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CNN Live Event/Special

A Discussion of the Supreme Court

Aired June 26, 2003 - 20:10   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


PAULA ZAHN, CNN ANCHOR: According to one Supreme Court judge today the court took sides in the culture war. You're looking at a live shot of where the battle took place there where, in fact, two big cases for the Supreme Court this session. The liberals, some say, won both in the court. It depends on where you're coming at that from, including a decision today overturning laws banning gay sex.
(BEGIN VIDEO CLIP)

JOHN GEDDES LAWRENCE, DEFENDANT: We are very pleased with this ruling. We never chose to be public figures or to take on this fight but we also never thought we could be arrested this way. We're glad not only that this ruling lets us get on with our lives but that it opens the door for gay people all across the country to be treated equally.

(END VIDEO CLIP)

ZAHN: We also want to take a look ahead at possible retirements. Let's start with the rulings. Tonight in New York City Jeffrey Toobin, our own legal analyst welcome.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.

ZAHN: First of all, let's start it off with the sodomy ruling. Did that come as any surprise to you?

TOOBIN: Well, you know, I was in the courtroom when it was argued and it was clear there were several justices very uncomfortable with the Texas law but the scope of this ruling, the breadth of this ruling, the degree to which they completely rejected the whole idea of sodomy laws and that a conservative justice, Anthony Kennedy, wrote it I think that's all unexpected, at least it was to me.

ZAHN: Let's talk about the three justices who dissented in this case. The dissent was written, as you said, by Mr. Scalia, Justice Scalia who said this ruling "effectively decrees the end of all morals legislation." He also says it could pave the way for judicial imposition of homosexual marriage, is that true?

TOOBIN: You know, I don't think he's entirely right but I don't think he's entirely wrong either. I think this...

ZAHN: What does that mean?

TOOBIN: Well, I mean I... ZAHN: Where are you on this?

TOOBIN: No but I think things are going to change as a result of this ruling. For example, I mean he said in another part of that dissent, he said I don't think you could have laws about fornication anymore. You couldn't have laws about masturbation anymore. I think he's right.

This decision says that basically the government cannot be in people's bedroom in their private sexual activities anymore period, at least when it comes to adults. And, I think, gay marriage is the next step. It's not there yet but certainly this opinion opens the way to new rights for gay people when you talk about things like adoption, custody. This decision will help gay people. Gay marriage, it's not there yet, but it is certainly moving in that direction.

ZAHN: Let's come back to a little more of what you just said about Justice Scalia's dissent and I want to see if you thought this was an overstatement. We're going to put this up on the screen now where he talked about state laws against bigamy, same sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity called into question by today's decision.

TOOBIN: I think he's right about some of this. I really do. I don't think he's right about bigamy, polygamy. When it comes to marriage the state has always regulated marriage and I think the state will continue to regulate marriage.

But when it comes to some of those other things he's talking about that involve purely sexual activities, I don't think the state is going to have the same right to regulate that they used to. I mean it is a big decision in that regard.

ZAHN: Let's look ahead now. As we look at this picture, this picture could change down the road and who might you suspect will be leaving, a lot of speculation about William Rehnquist and Sandra Day O'Connor?

TOOBIN: The amazing thing about that picture is that it hasn't changed in ten years. This is the longest time in 150 years without a retirement or a death of a justice. The rumor mill was active that Chief Justice Rehnquist would leave, that Justice O'Connor would leave, neither one of them left. Of course there's no rule that you have to leave at the end of a term but it's just become the custom.

Certainly, they are the leading candidates but now if they wait until June it means it will be in the middle of the next presidential campaign. It could be that George Bush will be like Jimmy Carter and in his one -- in his first term anyway he gets no appointments.

ZAHN: I can only give you 15 seconds to answer this. The whole notion of some people observing these decisions as of late and saying oh, we thought this was a pretty conservative court, perhaps they think these are liberal decisions.

TOOBIN: These are liberal decisions. There's no doubt about it that this court surprised people as they have before. The affirmative action case supporting the right, if not always the practice of affirmative action, certainly the sodomy case, these were surprisingly liberal decisions from what is usually a very conservative court.

ZAHN: Jeffrey Toobin, thanks. Did you have a good time at the Supreme Court today?

TOOBIN: You know what, it was a big day. You know you cover the law this is the kind of day you wait for.

ZAHN: Yes, I bet you live for it, thanks.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired June 26, 2003 - 20:10   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: According to one Supreme Court judge today the court took sides in the culture war. You're looking at a live shot of where the battle took place there where, in fact, two big cases for the Supreme Court this session. The liberals, some say, won both in the court. It depends on where you're coming at that from, including a decision today overturning laws banning gay sex.
(BEGIN VIDEO CLIP)

JOHN GEDDES LAWRENCE, DEFENDANT: We are very pleased with this ruling. We never chose to be public figures or to take on this fight but we also never thought we could be arrested this way. We're glad not only that this ruling lets us get on with our lives but that it opens the door for gay people all across the country to be treated equally.

(END VIDEO CLIP)

ZAHN: We also want to take a look ahead at possible retirements. Let's start with the rulings. Tonight in New York City Jeffrey Toobin, our own legal analyst welcome.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.

ZAHN: First of all, let's start it off with the sodomy ruling. Did that come as any surprise to you?

TOOBIN: Well, you know, I was in the courtroom when it was argued and it was clear there were several justices very uncomfortable with the Texas law but the scope of this ruling, the breadth of this ruling, the degree to which they completely rejected the whole idea of sodomy laws and that a conservative justice, Anthony Kennedy, wrote it I think that's all unexpected, at least it was to me.

ZAHN: Let's talk about the three justices who dissented in this case. The dissent was written, as you said, by Mr. Scalia, Justice Scalia who said this ruling "effectively decrees the end of all morals legislation." He also says it could pave the way for judicial imposition of homosexual marriage, is that true?

TOOBIN: You know, I don't think he's entirely right but I don't think he's entirely wrong either. I think this...

ZAHN: What does that mean?

TOOBIN: Well, I mean I... ZAHN: Where are you on this?

TOOBIN: No but I think things are going to change as a result of this ruling. For example, I mean he said in another part of that dissent, he said I don't think you could have laws about fornication anymore. You couldn't have laws about masturbation anymore. I think he's right.

This decision says that basically the government cannot be in people's bedroom in their private sexual activities anymore period, at least when it comes to adults. And, I think, gay marriage is the next step. It's not there yet but certainly this opinion opens the way to new rights for gay people when you talk about things like adoption, custody. This decision will help gay people. Gay marriage, it's not there yet, but it is certainly moving in that direction.

ZAHN: Let's come back to a little more of what you just said about Justice Scalia's dissent and I want to see if you thought this was an overstatement. We're going to put this up on the screen now where he talked about state laws against bigamy, same sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity called into question by today's decision.

TOOBIN: I think he's right about some of this. I really do. I don't think he's right about bigamy, polygamy. When it comes to marriage the state has always regulated marriage and I think the state will continue to regulate marriage.

But when it comes to some of those other things he's talking about that involve purely sexual activities, I don't think the state is going to have the same right to regulate that they used to. I mean it is a big decision in that regard.

ZAHN: Let's look ahead now. As we look at this picture, this picture could change down the road and who might you suspect will be leaving, a lot of speculation about William Rehnquist and Sandra Day O'Connor?

TOOBIN: The amazing thing about that picture is that it hasn't changed in ten years. This is the longest time in 150 years without a retirement or a death of a justice. The rumor mill was active that Chief Justice Rehnquist would leave, that Justice O'Connor would leave, neither one of them left. Of course there's no rule that you have to leave at the end of a term but it's just become the custom.

Certainly, they are the leading candidates but now if they wait until June it means it will be in the middle of the next presidential campaign. It could be that George Bush will be like Jimmy Carter and in his one -- in his first term anyway he gets no appointments.

ZAHN: I can only give you 15 seconds to answer this. The whole notion of some people observing these decisions as of late and saying oh, we thought this was a pretty conservative court, perhaps they think these are liberal decisions.

TOOBIN: These are liberal decisions. There's no doubt about it that this court surprised people as they have before. The affirmative action case supporting the right, if not always the practice of affirmative action, certainly the sodomy case, these were surprisingly liberal decisions from what is usually a very conservative court.

ZAHN: Jeffrey Toobin, thanks. Did you have a good time at the Supreme Court today?

TOOBIN: You know what, it was a big day. You know you cover the law this is the kind of day you wait for.

ZAHN: Yes, I bet you live for it, thanks.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com