent's argument that there is a line in terms of how Congress can legislate under this Commerce Clause. The Commerce Clause regulars interstate commerce.

And Chief Justice Roberts said that presumes that there is activity to regulate. What the individual mandate did in terms of the Commerce Clause was attempted to regulate inactivity. Roberts said there are many things that people do not do. And if the court upheld Congress' power under the Commerce Clause, it would open a new and vast area of regulation.

JEFFREY BROWN: But he accepted that it could be done under the tax powers.

MARCIA COYLE: That's right, under Congress' power to tax and spend for the general welfare.

JEFFREY BROWN: All right, I want to pull up a graphic that shows a line from Chief Justice Robert's opinion.

He says: "Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Upholding the individual mandate under the taxing clause does not recognize any new federal power. It determines that Congress has used an existing one."

How surprising was this that he went to that argument? It was argued in the -- it was heard in the oral arguments, but never got much attention.

MARCIA COYLE: Well, it was surprising only because most of the commentary for the last two years by legal scholars, by political people, by court watchers, focused on the Commerce Clause argument.

And also in the lower courts, it seemed to dominate. But the government had always argued as a second basis for upholding the statute that the individual mandate was valid under Congress' tax and spending power.

JEFFREY BROWN: And there's no question here as to who the key figure is, right? It's the chief justice.

MARCIA COYLE: Absolutely.

And on the tax and spending power, the chief justice this time was joined by the four of the court's more liberal members. And there's an old rule that the court has -- does follow that if a statute of capable of being interpreted in two ways, and one way it's unconstitutional, the other it is not, then the court will save the statute by looking to the constitutional way.

And that's why the chief justice then, after disposing of the Commerce Clause argument, took a look at the tax and spending argument.

JEFFREY BROWN: In fact, people listening as it unfolded thought he was first getting rid of the mandate, right, because he...

MARCIA COYLE: Absolutely.

JEFFREY BROWN: So, you were surprised there listening?

MARCIA COYLE: Yes. It sounded very much like the statute was going to fall.

JEFFREY BROWN: So, he was striking down the whole thing.

MARCIA COYLE: It sounded that way. But those of us who followed it knew that there was -- and he even announced at the beginning that there were two issues that he had to address.

It was very interesting. The solicitor general of the United States and almost his entire office was sitting at the table immediately in front of the court. And I'm sure that they also were getting worried.

JEFFREY BROWN: All right, now, the dissent was the four conservatives who the justice -- chief justice often sides with, but they put up -- they wrote a strong dissent.

Let's look at one little excerpt from that.

"The court today decides to save a statute Congress did not write. The court regards its strained statutory interpretation as judicial modesty. It is not. It amounts to a vast judicial overreaching."

MARCIA COYLE: The four dissenters, as you pointed out, are the more conservative members of the court.

Justice Kennedy read a summary of it. It was unusual, because it was a joint dissent, and that means that no one of the four took responsibility for prime authorship. But they would have struck the entire statute. They didn't find anything that could stand once they felt that the individual mandate and the Medicaid portion of the statute, which they said were essential to the statute achieving its reforms, once they felt that was unconstitutional, everything had to fall.

JEFFREY BROWN: All right, now, you just said Medicaid...

MARCIA COYLE: I did.

JEFFREY BROWN: ... because this is another whole key part that we're going to be exploring through the program tonight.

MARCIA COYLE: Yes, that's a very important part.

JEFFREY BROWN: But explain. This -- that part of the decision was 7-2.

MARCIA COYLE: Yes.

The chief justice and six other justices came to the conclusion that because the statute threatened to withhold all existing Medicaid funds from those states that didn't agree to participate in an expanded Medicaid program, that that crossed the line from inducement to coercion. But the court then, in another -- in another association of justices, saved that...

(CROSSTALK)

JEFFREY BROWN: It was a confusing day.

(CROSSTALK)

MARCIA COYLE: It was.

(CROSSTALK)

(LAUGHTER)

MARCIA COYLE: What the chief did then was to say the program will not be struck down, but we will remove the threat, and that threat of withholding the existing funds.

By removing the threat, it is now the choice of the states whether they want to participate or not.

JEFFREY BROWN: Now, we're going to go into that later in the program with Susan Dentzer.

But I just want to ask you. This was so anticipated, right? What did it feel like sitting there in the courtroom today?

MARCIA COYLE: Well, it was electric.

As soon as the buzzer went off that the court was coming through the red velvet curtains to take their seat, it was packed. Most of the justices' spouses were sitting in the guest section. Even retired Justice John Paul Stevens showed up. When the entire office of the Office of Solicitor General came in, that also upped the electricity.

There were visiting senators in the audience. The press section was filled to overflowing, even behind the pillars and the regular pews. So, yes, it was quite electric.

The justices, though, seemed very calm, and actually most of them seemed tired.

(LAUGHTER)

JEFFREY BROWN: Well, their work is done for this term. Right?

MARCIA COYLE: Yes, it is. That's right.

JEFFREY BROWN: Marcia Coyle of The National Law Journal, thanks, as always. My pleasure.

How the Supreme Court Split -- Even Among the Majority

Thu, 28 Jun 2012 17:29:00 EDT

Justices listened to health care arguments in March. Sketch by William Hennessy, Jr.

Marcia Coyle of the National Law Journal outlined how the two major Affordable Care Act opinions - from Chief Justice John Roberts and from a joint dissent -- split the Supreme Court Thursday. Even among the majority, the justices had some differences in reasoning, she said.

The majority decision said Congress couldn't enact the individual mandate through its power from the commerce clause. But the court upheld the individual mandate to buy because of Congress' power to tax.

The decision was a surprise, Coyle said, because the commerce clause issue was the government's major argument.

Watch Marcia Coyle's full analysis on NewsHour

The dissenters - Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito - agreed in a joint opinion that they would have struck down the law in its entirety.

"The key person in this whole thing was clearly the Chief Justice," Coyle said. Roberts, an appointee of former president George W. Bush, became the swing vote on the monumental 5-4 decision, read the decision from the bench this morning and authored the majority opinion.

Some disagreement remained within the group of justices in the majority. Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have upheld the entire law, and disagreed within the majority opinion about the commerce clause, for a 7-2 ruling.

On the Medicaid issue, Justice Ruth Bader Ginsburg wrote an opinion to contrast Roberts' conclusions. He had noted that the expansion of the program reaches a broader group than just the neediest Americans.

However, Ginsburg wrote that those people with incomes less than $15,000 a year are indeed in poverty too. (See page 50 in the full text.)

"They didn't throw it out. It removed the threat that it was constitutionally coercive," she said.

Coyle said she caught a few words with Texas Attorney General Greg Abbott, a leading voice in opposition to the law, as they left the courtroom this morning.

"He's the one who said, we won on the Medicaid argument, but the bottom line is now it's a policy choice for the states, on whether they want to participate," Coyle reported.

Kennedy read the dissent opinion from the bench and argued that the states that participate in the program will subsidize states that don't participate, Coyle said. (The dissenters' opinion on Medicaid expansion and states' roles begins on page 28 of the full text.)

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Health Care Reform: Decision Day Live Coverage

Thu, 28 Jun 2012 16:52:00 EDT

In a decision that changed the course of American health care for years to come, the U.S. Supreme Court Thursday morning decided to uphold the individual insurance requirement of the Affordable Care Act.

We'll keep you up to speed on the Supreme Court decision, reactions and responses from both the health care industry and those in the political world, and, of course, what it means for you and your health care.

You can also watch our live stream of responses and read the full opinion here.

[View the story "Health Reform Live Coverage: Decision Day" on Storify]

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Chat Live With Gwen Ifill at 1 p.m. ET

Thu, 28 Jun 2012 12:15:49 EDT

Gwen Ifill, senior correspondent for the PBS NewsHour and moderator and managing editor of Washington Week, will be taking your questions on Thursday's Supreme Court decision and all things political in her Vote 2012 live chat, hosted by Washington Week With Gwen Ifill and National Journal.

Join the chat from 1-2 p.m. ET Thursday, June 28 below or on Washington Week's site.

You can submit questions ahead of time on Washington Week's Facebook page.

Chat with Gwen Ifill of the PBS NewsHour and Washington Week

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ANALYSIS: What the Supreme Court Decision Means

Thu, 28 Jun 2012 12:04:00 EDT

Sketch of the Supreme Court justices hearing the health care reform case in March by Bill Hennessy.

The U.S. Supreme Court today upheld the landmark federal health law, affirming its mandate that nearly all Americans carry coverage and retaining sweeping changes to the health industry.

Chief Justice John Roberts Jr. joined the liberals on the court in upholding the mandate, deciding the penalty for not carrying insurance is a tax and therefore falls within Congress' taxing power. But the justices voted to set limits on the law's expansion of Medicaid, the federal state program for the poor, leaving up to states to decide whether to participate.

While the decision bolsters the Obama administration's signature legislation, it complicates efforts to create nearly universal health coverage if states opt out of the Medicaid expansion. Many Republican governors had hoped the court would strike the Medicaid expansion.

The decision leaves intact the remainder of the mammoth law, which requires insurers to accept all customers regardless of their health status, provides tax credits to those who need help to buy coverage, fines some employers who don't offer insurance and provides billions to expand Medicaid to include many people not currently covered in many states. Those provisions go into effect in 2014.

"I'm disappointed and shocked that Justice Roberts led the charge to uphold the constitutionality of the mandate and called it a tax," said Bill McCollum, who filed the first state lawsuit against the act when he was Florida's attorney general. "I certainly don't think it's a tax. It's a sad day for the American people."

Long in the making - at least five previous presidents tried and failed to pass legislation with similar aims - the law remains controversial two years after its passage.

While the ruling removes some legal uncertainties, a slew of political and technical challenges remain. The law and today's decision are sure to feature prominently in the run-up to the November elections and the law's fate could well hinge on the outcome. If Democrats retain the presidency and control of the Senate, implementation will likely move forward. If Republicans sweep one or both, efforts to repeal or defund are sure to gain steam. Presumptive GOP presidential nominee Mitt Romney has vowed to repeal the law if elected.

"The election is two or three times the importance of court decision," said Robert Laszewski, a consultant to the industry and former insurance executive.

While the majority opinion upheld the law's requirement that nearly all Americans carry health coverage or pay a penalty, polls show the mandate remains hugely unpopular. Without that provision, however, most experts say that young and healthy people would forego insurance, leaving primarily sick and older people needing expensive medical care in the pool, and driving up the cost of premiums for everyone. The issue is likely to become fodder for the campaign trail.

Democrats "will try to use this to segue from 'it's legal,' to 'it's great, even the court thinks so'," said David Merritt, a senior advisor with Leavitt Partners, a health consulting firm founded by former Bush administration cabinet member Michael Leavitt.

Republicans, Merritt said, "will use it to try to raise the stakes of the election: 'This is the last chance we have to repeal this thing.'"

Florida's McCollum predicted the law's survival would energize attempts to defeat Obama in November elections and repeal it.

"If the president is re-elected, then this law will go forward," he said. "If he isn't, then I think there will be a different outcome in the health care arena." Impact Of Medicaid Ruling

State politics, meanwhile, will come into play on the ruling on the Medicaid expansion. The ruling gives states the option not to expand eligibility without losing funding for their existing program. They would, however, lose billions in additional federal funding that would have covered newly eligible residents up to 133 percent of the federal poverty level, or about $30,000 for a family of four. Today, about 60 million people are enrolled in the program.

Sara Rosenbaum, health policy professor at George Washington University, said she expects "the overwhelming number of states" to adopt the Medicaid expansion. "The pressure to participate will be enormous from health care providers and communities," she said. "The majority of states will not want to have its poorest residents without coverage."

Signed into law March 23, 2010, after being passed without a single Republican vote, the health care legislation was promptly challenged, with 27 states filing or joining lawsuits challenging its constitutionality. Republicans argued the law was an overreach of federal authority and that its new taxes and fees would hurt the economy. Democrats said that slowing health care spending with provisions such as a powerful advisory board to curb Medicare costs and the so-called "Cadillac tax" on high-cost insurance benefits, would boost the economy. At the same time, the law would provide relief to millions who could not afford or qualify for insurance coverage.

The Congressional Budget Office, a nonpartisan government agency, estimated it would add up to 33 million people to the insurance rolls by 2016. Still, about 26 million people are expected to remain uninsured, many of them undocumented immigrants.

The law makes few changes for people who get their coverage through their jobs, which is the main way most insured people currently receive insurance. Most employers who provide coverage say they will not drop it in 2014, even though the $2,000 to $3,000 in penalties on those who don't offer affordable coverage is less than what many pay for insurance.

Still, the CBO estimates that about 3 million to 5 million people who otherwise would have had employer coverage will lose it. Some of those workers will be eligible to buy insurance through new state marketplaces, some with subsidies to help them pay for it.

Implementing the law is estimated to cost about $1 trillion over nine years, much of that for the insurance subsidies and expansion of Medicaid, according to the CBO. That is slated to be paid for through savings wrung from Medicare, along with new taxes on industry and high income earners.

Gearing Up For Deadlines

The high court's decision comes a year and a half before January 2014, when some of the most significant changes called for in the law take effect. Those include the launch of new state-based marketplaces where consumers will shop for coverage, the fining of employers with 50 or more workers who fail to provide affordable coverage and the expansion of Medicaid.

But whether the federal government and the states will be able to meet the deadlines is far from certain. An estimated 17 states were awaiting today's decision - and in some cases, the outcome of the November elections -- before moving ahead to set up the online marketplaces where consumers will shop for coverage and check eligibility for tax credits to help them buy.

To date, only 14, including California, Colorado and West Virginia, as well as the District of Columbia, have authorized creation of the marketplaces.

States that waited for the court decision may find they have run out of time since they must submit a blueprint for the marketplaces by Nov 16.

"We could have 20 or 25 states not ready," said Laszewski.

In addition, many must resolve a host of technical challenges, including revamping aging computer systems, to prepare for increased Medicaid enrollment - and to link with federal agencies, such as the IRS, to help determine applicants' eligibility for Medicaid or tax subsidies.

Today's decision "doesn't resolve any of the technical aspects the states are facing," said Joseph Antos, a health policy scholar at the conservative American Enterprise Institute.

In addition, insurers, employers and industry leaders say they don't have all the guidelines they need from federal regulators. Federal officials, meanwhile, are navigating technical and political issues surrounding the marketplaces.

The law says the federal government will run the exchanges in states that are unable or unwilling to do so. Many policy experts say delays by governors reluctant to implement the law, coupled with technical difficulties, means that the federal government may be overseeing all or part of the vast majority of state-based marketplaces.

"The feds still have so much to do. So there's a sigh of relief [that the court ruling was favorable] and things are moving ahead, but they're also terrified that things are moving ahead," said Merritt at Leavitt Partners.

Health Providers Already Changing

The private sector, in contrast, has already taken significant steps.

Doctors, hospitals and insurers have begun changing the way they do business as they prepare for an influx of new customers and federal incentives aimed at slowing health care spending by rewarding increased coordination among medical providers. Some are creating so-called "medical homes," where care is coordinated and financial savings are shared among doctors, hospitals and other providers.

"The train is really well out of the station at this point," Sara Collins, a vice president at the Commonwealth Fund, a health foundation in New York City told Kaiser Health News earlier this month. "Insurance carriers are already functioning in this new world that they're living in."

The American public, however, remains split on the law. A New York Times/CBS poll released in early June showed that two-thirds of Americans wanted the court to strike down at least part of the law, while 24 percent wanted the entire legislation kept in place. Most, however, knew little about the law's provisions.

The court decision "is not necessarily going to make the law more popular," said Robert Blendon, Harvard professor and polling expert. "It's almost impossible to move people's views one way or the other."

Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.

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Supreme Court Rules Health Care Reform Mandate Can Stand

Thu, 28 Jun 2012 10:15:00 EDT

JULIE APPLEBY OF KAISER HEALTH NEWS | "I'm disappointed and shocked that Justice Roberts led the charge to uphold the constitutionality of the mandate and called it a tax," said Bill McCollum, who filed the first state lawsuit against the act when he was Florida's attorney general. "I certainly don't think it's a tax. It's a sad day for the American people."

Long in the making - at least five previous presidents tried and failed to pass legislation with similar aims - the law remains controversial two years after its passage.

Read an annotated copy of the complete Supreme Court Ruling on National Federation of Independent Business et al. vs. Sebelius, Secretary of Health and Human Services et al.

"The election is two or three times the importance of court decision," said Robert Laszewski, a consultant to the industry and former insurance executive.

Republicans, Merritt said, "will use it to try to raise the stakes of the election: 'This is the last chance we have to repeal this thing.'"

Florida's McCollum predicted the law's survival would energize attempts to defeat Obama in November elections and repeal it.

"If the president is re-elected, then this law will go forward," he said. "If he isn't, then I think there will be a different outcome in the health care arena." Impact Of Medicaid Ruling

Gearing Up For Deadlines

To date, only 14, including California, Colorado and West Virginia, as well as the District of Columbia, have authorized creation of the marketplaces.

States that waited for the court decision may find they have run out of time since they must submit a blueprint for the marketplaces by Nov 16.

"We could have 20 or 25 states not ready," said Laszewski.

Today's decision "doesn't resolve any of the technical aspects the states are facing," said Joseph Antos, a health policy scholar at the conservative American Enterprise Institute.

Health Providers Already Changing

The private sector, in contrast, has already taken significant steps.

Full coverage:

Marcia Coyle reacts from outside the courtroom after listening to the justices release their decision inside:

"After the oral arguments in March, it appeared the individual mandate in particular was in danger of being killed because of highly skeptical questions by the justices. No one really expected the taxing power of Congress to play as large a role as it did. The Supreme Court today decided Congress didn't have the authority under the Commerce Clause to enact the individual mandate, but did under the taxing power because penalties for not purchasing insurance are included in the internal revenue code and function as a tax.

The other surprise was Medicaid. For the first time in history, the Court found that with the expansion of Medicaid, the government has unconstitutionally coerced the states into participating in a federal program; however, the justices did not strike down the Medicaid expansion. The justices said the threat of withholding federal funds from the states -- Roberts called it 'a gun to the head' -- was what made the expansion unconstitutionally coercive. States now have the option of whether to participate or not."

Decision Day Live Blog

The Morning Line: Analysis of the Expected Political Fallout and What's Happening in Congress

ANALYSIS: What the Supreme Court Decision Means

Be sure to tune in to the PBS NewsHour this evening for full analysis from Marcia Coyle of the National Law Journal and Susan Dentzer of Health Affairs. There's much more about the law and the Supreme Court case on our Health Page.

Streaming by Ustream

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Watch Live Coverage Of Today's Supreme Court Decisions Here

Thu, 28 Jun 2012 09:05:00 EDT

The PBS NewsHour is featuring SCOTUSblog's live coverage of today's decisions. The court will issue opinions starting at 10am ET, with the health care ruling probably starting around 10:15.

Once you see the Live Blog window, updates will appear without the need for refreshing.

SCOTUSblog live blog of opinions June 28, 2012

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Long Wait Over as Court Weighs in on Health Care Reform Law

Thu, 28 Jun 2012 08:39:00 EDT

People start arriving at the Supreme Court in anticipation of the health care decision. Photo by Mark Wilson/Getty Images News

Here. We. Go.

The Supreme Court Thursday is expected to issue arguably the most anticipated decision since 2000's Bush v. Gore when it rules on the challenge to President Barack Obama's health care overhaul, with the outcome having far-reaching consequences for the upcoming election, health policy and the limits of congressional authority.

The law's fate is shrouded in secrecy, meaning official Washington will get the news at the same time as everyone else. That includes the president and his White House staff.

"We turn on televisions and radios and computers and watch SCOTUSblog," White House press secretary Jay Carney told reporters Wednesday. "I think anybody who covers the Supreme Court knows that it's pretty air-tight, and it is perhaps anachronistic, or not, but that's a fact. And so we all will await the decision and learn of it at the same time that you do," he added.

Two hours before the decision, the president's re-election campaign sent supporters a short email from campaign manager Jim Messina. Under the subject line "Today's decision," Messina offered a brief message asking for donations. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back."

The Wall Street Journal's Carol Lee reports the president will give one of three speeches depending on the outcome.

One of the speeches addresses a complete overturn of the law, while another is crafted as if the court strikes down the law's individual mandate but upholds other provisions. The third speech, for if the court upholds the entire law, is more celebratory, according to this person.

No matter the ruling, the White House is expected to continue highlighting provisions of the legislation that are more popular than the overall law, such as the requirements that insurance companies cover people with pre-existing conditions or allow parents to keep their children on their plans until they are 26 years old.

Republicans are also bracing for a variety of results. House Speaker John Boehner told reporters at a briefing Wednesday that his chamber has big plans if the court upholds the law.

"We've made it pretty clear and I'll make it clear one more time: If the court does not strike down the entire law, the House will move to repeal what's left of it," Boehner said. "'Obamacare' is driving up the cost of health care and making it harder for small businesses to hire new workers."

ROMNEY'S PROMISE

Mitt Romney pulled no punches on the stump Wednesday on the eve of what is being touted as the most politically influential Supreme Court decision in a generation. The presumptive Republican nominee took Mr. Obama to task over his handling of the economy and his signature healthcare law. NewsHour production assistant Alex Bruns was there, and filed this report from Northern Virginia:

"It's very clear that a big decision is coming tomorrow from the Supreme Court," Romney said. "My guess is they're not sleeping too well at the White House tonight. That's the way it ought to be."

Speaking before a crowd of a little more than 500 people at the EIT electronics manufacturing company in Sterling, Va., beneath a blue banner with the slogan, "Putting Jobs First," Romney clearly defined the stakes for the pending ruling.

"If the court upholds [the healthcare law], it may say, 'look, it passes with the Constitution.' It's still bad policy, and that'll mean if I am elected we are going to repeal it and replace it," he said.

When Romney declared his disdain for the president's signature healthcare law, the positive reaction from the conservative crowd in Northern Virginia was unmistakable.

The healthcare law remains unpopular with Americans and while the Massachusetts plan implemented by then-Governor Romney is often cited as the blueprint for the Affordable Care Act, Romney the candidate has no qualms with striking a populist tone when it comes to the national law.

"The president is in a tight spot because of Obamacare, and the fact the American people don't want it and the more they learn about it, the less they like it," he told the crowd. "He's in a tight spot because he hasn't done what he said he'd do. He said he'd turn this economy around. That was his number one priority."

Romney pivoted to his economic agenda in the speech, similar to the one he delivered a day earlier standing in front of a giant yellow Caterpillar haul truck at Carter Machinery in southwestern Virginia.

Romney's less than 20 minutes at the podium in Northern Virginia allowed him to work the crowd into a frenzy with his combination of well-timed applause lines and political jabs.

"I thought it was an excellent speech," said Art Reeves, a retired Navy veteran of 21 years from nearby Alexandria. "I had seen him on television before and I thought he was much better in person, much more charismatic."

Deborah Finkel of Reston, Va., agreed and voiced her concern regarding the rising costs healthcare insurance.

"The healthcare issue in the U.S. is significant," she said. "But Obama's plan has failed to fix the problem. We need to let the market forces work."

Romney has some history with the Northern Virginia tech sector. During his tenure at Bain Capital the firm invested in a circuit board manufacturing company, DDI Corp., of Anaheim but with a location in Sterling, nearly quadrupling its initial investment in the company during the dot-com bubble of the late 1990s. Shortly before the bottom dropped out in the market, Bain took the company public and liquidated its shares in DDI.

Romney's Wednesday campaign stop at EIT's Sterling headquarters wasn't the first time the company has played host to a Republican. NewsHour reporter-producer Cassie Chew featured this firm in a recent profile of Virginia Gov. Bob McDonnell. The governor visited the company's 60,000 square-foot, manufacturing facility in Danville during a statewide jobs tour. The new site has been operating since November and McDonnell highlighted its expansion as a positive sign of economic development for the Commonwealth.

Watch that piece here or below.

Watch Video

READY FOR ACTION

We've put together a collection of bonus links to click on as you await the big moment.

Start with SCOTUSblog on our homepage before 10 a.m. ET.

Meet SCOTUSblog's star, Lyle Denniston, the reporter whom even the White House will turn to today for the news. Denniston has covered the Supreme Court for more than 50 years.

The New York Times' John Cushman looks at the "few principal questions the court's ruling will answer."

Sheryl Gay Stolberg writes in the Times about how the presidential election could reshape an aging Supreme Court.

Calculate what each possible scenario from the court could mean for your coverage.

Slate.com's Explainer walks us through how the court writes an opinion.

Here's a Daily Beast slideshow of the most divisive Supreme Court decisions in American history.

This meme took over Twitter Wednesday night in anticipation for the big decision: #otherSCOTUSpredictions. Our favorite: "@jaketapper: ‏1-1-1-1-1-1-1-1-1, court decides they're sick of not being seen as individuals."

And just for fun, Stephen Colbert has prepared for every possible outcome.

DEADLINE DEALS

Judy Woodruff spoke Thursday with Todd Zwillich of Public Radio International's "The Takeaway" and WNYC about two weekend deadlines facing members of Congress.

With transportation funding set to run out on Saturday and student loan interest rates to double on Sunday, it appeared Wednesday that both issues would be resolved by the end of the week.

"It's amazing what Congress can accomplish when things are expiring and when it's time for a vacation," Zwillich said.

The deal on the transportation measure jettisoned a provision favored by Republicans to require the Keystone XL oil pipeline move forward.

Zwillich explained that the Senate had the better hand in the negotiations.

"Really, what happened in this case was that without passing a bill of their own, the House Republicans didn't have a great deal of leverage with the Senate, which, again, passed with 74 votes, Republicans and Democrats together. The Senate had a great deal more leverage in this negotiation," Zwillich said.

On the student loan agreement, Zwillich noted the disagreement between the two parties was over how to pay for the $6 billion price tag, not whether to keep the rates low.

"Republicans have been offering pay-fors from the president's own budget. Democrats have been balking, and Republicans complain Democrats are just milking this for some political messaging," he said.

Watch the discussion here or below.

Watch Video

2012 LINE ITEMS

A trio of new NBC News/Marist polls show the president and Romney running close in Michigan, New Hampshire and North Carolina.

The Washington Post rejected a demand by the Romney campaign to retract its story that Bain Capital outsourced jobs during Romney's tenure, reports Michael Shear of the New York Times.

The News York Times' Michael Barbaro reports the Romney campaign presented one of the candidate's biggest fans with a new truck so he can keep turning up at campaign events. Jim Wilson had logged 40,000 miles across 15 states with his 1998 GMC truck, which was covered with Romney signs and stickers, before it was destroyed in a fire last week. Terence caught sight of the truck during a visit to Cleveland, Ohio, in March.

Politico looks at the convention conundrum.

The Hollywood Reporter has details on the president's Friday fundraiser at the Soho House in West Hollywood. More than three dozen Hollywood celebrities and entertainment industry executives have reportedly signed on to raise some coin for Mr. Obama.

TOP TWEETS

Waiting for SCOTUS is like being a kid on Christmas Eve, if your Christmas presents made half the country extremely angry
— Sam Baker (@sam_baker) June 27, 2012

Romney shoutin' out in Loudon County, VA twitter.com/ABBruns/status...
— Alex Bruns (@ABBruns) June 27, 2012

good times.RT @NorahODonnell: WH confirms AG Eric Holder will be at WH congressional picnic tonight
— gwen ifill (@pbsgwen) June 27, 2012

Looks like the presidential spouse bake off thing has been a thing sincethose Mad Men days of 1992 bit.ly/LBLubG
— e mcmorris-santoro (@evanmc_s) June 27, 2012

OUTSIDE THE LINES

Boehner said Wednesday that the House will move forward Thursday with a vote to hold Attorney General Eric Holder in contempt for withholding documents related to the botched "Fast and Furious" gun-running operation.

CNN's Deirdre Walsh reports House Minority Whip Steny Hoyer said Wednesday that pressure from the National Rifle Association could push some Democrats to join with Republicans in voting to hold Holder in contempt.

And Fortune's Katherine Eban conducted a six-month investigation in search of the truth about the Fast and Furious scandal.

National Journal reports that members of the Congressional Black Caucus will walkout instead of vote on Holder.

Judy explores the work-life balance question in the latest installment of Judy's Notebook.

CQ Roll Call's David Meyers puts on his sportswriter hat to note that Rep. Ron Paul will be inducted into the Hall of Fame at the Congressional Baseball Game Thursday night. And Roll Call tees up the coverage by noting Republicans and Democrats face off at the end of a day that will include two of the most contentious issues Congress has battled in years.

The Washington Post's Dana Milbank bids farewell to the Senate's "Seersucker Thursday," a tradition started in the '90s by former Mississippi Sen. Trent Lott.

Cassie M. Chew and Katelyn Polantz contributed to this report.

ON THE TRAIL

All events are listed in Eastern Time.

President Obama attends meetings at the White House and visits the Walter Reed National Military Medical Center in Bethesda, Md., at 2 p.m.

Mitt Romney is in Washington and likely will make remarks after the health care decision. He attends a fundraiser in New York at 6 p.m.

All future events can be found on our Political Calendar:

For more political coverage, visit our politics page.

Questions or comments? Email Christina Bellantoni at cbellantoni-at-newshour-dot-org.

Follow the politics team on Twitter: @cbellantoni, @burlij, @elizsummers, @kpolantz, @indiefilmfan, @tiffanymullon, @dePeystah, @meenaganesan and @abbruns.

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Primer: Supreme Court's Health Reform Ruling Expected Thursday

Wed, 27 Jun 2012 16:55:00 EDT

Photo by Mark Wilson/Getty Images

Updated June 27 | The "best-kept secret in Washington" is about to go public. Three months after the Supreme Court's hearings on the health care reform law, the justices are expected to announce their decision a few minutes after 10 a.m. Thursday.

The pre-ruling radio silence from the Court has only fueled speculation about whether the justices will strike down the Affordable Care Act or leave part -- or all -- of it standing. But regardless of the outcome, most agree on one thing: This decision is likely to shape the course of American health care for years to come.

According to a recent New York Times/CBS poll, two-thirds of Americans are hoping the Court will strike down at least part of the law. A full 41 percent said the entire law should be overturned while only 24 percent want the Court to "keep the entire health care law in place."

Joining us for a refresher on all of this is NewsHour Supreme Court analyst Marcia Coyle, who is also a reporter for the National Law Journal.

Marcia, let's review the basics. In March, the Court considered several issues tied to the Affordable Care Act. Can you walk us through them one more time?

Coyle: I'm happy to do it. If you recall, the justices agreed to decide four questions about the health care law:

Does an 1867 law, the Anti-Injunction Act, prevent the Supreme Court from reviewing and deciding the health care law challenge? The act bars pre-enforcement challenges to taxes. The penalty in the health care law for failure to purchase minimum insurance will be enforced by the Internal Revenue Service, but will not appear on a taxpayer's tax return until 2015.

Is the so-called individual mandate to purchase health insurance constitutional?

If the mandate is unconstitutional, can it be severed from the rest of the law or must the entire law fall?

Does the expansion of Medicaid coverage for the poor and disabled unconstitutionally coerce the states into participating, because if they do not participate, they risk losing federal money in the federal-state funded program?

What options does the Court have in deciding the challenge?

Coyle: The justices have the following options:

They can rule that their jurisdiction to decide the challenge is barred by the Anti-Injunction Act. That decision would only put off the constitutional test until at least 2015 when the penalty on eligible persons who fail to buy minimum coverage is enforced.

They can rule that the law is constitutional. That would end the legal debate, but not the political debate. Whatever the justices do, the health care law likely will be an issue in the presidential election campaigns.

They can strike down the individual mandate. If they take that option, they then face three sub-options (You didn't really think this was going to be simple, did you?)

They could decide the mandate cannot be severed from the rest of the law, and the entire law must fall. This probably would create considerable chaos and uncertainty, because a number of states already have moved to implement the law and have offered insurance to people who were unable to get it or afford it prior to the law's enactment. However, such a decision also would end the legal, but not the political debate.

They could decide that the mandate can be severed from the rest of the law. The government argues that the mandate is inextricably entwined with two other provisions -- a prohibition on insurers denying coverage of preexisting conditions and charging higher premiums based on health status or gender. Without the mandate, the government predicts premiums would skyrocket and other market reforms would fail.

They could sever the mandate and the guaranteed issue and community rating provisions and decide that the rest of the law can function as Congress intended.

They could uphold the expansion of the federal-state Medicaid program.

They could strike down the Medicaid expansion as unconstitutional.

What is at stake beyond the immediate issue of health insurance for the uninsured?

Coyle: Whatever the Court says about the constitutionality of the individual mandate will have major implications for Congress' power to regulate interstate commerce and its ability to address problems that are national in scope and that the states are unable to solve. We will also likely learn how this Court views more generally the balance of power between the federal government and the states. The latter could have implications for many areas of the law.

The Medicaid decision also has potentially broad ramifications. The Supreme Court has never struck down a law enacted pursuant to Congress' spending clause power, because it is unduly coercive of the states. The spending clause has been Congress' source of authority for enacting major federal laws in many areas, such as civil rights, transportation, education and national security.

Do we know when the decision will be handed down by the Court?

Update June 25: The Supreme Court is expected to rule on health care reform Thursday.

Additional resources:

What's at Stake for Patients?

What's at Stake for Women?

What's at Stake for Your Insurance?

What's at Stake for Medicaid?

What's at Stake for Seniors?

As Health Care Decision Looms, Even Insurance Issues Are Bigger in Texas

Wed, 27 Jun 2012 14:58:49 EDT

Patients wait in line to get checked in at Houston's Ben Taub General Hospital. Photo by Aaron M. Sprecher/AP Images for Kaiser Health News.

HOUSTON | Last year, Luis Duran drove almost 200 miles to San Antonio to have a colonoscopy because he didn't want to wait six months for an opening at a county clinic.

A few days later, the doctor in San Antonio -- a friend of a friend who had performed the screening for free -- called to break the news that Duran, 51, had advanced colon cancer and needed immediate surgery.

"I kind of broke down," recalled Duran, a machine operator whose employer had terminated his health policy. "I said, 'Doctor, I don't have insurance, and I don't have much money, but I won't refuse to pay. Please help me.'"

They say everything is bigger in Texas, and the problem of the uninsured is no exception. The Houston metropolitan area has one of the highest rates of uninsured people in America, and a health safety net imploding under the demands of too many people and too few resources. Almost one in three residents -- more than a million people -- lack health insurance, and about 400 are turned away every day from the county hospital district's call center because they can't be accommodated at any of its 23 community or school-based centers.

Those seeking care at the public hospital's ER, meanwhile, arrive with blankets and coolers full of sandwiches and drinks in anticipation of waits that may go 24 hours or longer.

"If the Affordable Care Act is overturned, the rest of the country should take a good look at the situation in Texas, because this is what happens when you keep Medicaid enrollment as low as possible and don't undertake insurance reforms," said Elena M. Marks, a health policy scholar at Rice University's James Baker Institute for Public Policy and a former city health official.

Opponents of the federal health care law see the problem of the uninsured very differently. They object not just to the price tag of expanding coverage to millions more people, but to the whole philosophy behind it.

Texans are individualistic and value their freedoms and responsibilities, said Lucy Nashed, spokeswoman for Gov. Rick Perry, who notes Medicaid spending is a big part of Texas' budget.

"Individual responsibility is about making healthy choices and taking ownership of your lifestyle -- not just about buying health insurance," Nashed said. "And you can't legislate a healthy lifestyle."

Many Uninsured Have Jobs

With its fiscally conservative philosophy and cash-strapped state budget, Texas does not offer Medicaid coverage to childless adults unless they are pregnant, disabled or elderly. Parents of children covered by welfare are eligible for the state-federal health program only if they make no more than $188 a month for a family of three.

At the same time, the proportion of Texas workers with employer-sponsored insurance is almost 10 percentage points lower than the national average of 61 percent, in part because of the state's high concentration of jobs in the agricultural and service sectors, which often lack benefits.

"Seventy percent of the people we see here are employed," said Dr. G. Bobby Kapur, associate chief of the emergency room at Ben Taub General Hospital, part of the taxpayer-supported Harris County Hospital District.

"They're hourly wage earners, nannies, [people] working in lawn care services or dry cleaning or real estate, or people working two part-time jobs and neither will pay for health care," he said. "Many are small business owners who are well-educated and well-dressed."

The problem is not too few health care providers -- although there may be a shortage of primary care doctors willing to treat Medicaid patients. Houston's hospitals are world-renowned, drawing patients from all over the globe for its highly specialized care -- primarily to those who can pay.

But the hundreds of thousands who work for small businesses, tend the city's lawns, cook its food and care for its children often lack a regular source of primary care.

Overburdened Safety Net

Add in the unemployed and undocumented immigrants, and more than a million people depend on Houston's safety net providers for their care.

"The number of uninsured in the city is four times the 300,000 patients they serve," Marks said. "They can't possible meet the demand for services, no matter how efficient they are."

The publicly supported Harris County Hospital District schedules 1.5 million outpatient visits every year, and is building primary care clinics "as fast as we can," to alleviate the crush in emergency rooms, said President and CEO David Lopez.

But sick patients are often scheduled for appointments two months after they call. Sometimes, as in Duran's case, they must wait much longer.

"I called, but they said the first appointment I could get was August 14," said Humberto Vasquez, 36, who recently joined a stream of patients heading to Ben Taub General Hospital's ER.

Vasquez said he was worried about pain in his lower abdomen and back that had lasted for two weeks, wasn't responding to over-the-counter painkillers and seemed to be getting worse.

As he walked into the emergency room, Benjamin Vasquez (no relation) was leaving, his left arm set in a cast and $100 poorer. Benjamin, a part-time bakery chef and Bible college student, had broken his arm playing soccer Monday evening and spent 24 hours in the ER; he was still wearing his red Number 12 soccer jersey and shorts.

It was his second time there; he had his appendix removed there nine years ago, gradually paying off a reduced fee of several thousand dollars, he said.

Duran, the cancer patient, was leaving after an outpatient chemotherapy treatment that cost $8, a subsidized rate. A year ago, when he was told there would be a six-month wait for a colonoscopy, his daughter, who works in a physician's office in San Antonio, asked her boss if he knew someone who could do the screening for free.

He found someone, and after that doctor diagnosed cancer, rallied a team of surgeons to operate. Duran paid only the anesthesiologist and a negotiated hospital fee.

"If I had waited six months for a colonoscopy, I would have been dead," he said.

Daunting Challenges If Law Is Upheld

Even if the health law is upheld, its proponents admit it won't be a panacea. An estimated 600,000 Houston-area residents are projected to gain insurance coverage, and many are likely to continue having trouble accessing care.

"Our guess is that the number of Medicaid providers will not increase, and there will be long waiting times to be seen," said Lopez, the hospital district administrator.

Only a third of physicians who were accepting new patients this year were taking those with Medicaid, compared with 42 percent in 2010, according to the Texas Medical Association.

The process of determining eligibility for public coverage or federal tax credits could also be hampered by the state's delay in setting up an online insurance exchange where individuals and small businesses are supposed to purchase policies beginning in 2014.

Undocumented immigrants will also be ineligible for any help since they are barred from purchasing health coverage through the exchanges.

But proponents say things will be far worse if the Supreme Court invalidates the law and the number of uninsured keeps growing.

The situation is so bad that Charles Begley, director of the Houston Health Services Research Collaborative, believes that change is coming to Texas regardless of the court's ruling.

"There's a general realization from both right and left that our health care system is in crisis," Begley said. If none of it goes through, you're going to see ... [a] response like, 'Okay, we dodged that bullet from the federal government. Now let's try to do a better job ourselves.'"

Photo Caption: Dr. G. Bobby Kapur is associate chief of the emergency room at Ben Taub General Hospital in Houston (Aaron M. Sprecher/AP Images for Kaiser Health News).

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Of Health Care, Haircuts and Broccoli

Wed, 27 Jun 2012 14:22:00 EDT

It was just a routine haircut.

But before it was over, I found myself engaged in a donnybrook with a beauty salon of women from both the left and right in their political thinking, all preaching to each other about the evils of the federal health care reform law, known as the Affordable Care Act.

The subject came up because I had mentioned that I would be covering the decision of the U.S. Supreme Court this week, which will determine whether the ACA is unconstitutional.

Although no one in the room was an attorney and certainly none of them had ever argued a case before the high court, there was unanimous agreement that the bill was an infringement of their rights because it will require most Americans to buy health insurance.

I was struck by this. The women in this group, I will say again, came from both ends of the political spectrum. So for them all to agree that the so-called individual mandate was a violation of their personal freedom seemed worth taking note of in today's polarized political environment.

I can't remember the last time I watched a whole room full of liberal and conservative Americans agree on anything. And here they were going on and on about how the government shouldn't be allowed to force them to buy ANYTHING ... least of all health insurance.

Of course, many feel differently. There are conservatives who think that state governments have the right to pass laws like this -- even if they think the federal government overstepped its bounds here. And there are many liberals who think the Affordable Care Act would greatly benefit the very Americans who are complaining about the law in hair salons and barber shops.

But this all gave me some insight into why polling on this issue, which started a few years ago, has consistently shown the same thing: that more than 50 percent of people do not like the individual mandate. Like the women in that beauty parlor, most Americans aren't keen on their government interfering in their health care decisions -- at least when it comes to forcing them to buy insurance.

Back in March, when the high court heard arguments in the case, even the justices themselves got into a protracted discussion with lawyers arguing the case before them -- the now-famous broccoli discussion. That started when Justice Antonin Scalia asked one of the lawyers a simple question: If the government can require people to buy health insurance, couldn't it also make Americans buy broccoli?

Tomorrow's Supreme Court decision is about a whole lot more than vegetables. It may bring some clarity to the issue of how far the government can go in what it requires its citizens to do. And it will affect almost everyone because health care is something that ... at some point in our lives ... we all need.

It won't be clear until the justices hand down their decision tomorrow how much of the ACA will survive. The court also has to decide whether the law's expansion of the Medicaid program to 16 million more Americans will stand.

But however this turns out, there will still be a lot of hurdles for the country to overcome before the health care system is truly reformed. And if the mandate is knocked down, there will be big questions about how to cover millions of uninsured Americans ... and keep them out of the emergency room, where health care is most expensive.

Check out the story posted on our health page today on the situation in Texas, where one in three people are uninsured. That's more than any other state. The city of Houston alone has 33 percent of its people without health insurance ... one of the highest rates in the country.

And it's estimated that every year, more than 200,000 people die because they have no health insurance. So come tomorrow -- whether you like buying broccoli or not -- there's still much to be done.

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Both Sides Claim Victory After Court's Ruling on Ariz. Immigration Law

Tue, 26 Jun 2012 09:14:00 EDT

Jane Pauk of Phoenix demonstrates at the Supreme Court after the justices ruled on Arizona''s immigration law. Photo by Alex Wong/Getty Images.

With a big decision on the health care reform law still to come, the Supreme Court on Monday delivered a handful of significant rulings, chief among them a split decision on Arizona's immigration law that each side spun as a victory.

The justices unanimously upheld the law's provision requiring police officers to check the immigration status of any individual they suspect is in the country illegally. Three other parts of the law were struck down, including one element that would have made it a crime for an illegal immigrant to seek work or hold a job.

Here's how the court's ruling played in papers across the country:

The New York Times: Court Splits Immigration Law Verdicts; Upholds Hotly Debated Centerpiece, 8-0

The Washington Post: Justices Throw Out Parts of Arizona's Immigration Law

The Wall Street Journal: High Court Splits on Arizona Law

USA TODAY: In Arizona Law's Wake, Other States to Forge Ahead

The Los Angeles Times: Supreme Court Ruling Highlights Discord on Immigration

The Arizona Republic: Arizona Immigration Law Turmoil Remains After Ruling

La Opinión, the nation's largest Spanish-language newspaper: Comunidad de Arizona está llena de dudas (Arizona community is full of doubts)

President Obama's Republican rival Mitt Romney told donors he would have preferred the court had given "more latitude to the states not less."

"[T]here are states now under this decision have less authority, less latitude, to enforce immigration laws," he said, according to a pool report.

For his part, the president released a statement saying he was "pleased" the court struck down much of the law, but he remained "concerned" about the verification provision. He avoided the topic during a Monday campaign stop in New Hampshire and instead kept to attacking Romney's private sector record. (More on that below.)

The NewsHour's Beth Summers and Meena Ganesan rounded up the reaction and posted the text of the high court's decision here.

The NewsHour broke down the decision and the legal arguments with our regular correspondent Marcia Coyle of the National Law Journal.

Marcia explained that the justices found the state's verification provision did not conflict with federal law, but she did note that the item would be subject to further legal scrutiny.

"In fact, there is a pending lawsuit in Arizona that challenges the law on racial profiling grounds, equal protection grounds," Marcia told Judy Woodruff.

Gwen Ifill followed up with a debate between Kris Kobach, a co-author of the law SB 1070, and Steven Gonzales, a professor at the Phoenix School of Law.

"I would characterize this as an old-fashioned smackdown by the Supreme Court against a state intruding on federal power," Gonzales said.

"There have always been windows of opportunity where states can act as long as those actions are consistent with federal law," Kobach said. "And the court reiterated that today. They said, in our federal system, the courts can take certain steps to discourage illegal immigration and communicate and assist with the federal government, assist the federal government in enforcing our immigration laws....So, I think you're going to see states continuing to take reasonable steps to try to rebuild the rule of law."

The fact the two men went back and forth, each claiming some victory or defeat, gave some additional weight to Romney's description of the court's decision as "muddled."

The implementation of Arizona's law is further complicated by the action, or inaction, that federal agencies will take to support the state in its enforcement efforts. A senior government official told the Morning Line on Monday that, despite the new law, federal illegal immigration enforcement will continue to focus on its current priorities.

Watch the segment here or below.

Watch Video

If you speak a language other than English, help translate Arizona Gov. Jan Brewer's reaction speech via the NewsHour's Amara project below.

( {"video_url": "http://www.youtube.com/watch?v=eTnHjYOFuB4"} )

CITIZENS UNITED WON'T GET SECOND LOOK

Arizona's law wasn't all the high court tackled. Marcia re-joined Judy to discuss two rulings that also have a far reach.

With potentially billions of dollars being thrown around this election year and Citizens United under the microscope, there was some speculation that justices might have wanted to use a Montana case to reopen debate on campaign finance.

"Justice Breyer and Justice Ginsburg had earlier suggested that given all of the money that we're seeing today flowing into the current campaigns around the country, that the court might want to reconsider the proposition that independent expenditures do not corrupt or appear to corrupt elections," Marcia said.

But it turned out the same majority who backed Citizens United opted to keep the status quo. The decision made clear that political speech doesn't lose its First Amendment protection if its source is a corporation, Marcia explained, adding, "And nobody could seriously doubt that that applies to Montana."

The court also ruled that juveniles cannot be given mandatory life-without-parole sentences. Marcia noted that 29 states and the federal government approve this type of sentence, and "there are an estimated 2,300 juveniles under these sentences who committed murder when under the age of 18."

Watch that segment here or below.

Watch Video

OUTSOURCING WARS

As the Morning Line predicted last week, Team Obama has crafted new television attack ads using a Washington Post investigation that explored the record of outsourcing jobs at Bain Capital, where Romney was an executive.

The Virginia-specific spot, timed to Romney's stop in Salem on Tuesday and in Northern Virginia on Wednesday, uses an ad Romney is running in the state promising that his first 100 days would mean "creating thousands of new jobs for Virginians."

"But would he?" a spooky voice intones before ticking through details in the Post story about jobs Bain shipped overseas. It closes with a question: "Does Virginia really want an outsourcer-in-chief in the White House?"

Watch the Virginia spot here

The Ohio ad is here and the Iowa spot is here.

It's worth noting a similar ad earned Four Pinocchios from the Washington Post's Fact Checker.

The ad in Iowa is timed for Vice President Joe Biden's event there. A campaign source said Biden will "highlight President Obama's ongoing efforts to grow Iowa's rural economy and bolster middle-class security for Iowa families while taking on Mitt Romney's history of shipping American jobs overseas."

The ads also amplify the message the president tried out on New Hampshire voters Monday, slamming advisors to the Romney campaign for drawing a distinction between outsourcing and offshoring.

"That's what they said. You cannot make this stuff up," Mr. Obama said. "Now, what Governor Romney and his advisors don't seem to understand is this: If you're a worker whose job went overseas, you don't need somebody trying to explain to you the difference between outsourcing and offshoring. You need somebody who's going to wake up every single day and fight for American jobs and investment here in the United States."

Romney campaign spokesperson Ryan Williams responded to the president's criticism in a statement. "With the worst record on jobs and the economy of any president in modern history, President Obama knows he has no compelling case to make for a second term. That's why he continues to use false and discredited attacks to divert attention from his abysmal economic record," Williams said.

2012 LINE ITEMS

Democrats are scrapping plans for a massive free Labor Day concert at Charlotte Motor Speedway as the kickoff to the Democratic National Convention. The Observer has all the details about the new site and replacement event.

Bloomberg's Hans Nichols writes that the move comes as party planners grapple with a roughly $27 million fundraising deficit.

Using a grainy Twitter photo from Romney's retreat in Utah as evidence, either an operative or activist is suggesting that a Romney super PAC was improperly coordinating with the campaign. BuzzFeed is on the case.

Just in time for Romney's two-day Virginia swing, state Democrats announced office openings and nine new hires, including seven regional field directors.

Chris Cillizza and Stu Rothenberg had a Twitter battle over whether this is the most important week in the Obama presidency.

The president stopped off for a hot fudge sundae during his campaign trip to Durham, N.H., on Monday.

TOP TWEETS

Reddit discovers an old mitt Romney classic! i.imgur.com/xU8Yn.jpg
— Kombiz Lavasany (@kombiz) June 26, 2012

Condoleezza Rice says "no way" to VP for Romney cbsn.ws/NHu4uJ
— CBS Top News(@CBSTopNews) June 26, 2012

Condi Rice says "one of her real regrets" from Bush administration was not passing comprehensive immigration reform.
— Chris Moody (@Chris_Moody) June 26, 2012

Attention groundhog fans: The Punxsutawney Spirit is hiring is.gd/4UykvT
— Mike O'Brien (@mpoindc) June 25, 2012

I got the same call from Mom RT @jeets: Not the only one RT @BuzzFeedAndrew Mom tells me over the phone "I saw Marco Rubio was on The View."
— Sally Canfield (@TheLifeofSally) June 25, 2012

OUTSIDE THE LINES

House lawmakers will vote Thursday on whether to hold Attorney General Eric Holder in contempt for failing to turn over documents related to the Fast and Furious gun-running operation. Already, Democrats are attempting to spin the Republicans' attacks on Holder as an effort at voter suppression.

Michael Gerson has a tough column on Holder in Tuesday's Washington Post.

The New York Daily News reports that veteran New York Rep. Charlie Rangel is in for the "political fight of his life" in Tuesday's Democratic primary.

The New York Times' Jack Healy looks at Utah Sen. Orrin Hatch's effort to survive a Republican primary challenge Tuesday.

The Washington Post's Krissah Thompson profiles Utah congressional candidate Mia Love, who is seeking to become the first black Republican woman in Congress. She's also a Mormon.

Former Secretary of State Condoleezza Rice helped raise some cash for GOP women at an event in Washington, D.C., on Monday.

Illinois Democratic Rep. Jesse Jackson Jr. announced Monday he's been on medical leave from Congress for the past two weeks to receive treatment for exhaustion.

Stu uses his Roll Call column to outline the "good, bad and the ugly" among House hopefuls this year.

Watch Margaret Warner's dispatch from Atlacomulco, Mexico, about the upcoming elections.

Larisa Epatko of the NewsHour's foreign affairs beat shows us what political campaign ads look like in Mexico.

Just because we're guessing you've studied the presidency of Josiah Bartlet, here's a compendium of Sorkin-isms that is really quite something.

The left-learning Public Policy Polling decided to survey Coloradans about how they feel regarding the fictional town of Southpark (yes, that one) and the Overlook Hotel of Stephen King lore. "Overall, 39% see South Park positively and 11% negatively," the pollster writes. As for the haunted hotel, no one knew what they were talking about.

ON THE TRAIL

All events are listed in Eastern Time.

President Obama attends fundraising events in Atlanta at 1:25 p.m. and 2:10 p.m., and in Miami at 5:45 p.m. and 8:30 p.m.

Vice President Biden speaks at a campaign event in Waterloo, Iowa, at 11:30 a.m.

First lady Michelle Obama travels to Chicago for campaign events at 1:45 p.m. and 6 p.m.

Mitt Romney holds an event in Salem, Va., at 12:25 p.m.

All future events can be found on our Political Calendar:

For more political coverage, visit our politics page.

Questions or comments? Email Christina Bellantoni at cbellantoni-at-newshour-dot-org.

Follow the politics team on Twitter: @cbellantoni, @burlij, @elizsummers, @kpolantz, @indiefilmfan, @tiffanymullon, @dePeystah, @meenaganesan and @abbruns.

*CORRECTION: An earlier version of this entry incorrectly described a Supreme Court ruling from Monday. The justice ruled that juveniles cannot be given mandatory life-without-parole sentences. *

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High Court Reaffirms Campaign Finance, Strikes Down Juvenile Life Sentences

Mon, 25 Jun 2012 18:21:00 EDT

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JUDY WOODRUFF: The Supreme Court's immigration ruling wasn't the only decision issued today. The justices found that juveniles who commit murder cannot receive a mandatory sentence of life in prison without parole. And in a 5-4 decision, the same justices who supported the Citizens United campaign finance decision opted against revisiting it.

Well, Marcia Coyle joins us again to explain the rulings.

And hello again, Marcia.

MARCIA COYLE, The National Law Journal: Judy.

JUDY WOODRUFF: So let's start on the juvenile sentencing decision.

MARCIA COYLE: OK.

JUDY WOODRUFF: And you were just saying to me a minute ago, to understand this, you need to reflect on what the court did last year, just in the last session, on sentencing for juveniles.

MARCIA COYLE: That's true, Judy.

Justice Kagan wrote today's opinion. And she said that the court's decision followed really two precedents of the court involving juveniles and sentencing. The first one actually was in 2005. And that's when the court ruled that juveniles under the age of 18 could not be sentenced to the death -- to the death.

The second one was just one term ago. And in that case, the court held that juveniles who committed non-homicide crimes could not be sentenced to life in prison without parole. So this is the next step, she said. And that involves juveniles who commit murders, homicides.

JUDY WOODRUFF: Now, this is a 5-4 decision. And what's the essence of the majority saying here?

MARCIA COYLE: Well, Justice Kagan explained those prior decisions, those two decisions, were really based on the fact, very essential, basically that youth matters when it comes to sentencing.

Those prior decisions pointed out the juveniles are less culpable, less responsible for their actions. They're immature compared to adults. And judges need to consider those factors when they are being sentenced, and also the context of their homes matter as well, the environment they grew up in. A mandatory sentence of life without parole doesn't allow a judge or a jury that kind of discretion.

JUDY WOODRUFF: And a very notable dissent from the chief justice.

MARCIA COYLE: Chief Justice Roberts did dissent.

And he pointed out two things that he thought was wrong. First, he said the Eighth Amendment prohibits cruel and unusual punishment. In this case, he noted that it's hard to say that mandatory sentences of life without parole for juvenile murders are unusual, when you have 29 states imposing such sentences.

JUDY WOODRUFF: When so many states are saying that this can be imposed.

MARCIA COYLE: Right. Exactly.

He also said the court generally under the Eighth Amendment looks to evolving standards of decency in society. And he said those evolving standards don't always go in one direction, leniency. In fact, he said the modern trend has been for states to approve mandatory sentences such as this for juvenile murders.

JUDY WOODRUFF: Now, there was another dissent, is that right, from Justice Alito?

MARCIA COYLE: Justice Alito read a summary of his dissent from the bench. And he basically accused the court of long ago abandoning the original understanding of the Eighth Amendment.

JUDY WOODRUFF: And, Marcia, how large an effect is this going to have in -- this is a very particular instance of juveniles who have been found guilty of murder.

MARCIA COYLE: Well, actually, since there are 29 states that -- and the federal government -- that do approve this type of sentence, there are an estimated 2,300 juveniles under these sentences who committed murder when under the age of 18.

These two cases that the court took actually involved 14-year-olds. And that was the question before the court. But the court today did expand the prohibition to those who are under 18 when they commit murder.

JUDY WOODRUFF: Now, the other decision announced today had to do with campaign finance, the state of Montana arguing that it could put limits on campaign finance, exempting it from the Citizens United, the case of two years ago.

MARCIA COYLE: This was a fascinating case of pushback.

The state of Montana had a 100-year-old state law banning corporate expenditures in state elections. The Montana Supreme Court a year ago upheld the ban, saying that Citizens United really didn't apply here because Montana has a unique history of corruption dating back to that.

And that's why Montanans approved that law, when the copper barons ruled Montana and actually bought judges and legislators. The companies who had challenged the Montana law then turned to the Supreme Court and asked the Supreme Court to reverse the Montana Supreme Court. Montana came back and said, either affirm our Supreme Court or take the case and reconsider Citizens United.

JUDY WOODRUFF: And it turns out that the majority, the same majority who voted for Citizens -- in the majority for Citizens United came down exactly the same way today and said, no, you're wrong.

MARCIA COYLE: Yes. That's right.

This was an unsigned opinion, so we don't know who actually wrote it. But the majority said that, in Citizens United, the court made clear that political speech doesn't lose its First Amendment protection if its source is a corporation. And nobody could seriously doubt that that applies to Montana.

JUDY WOODRUFF: And then what did the minority, the four -- again, we assume the four who...

MARCIA COYLE: Well, we do know who wrote the dissent.

Justice Breyer wrote the dissent.

JUDY WOODRUFF: Right. Right.

MARCIA COYLE: And he said that he felt that Citizens United didn't preclude Montana from showing why the unique facts of its own history and current elections system could justify a ban on corporate spending in its elections.

But he said he saw it was clear that the five who made up the majority in Citizens United were not going to change their minds. It's interesting to note that Justice Kagan joined the dissenters. We didn't know what position she took as a justice, even though she had argued Citizens United on behalf of the government.

JUDY WOODRUFF: There has been a lot of speculation about whether the justices who were in favor of the Citizens United decisions might have had second thoughts, but from looking at this, it appears they have not.

MARCIA COYLE: Right.

And Justice Breyer and Justice Ginsburg had earlier suggested that given all of the money that we're seeing today flowing in to the current campaigns around the country, that the court might want to reconsider the proposition that independent expenditures do not corrupt or appear to corrupt elections.

JUDY WOODRUFF: Marcia, tell us a little bit about the atmosphere in the courtroom, the Supreme Court today. This is the week so many have been waiting for. We are still awaiting -- the country is still awaiting the justices' ruling on the health care, the Affordable Care Act. And now we know what day that is likely to come.

MARCIA COYLE: We do, finally.

(LAUGHTER)

MARCIA COYLE: Well, we know that Thursday will be the last day of the term. We expect the court will issue the health care decision Thursday.

You never know for sure. Who knows? Something could hold it up. But we do really expect something on Thursday. Today, we didn't know what decisions would be coming. We knew it was a decision day, as well as a day on which they issue orders saying what cases they may take next term, what cases they will not take.

So the courtroom once again was crowded with press. TV cameras were lined up like little soldiers at the foot of the plaza. Everybody was waiting. I expect we're going to see a huge number of people on Thursday.

JUDY WOODRUFF: Do they take particular delight in torturing people who are waiting for these decisions?

(LAUGHTER)

MARCIA COYLE: Maybe the press.

(LAUGHTER)

JUDY WOODRUFF: Marcia Coyle of The National Law Journal, thank you.

MARCIA COYLE: My pleasure, Judy.