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Supreme Court Faces Controversial Docket As New Term Opens


They're back. The justices of the U.S. Supreme Court opened a new term today with subjects on the docket as diverse and contentious as affirmative action, abortion, birth control and religious freedom. But to a remarkable degree, the Court - and in particular, its conservative chief justice, John Roberts - is at the center of a political storm ginned up by Republicans who don't think Roberts is conservative enough. Joining me to talk about all this now is NPR legal affairs correspondent Nina Totenberg who was at the court today for the opening session. Nina, how did the justices look after their summer off?

NINA TOTENBERG, BYLINE: Well, they looked very dignified and refreshed. They always look half-dead at the end of a term and revived when they come back to work.

SIEGEL: Let's talk about this business with Roberts. As I recall, he was hailed by the right when he was nominated 10 years ago.

TOTENBERG: That's right. And in truth, he has a consistently conservative record on most issues. He's voted with the court's conservatives to strike down most of the legal limits on campaign spending, opening election campaigns nationwide to a flood of new cash. He's supported an individual right to bear arms. He's consistently opposed any consideration of race and college admissions or involuntary secondary school desegregation efforts. He wrote the Court's decision striking down the heart of the 1965 voting rights act, and he wrote the leading dissent when the Court struck down state laws banning same-sex marriage.

And yet, at the second Republican presidential debate, there was this quite remarkable sight of candidates attacking Roberts like a pinata and portraying his record as hostile to conservative causes. Senator Ted Cruz led the way, thundering that if President George W. Bush had appointed someone more conservative...


TED CRUZ: Obamacare would have been struck down three years ago and the marriage laws of all 50 states would be on the books.

TOTENBERG: Now, it's true that Obamacare is the one subject on which Roberts parted ways with some or all of his conservative colleagues. But as I said, he was the lead dissenter in the same-sex marriage case.

SIEGEL: And other GOP candidates also took their whacks at Roberts.

TOTENBERG: Yeah. Jeb Bush, whose brother appointed Roberts, suggested that the chief justice was a politically expedient choice because he was a conservative who could be confirmed by the Senate. And Mike Huckabee said he would require anyone he appointed to oppose all abortions and to see religious freedom as the first and most important of all rights.

SIEGEL: Nina, turning to this past term for a minute. Last year, the liberal justices prevailed in a lot of big cases but most notably same-sex marriage.

TOTENBERG: It was the first time in 10 years that they had that kind of success record. And they did it by picking off different conservatives in different cases. But this term, Robert, the mix of cases plays much more to conservative strengths. There are cases that could further cut back affirmative-action in higher education, hobble or destroy public employee unions and perhaps all unions. There are cases waiting in the wings that could make it easier to limit voter participation in elections through very strict voter ID laws and cutbacks on absentee and early voting. There's a strong likelihood that the Court will revisit the abortion question, possibly enabling states to make abortions very difficult to obtain. And the Court is expected to revisit the question of birth control under Obamacare.

SIEGEL: Do you expect any retirements this year?

TOTENBERG: Not if the justices can help it. It's not that they aren't old enough to retire. Justice Ginsburg, a liberal, is 82. Justices Scalia and Kennedy, both conservatives, are 79. And Justice Breyer, a liberal, is 77. But the justices like to keep the Court out of politics if possible, and they know that with an election coming up, it would probably be impossible to get anyone confirmed anyway.

SIEGEL: That's NPR legal affairs correspondent Nina Totenberg on the new Supreme Court term that began today. Nina, thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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