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tv   QA  CSPAN  October 4, 2015 11:00pm-12:01am EDT

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mauro. then british labour party leader -- conferencecon and then question time. ♪ announcer: this week on "q&a," tony mauro. he wrote the companion book to c-span's landmark cases book. he discusses some of the cases featured and also talks about the supreme court's new term. brian: tony mauro, when did you start covering the supreme court? tony: in 1979, which is actually
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longer ago than any of the court -- than any of the court justices sat on the court. so i have been there awhile. brian: what brought you there? tony: i went to law school for a brilliant four week career and then i went into journalism and i was transferred to washington and my editor said if i could handle the new jersey supreme court, i could handle the u.s. supreme court. this was forwarded net news service at the time. th --is -- this was for gannett news service. i have covered it ever since and it is the best beat in town. brian: why? tony: because there is such for friday that we have to cover.
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we have a death penalty case one day, same-sex marriage, you know, some of the biggest issues facing the country. it is never boring. the other thing is, unlike the white house beat and the congressional beat, we are not really dealing with politicians in the same sense that they are politicians. the justices are not elected. they actually have very little interest, generally, in talking with the press. but they are trying to solve these problems and these disputes and it is just an interesting, fascinating process. and i like that better with having to interview someone from congress or covering the white house where there are 200 people writing the same story. so it has been the same -- so it has been challenging in that way. brian: so the court has been out since june or july? tony: mid-june. brian: are you going to be back in the court? tony: i will. brian: what is the first thing that you are going to look for? tony: since we have not seen the
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justices together in a long time, since the end of june, i will look for a health check, as you might call it, which sounds ghoulish, that it just checks on how they seem and if there are any bad feelings that you can see between them. the justices always say that they are cordial and friendly, even though some of the language gets very strong. so i will be looking out to see if there are any, you know, cold shoulders or tensions that you can see in the interactions between the justices. brian: any of them doing something this summer that caught your attention? tony: some of them travel overseas, that is not unusual. some of them went to -- gave talks to, you know, a range of audiences, law schools, local civic events. i can't say there is anything
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really striking. justice ginsburg, i should say, attended an opera that has her as one of the characters. she didn't participate in it, but it is the scalia ginsberg opera, that is actually the title of it. it is an opera that looks at the odd friendship between scalia and ginsburg. they are opposites ideologically but they are very good friends. brian: last week, the pope was in town and spoke to the congress. we have some video that shows out of the nine justices of the supreme court, four came. where were the other five? [laughter] tony: several, we tracked them down, but several had out-of-town engagements that
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they could not break. scalia and thomas were pretty much unaccounted for and you can only speculate. they are both catholics, but they are conservatives, and they might not have really enjoyed the pope's message or some of his message about immigration and other things. so maybe that's why they didn't come. many of the justices don't particularly enjoy those joint sessions of congress, especially when a state of the union address comes, because they feel like they are supposed to be neutral parties, so they might feel awkward copping for whoever -- clapping for whomever is
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speaking. alito said that you feel like a potted plant up there when you are sitting while everybody else is standing and clapping. the justices sit and they keep their hands quiet. so it is not their favorite venue, i would say. but i think, in particular, this pope's messages might have been something that some of the justices did want to talk about. brian: to talk about two things, there are things i want to talk about. one of the things is age, the justices and how old they are right now. you can see on the screen that we start at the top with ginsburg, and we go down, alito is 65, sotomayor is 61, john roberts 60, and elena kagan is 55. what does that say to you in the history of covering the court? tony: well, the median age is younger than some of the
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justices of the courts that i have covered before. you know, until 2010, justice stevens was on the court and he was 92. brian: and he is still alive? tony: he is still alive and i think he regrets having retired because he is still very, very active mentally and keeps pining -- opining about what the current court is doing even though he has left the court. but it does also tell me that, and this is something i have been writing ever since i started covering the supreme court, that the supreme court really should be a big issue in the presidential campaign. now you have four justices in their upper 70's or 80's going into the next term of president. for actuarial reasons, it seems possible, likely, perhaps, that
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at least one or two justices will depart in one way or another. in those four years. so, the public really should be thinking about that one when they decide who to vote for. brian: we have about 16 months or so until the next congress comes in and after we go through a presidential election and all that. if somebody were to leave the court today, what is your guests -- guess? would congress approve a supreme court approval -- appointment? tony: i suppose president obama would be able to get someone through. it might not be his first choice because i think it would have to be someone very moderate or a middle of the road justice in order to get the votes you would need from the senate to confirm that person.
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but i think the later it gets, the more likely the senate republicans would just sit on the nomination and just ignore it until the next president comes in. but i think if it was now, it is still such a long time before the next president takes office, i think that the public wouldn't much like to have an eight-justice court for more than one year. brian: the other category we talked about is religion, and you talked about some of the justices were catholic. this is an unusual looking court from a perspective in the fact that three on the screen are jewish and there are six catholics. what does that say? tony: it really is remarkable. it is so different. they used to be protestants and protestants and protestants.
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there used to be what was called a "jewish seat." so generally speaking, there would be one jewish justice out of the nine, but that is just completely transformed. there are no protestants on the court anymore. there are three jewish justices now. so, you know, i think the justices only say that they won't let their religious views interfere with their decision-making, and i think that is generally true. justice scalia once said that if he felt the death penalty -- that if his religion would allow the death penalty legal, he would, he would resign from the
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-- would not allow the death penalty to be legal, he would resign from the court. now the pope, in fact, did speak out against the death penalty when he spoke to the congress and said that the death penalty should end, but that doesn't mean that justice scalia would believe that the pope is correct. so we just don't know how he feels. but in general, i think the justices set their religious views aside in terms of constitutional right and wrong. brian: as you know, we started a a series here called "landmark cases" tomorrow night. in.same day the court comes you have to tell a story about how they commissioned you to basically write about this stuff. we've got a book that folks can get that is on the screen right there called "landmark cases" by tony mauro. how did this come about?
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tony: i got a call a few months ago and i was told you were about to do a series of shows on landmark cases, and they have been using the book that i wrote years ago as the foundation or the informational source of a lot of this material that you are going through now. i was told that they would pull out some chapters from my book and turn it into a new book, this book. so that's how it came about. we had to get rights from the original publisher, and then i updated each of the 12 cases that i have written about. the original book was called "illustrated re-decisions of the "illustrated great decisions of the supreme court." brian: how long was that?
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tony: i wrote about 85 cases throughout history and the most recent edition was in 2005, so that would include things like, you know, a -- wouldn't include things like, you know, a same-sex marriage case. so it was a little dated. but c-span picks it -- picked it with the constitutional law center. brian: let me show you a poll that we took. the question was, the percentage of the mass of american adults who are familiar with supreme court cases. it starts off that 67% of people were familiar with roe versus wade, aranda versus arizona, 27%, read scott versus sanford, 12%, and then it gets into king versus burwell, 6%, and the same-sex marriage case, which was 5%, lautner versus new york
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at 4%, and baker versus car, 3% know what that is. i will just start with the bottom one. who was baker versus carr? it is one in our series. tony: it is a little bit abstract but it basically has to do with districting and how the states carve their counties and areas for the purposes of election districts so that, you know, you would have two
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districts with 200,000 voters electing a state representative and the next district with roughly the same population and you would have to guarantee the same voting power, in essence, and what happened in the middle of the last century is there was a lot of migration. people moved from rural areas to urban areas and that created a great disparity in populations between the districts. there was one los angeles district where one million people lived and they were electing one state senator and there was a rural district in california that had about 20,000 40,000 people in it and they were also electing one state senator. and that has consequences because it meant that urban interests were not addressed, particularly in state legislatures, and rural interests prevailed a lot. so this turned out a sort of simmering problem in the political system and this case dealt with that.
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this was a case out of tennessee were a lot of this disparity was occurring and the supreme court decided that, in fact, there should be a one person, one vote concept. they didn't use that phrase, a later case used it, but people would have roughly the same of voting power no matter where they lived. and earl warren, the chief justice then, said it was the most important decision he presided over. that is saying something since he was also the one who wrote brown versus board of education. brian: there are 12 different cases and the book and 12 different cases every week and of course it will be available in our archives. 9:00 eastay night at
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coast time. which justice since 1979 have you known the best? just by being there and being in the hallways and being at different events? tony: well, that is a tough one because, like i said, the justices don't really have much use -- they don't really want you to get close to the justices. some reporters have good relationships with justices, but i like to think that i shouldn't be making friends with the people i cover. it is a little harder to be skeptical if you, you know, have dined with the justices or their friends. but every reporter does it differently. but anyway, i would say that the ones i've known the best are chief justice roberts because he argued before the supreme court for years, long before he became a chief justice, so we all knew him as john.
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he was a very accessible, friendly person. a brilliant advocate, probably the best oral advocate i have seen in my time. but then as soon as he became chief justice, we couldn't call him john anymore, we would call him chief. we do get to break bread with him once in a while. he has lunch with the supreme court press corps every year in june. we always benefit from that even though it is off the record. brian: has he changed, though? tony: i think he has. for one thing, he is much less accessible to the press. he has become much more of a private individual and very guarded in the statements he makes and the appearances he
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makes off the bench. i think he has a real feeling that's he is the leader of this institution and really play it straight and he must not be seen as a public figure in any personal or celebrity kind of way. brian: let me show you a list of the justices who have been on the court. it starts with scalia who has been there 29 years and kennedy who has been there 20 and clarence thomas, 23, stephen breyer, 21, john roberts, 10, alito, nine, sonia sotomayor, five, etc. you have covered all of these folks and which one on the list do you know the least from a personal standpoint? tony: from a personal standpoint, i would probably say clarence thomas because he never gives interviews to the press.
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at least as far as i know. he, i mean literally, i could write a story saying he robbed a bank yesterday and i would ask for his comment and he would probably not comment. he just has no interest in responding or participating in news stories. so i really don't have any personal connection to him. although he is great as a public speaker when he does get out and talk to the law school audience or something like that. he really speaks from the heart and he bears his soul quite a bit. so we have learned a lot about him from those kinds of appearances, but nothing, nothing -- brian: what about media
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coverage, you write, who reads your stuff? tony: i write for the "national law journal" and also for a subscription newsletter called "supreme court brief" that goes out to people who subscribe. so it goes out to an audience of lawyers, people who are -- lawyers seem to be really interested in the supreme court for obvious reasons. brian: you mean lawyers who don't even practice in front of the court? tony: people are fascinated with the court and they want to know about the opinions that they write. they are very interesting people and like i said, a lot of them just want to be above the fray and to want to be seen as public -- they don't want to be seen as figures, but certainly that
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isn't the case with some of them. justice sotomayor is also very popular on the circuit and justice ginsburg has turned into a sort of celebrity herself, you know, the notorious rbg. she is feisty and still at it and not about to quit by any means. brian: the first program on the series "landmark cases" talks about marbury versus madison. i want to show you a video where they are talking about a letter from thomas jefferson. i want to get your quick -- tell as quickly about marbury versus madison. [video clip] >> a family tragedy brought together thomas jefferson and abigail adams in june of 1804.
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abigail wrote to express her grief on the death of jefferson's daughter. jefferson took the opportunity to remind that he had a good .riendship wit he also spoken for the first time about the midnight appointments that had divided the pair. there was only one half of my life that gave me displeasure, and the appointment's office were personally unkind and they were amongst my most ardent political enemies and they laid me under the embarrassment of men whose views were to defeat mine. brian: first of all, what was the importance of that in history? tony: well, those judicial appointees that he was talking about were made by president adams just the day before president jefferson was going to come into office, and the
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commissions never got delivered properly. justice marshall, who was also the secretary of state at the time, oddly enough, somehow there was some mixup and they didn't get there. but anyway, one of the justices who didn't get the position sued and it was called marbury versus madison. marbury was one of those judges. and the court said basically that he probably deserved some remedy, but the remedy of congress has provided for this goes beyond the power of congress, the authority of congress, so that the supreme court was going to strike down that law. this was something the court had never done before.
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you know, declaring an act of congress unconstitutional. chief justice marshall said very strenuously that the exclusive province of the judiciary to state what the law is, and that is basically the foundation of how the supreme court operates today and why it is so important and it is still in some ways very controversial. former arkansas governor mike huckabee has said, why should the supreme court have the final word on things like same-sex marriage? where is that written? and in fact, it is not in the
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institution, but it is marbury vs. madison. brian: if you go to the supreme court website, they are only going to meet in open fashion for 39 days starting tomorrow. 39 out of 365. they're only going to hear three or four, not very many cases. why so few days? tony: as they would tell you, the oral arguments and what goes on when they sit in open session is really a very small part of what they do. they spend a lot of their time, even in the summertime reading briefs and once the arguments occur, behind the scenes, someone will be assigned to write the opinion and they will be back and forth. there will be consensus, there will be concurrences, and that is really the substance of what they do. they don't need to be on the bench to do that.
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now as you and i have gone back along ways on this on the issue of cameras in the court, i think we would agree that even though the oral argument is a small part of what they do, it would be a window onto how the court operates, how the justices are thinking about these issues, and it would just be a tremendous educational benefit. you know, also something that i think is that the justices shouldn't be able to deny, they should be able to say no cameras. brian: interesting, that was on the "stephen colbert show." i want to be careful because i don't have the exact quote but he was saying oral arguments are really only 5% in what goes on with the final decision. if it is only 5%, why are they so worried about cameras?
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tony: that is the flipside of the point that he makes. they are worried about several things, one is as i said before, they don't want to be viewed as celebrities. they don't want to be on the nightly news. brian: but they will go on "the brian: but they will go on "the stephen colbert show"? tony: yes, especially when they have a book to sell. but part of that is personal privacy. they don't want to be recognized in the grocery store. again, this is not something that they are entitled to, i think they are not entitled to be that shy. they are in public office. they are working for the public. so they should be able to take some public, you know, notoriety. but also, justice breyer said this to colbert also, he said "we wear black robes for a reason." that is to show that they are neutral people, they are not personalities and they want to
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convey that message and he thinks cameras would prevent that. brian: i want to show you a clip in a minute of the black robe of john marshall. toore we do that, i want -- the justiceen who has served the longest that is currently on the court is justice scalia, but i want to put on the screen the top of the list of the 15 a longest serving justices in history. and leland douglas still holds it at 36 years john paul stevens could have stayed another two years and he would have been number one. hugo black's at 34, john marshall harlan is down the list, william rehnquist at 33.7 years. we have of the rest on there,
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john maclean is at 31 years, byron white, 30, and antonin scalia who is still on the court at 29 years. we did a poll and more than a a majority say that they should not have an appointed for life. what do you think? tony: well, i agree that life tenure is awfully long. when the founders established life tenure, people didn't live as long, so people might have served 20 years, but now justices could be on there for 40 or more years. you sort of lose touch with a society if you are up there that long. so i think there is some merit to it. the benefit of it is that the justices don't have to worry about politics.
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they don't have to worry about their next job so they don't have to please certain factions one way or another. they can decide things independently and if they lose life tenure, that might be lost. brian: john marshall, who served 34 years and is the second longest-serving justice, at his home in richmond, there is the black robe that you referred to earlier. let's watch a little bit of this explanation. [video clip] >> he would have worn this early in his tenure as a supreme court justice. it is during that time period that he makes the sanction it uniform, so to speak for the supreme court justices to wear black robes rather than the red robes that the english court would wear.
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prior to his appointment, it was pretty much up to each individual justice what they wanted to wear prior to john marshall. many members of the supreme court were wearing pretty much modified english court robes, many of which were red, and many were wearing modified english court wigs. justice marshall made it mandatory that they would all be wearing black robes. this is mainly to say that we are responsible for interpreting the constitution, this is not a show of power. brian: what do you think the black robes do for the people who sit in court like you will be doing tomorrow? tony: it is pretty imposing, i would say. there is something to say about wearing black robes. it is sober, it is neutral, and it kind of gives you the idea that these people are not in it just for their political preferences.
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it does remind me of one of the funniest moments since i have been covering the court. one day the session was about to begin and chief justice rehnquist came out with the other justices, and he had a robe on, a black robe, but it had a four gold stripes on each sleeve, and we were all aghast, no one had ever seen a justice wear something other than the strictly black robe. so it was just kind of hilarious, it seemed a little bit showy, and we learned later
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that he -- chief justice rehnquist, he had been to a gilbert and sullivan play and he got the idea for the stripes from that. and he wore those until he died. but it was very much a part from the tradition of the court. brian: another case that the landmark series will cover is matt v. ohio, and i'm going to go to the last paragraph on this because there is plenty of time to go into the details on it, but you had this in your book. does she pronounce her name dahlery? tony: i think so. brian: she moved to new york where she was convicted in 1974 on charges of selling narcotics. she was sentenced to 20 years in prison but her sentence was commuted. she died at the age of 91. who was she and what was the case?
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tony: she lived in cleveland and she was just minding her own business in her apartment, apparently, and all of a sudden the police arrived and they wanted to search her apartment. they claimed that she had been involved in some kind of illegal gambling operation. then they kind of waved a search warrant at her, nobody really knows if it was valid, but it was kind of extensive. they found some pornographic material and it turned out that she was convicted on obscenity charges. she was sentenced to jail. but she claimed that this search violated the fourth amendment which guarantees unreasonable searches and seizures by the government. the lower court, i believe, actually found that it was an illegal search, but they allowed
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this evidence to be used against her anyway. the supreme court said that is not the way to go because if the police, you know, violate the fourth amendment and a search of a person's belongings, the police should be punished in a way. they should not be allowed to use the evidence that they find in an illegal search in prosecuting that person. so the evidence should be excluded from trial. that is why we call it the exclusionary rule. it has been a powerful tool for professionalizing police. it requires police to establish
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procedures and how to conduct searches. they have to get search warrants in order to not file it for them and meant -- violate the fourth amendment. so she was the rosa parks of the fourth amendment. brian: and in your book, this was a 5-4 decision, and the supreme court chief justice wrote the deciding -- and in miranda versus arizona, you write about this. maranda himself was tried and convicted again, this time without using the confession against him. he was imprisoned until 1972 and went back to prison in 1975 after another run in with the law.
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released, he was murdered in a fight in phoenix in a bar and according to some report, he had several miranda cards that his police case had inspired when they found him dead. who is he and what is this case about? tony: his name was ernesto miranda. and this series looks at the people behind these cases and these grand pronouncements from the supreme court based on real people who have a dispute with the government, often, and ernesto miranda was one of those people. he lived in phoenix and he, too was raided, his apartment was raided by police and he was suspected of rape and kidnapping, i think. he was taken to the police station and he was grilled for two hours and after that he confessed.
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he confessed to the crime. but nobody ever told him that under the constitution, under the fifth amendment, he didn't have to speak to the police. not without having a lawyer by his side. the supreme court, again, similar to the previous case, they decided that this was really something that police should be required to do. they should be required to warn people that they have a right to remain silent, they have a right to a lawyer, and anything they say or do can be used against them. also, if they can't afford a lawyer, the government will provide them a lawyer. so that is a very clear statement by the supreme court and that is what was put on
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miranda cards. police would have to recite those precise words when they arrest someone and before they ask them questions. brian: 10:00 on monday morning, the court comes back for the first time since you said, june? you are going to be in the court and we asked in our poll what people think where the justices come from, what schools they go
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