‘The court is a reflection of the country’

NPR’s Nina Totenberg will moderate a panel at the GA featuring United States Supreme Court Justices Stephen Breyer and Elena Kagan. Photo by Steve Barrett-NPR
NPR’s Nina Totenberg will moderate a panel at the GA featuring United States Supreme Court Justices Stephen Breyer and Elena Kagan. Photo by Steve Barrett-NPR

National Public Radio’s legal affairs correspondent Nina Totenberg may be the most recognized Supreme Court reporter in the country, and is heard daily on radios all over the country through her contributions to NPR shows such as All Things Considered, Morning Edition and Weekend Edition.

The daughter of Roman Totenberg, a Jewish concert violinist from Poland, who barely escaped the Holocaust by immigrating to America, Totenberg’s route to becoming one of the nation’s top legal reporters without any prior legal training was, to say the least, unconventional.

At the Jewish Federations of North America General Assembly, which will be held at the Gaylord Hotel and Convention Center in National Harbor this weekend, Totenberg will moderate a panel featuring United States Supreme Court Justices Stephen Breyer and Elena Kagan at Sunday afternoon’s plenary session.

Totenberg spoke with Washington Jewish Week about the current justices, her life and some upcoming cases.


Did you intend to go into legal reporting? How did you become a Supreme Court reporter?

I got assigned to it, and it turned out I was quite good at it.

Did you have a legal background?

No. I had no legal background. By now I probably do, but in some ways that made me a good fit because I worked very hard to learn everything I needed to learn.

How did you learn?

Well, I probably asked a lot of stupid questions but I didn’t really know much of anything about how the Supreme Court worked or what the issues were and so I read a ton. I called everybody that I could. Anytime I didn’t understand anything I called somebody.

In about 1971 or something like that, I’m reading a brief in a case – the first case on sex discrimination – and I really didn’t understand something in it. So I looked at the front of the brief and I saw who wrote the brief, and I called this professor who’d written the brief at Rutgers [University] and her name was Ruth Bader Ginsburg. She spent like an hour with me on the phone explaining things to me.

Do you think the justices’ personal faiths are informing their decisions more today than in previous Courts?

I think that would be inappropriate for me to speculate about because I don’t know.

Most justices will tell you that while their personhood is informed by their faith, their legal views are not.

Now some of their critics will often tell you that that’s not true. But I can’t tell what’s in their souls and their brains.

I think it is fair to say that the majority of the court now is much more interested in accommodating religion in the public sphere as opposed to separating religion from the public sphere. I think that’s a fair statement.

If you can shine some light on the Zivotofsky case, what are your feelings about it?

I thought it was most peculiar because three years ago when this case was argued and the personnel on the court were the same, the liberals and conservatives were pretty hostile to Zivotofsky’s position.

It appeared that the court’s conservatives – all of whom made their professional bones in Republican administrations pushing aggressively for a more robust executive power – today, that group of justices seemed to be hostile, very hostile, to very traditional executive powers. So go figure.

Why do you think that is?

I think that what’s called the “recognition power,” the power to recognize foreign governments, goes back to Washington’s time and really had not been questioned until this case.

Do you think Justice Scalia has become too political for a sitting justice?

He certainly doesn’t think he’s political. He thinks he’s representing his view of the law. Certainly there are people who think he’s political. You know, conservatives think the liberals are political, the liberals think that the conservatives are political. I think the court is more polarized than at any time in recent memory and along partisan rather than even just ideological lines. But the court is always somewhat of a reflection of the country and when the country is polarized, so is the court.

So what’s the most exciting case this term that you’re looking forward to?

Hmmm. I can’t say it’s the most exciting but I think the Facebook case – what constitutes a threat on Facebook – is a really interesting case and will say a lot about what happens in the future in terms of threats, bullying, all those kinds of things online.

[email protected] @dmitriyshapiro

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