The Supreme Court's Trump Dilemma
13:15 Share

This time of the year is always busy at the U.S. Supreme Court, and nobody knows that better than Nina Totenberg. Hey, Nina. Hey. It's, I would say, fun to be here, but it's a little stressful, too.

So June's usually pretty stressful for you, I imagine. This is Nina and me about a decade ago on Facebook Live in front of the Supreme Court. It was June 2016. We were ticking through a flood of decisions coming out at the end of the term and vying for space on the plaza with tourists and court watchers. Again, we've got a lot of stuff going on behind us, so just don't, just ignore it. We talked about an immigration case, an abortion case, and an affirmative action case out of Texas. In a Texas school, you get admitted. Yeah.

But 25% Hey guys, quiet! Sorry folks, this is real life. And real deadlines. Nina had to file for all things considered, so once we wrapped, we got in her car and drove back to NPR. It isn't that far of a drive, but Nina had stuff to do, so she booked it. Weaving through traffic, honking, yelling at other drivers, gunning it through yellow lights, all while classical music played in her car. ♪

This was my professional initiation into the world of Nina Totenberg, juggling multiple Supreme Court decisions, commanding a crowd to ensure good audio quality, and careening back to headquarters to make it on the air on time. Nina's been doing some version of this for five decades, but even she has never seen the court as busy as it is right now. I've never lived through a period like this. The government is filing motions almost daily. Consent.

Consider this. The Supreme Court has become the focal point of the legal battle over President Donald Trump's executive authority and presidential power more broadly. So today for our weekly Reporter's Notebook series, a living legend of Supreme Court reporting will break down this crucial moment in the court's history. From NPR, I'm Scott Detrow.

This message comes from Mint Mobile. If you're tired of spending hundreds on big wireless bills, bogus fees, and free perks, Mint Mobile might be right for you with plans starting from $15 a month. Shop plans today at mintmobile.com slash switch. Upfront payment of $45 for 3-month 5GB plan required. New customer offer for first 3 months only. Then full price plan options available. Taxes and fees extra. See Mint Mobile for details.

This message comes from Viking, committed to exploring the world in comfort. Journey through the heart of Europe on an elegant Viking longship, with thoughtful service, destination-focused dining, and cultural enrichment on board and on shore. And every Viking voyage is all-inclusive, with no children and no casinos. Discover more at viking.com.

This message comes from Mint Mobile. Mint Mobile took what's wrong with wireless and made it right. They offer premium wireless plans for less, and all plans include high-speed data, unlimited talk and text, and nationwide coverage. See for yourself at mintmobile.com slash switch.

It's considered this from NPR. It's hard to fathom how many Supreme Court cases Nina Totenberg has reported on. Nina Totenberg covered this morning's action at the court. She's with us now. This is her first story in the NPR archives from February 1975 about the legality of photocopying copyrighted scientific journals. Well, this case is really the first round in what could be called the Battle of the Xerox machines.

Over the next 50 years, Nina established herself as the preeminent Supreme Court reporter in the country. She has broken countless stories, including allegations of sexual harassment by Clarence Thomas during the justices' 1991 confirmation hearings, as dramatized in the 2016 movie Confirmation. Hello? Professor Hill, this is Nina Totenberg from National Public Radio. I've received a copy of the affidavit that you faxed to the Judiciary Committee stating that Clarence Thomas sexually harassed...

So we wanted to mine her decades of experience to try to understand this current moment on the court, which is fielding a flurry of emergency applications from the Trump administration. The cycle goes something like this. Trump signs executive orders and actions. Lower courts block them. The government asks the Supreme Court to unblock the blocks, rinse, repeat. To add to the equation, Trump nominated a third of the current justices and half of its conservative majority.

So I started our conversation by asking Nina how she would describe the dynamic right now between the court and President Trump. I think the word would be very awkward. I mean, so at the end of last term, the chief justice wrote this decision for mainly the six conservative members of the court, giving President Trump enormous immunity, more than his lawyers had actually asked for. It was an incredibly broad ruling. But now...

It has seemed in the last few months since President Trump has been in office that the court is increasingly dubious about some of the assertions.

that the Solicitor General and the President are making. That doesn't mean that it's not a conservative court, and it doesn't mean that it hasn't sided with the administration plenty of times. But it is increasingly skeptical, I would say. And as we talk about the tension between these two institutions, there was a really interesting moment after President Trump addressed Congress earlier this year, an interaction between him and Chief Justice Roberts, where he goes up

And he shakes the chief justice's hand. And I forget exactly what he said. But thank you. Thank you. I won't forget it. And that was by and large interpreted as Trump thanking him for the immunity ruling. And the expression on the chief's face was priceless. It was sort of frozen, like with a frozen smile. And

None of these justices want to be the handmaiden of any administration. They don't see themselves that way. There are six conservative members of the court who are very devoted to a conservative ideology that they have spent their lives promoting.

And they don't think that what they do is just because Trump asks them to. They do what they think is right. Some people may say, well, they're influenced by their own personal views, but they don't think that. So this is really an affront to them in a way. And it's very hard for them, I think, all to deal with it.

I want to talk about the way that you have covered the Supreme Court. And I think let's just use Chief Justice Roberts as an example, because I know you're very thoughtful and deliberate about how you approach covering the justices, how you view this with a long-term view, how you try to get to know and understand the people who are going to be shaping the courts. When did you first meet John Roberts? When did you first start talking to John Roberts? You know, he used to be somebody that I used often.

In my stories, when he was a lawyer, because he had a lot of cases in front of the Supreme Court when he was a private lawyer. And I remember one day when I got caught in traffic.

And I was like 20 minutes late, and I came in thinking, oh, my God, I have, you know, he's left by now. And there he is sitting there patiently waiting for me. There was no remonstrating. You know, there was no saying, how dare you come late. None of that. We did a very nice interview. It was very clear. He was always terrific, but he is not one of these people that you can sort of get to know easily. Mm-hmm.

And I don't know him well. Let's just put that really. I don't think anybody who covers the court does. And, you know, he has a few really close friends, but he's not one of these people who you see all over social Washington a lot. That's not his style.

Whether it's Roberts or the other justices, can you tell us about how you try to understand the justices that you cover better, how you try to engage with them, given the very formal roles that they have and the way that they carry out their power and rulings that it's your job to try to understand and bring to our audience? Well, I want to make clear, this is not like covering Congress or the White House. You don't just bop into a justice's chambers and say,

Hey, how about lunch today? It doesn't happen. They keep a fairly good distance from most reporters, although there will be social occasions where you could chat occasionally, which is why I try to break bread with any of them who will break bread with me. And it's easier to do when you've known somebody in the past. So there are a couple of members of the court who I knew well before they were on the court.

And it's a lot easier to invite them to dinner than it is to invite somebody who doesn't really know you. It seems a little strange. I'm not going to ask them anything at dinner about the court's business. I just want to sort of get to know them and have them know me as well.

This is something that is a big part of beat reporting, but people with opinions on the Internet chime in on a lot. And can you explain what the value is as a reporter, what you're getting as a journalist by trying to understand somebody better who you're covering? You get a real sense of what motivates them, how they came to the ideas that they came to, what were the influences, how they think.

It's incredibly helpful. And I actually think it's good for the justices. I don't think that coming to dinner with a few interesting people is going to compromise them. I think like you cover this institution that due to the fact that probably partially due to the fact that people wear robes, but also to the fact that this isn't televised. There's like there's still this mystery to the Supreme Court that there's certainly not to Congress, increasingly not to the White House issue.

Can you just help listeners understand what it's like day to day? Like, what is it like when you're walking into the Supreme Court sitting down in the back and covering oral arguments? And how has that changed over the years? I mean, I know one big way it's changed is you don't get to reenact people's questions like you did for so long. It was like your signature style. Forever. When we didn't have audio. Chief Justice Roberts.

Well, if you think that there was a prior democratic gerrymander in 1990, can't the new party in power redress that? Answer, they should not be able to after a court-drawn plan is in place. You would go running downstairs after an argument. We would stand around, you know, sort of supplementing each other's notes, the group that covers the court regularly, and then we would run to file.

So now we do have the audio. And I think even though it's in some ways easier and in some ways harder to put together a piece quickly when you have two hours of audio, for example, and a lot of it is very legal mumbo jumbo, I think it's really valuable for the public because they can listen to the whole thing if they want.

But, I mean, it is a little bit like covering the Kremlin. Yeah. How so? Well, you have no idea what's going on behind those closed doors. The court always says the most important thing it does is issue opinions of the court and that you're supposed to read those and then rely on the likes of me and my colleagues to –

But you don't have the kind of access that you do when you cover other institutions. In Washington, you just don't. When I covered Congress, you could physically run down lawmakers. When I covered the White House, you'd be in the same room and you could yell questions. And neither of those are options of the Supreme Court. You can't yell a question in the middle of –

In the middle of oral argument. I guess you could, then you wouldn't be in the courtroom much longer. You wouldn't be ever invited back. What do you think? I'm thinking about how this institution and this beat has changed over the years. What do you think the biggest cases that fundamentally change the way that the country sees the courts, fundamentally change the way that the court operates are?

Well, obviously Roe versus Wade and the Dobbs opinion. Bush versus Gore essentially decided the outcome of an election. The Pentagon Papers was a hugely important case in its time. And it established pretty clearly that it's very going to be extremely hard.

to get a temporary restraining order to prevent publication of information that the press has gotten its hands on, whether it's done so in a nice way or not. You mentioned Bush v. Gore. This is the 2000 decision to stop the partial recount in Florida in an election that George W. Bush ends up winning by about 500 votes.

Can you tell us about your personal experience covering that story? Well, my honeymoon had been when the first argument in Bush versus Gore and I, we'd picked the day to get married in November, figuring that all of Washington would be gone then. Right, because you put life on hold until after election if you're a political reporter. You put life on hold until after an election, and this was after the election. Well...

So we go off on our honeymoon, and I was run over by a powerboat on my honeymoon. And I'm very lucky to be alive, and I'm very lucky to be married to a trauma surgeon. So we come back, and I'm on the steps of the Supreme Court on the morning of the penultimate argument.

And I'm doing a stand-up interview with the Today Show. And Matt Lauer says to me, Nina, we read all about you having this terrible accident on your honeymoon, but you look really great. And I said, well, Matt, it's a triumph of makeup and drugs. And that was exactly accurate. One of the reasons I think I don't have a clear memory of all the things that happened back then is that the drugs.

That was NPR legal affairs correspondent Nina Totenberg. This episode was produced by Noah Caldwell. It was edited by Adam Rainey and Krishna Dev Kalamar. Our executive producer is Sammy Yannigan. It's Consider This from NPR. I'm Scott Detrow.

Support for NPR and the following message come from Rosetta Stone, the perfect app to achieve your language learning goals no matter how busy your schedule gets. It's designed to maximize study time with immersive 10-minute lessons and audio practice for your commute. Plus, tailor your learning plan for specific objectives like travel. Get Rosetta Stone's lifetime membership for 50% off and unlimited access to 25 language courses. Learn more at rosettastone.com slash NPR.

This message comes from Crown, publisher of The Demon of Unrest, a saga of hubris, heartbreak, and heroism at the dawn of the Civil War by Eric Larson. The Demon of Unrest is available wherever books and audiobooks are sold. This message comes from Thrive Market. The food industry is a multi-billion dollar industry, but not everything on the shelf is made with your health in mind.

At Thrive Market, they go beyond the standards, curating the highest quality products for you and your family while focusing on organic first and restricting more than 1,000 harmful ingredients. All shipped to your door. Shop at a grocery store that actually cares for your health at thrivemarket.com slash podcast for 30% off your first order plus a $60 free gift.