After Disasters, DNA Science Is Helpful, But Often Too Pricey

A Thai medic checks bodies for forensic identity in Phang Nga province in southern of Thailand on Jan. 11, 2005. Thousands of people were killed in Thailand after a massive tsunami struck on Dec. 26, 2004.

Pornchai Kittiwongsakul/AFP/Getty Images

Human DNA is the ultimate fingerprint. A single hair can contain enough information to determine someone's identity — a feature that's been invaluable for identifying the unnamed casualties of natural disasters and war. But forensic scientists who use DNA say the technology isn't always available where it's most needed, like in poor countries, or in war zones like Syria.

The technology is often too expensive or too complicated, and where there are large numbers of unknown dead, you need far more than just DNA profiling equipment. You also need sophisticated computer programs to organize and match DNA samples from numerous family members, as well as experts to read the samples properly.

Alex John London, a medical ethicist at Carnegie Mellon University, says that while there are numerous groups that do DNA identification worldwide, and the process is often ad hoc and erratic.

It was largely the Indian Ocean tsunami that got forensic experts thinking. There were tens of thousands of unidentified bodies, and DNA experts flocked to Thailand to set up labs. Tom Parsons, a DNA expert with the International Commission on Missing Persons, says Thailand got the attention because western tourists died there. Their governments sent teams to find their bodies, but it didn't go well.

"All of the world's first-rate forensic teams took off to Thailand, where white people were killed," Parsons says, "with no centralized plan, pushing and pulling." Governments funded the effort because they wanted their citizens' remains back. But it was "really a mess," says Parsons. Different groups wouldn't share their technology, and even disagreed on how to do the DNA analysis. There was little coordination.

Eventually Interpol, the international police organization, intervened. The commission ended up identifying some 900 people, mostly Thais who might not have been identified otherwise.

Parsons says in the end the DNA work in Thailand was a success, but it revealed to forensic experts that there might be a better way to do this — that in fact a permanent organization with DNA "chops," money and an international mandate to respond to disasters might work better.

"Our concern was that there should be a mechanism in place that would allow access to DNA identification beyond just ability to pay," London says. "Too often if there isn't a funder out there, then people who are missing relatives won't get access to the technology."

So forensic scientists are calling for the creation of a DNA identification organization — one that functions much in the same way the International Atomic Energy Agency does, which sends inspectors to nuclear facilities.

But London acknowledges in an article in the journal Science that a global DNA identification organization would face political obstacles, especially from governments at war with their own citizens.

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After 11 Years Behind The Host Mic, Neal Conan Signs Off

NPR's Neal Conan reflects on his 11 years of hosting Talk of the Nation and thanks some of the influential contributors to the show along the way. After 36 years at NPR, Conan signs off.

Copyright © 2013 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

NEAL CONAN, HOST:

And so it's time to say goodbye. As you probably know, this, after 21 years, is the final broadcast of TALK OF THE NATION, and after 36 years, my last day at NPR.

Before I go, there are some people to thank. First, my predecessors in this chair: John Hockenberry, Ray Suarez, Juan Williams and the many substitutes who allowed us time off.

There have been dozens of people on the staff over the years, the people whose names you heard after Letters on Tuesdays, the people who made this program happen. I can't begin to list them all, but I do need to thank the crew that held the ring with me these last few hard months. Tinbete Ermyas, Libby Franklin, Monica Bushman, Laura Lee, A.D. Quig, Jessica Reedy, Priska Neely, our editor Sarah Handel, director Gwen Outen, senior producer Scott Cameron, senior supervising producer Carline Watson. And we do not get on or off the air without our techs.

Again, we can't begin to list them all, but on their behalf, our thanks to technical director Melissa Marquis. And, of course, I can't skip Political Junkie Ken Rudin.

There have been only two executive producers in my time on the show. So let me thank Leith Bishop, wherever she maybe, and especially Sue Goodwin. On this program and others, she and I have worked together for many, many years. She, more than any other person, can claim credit for our successes. I will miss her dearly.

I need to thank the bosses who decided to start this show and to sustain it over more than two decades. I need to thank the member stations, and not just the more than 400 who carried this program, but all of them, all those stations who collectively support NPR and allow us to borrow their outlets to talk with people across the country.

And I need to thank you. We're told that more than 3.6 million of you listen each week. That puts TALK OF THE NATION in the top 10 of all talk shows in the country. The currency of broadcasting is that number, the quantity of eyes and ears that can be delivered to soap manufacturers and carmakers. To be honest, we do a little bit of that on public radio, as well.

But on TALK OF THE NATION in particular, listeners have voices, too. This program works best when we find ways to engage your stories about your jobs and your kids, you fears and your successes, about what happened in the drought, the hurricane, in the fire, in the hospital, at the job and at school, in Iraq or Vietnam.

Over all my time at NPR, I worked as a reporter, editor and producer. And as much as I loved all those jobs, the past 11-and-a-half years, this job has been the best. It's been an honor to talk with you every day.

I counted them up: 600 weeks. Give away time off for vacation, throw in all the special coverage, let's round it off at 5,000 hours. There is still so much to talk about, but that's going to have to be enough.

So, in a minute or so, I will go back to where I started in public radio. I will be one of you again, a listener. Yes, a listener-sponsor, but a listener-critic, too. I will cry and laugh and yell at the radio. And we listeners have a vital function. It is our job to hold member stations and NPR accountable.

So right here, I form my own private compact with NPR and my member stations. I will listen and, yes, I will open my checkbook, but I need some services in return. Go and tell me the stories behind everything that happened in the world today. Explain why it happened, and how it affects our lives. Do it every day. Tell me what's important, and don't waste my time with stupid stuff.

Bye-bye. Signing off for TALK OF THE NATION and from NPR News, I'm Neal Conan, in Washington.

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NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.

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What Changes After Supreme Court Rulings On Prop 8 And DOMA

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune
Scott Shafer, reporter and host of California Report, KQED
Dale Carpenter, professor of civil rights and civil liberties law, University of Minnesota
Brian Brown, president, National Organization for Marriage

In a 5-4 decision in U.S. v. Windsor, the Supreme Court ruled the federal Defense Of Marriage Act unconstitutional. The court rules that supporters of California's Proposition 8 case did not have standing to bring the case to court, which means same-sex marriages in California may resume.

Copyright © 2013 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan, in Washington. Today, the Supreme Court recognized a fundamental shift on equal rights for gays and lesbians. In two highly anticipated cases, the court struck down the Defense of Marriage Act, which denied federal marriage benefits to couples of the same sex, and then effectively struck down California's Proposition 8, which means that gay marriage is now legal in 13 states and the District of Columbia.

We'll give you the full play-by-play of all that happened today and what happens next, but we want to hear from you, too. What changed today? Tell us your story: 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, Mavis Staples will join us to talk about her new album. But we begin with David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. He joins us on the line from his office here in Washington. Busy week, David. Thank you for joining us again.

DAVID SAVAGE: Hi, Neal.

CONAN: Let's talk first about DOMA, the Defense of Marriage Act, where a five-four majority concluded that the purpose of that law was to exclude gays from the dignity and status of marriage legally recognized by the state.

SAVAGE: Yes, and Justice Kennedy wrote a pretty strong opinion, saying that this is a - that marriage is a matter of liberty, fundamental liberty in this country, and that persons deserve the equal protection of the laws, and that this law violated both the right to liberty and equality for same-sex couples.

He talked about there's an evolving understanding of equality in this country and this sort of new perspective. And it was very much of the way Justice Kennedy sort of views the world, is that the Constitution's not frozen, and that conceptions of liberty and equality change over time, and that people's ideas about gays and lesbians have been changing over decades, and that a law that might have seemed reasonable 20 years ago we now recognize is really a fundamental infringement of equality and liberty and therefore is unconstitutional.

CONAN: And he was joined with - by the four members of what we usually think of as the liberal wing of the court, the four solid members of the conservative wing on the other side and a scathing dissent from Antonin Scalia.

SAVAGE: Yes, Justice Scalia read a lot of the dissent in the courtroom. He and Justice Kennedy have really been involved in this fight for 20 years. You know, they were both Reagan appointees, both Catholic conservatives, but Justice Kennedy is very much of a sort of what you call a social liberal. Justice Kennedy - I mean, Justice Scalia is very much of a social conservative. They've had fights on abortion and gay marriage going way back.

And Justice Scalia, about every 10 years, has one of these dissents where he really sort of blows up at Kennedy. At one point in the opinion, he basically said Kennedy and the court are saying they're really not ruling on gay marriage nationwide, but they really are. Don't be fooled. It's just a matter of time until the other shoe drops.

So Justice Scalia was the one who was really saying it's clear where this is going. It's going to be gay marriage legal nationwide.

CONAN: Because he suggested that the logic in the majority decision today will lead to challenges when somebody who's married, as he put it, in Albany then moves to Alabama and wants the rights that they would have had in Albany.

SAVAGE: Yes, there's that challenge. But also, what about the couple in Alabama who sues and says we would like to get married? And Justice Kennedy has written an opinion that says this is a matter of liberty and equality. Well, those - that couple in Alabama or Louisiana or Nebraska or wherever could go to federal court and raise the same issue.

CONAN: And as you suggested, it was equality under the law, which was a lot of the logic of the argument of the majority opinion, written by Justice Kennedy. It was Justice Scalia in his dissent who brought this back to the culture wars, if you will. He said the majority was excoriating the - those who were - voted for this law 20 years ago, and the president who signed it - that would have been Bill Clinton, by the way - and saying that they were, you know, terrible people, morally bankrupt.

SAVAGE: Yes. Justice Scalia sort of took the Kennedy opinion as a real sort of a slam at persons who supported traditional marriage. I didn't get so much of that tone from what Justice Kennedy said. But Justice Scalia said you're sort of impugning their decency and viewing them as bad people, and that that's out of line.

And I'll say one of the really odd things I thought about Justice Scalia's dissent is he spent a lot of time talking about: Who are we, the Supreme Court, to be striking down a law that had broad support in Congress and the support of the president? Well, you know, yesterday, that's exactly what Justice Scalia did, striking down the Voting Rights Act. He was in favor of striking down laws yesterday, but not today.

CONAN: And let's turn to the other decision, Proposition 8. In this case, of course, it was the state of California said we're not going to defend Proposition 8 in federal court because, well, we don't think it's constitutional. And so then there was the sort of ad hoc group that was formed to argue for it, and effectively, the Supreme Court said today, well, this ad hoc group doesn't have standing. They're not legally eligible to participate in this. They don't have standing, as the court says.

SAVAGE: And so therefore, we're sending it back to the lower court. The lower court's ruling is that Proposition 8 is unconstitutional. Bingo. That seems to clear the way for gay marriage in California.

Yes. That's exactly right, Neal. This is a decision that, in one sense, is entirely procedural, but in the other sense, as a practical matter, has an enormous practical and political significance, because as you said, it sort of throws out the appeals. It sends the case back to California, where a judge has already ruled Prop 8 is unconstitutional. So it means gay marriage is now the law in the biggest state in the country.

It will be the 13th state where gay marriage is legal. So the decision has an enormous practical impact, as I say. I also think it's exactly the result - you notice Justice Ginsburg, Breyer and Kagan signed onto the John Roberts opinion, the procedural opinion, because Justice Ginsburg has the view is that the way to move towards equality and social change is step by step.

And she thinks this would be a very good thing to allow same-sex marriage in California, but not have to rule right now on the issue nationwide. So this is a step forward towards gay marriage, but not a true national ruling.

CONAN: And it was interesting to see Justice Sotomayor on the other side.

SAVAGE: I find that a little surprising. I guess, you know, Justice Kennedy, of course, was on the other side. And I think Justice Kennedy, if given a chance, actually would have taken the California case, ruled on the issue. He's a Californian. So he thinks people - the people who have ballot propositions actually do have standing. They have a right to speak for the laws that they got changed.

I think Justice Kennedy, actually, if given the case, would've also ruled that Proposition 8 is unconstitutional.

CONAN: David Savage, Supreme Court correspondent for The Los Angeles Times and Chicago Tribune. He joined us from his offices here in Washington, as he has done so many times over the years. David, thank you for this occasion and for all the others.

SAVAGE: Thanks, Neal, it's been great talking with you, and I just want to say congratulations on a job well done.

CONAN: Much of the gay marriage debate is centered around the challenge to Proposition 8. Joining us now from California, Scott Shafer, a reporter at KQED San Francisco, where he hosts THE CALIFORNIA REPORT. Nice to have you with us.

SCOTT SHAFER, BYLINE: Nice to be with you, Neal.

CONAN: And I know you've just come from City Hall there in San Francisco, where people are gathered and, I suspect, celebrating.

SHAFER: They were. There was - several hundred people turned out. They had jumbo screens in the rotunda. They were - one of them was SCOTUSblog, and the other one was on CNN. And so they were cheering as they slowly understood what everything that was being written SCOTUSblog meant. But yeah, there was a lot of - I'd just describe it as a combination of excitement, relief and even a little disappointment: the excitement of course that both DOMA and Prop 8 were struck down, relief that they weren't upheld, and a little disappointment voiced by some people that they never got to the merits of the Prop 8 case, that it was struck down on sort of a procedural question of standing.

But nonetheless, it looks like same-sex marriage will be legal in California fairly soon, and people are happy about that, at least the ones who voted against Prop 8.

CONAN: Are you expecting litigation or protest from the other side, those people who were in favor of Proposition 8, which, of course, did get the majority of votes in California?

SHAFER: It's very possible. Already today, the attorneys for the National Organization for Marriage and the Prop 8 campaign have said that they don't think that this - that by striking it down on standing, that this was not a class action case, it was only applied to these four plaintiffs, these two couples that filed their lawsuit in Los Angeles and Alameda County, which is just east of San Francisco.

And so they're arguing that, hey, this doesn't apply to the whole state. This applies to these couples and maybe to the counties that they filed in, but, you know, there's 56 other counties. And so we may see, for example, a county clerk in a more conservative part of California - Imperial County along the Mexican border or Kern County where Bakersfield is - say that they don't think it does apply. And that could very well lead to further litigation.

How far that litigation would go, how long it would take to resolve, you know, obviously remains to be seen.

CONAN: There is an overwhelmingly Democratic legislature, and, of course, a Democratic governor in the state of California. Governor Brown, has he issued instructions to start issuing gay marriage licenses?

SHAFER: He certainly has. Just a few hours after the decision came out, he ordered the county clerks - who administer marriage licenses - to begin doing so as soon as the Ninth Circuit stay is lifted, and not before.

CONAN: I should just explain, of course, the Ninth Circuit found Proposition 8 unconstitutional, but then put a stay on that ruling until it could be decided by the Supreme Court. And, of course, they have to take that stay off.

SHAFER: Exactly, and whoever loses at the Supreme Court, they have 25 days to petition for a rehearing. And so once that time goes by - and I would assume that there isn't going to be another hearing on this - the Supreme Court would send notice to the Ninth Circuit and tell that panel of three judges to lift the stay, and that could happen in a matter of hours, or certainly days.

And so if that happens, the expectation is that same-sex marriages would begin again by the end of July in California.

CONAN: And is anybody talking about putting a gay marriage on the ballot again in California?

SHAFER: I don't think so. Certainly, if Prop 8 had been upheld, you would have been hearing that all day long today and for the rest of the week, and the reason being is that since - you know, it's been four-and-a-half years since Prop 8 passed. It passed somewhat narrowly, 52 to 48 percent. And like much of the country, California has changed in that four-and-half years.

And the most objective polls that we've seen show support for same-sex marriage now approaching 60 percent, certainly above 50 percent. And so I think the supporters of same-sex marriage, if Prop 8 had been upheld, certainly would have begun either gathering signatures or more likely gone to the legislature, which is, as you point out, is controlled by Democrats, and asked them to put it on the ballot for 2014.

But I don't see the other side doing that. It costs tens of millions of dollars to wage an effective campaign in California. And, you know, they can read the polls as well as anyone. So I don't - I don't see that happening.

CONAN: Scott Shafer, thanks very much.

SHAFER: You bet, thank you.

CONAN: Scott Shafer, reporter, host of CALIFORNIA REPORT at member station KQED in San Francisco. He joined us from a studio there. So what changes for you now that the Supreme Court ruling on Prop 8 and DOMA? Give us a call: 800-989-8255. Email us: talk@npr.org. Stay with us. More in a moment. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION, from NPR News. I'm Neal Conan. Today, the Supreme Court ruled on California's Proposition 8 and the federal Defense of Marriage Act. That latter case, officially called United States v. Windsor - after Edith Windsor, who brought the case challenging the federal definition of marriage for violating the principles of equal protection provided under the Fifth Amendment.

(SOUNDBITE OF STATEMENT)

EDITH WINDSOR: I lived with and loved Thea Spyer for more than four decades in love and joy, in sickness and health, until death did us part. On a practical level, due to DOMA, I was taxed $363,000 in federal estate tax that I would not have had to pay if I had been married to man named Theo.

CONAN: Now, she can get a rebate. President Obama, who called Windsor after her win, released an official statement and promised to press forward. The statement reads, in part: We welcome today's decision. I've directed the attorney general to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implication for federal benefits and obligations, is implemented swiftly and smoothly.

Attorney General Eric Holder also released a statement calling the decision an enormous triumph for equal protection under the law for all Americans. He vowed to work expeditiously with other Executive Branch agencies to implement the court's decision.

If you're affected by today's Supreme Court decisions, tell us what changes now. 800-989-8255. Email is talk@npr.org. And you're joined now by Dale Carpenter, professor of civil rights and civil liberties law at the University of Minnesota. He also worked on gay rights issues in that state. He joins us from Minnesota Public Radio in St. Paul. Nice to have you back on TALK OF THE NATION.

DALE CARPENTER: Thank you. Good to be here.

CONAN: Also with us, Brian Brown, president of the National Organization for Marriage, a nonprofit group that works against legalization of same-sex marriage in the United States. He joins us by phone here in Washington, D.C. Good to have you back, as well.

BRIAN BROWN: Thank you.

CONAN: And what's the biggest story - and we'll start with you, Brian Brown. What's the biggest story behind these rulings?

BROWN: Well, both rulings are very bad rulings. But let's also pay close attention to the fact that in the Proposition 8 case, this ruling was brought to be the Roe v. Wade on marriage, to essentially create a right to gay marriage nationwide, to overturn same-sex marriage - I'm sorry, to overturn definitions of marriage throughout the country.

You know, we have 38 states defining marriage as the union of a man and a woman, and it was meant to be the decision that brought gay marriage to the whole country. And that did not happen. This ruling does not create gay marriage throughout the country. It's a very bad ruling, primarily because what it does is say that government officials, the governor of California, the attorney general, can act in collusion to not defend a law passed by the people. And then when the people try and defend that law, the court is saying that they don't have standing to do that.

That is a travesty, and it means that governors, attorneys general, can simply ignore their obligation to defend the law, and that the people will not have recourse.

CONAN: Dale Carpenter, many gay rights groups are saying this is validation.

CARPENTER: Well, the - first of all, the Defense of Marriage Act decision is one of the most important civil rights decisions the court has issued in the last half-century. It immediately makes available, almost immediately, more than 1,000 rights and benefits at the federal level to validly married same-sex marriage couples in 12 and maybe 13 states in the country. That is enormously important in just practical terms.

And it does so through a very interesting ruling that I think fuses both conservative judicial principles and more liberal judicial principles, upholding values of federalism, on the one hand, and equal rights and protection on the other.

The other case, the Prop 8 case, is also a victory for conservative legal principles in that it says, look, you don't get access to federal courts just because you disagree with a law or because you strongly agree with a law to defend it. You only get access to the courts when you have suffered an injury that's specific to you, or when you're the government itself defending the law.

And on those technical grounds, that opinion was actually joined by two of the more conservative justices on the court: Chief Justice Roberts, who wrote it, and Justice Scalia. And so that's an important point to make, I think, in regard to these decisions.

CONAN: And I have to say, Brian Brown, as you look at this, it is hard to see this as anything other - beyond the strict legal issues involved - as a validation, an acceptance of - well, look at the opinion polls, look at what's happened in 12 and now 13 states.

BROWN: I don't think that's the right reading of these decisions at all. This is a decision of the Supreme Court that refused to do what the proponents of gay marriage wanted them to do, which is create a constitutional right to same-sex marriage. What will now happen is that we will continue to have state-by-state fights.

And the polls you refer to, we've seen such polls. In North Carolina, for example, we've seen - we saw polls saying that we were going to lose the marriage amendment, and only a year ago, supporters of traditional marriage won by 61 percent. Is there some change there? Yes, there's a slight change in the polling. But again, if folks in California and the people putting forward this lawsuit really believed in the polling, they would have allowed the people to decide this again.

Instead, they went to the courts, and again, this decision, saying that it invalidates Prop 8 is just not correct. The Ninth - because there's no standing, the proponents - and I have to disagree with Dale Carpenter on this. These are not just private citizens. These are the proponents of the bill, who raised the money to get this passed, put it before the people. And if the state abdicates its duty to defend the law, who gets to defend it?

That is not a conservative principle at all. It basically is lawlessness. So at the end of the day, the Ninth Circuit decision is vacated. This goes back to the trial court. There's still a stay on the decision. And technically, that trial court decision only involves those two couples. And there's going to be a continued legal fight over how broad the implications are even in California. And I'm sure that there will be a petition for rehearing at the lower court.

CONAN: Let me go back to Dale Carpenter, and again, leaving aside the technicalities of that ruling in California - we'll have to see how that plays out. But the continuing battle, do you expect that to go on state-by-state cases? Or do you think - agree with Justice Scalia in his dissent, who said the ruling of the majority in the DOMA case opens the door to a challenge of state laws, and that he would expect as soon as next year that there would be a case before the Supreme Court seeking to invalidate gay - anti-gay marriage bars, constitutional amendments in those 36 states?

CARPENTER: Well, it's interesting. Justice Scalia warned 10 years ago today, when the court issued its decision in Lawrence versus Texas, that the invalidation of anti-sodomy laws would lead to challenges to the marriage laws, because he said there's no reason left to deny marriage to same-sex couples who are in committed relationships.

That warning turned out to be quite prophetic, but it took a lot longer to work out than some might have anticipated or feared. I think one area where Brian and I may agree is that I don't think this is the end of the story. We're going to proceed now, I think, on two tracks. One of them is going to be continued litigation in California over the scope of that district court ruling. I think the governor has already issued an order to the county officials that they must recognize and issue marriage licenses to same-sex couples.

There are going to be thousands of couples getting married in counties where the county officials are perfectly happy to do that. And we're also going to continue to see a political track. I don't think we're going to see a ballot fight in California in 2014, assuming this decision has statewide effect. But I think we're going to continue to see a legislative and a ballot fight around the country in other states like Oregon, where frankly the polls have been dramatically shifting in the direction of support for same-sex marriage, and have actually become much more accurate recently.

I think in the past, they were probably too favorable to same-sex marriage supporters, but we've actually got much better polling now on this, and there has been a shift.

CONAN: Let's get some callers in on the conversation. What changed today after the Supreme Court's decisions on Proposition 8 in California and the Federal Defense of Marriage Act? We'll start with Cynthia, Cynthia on the line with us from St. Louis.

CYNTHIA: Hi. Thanks for taking my call. What's changing is we're planning a road trip now. We were married by a rabbi in front of friends and family 10 years ago in St. Louis, and now we have the chance to have the same civil rights and protections that other married couples do. So my wife works for the federal government. I'm anticipating that once we're married in Iowa or California, that that will affect my retirement planning, that I can count on getting her pension if something happens, that I can better answer questions for my children - we've got two kids - that we are a family and that our justice system works.

So once we're able to legally get married in a state that recognizes it, I think it's going to greatly improve our financial situation. I have to pay taxes on our family health insurance because Missouri doesn't recognize us as a family. So I think it's going to help in many ways.

CONAN: Cynthia, thanks very much for the call, and good luck.

CYNTHIA: Thank you so much.

CONAN: Appreciate it. Let's go next to Herb, and Herb is on the line with us from Elkhart, Indiana.

HERB: Hello, Neal. How are you doing today?

CONAN: I'm well, thank you.

HERB: All right. Well, this is basically - what has happened now is the Supreme Court has said that the people of California do not have a right to their vote. They put this on the ballot, the people voted for it, and the court has now said, we're going to nullify your right to vote.

Now, this is the second time in my life this has happened that the Supreme Court has nullified the people's vote. It happened in the '80s with the polls and voted for term limits. Our own government took us to court and said you don't have the right to get term limits. You're just term-limited by voting. This is wrong.

It has - now, if this had been the other way, basically what's going to happen is let's say you and a group of people want to get total gun control across the country and we gun owners say, oh, you don't have the right to vote, we're going to take you to court.

The people of the LBGT community in California had one legal option, was to get this put back on the ballot the next voting cycle and see if they could get it voted back in or voted out or whatever. That's the only legal right they had. They have taken to the court. They said the people of California don't have the right, seven million people...

CONAN: I think we got that, Herb. I just wanted to ask Dale Carpenter about it. This was voted on by the people of California, not in the legislature, not a law, but this was a ballot measure. Does that give it extra weight?

CARPENTER: No, it doesn't. I mean, any vote in a ballot measure or an initiative, just like any vote in a legislature, is still subject to constitutional constraints. And I have to say, it is not unusual in the court's history to strike down unconstitutional acts by voters, whether it's an initiative, or by legislatures when it's through legislation. It happened several times this week alone that the court has done that famously and, in some ways, that conservatives like, in other ways, the conservatives don't like. But that is the court's obligation.

The fight is not over whether the court can make the states and the federal government comply with the Constitution. The fight should be over what is the substance of the constitutional principle under which the court acts, And there, I think, there's a legitimate discussion.

CONAN: Herb?

HERB: Yeah, Dale. What's going to happen now? Let's take this the other way around. The heterosexual community goes forth and get the law passed, and the, you know, the gay rights go back to get the law passed. We go take them to court? You know, it's not right. And it doesn't matter whether you're conservative, Republican. It doesn't matter whether you're Democratic, socialist. It doesn't matter what you are. Your voice has now been nullified. I'm sorry, but that's the way it is.

CONAN: All right. Herb, thanks...

BROWN: What? Sorry, guys. I have to say that, you know, I agree with the caller that what the court is doing is short-circuiting the democratic process here. Now, it didn't do it directly. Again, there was not a ruling that said that there's a constitutional right to same-sex marriage. It did not do that.

But by rejecting the standing of the proponents, what it has done is essentially said that in any issue, lawlessness can reign if governors and attorney generals decide to say on a Voting Rights Act that they don't want to enforce the law, that the proponents don't have standing.

And I just think Dale is just simply wrong to say this is like any other legislative act. It is not. In the Constitution of the state of California, the people are given coequal powers to have the right of initiative and referenda. Part of that right has to be that if that is challenged, that they have their day in court, and they have been robbed of it. It is illegitimate, it is wrong, and it is anything but conservative.

CONAN: We're talking with Brian Brown, who's president of the National Organization for Marriage, with us by phone from here in Washington. Dale Carpenter also with us, professor of civil rights and civil liberties at the University of Minnesota. He joins us from Minnesota Public Radio in St. Paul. You're listening to TALK OF THE NATION from NPR News.

Jason's on the line with us from Salinas.

JASON: Hi. Thanks for having me. My partner and I actually were engaged in March of 2012, and we very deliberately did not plan our wedding for this summer in anticipation of what the - would happen at the Supreme Court level, and we've scheduled our wedding, of course, for next summer. And now we're actually comfortable calling it a wedding, to this point been our ceremony.

And now that we look to stand, to be recognized not only legally, officially and also protected and recognized, we have a wedding coming up. And, you know, the one thing that I do take issue with the panelist, as well as one of the callers, is that part of the way that our government is set up - and I think that it's a good thing, particularly if you look at history - is that sometimes the voting public, majority - the journey of the majority can be judged to be wrong, especially when it comes to social issues in our country.

And I for one am thankful that we have checks and balances that would protect different minorities regardless of what - of who they are or what they may be or stand for from that journey. Thanks for taking my call.

CONAN: Thanks very much, Jason. And earlier we heard Dale Carpenter suggest that Oregon might be another target for those in favor of what they call marriage equality. Others have suggested perhaps Illinois and Hawaii. I wanted to ask you, Brian Brown, do you see of any of the 13 states where gay marriage is now legal any likely targets to roll that back?

BROWN: Well, I do think that in Iowa, if there is a change to the Senate - and, you know, a lot of folks are working on that change - you very likely will have a vote on same-sex marriage. It will take some time. Dale and others refer to the polling. The people of Iowa still do not support same-sex marriage even though it was forced by the court quite a while ago.

So I think you will see that. You will see in Oregon - I agree with Dale - you'll see a marriage amendment fight - I'm sorry, an attempt to get rid of the marriage amendment in Oregon. You're also going to see that in Ohio, probably in 2014. And you'll also have a constitutional amendment most likely on the ballot in Indiana that defines marriage as the union of a man and a woman.

So these fights will go on. The court has not issued, as I said, a Roe v. Wade on marriage. They will continue. But you will see - you will also see in Congress how Congress is going to assert itself because only section three of DOMA is repealed. We keep saying that DOMA has been repealed. We keep hearing that. That's not true, only section three that has to do with federal benefits.

So you're going to see, sort of, clearly an attempt to go after section two, which stops states from having to recognize same-sex marriages from other states. So I think within the Windsor decision that you see - both from Roberts and ours, you see that the court is saying that states still have the right to define marriage for themselves. Now Scalia says, well, how long will this last? And he has a very poignant and biting response thing. The court seems to be bent on getting away with whatever it can get away with. But in those cases, the court does make clear that this is still within the prerogative of the state.

CONAN: And that was Justice Kennedy's majority opinion as well. Brian Brown, thank you very much for your time today. And our thanks as well to Dale Carpenter. The battle will go on. We appreciate your time. Thanks very much.

BROWN: Thank you.

CARPENTER: Thank you.

CONAN: When we come back, we'll be taking with Mavis Staples about her new record, "One True Vine." Stay with us. It's the TALK OF THE NATION from NPR News.

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After Supreme Court Ruling On Affirmative Action, What's Next?

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune

The Supreme Court issued its decision Monday in Fisher v. the University of Texas, which challenged the constitutionality of the use of affirmative action in college admissions. The court sent the case back to the lower court to apply "strict scrutiny" to the University's admissions policy.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. We're going to focus most of this hour on the United States military and look ahead at what kind of changes to anticipate after Iraq and Afghanistan, but first to the Supreme Court. Earlier today, the justices chose not to issue a sweeping opinion on affirmative action. In a closely watched case, Fisher versus the University of Texas, the court ruled seven to one to send the case back to a lower court, but on the way it also made it clear that any use of racial preference will come under a more skeptical eye from now on.

In a case that centered on admissions policies at the University of Texas, Justice Anthony Kennedy wrote for the majority, quote, "the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

Some analysts call the decision a compromise rather than a punt, but the ruling leaves open many questions about what's next for affirmative action. We're joined now, as we often are, by David Savage, Supreme Court correspondent for the Los Angeles Times and Chicago Tribune newspapers. He joins us by phone from his office here in Washington. David, always good to have you with us.

DAVID SAVAGE: Hi Neal.

CONAN: Waiting a long time for this decision on a case the justices seemed to have picked to issue a sweeping ruling on affirmative action.

SAVAGE: Yes, this is one that the most surprising aspect of it is what they didn't do. When this case came up for argument in October, it sure looked like the case that the conservatives had wanted to basically say no to affirmative action. Five of them are very familiar with this subject and have in the past been very skeptical of the idea of using race.

So the first surprise is why it took so long, and then the second surprise is sort of what they finally came up with, which is - you described it as sort of a skeptical tone to - sends it back to a lower court and says the university must show that affirmative action is really necessary, there's no other so-called race-neutral alternative that would bring about diversity on campus.

But I think from the larger perspective is most colleges and universities would sort of view this with sort of a sigh of relief and say, well, this will not force us to change anything.

CONAN: So what happens when it goes back to a lower court?

SAVAGE: My guess is that the lower court will - I think there's a good chance they will reject the Texas plan, but it's because of something specific to Texas. Texas has this so-called top 10 law that says that if you are a - in the top 10 percent of your high school graduation class, you can get into the University of Texas. And that law, over time, has led to a steady influx of Hispanic and to some degree African-American students.

So as each year goes on, it's sort of harder to argue that the university really needs affirmative action in order to bring about diversity on campus.

CONAN: So in that case, would it be appealed back up to the Supreme Court?

SAVAGE: It could be, but I think it would no longer be, you know, a national case that we're all watching. In other words, it's something that's particularly - Texas has this law that seems to have worked in a way that not many other states could do the same thing.

I will say there's sort of a moderate, liberal view is that a lot of universities, state universities in other - Florida, North Carolina, whatever, ought to try something like this, that is recruit or admit the very best students in some of the, you know, poorer, lower-income high schools in the state.

And that's a way to - you're rewarding students for good performance. You're bringing about diversity, and you're not having so much weigh on SAT scores and test scores.

CONAN: Some people would say you're setting a lot of those kids up for failure, though. They'll be admitted, but they won't make it past the freshman or maybe the sophomore year.

SAVAGE: That's actually what people thought in Texas, Neal, eight or 10 years ago, in the late '90s when this was really getting underway. People said a lot of these students won't do well. But in fact the graduation rate at the University of Texas has been going up steadily, and when I went down there in the fall, and a lot of these admissions people admitted that they were pleasantly surprised that those students who were good students in high school, did well in high school, may not have great test scores, nonetheless did just fine at the University of Texas.

CONAN: Now is this truly a compromise, seven to one?

SAVAGE: Yes, I think the interesting backstory here is Chief Justice Roberts. I've been writing about this a little bit, that in the last couple years, John Roberts has had a choice, as do - he's a conservative guy. Do you join the conservatives for big, sweeping rulings, Citizens United is one that you and everyone remembers, a very broad ruling, five to four, allowing corporate - that ruling set off a real backlash.

And Roberts has really wanted to avoid fractured, five-to-four rulings that go very far. He's been very interested in finding sort of the middle ground, and this is a classic example of they found a middle ground that the conservative justices and the liberal justices could agree with, and, you know, decide something in a way that is not an earthquake in either way.

CONAN: People will look at that number, seven to one, and realize it does not add up to nine. Justice Kagan did not participate in the case. Do we know why?

SAVAGE: Yes, she was in the - she was the solicitor general the first year of the Obama administration. This case was under appeal. And her rule has been that if she had played any part in approving appeals or doing anything on a case, she will not sit on it when it reaches the Supreme Court. So that's why she stayed out of this one.

CONAN: And the one who dissented and why?

SAVAGE: Ruth Ginsburg dissented, and her view was that the top 10 plan is a race-conscious plan after all. It was done to improve diversity on campus. And her view was that we ought to just go ahead and approve the use of race in situations like this, and she would have just flat out upheld the University of Texas policy.

I thought it was quite interesting that Sonia Sotomayor and Justice Stephen Breyer joined sort of, you know, this moderate conservative bloc to say let's send this back for another close look by the lower court.

CONAN: And is this going to encourage changes at other state universities? Is this going to encourage more lawsuits?

SAVAGE: I think it's hard to gauge. If you were one of the conservatives who wanted to challenge affirmative action, I would think this is a little depressing. You spent years trying to get a case at the Supreme Court, and you don't - you know, it's not much of an incentive to do it again.

I think it may encourage a few big states, as I mentioned, to try to move away a little bit from weighing race and trying to find a way, like this top 10 law, rewarding top graduates, find a way to bring in more minority students but without giving an explicit preference in the admissions policy.

CONAN: Now some will remember there was another case I think from the University of Michigan that was also broadly about affirmative action. Does the Texas case supplant that, or are we awaiting a decision on the Michigan case, as well?

SAVAGE: We're waiting a decision on the Michigan case, as well. That will be argued in the fall. The lower court decided that on a different basis, basically said that they threw out - the lower court threw out a state proposition, a ballot measure that prohibited affirmative action in Michigan. And so that's a different legal issue, and the court's going to hear that case and decide it next year.

CONAN: Well, a couple of other interesting cases they picked up for next year announced today, one of them McCullen v. Coakley, which takes on the issue of protestors at abortion clinics. And as I understand it, their case argues that the law in Massachusetts that prohibits them from barring entry to - they have to be a certain distance away from entries to abortion clinics, that violates their right to free speech.

SAVAGE: Yes, this is sort of an old issue that the court dealt with about 10 or 12 years ago and sort of settled on a - and that sort of seemed like a compromised position, which was to say you could have a buffer zone around the entrance to an abortion clinic, so patients and doctors could go in and out, but the protestors could stand on the sidewalk and hold signs or protest.

And now the court's going to revisit a Massachusetts law that does something like that, and my impression - my sense of it is is that the conservative justices think this is a little bit unfair to abortion protestors, that they should be able to walk up to somebody on the sidewalk and say here's a pamphlet, or you should reconsider your decision. They're going to allow, I think, a little more leeway for sidewalk protestors to speak to patients.

CONAN: Another case that will be also closely watched, NLRB versus Noel Canning, and that's about the president's power to so-called recess appointments.

SAVAGE: Yes, that's a big sort of a political - in a sense, Washington political story. It's a big deal for the Obama administration because the House Republicans have used their minority and the filibuster rule to block a vote on a lot of Obama nominees for agencies like the National Labor Relations Board and this Consumer Financial Protection Board.

Obama turned around and made a recess appointment when the Senate was out for three weeks early January of 2012. A lower court ruled that you can - really narrowed the president's recess power and said only when the Senate has formally adjourned after two years can the president make a recess appointment. So President Obama's lawyers appealed to the Supreme Court, said you should reverse that decision. So that's what they're going to take up in the fall.

CONAN: And it's a sticky case because the administration uses this frequently, and the previous administration did, as well, this ability to make recess appointments over the objections of a faction in one of the opposite party in the United States Senate. But nevertheless, without this power, it's going to be extremely difficult to fill some of those jobs.

SAVAGE: Absolutely. This - as you said, for a long time, presidents have done this as sort of an emergency way to get around a recalcitrant Senate. The situation is particularly bad now because, as I say, the Republican minority has blocked a lot of people not because there's anything wrong with the nominees, it's they just don't like the agencies. They don't like the NLRB, and they don't like this Consumer Protection Bureau.

So the president has no way to get somebody appointed to those offices, and if the court says you can't do it as a recess appointee, then the president can't put any one of his appointees sort of in charge of the agency.

CONAN: Well, they're still awaiting, we are still awaiting, decisions in three other big cases, on the Voting Rights Act, on gay marriage in California and on the Defense of Marriage Act. And the court announced today that they are adding tomorrow as another decision day.

SAVAGE: Yes, that's right. They'll have decisions tomorrow, and I assume, and maybe I hope, Wednesday or Thursday. There must be five or six to go, and as you said, there's at least three big decisions. So they'll have decisions tomorrow and then I assume one other day this week.

CONAN: David Savage, we'll talk to you then.

SAVAGE: Thanks, Neal.

CONAN: David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. He joined us from his office here in Washington. After a short break, we'll switch gears and look ahead to what's coming for the U.S. military with retired General Mike Davidson, retired Captain Rosemary Mariner and John Nagl. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

Copyright © 2013 NPR. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to NPR. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.

View the original article here

What Changes After Supreme Court Ruling On Voting Rights Act

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune
Richard Hasen, professor, University of California Irvine School of Law
Ilya Shapiro, senior fellow in constitutional studies, Cato Institute
Lani Gunier, professor, Harvard Law School

In a 5-4 decision, the Supreme Court struck down a key provision of the Voting Rights Act of 1965, stating that the legislation was based on now outdated data. The ruling removes the coverage formula that required federal oversight for voting processes in nine states.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. This morning in a much anticipated decision, the Supreme Court struck down a key provision of the 1965 Voting Rights Act. Writing for a five-four majority, Chief Justice John Roberts ruled that Congress' action to protect minority voting rights in nine states was based on outdated data, and the formula used to determine which areas were subject to federal oversight was thus unconstitutional.

Civil rights activists say the law is still needed to ensure fair political representation and access to voting; opponents say the times have changed, and a law that holds some states to different standards than others is no longer needed.

If you live in a state covered by this part of the Voting Rights Act, what changes for you? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Later in the program to Beirut and NPR's Deborah Amos as Saudi Arabia declares it cannot stand silent in the face of Iranian and Hezbollah intervention in Syria.

But first the Voting Rights Act, and we begin with David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. David, a busy week for you; nice to have you back on the program.

DAVID SAVAGE: Hi Neal.

CONAN: Everyone agrees the Voting Rights Act has been the most effective piece of civil rights legislation. So what's changed in the view of that five-four majority?

SAVAGE: Well, their view is that it's been so effective it's no longer needed, that in the 1960s something like 20 percent of blacks, six percent in Mississippi, were registered to vote. Now John Roberts, the chief justice, said African-American voted at roughly the same rates, sometimes at a higher rate, than whites in the southern states.

So therefore, the reason that the Voting Rights Act was needed, this special scrutiny for the southern states, is no longer needed today, and therefore he said it violates the states' rights to the principle of equal sovereignty, that states deserve to be treated equally unless there's some great reason for it, and the reason no longer exists to treat the southern states differently.

CONAN: Many thought the court would strike down Section 5, that's the part that requires pre-clearance, in other words even before you move anything as small as a voting booth, you have to get clearance from the Justice Department. Instead, the ruling targeted Section 4, which outlined the various areas that are subject to this special scrutiny.

SAVAGE: I think practically speaking, Neal, though, that the result will be the same, that unless and until Congress could come up with a new formula, Section 5 won't have any effect, that you're right to say that technically they're not striking down Section 5, and so Congress could come up with a new formula, but since the court struck down the formula for using under Section 5, at this moment it doesn't have any effect.

CONAN: Some would argue that the - as recently as last year the Voting Rights Act was the centerpiece of the decision by federal courts to strike down congressional districts drawn by the state of Texas, which they said discriminated against Hispanics.

SAVAGE: Yes, I thought some of what happened over the last year might cause some members of the court to think twice, that a voter ID law in Texas was blocked, that as you said the redistricting plan was blocked. Now it is true that there were a lot of the voting cases that were argued and debated and fought over last year were in the north, were in Pennsylvania, Wisconsin, where state courts intervened.

But there was enough of problems in the southern states, there were some in Florida, South Carolina, that I thought it might cause the justices, as least some of them, to think, well, maybe this law still is needed today. But it is the case that the five conservative members of the court have been very skeptical of the Voting Rights Act for a long time.

They almost struck down this provision four years ago, and now they've done it today.

CONAN: And that was - there is also the question, though, of deference to the judgment of Congress, which has reauthorized this as recently as 2006 under a Republican president, a Republican Congress and a Republican Senate.

SAVAGE: Yes, that's why a lot of the people who are critical of this say this is really an example of judicial activism because the 15th Amendment says Congress shall have the power to enforce this provision through appropriate legislation. Congress passed the Voting Rights Act in 1965. It has extended it several times since then. As you said, it was - how many times has that happened, a unanimous vote in the Senate, a near unanimous vote in the House to extend it, a Republican Congress, and the Supreme Court turns around and says no, sorry, it's really not needed.

CONAN: And the other part, though, is that the data on which those extensions were made, well, Justice Roberts says they're 40 years old.

SAVAGE: Yes, that's right. It is true that this law is based on history and bad behavior in the past, and that's how these states across the South are - that's why they undergo this special scrutiny. I will say on the other side, though, that there have been more problems in Alabama, Mississippi, Louisiana, through other voting rights suits, that there are more problems today regarding allegations of discrimination in voting in those states.

And some of the advocates thought that the court should look at that there still are some real problems in those states, and therefore you should uphold it on that basis.

CONAN: And we think of this again in terms of congressional elections or presidential elections. This covers everything down to the school board.

SAVAGE: Yes, there is a view that this decision today will have - its biggest impact will be in small town, school board, city council races, that if the - make up a state. If the state of Georgia or Alabama does something in its laws or in its statewide redistricting, there will be a lot of attention given to that, and there may be a lawsuit over it if it's discriminatory.

But if it's a small town, and it says, well, we used to elect people by districts, now we're going to do it at large, that is citywide, and the effect of that means that the - suppose if a third of the residents in that town were black, two-thirds were white, that would allow, that could allow the two-thirds who are white to elect all the members of the city council.

It's those kinds of changes that the Voting Rights Act and Section 5 have blocked. Now those kind of changes will go into effect, and it would be very hard to challenge them afterwards.

CONAN: Well, also today the court said its final decision day will be tomorrow. So we are going to expect, then, decisions on Proposition 8 and the Defense of Marriage Act.

SAVAGE: Yes, another interesting day.

CONAN: We'll talk to you tomorrow, David.

SAVAGE: Thanks, Neal.

CONAN: Get back to work. David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune, from his office here in Washington. Joining us now is Rich - excuse me, Rick Hansen, a law professor at UC Irvine, author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown." He joins us by Skype from Hawaii. Nice to have you with us today.

RICHARD HANSEN: Glad to be with you.

CONAN: And what changes now that this section of the Voting Rights Act has been struck down?

HANSEN: Well, what changes immediately is Texas' voter ID law, for example. It was a court decision blocking that law from going into effect. There was a petition to the Supreme Court, which was awaiting decision today, and already the attorney general of Texas announced that Texas' voter ID law is in effect and on the books.

And so if someone doesn't like it, they'll have to try to bring suit under a different provision under the Voting Rights Act or under the Constitution, and that road is going to be a lot harder. So we're going to see many more laws that used to be put on hold with the burden on states to prove that the laws were not discriminatory going into effect immediately. Now the burden on challengers, minority voting rights advocates, to prove that these laws are discriminatory.

CONAN: And was this the decision you expected?

HANSEN: This was exactly the decision I expected, and the reason is that this is a kind of false judicial modesty that we see in this opinion. Chief Justice Roberts says, well, we're only striking the coverage formula. But the political reality, as everyone knows, is Congress is not going to go back and pick a new coverage formula.

That's why in 2006 they didn't adjust the coverage formula. Politically it would be impossible to single out new jurisdictions which have a greater risk of discriminating against minority voters. And so this is effectively the death of the Voting Rights Act but with the fig leaf that all that's being done here is asking Congress to tweak the coverage formula.

CONAN: So if the Voting Rights Act is now dead, and the burden proof, as you say, has now shifted to the challengers, do you expect that the - as David Savage was saying - the biggest effect is going to be things like, well, redistricting in Texas or those school board and city council decisions - votes?

HANSEN: Yeah, I should say when I said the Voting Rights Act is dead, I mean Section 5 of the act is dead. We still have Section 2 of the act, and that does allow, in cases - in the case that David described of the at-large district, Section 2 would probably be a pretty good tool to make that small jurisdiction have to eventually go back to districts.

It won't be able to put the law on hold, but they will be able to - challengers will be able to get that struck down. But things like voter ID laws, things like more onerous voter registration laws, what we've seen is that challengers have a much harder time under Section 2 of the Voting Rights Act or under the Constitution to get those things struck down than they did to get them blocked under Section 5 both because the burden was on the states to prove that the laws were not discriminatory and because the standard, the legal standard was a somewhat easier one for challengers to the law.

CONAN: And there are any number of states, and counties for that matter, who said look, this was a burden placed on us for historical reasons. We have since corrected that. Look at the numbers. There are many other places around the country where voter turnout, for example, by minorities is much lower than it is here.

HANSEN: That's certainly true, and, you know, some have called Section 5 a victim of its own success. That is, how do you prove that the law is still necessary when it's being an effective deterrent? And both sides on the Supreme Court talked about that today but drew opposite conclusions. For the chief justice, that was a reason to say the law is no longer necessary; for the dissenters, that is a reason to say the law is effective and shouldn't be touched.

And the dissenters pointed to recent problems in these areas, which - in voting, which the dissenters said showed that Section 5 is still serving as a meaningful deterrent.

CONAN: And you talked about Chief Justice Roberts. He has endeavored in every case, if he could, to not rely on five-four majorities, narrowly drawn right along the ideological lines of the Supreme Court.

HANSEN: Well, I think, you know, he tries to put off the five-four decisions. He was able to put off this voting rights decision for four years. But he's got a long-term plan. He has a long vision. He's a young man. He's going to be able to be on the court for a long time. And so long as he has his five-justice conservative majority, I think they're satisfied to slowly move the law in the direction that they want to go.

And if you look at Citizens United, you look at the decision today in the Voting Rights Act, and you can see what's going to come up with affirmative action in the next few years, you can see the writing on the wall.

CONAN: Rich - Rick Hansen, thank you very much for your time today, and we appreciate your taking your time out while you're there in Hawaii to speak with us.

HANSEN: It's been a pleasure.

CONAN: Rick Hansen is a law professor at UC Irvine and write The Election Law blog. He spoke with us by Skype from Hawaii. After a short break, Harvard law professor Lani Gunier, and Ilya Shapiro of the Cato Institute will join us to talk about the decision. We also want to hear from you. If you live in one of those areas that has been covered by this provision of the Voting Rights Act, what changes for you? Give us a call, tell us your story, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION; I'm Neal Conan. Earlier today, President Obama released a statement after the Supreme Court ruling on the Voting Rights Act saying he was, quote, deeply disappointed. That theme was echoed by Eric Holder, the attorney general, when he spoke a few minutes later at the Justice Department.

ATTORNEY GENERAL ERIC HOLDER: Our country has changed for the better since 1965, but the destination that we seek has not yet been reached. Indeed, a reading of today's opinions demonstrates that every member, every member of the Supreme Court agrees with this fact. As the chief justice wrote, and I quote again, voting discrimination still exists. No one doubts that, unquote.

This is why protecting the fundamental right to vote for all Americans will remain one of the Justice Department's highest priorities.

CONAN: Both the attorney general and the president called on Congress to pass legislation to protect equal access to the polls. If you live in one of those parts of the country covered by Section 4 of the Voting Rights Act, what changes now for you? 800-989-8255. Email us, talk@npr.org. You can also join the conversation online. Just go to npr.org; click on TALK OF THE NATION.

Joining us now is Lani Gunier, a professor of law at Harvard. She led the Voting Rights Project for the NAACP Legal Defense Fund in the 1980s and joins us now from a studio on the campus at Harvard. Nice to have you back on TALK OF THE NATION.

LANI GUNIER: Thank you.

CONAN: And Ilya Shapiro is editor-in-chief of the Cato Supreme Court Review, senior fellow in constitutional studies at the Cato Institute. She joins us by smartphone from her office right here in Washington. Nice to have you with us today.

ILYA SHAPIRO: Good to be on.

CONAN: Lani Gunier, what changes now?

GUNIER: What changes in terms of the Voting Rights Act or what changes in terms of the distribution of political resources in the country at large?

CONAN: Well, why don't we take those one at a time. What's changes with the Voting Rights Act?

GUNIER: Well, the big change with the Voting Rights Act is that Section 5 of the Voting Rights Act is currently dead. And this is a premature death because no one disputes the fact that there are still numerous problems in the covered jurisdictions. It is an ideological death. It reminds me, in fact, of an opinion that the Supreme Court issued exactly 100 years ago, in 1903, and this is an opinion brought to my attention by James Blackshire, who's a civil rights lawyer in Alabama.

And essentially in the 1903 case, the Supreme Court said if the great mass of white people in Alabama don't want blacks to vote, there's nothing we can do about. And that's what I hear in the echoes of the - the case was called Giles versus Harris, and Mr. Giles was supported by Booker T. Washington in this civil rights case. And I feel the same sense of the Supreme Court just denying the role, the important role that it plays in our country and in many ways putting the burden on the people who have been discriminated against, s opposed to the people in power who continue to discriminate.

CONAN: Ilya Shapiro, the decision by the chief justice seems to suggest that more modern history reveals that things have fundamentally changed.

SHAPIRO: That's exactly right. The Supreme Court's ruling today restores the constitutional order, and it recognizes that the country has changed. Remember this case was not about whether there continues to be racial discrimination in voting or even whether that racial discrimination is disproportionate to the covered jurisdictions, which it's not.

It's about whether the same sort of extraordinary conditions still exist on the ground as they did during the Jim Crow era, the poll taxes and ingenious devices and all sorts of disenfranchising, systematic, massive programs that justified the extraordinary, exceptional deviation from the normal operation of our federalist system.

And the court, quite obviously, said that things have changed. Congress has refused to update the coverage formula, still basing it on voting rates and registration rates in 1968 to 1972. And that cannot stand. So if Congress wants to come up with a new formula - I don't think it's capable of doing it even if the political winds were different than they are in the deadlocked Congress now - but they could sure try.

I don't know what kind of things they would try to prove to show that, you know, Jim Crow still exists somehow.

CONAN: Lani, we're going to get to calls in just a minute, but Lani Gunier, that question of resources that you wanted to talk about.

GUNIER: Well, Jim Blackshire, again my colleague in Alabama, recommends that the resources have been taken away from the Justice Department in terms of playing a very important role in overseeing various changes made for racially charged reasons. And he recommends that instead of the Voting Rights Act, since the court has now killed it, that there should be a Voting Rights Act lawyer in every U.S. attorneys' office throughout the country, not just in the South.

And so instead of pre-clearance, every voting change in every county would have to be given to the local U.S. attorney to review, and if there was no problem with it, then the change could proceed.

CONAN: Wouldn't that require another act of Congress, though?

GUNIER: It may require another act of Congress, but it could also be something that Eric Holder could at least experiment with in terms of identifying various places where a U.S. attorney playing a role as the watchdog would be very helpful.

CONAN: And we'll get to calls again in just a minute, but Ilya Shapiro, the attorney general did say as part of that statement we played an excerpt from that he would continue to vigorously uphold the other parts of the Voting Rights Act.

SHAPIRO: Well, as he should. I mean, it's - Section 2 is there to go after racial discrimination, individual instances. The Department of Justice can bring cases. Costs can be shifted from the plaintiffs onto the defendants, or the federal government can take them over. There's no indication, and this is why Sections 4 and 5 are no longer justified, there's no indication that Section 2 cannot do the job.

Indeed in the covered jurisdictions, the voting rates are better for blacks than they are in the uncovered jurisdictions. So if one thing is clear, it's that indeed, the Supreme Court four years ago gave Congress a chance to update, to put some real facts on the bones of an antiquated system, and Congress hasn't done that. And they're welcome to try again, but really on the question of resources, I think we need to reallocate those from these superfluous and burdensome pre-clearance requirements onto the actual cases of discrimination and other areas where the Department of Justice should be taking - going into court.

GUNIER: Can I just...?

CONAN: Go ahead, Lani Gunier.

GUNIER: Can I respond to his last comment because Section 5 is not - or has not been superfluous. It's been extremely important in identifying problems before the problems were put into effect. And it also mattered because it had a deterrent effect, knowing that the jurisdiction was going to have to get pre-cleared, any changes that it made, it required that the jurisdiction be much more self-conscious about the adverse effect on people of color, on even poor people who like people of color can't get to voter registration places because they're not in each census tract, et cetera.

The Section 5 was really important to fight backsliding, as well as to put pressure on the current - the current people in charge of these various covered jurisdictions. So this is a premature intervention by the United States Supreme Court.

CONAN: Let's get some callers in on the conversation. We'll start with - let's see if Brandon(ph) can join us, Brandon is with us from Albion in Michigan.

BRANDON: Hi, am I on the air?

CONAN: You are.

BRANDON: Hi, thank you very much. I'd like to say that we shouldn't be calling this judicial activism because we're actually going backwards. It's more of an ebb than a flow. And I'm from Saginaw, Michigan, which has consistently been one of the top five segregated places in the nation, and Michigan suffers from this. For, you know, a long time. But in the 1800s, it was called the noble paragon of racial progress in the 1800s by the Freeman's Journal.

And so what we've got are these people who are disenfranchised. You know, they're not able to vote. They're not able to get to the voting booth. They're not going to be able to make any progress for them because crime is high, poverty is high, and they're not able to vote. And we need to move forward from this because we're going to see in the next election with a Congress that's tied up, the judicial branch knows this, that Congress is unable to move forward on anything now.

And so by them saying a decree to say Congress you need to come up with a decision when they can barely come up with any decisions at all, it's not going to do any good, and it's going to affect the election until the Republican Party is able to get people who they trust in the executive branch. And until that happens, we're not going to move forward on this. And so, them issuing this answer to say that we'll be able to move forward when Congress makes a decision is an impossibility.

CONAN: Lani Gunier, you accept that Congress is unlikely to enact the kind of changes that Justice Robert laid out.

GUNIER: Yes. And that's why I think Jim Blackshear, who's the attorney in Mobile, Alabama, is right on when he says that this is something that the administration could do on its own, which is to hire U.S. attorneys in every district and have an individual identified as the person who has to review various changes that are going on, and that will then give the jurisdiction a sense that somebody is still watching what's happening.

CONAN: Brandon, thanks very much for the call. A reminder that the Voting Rights Act covered areas not just in the South, where we tend to think they are. Casey(ph) joins us now from La Grange in Texas.

CASEY: Hi.

CONAN: Go ahead, please. You're on the air.

CASEY: Well, I think it would be a great if Congress could come up with a new way to adjust this formula for applying the Voting Rights Act, which I recognize how difficult that could be politically, but I think one of my main concerns is that there might be some areas of our country who don't fall under the blanket area of the South where there is a lot of discrimination in voting areas, or can go for that, especially since a lot of Northern cities are much more segregated now than Southern ones.

CONAN: And indeed, parts of the voting rights - the Section 5 of the Voting Rights Act did apply to places - well, New York City, for example. But as we look at this, Ilya Shapiro, one of the big arguments of the states was we should not be treated differently than other states. We have gone and corrected these errors of the Jim Crow era, just look at the statistics.

CASEY: I think that (Unintelligible)...

SHAPIRO: That's right. If you look at the disparities in voting registration, for example, the best state in the Union is Mississippi and the worst is Massachusetts. Something similar is going on for voter turnout in terms of, you know, kind of self-segregation by race and by other types of communities. Indeed, those sort of trends are more prevalent outside of the coverage jurisdictions, and that's because the coverage formula has not been changed since the facts on the ground, the statistics from 1968 to 1972.

Now, as I said, I don't think Congress could even come up with a coverage formula because the types of systemic and massive disenfranchisements don't exist. There's poverty. There's all sorts of social problems in this country, of course, but it's not an institutional government type of discriminatory regime. And as for Professor Gunier's suggestion of a special prosecutor in each U.S. attorney's office, well, that would be kind of like reconstituting the Section 5 regime. I think that would be held to be unconstitutional in the same way that the court ruled today.

GUNIER: Well, but that I don't think is entirely true. It will, I agree, expensive. But there's no particular adverse effect on any jurisdiction. And in fact if the jurisdiction proves that it doesn't need the U.S. attorney, the U.S. attorney could be sent to a different jurisdiction.

CONAN: Each jurisdiction would be treated similarly then.

SHAPIRO: Well, what I mean, though, is...

CONAN: Yes. Go ahead.

SHAPIRO: What I mean, though, is that you could have people in the attorney's office - in the U.S. attorney's office reviewing voting changes and then deciding to sue if they find something wrong, but you could not have them having to review the rules before they go into effect. That's the whole point of Section 5. Now, with Section 4 struck down and effectively Section 5 with it, there is no federal oversight. There's just Section 2 that applies to the entire country.

CONAN: Casey, thanks very much for the phone call. We're talking about the decision by the Supreme Court today on the Voting Rights Act, with Lani Gunier, a professor at Harvard Law School, and Ilya Shapiro, Cato Institute senior fellow in constitutional studies. You're listening to TALK OF THE NATION from NPR News. Tyler is with us from La Grange in Georgia.

TYLER: Hi. Mr. Conan, thank you very much for taking my call.

CONAN: Sure.

TYLER: I just want to tell Casey we're very jealous here in La Grange, Georgia, that ZZ Top wrote the song about Texas. But I wanted to say that I think it's - something that's missed here in Georgia amongst young people - I'm a 28-year-old male that grew up here and was born and raised here in Georgia. And I think it's a very different way that we view this than older people. I feel like we don't really understand what happened in the '60s, and I think that there's a danger that we may not fully understand what happened and how it happened.

I think it's really important that we - as young people take context of all this and understand what really happened and do our own research and learn about what happened so that we can prevent anything like that from happening again.

CONAN: The question of history, it's an interesting one, Tyler. Ilya Shapiro, would you agree, for example, with Lani Gunier that this was an ideological decision?

SHAPIRO: It depends what you mean by that. I mean it's - there's certainly differences among the justices about how to interpret the Constitution and what the 15th Amendment protections mean and how federalism is meant to operate. But I don't think it's a results-oriented decision or anything like that. You know, we can have a civil disagreement about the law, and I think that's what this is.

CONAN: Civil disagreement about the law, Lani Gunier. Why do you think it's ideological?

GUNIER: Well, I think it's ideological because the Republicans who are represented on the Supreme Court in greater amounts than the Democrats are the ones who are leading the charge to undermine the Voting Rights Act. And in particular, there is a lot of Republican support in the covered jurisdictions so they want to make it possible for those jurisdictions to continue to do things that promote a shared political vision. But the point that I think some of the people who are defending what the court did, the point that they're making misses the point because if you look, for example, in North Carolina where there were about 20 counties that were covered by the Voting Rights Act, and you see that in North Carolina the split in terms of political parties is about even.

So there are about the same number of Democrats as Republicans in the state. But because the Republicans were able to control not only the legislature but the governor, they redistricted in a way that ensured that Republicans would get a disproportionate amount of...

CONAN: Congressional representation.

GUNIER: Congressional - yeah. And...

CONAN: I have to say the Democrats did the same thing in Maryland.

GUNIER: That may be true. But my point is that throughout the South in particular when you think about the people who have statewide power, that is the governors, the justices on the Supreme Court, et cetera, there are very few black or Latino and in some states no black or Latino politicians in any statewide office.

SHAPIRO: That's actually not true. Mississippi has the greatest number of black elected officials.

GUNIER: Statewide, statewide. Name one. Name one.

SHAPIRO: And I'm not sure that Republicans...

GUNIER: Name one.

SHAPIRO: ...will benefit because this might prevent the washout districts, the so-called majority-minority districts, the collusion between black leaders and Republicans in creating these segregated districts.

CONAN: Well, you hear why this is going to be such a contentious issue. More today on ALL THINGS CONSIDERED. This is NPR News.

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