Though it pushes plenty of hot buttons in the issues it takes up for debate—domestic spying, torture, criminal sentencing for juveniles, and immigration reform, to name just a few—for close to a decade the Annenberg Public Policy Center’s Justice Talking program has functioned as the opposite of “shout” radio.
By Dennis Drabelle | Illustration by Graham Roumieu
The reporter winces. Not since his professional-school days, more than 35 years ago, has he heard such talk: bolts of rhetoric rolled out to great length with the help of connectives like “in terms of,” “in so far as,” “with respect to,” and “to the extent that.” This is lawspeak, and the perp is Richard Epstein, a University of Chicago law professor. Epstein is holding forth before a live audience at the National Constitution Center in downtown Philadelphia during a taping of Justice Talking, a show produced by Penn’s Annenberg Public Policy Center and heard on National Public Radio. And not just any old installment of Justice Talking—this is arguably the most important one of the year: the wrap-up of the U.S. Supreme Court’s just-concluded term, its first with new Chief Justice John Roberts and Justice Samuel Alito on the bench.
Epstein’s speech pattern is a challenge because, according to host Margot Adler, Justice Talking prides itself on explaining legal complexities without recourse to legalese. “Lawyers really do talk in a different language,” she says, and one of the show’s missions is to play interpreter to the lay folk who make up the bulk of NPR’s audience. Today’s venue accentuates that populist slant: the Constitution Center’s lead exhibition for the summer is Sports, with Babe Ruth as poster slugger. (Does this mean that the infield fly rule has a constitutional basis? No, the nexus seems to be that certain sports heroes—though the Babe, surely, was not one of them—overcame discrimination by race and sex.)
The other two guests this afternoon—Joan Biskupic, who covers the Supreme Court for USA Today, and Kathleen Sullivan, a law professor at Stanford—have been sticking to ordinary English. Epstein, though certainly bright and thoughtful, is the lone code-talker (at one point he goes so far as to use an acronym, which Adler makes him unpack). Aside from wielding the hook, which might violate the First Amendment, the best hope for a cure lies in the editing process, which will commence after taping is done. An hour-and-a-half of discussion among Adler and the three panelists, followed by questions from the audience, will be distilled to a running time of 53 minutes, plus the news and announcements that round out an NPR hour. Can the Justice Talking cutters and splicers save the day?
It turns out they can. Two weeks later, when the final version goes online, Epstein sounds measured, almost listener-friendly. Oh, once or twice he wriggles free, as when he mentions that Justice Anthony Kennedy wanted a certain case to be “remanded” without defining the term (it means sending the case back to a lower court for more work before the higher court commits itself). But most of Epstein’s baggage-train sentences have been excised, and Justice Talking has honored its pledge to be plainspoken.
Now heard on almost 100 stations, as well as Sirius Satellite Radio and Armed Forces Radio, and available at justicetalking.org, Justice Talking owes its existence to cluelessness. “My lack of experience, when I look back on it, was probably my biggest advantage,” says Kathryn (Kitty) Kolbert, the show’s creator and executive producer, in a pre-taping interview at the Justice Talking headquarters on Market Street, just off the Penn campus. “I’m glad I had so much naiveté.”
Adler says the same thing more diplomatically: “Kitty did it in a completely maverick way.” Which is to say that typically a new NPR program is developed by one of its member stations, not by “a university professor who is thinking about ideas and new ways to present them.”
Before joining the faculty of the Annenberg School for Communication, Kolbert practiced law for over 20 years with such nonprofits as the ACLU and the Center for Reproductive Law and Policy (now the Center for Reproductive Rights). Belying her mild manner, she was a star litigator whose exploits included successfully arguing Planned Parenthood v. Casey(1992), an abortion-rights case that could have served as a vehicle for the Supreme Court to overrule Roe v. Wade but, thanks in part to Kolbert’s advocacy, did not.
“After commuting to New York for years,” she recalls, “I moved back to Philadelphia in 1998 to be with my family full-time, and I spent about six months deciding what I wanted to do next. I heard that Kathleen Hall Jamieson [then wearing two hats, as dean of the Annenberg School and director of the Annenberg Public Policy Center] wanted to start a radio program. I had done a lot of radio as an advocate, so I was interested.”
In a separate interview, Jamieson, no longer dean but still heading the Policy Center, fills in more background. The radio-show concept goes back, she says, to the University’s 1996 strategic plan, which called for strengthening Penn’s identity. “People didn’t know where Penn was. We wanted them to recognize us as being in the city that thinks of itself as the cradle of democracy. So Judith Rodin [Penn’s president at the time] asked me if we could do a radio program on the Constitution. I thought it was a good idea because one aim of the Public Policy Center is to improve the quality of democratic discourse. I saw a program like this as counteracting what I call ‘shout television.’ ”
As Kolbert mulled over the idea, however, it expanded beyond the Constitution to the law itself. “There were no other NPR shows devoted to the law,” she says, “and it was my area of expertise. We set out to provide the nuanced kind of debate you hear in courtrooms and legislatures. The goal was not to convince anybody of anything but to get people to see the legitimacy in other views. Kathleen offered resources, and we started out as a 13-week series with an experienced producer and Margot. Originally we held debates before a live audience, like Nightline.”
For Adler’s part, involvement in Justice Talking was “a complete fluke.” “I’ve taken only two law courses,” says the veteran reporter, whose long, coal-black hair seems just right for someone who wrote a book on witches and neo-pagans in her spare time. “One as an undergraduate and one in journalism school.”
Kolbert has already called it “no accident” that she herself is the only lawyer on the Justice Talking staff, and Adler underscored the value of filling the host’s slot with a generalist. “It makes it easier for me to ask what [NPR special correspondent and former All Things Considered co-host] Susan Stamberg calls ‘the housewife question.’ And I’m happy that we don’t do the show in Washington, where you can get this very inside-the-Beltway effect. Kitty heard me on the air and liked my voice. She took me out to lunch and asked me if I wanted to do the show. In the beginning, it was a real learning curve for me. But I come from a divorced home and don’t deal with conflicts well. Reasoned, long-form talk on contentious issues is something I deeply, deeply believe in.”
Adler, who is also the New York bureau chief for NPR, takes time out from her regular duties to come down to Philadelphia for weekly tapings—35 times a year, though the number of shows is about to jump to 39. “It’s not an NPR job,” she explains. “The show is the Annenberg Center’s. NPR just distributes it. I had to get permission from NPR to do this.” By the time Adler gets off the train in Philadelphia, she will have done about four hours of homework: reading the information packet sent ahead for that week’s topic.
Justice Talking debuted on WHYY, a Philadelphia NPR outlet, in September 1999. WHYY marketed it to other stations, 15 or 20 of which carried it that first season. Then NPR picked it up, giving the show what Kolbert calls “tremendous legitimacy.” Early on, the show was taped before live audiences at Carpenters’ Hall. “It was a great venue because of its history and intimacy,” Kolbert says of the building where the U.S.’s first constitution, the Articles of Confederation, were drafted, “but not so good for radio.” Now the taping usually takes place in a studio, with live audiences being the exception rather than the rule. Most shows focus on a single hot topic—domestic spying, the Endangered Species Act, the Federal Communications Commission’s crackdown on indecency (a show peppered with “bleeps”), lobbying, immigration, etc.—and draw upon experts, including non-lawyers, to discuss the issues, as well as NPR reporters to flesh out abstractions with stories about how the law affects real people.
Kolbert’s liberal past is on the record for all to see, but what about Adler’s predilections? “I started out with Pacifica,” she says, referring to a radio network that many people think of as radical. “So you can see where I come from. I’m an opinionated, biased person, and keeping my personal views out of the show is the hardest part of the job. But often it’s a learning experience. For example, after doing a show on campaign-finance reform, I have new respect for the free-speech issues involved. And I try to be careful. One script mentioned a nickname some critics were giving [then Supreme Court nominee and now Justice] Samuel Alito—he would vote so much like Justice Scalia that he should be called ‘Scalito.’ I felt I shouldn’t say that, and it was taken out of the script.”
Another possible source of bias is the tendency of news organizations to assign the same weight to opposing viewpoints, even when the consensus is heavily on one side. For example, far more scientists believe that greenhouse gases are causing global warning than don’t, but for the nightly news to give equal time to Ph.Ds on each side might suggest to viewers a 50-50 split in opinion. “We don’t have to cover everything,” Adler responds. “We try to pick topics with at least two strong sides, and we don’t like it when the discussion boils down to this study here versus that study there. We try to give an equal number of tough questions to both sides. And we learn from our mistakes. We did a show on restorative justice, which involves alternatives to sending criminals to jail. Instead, they might be sentenced to perform community service. We had a prosecutor who opposed the idea, and who was a very good debater, against a social worker who had come across well during a news segment on the topic but didn’t do well in our format.”
“We try to find people who are on the same level,” Kolbert adds. “We’ve learned to look for those who are engaging and interesting as opposed to the very credentialed who can’t speak in ways that can be understood. We try to get fresh voices and not the same old pundits. Doing the show in the studio has improved the quality of our guests because they don’t have to travel—all they have to do is go to a radio studio in their hometown. That’s one reason we’ve moved away from the live-audience format. Ironically, we’ve had to leave people out to make the show better.”
Back at the Constitution Center, there is much ground to cover. For one thing, op-ed columnists and shout-television debaters are still dissecting Hamdan v. Rumsfeld, the Supreme Court’s dramatic rejection of the Bush administration’s approach to trying (or not trying) alleged terrorists. All three panelists prove to be of much the same mind here. Sullivan calls the administration’s assertion of executive power “truly extravagant.” Epstein characterizes it as the president saying over and over, “I’m the boss, I’m the boss.” And Biskupic observes how “enabling” the decision was: “The Court essentially said to Congress, ‘Get involved.’ ” But this being an election year, she cautions against betting on quick action.
When the discussion switches to a physician-assisted suicide case from Oregon, both Biskupic and Sullivan note how hard Justice Kennedy’s majority opinion came down on former attorney general John Ashcroft, who tried to use the federal Controlled Substances Act to thwart the state’s “right-to-die” law. “Kennedy emphasized Ashcroft’s highhandedness,” says Biskupic. “He saw Ashcroft as drawing on almost personal privilege to tell the state what to do,” agrees Sullivan.
The Court took on two new members this term: Chief Justice John Roberts and Alito. After the term ended, Senator Edward Kennedy characterized the freshman justices’ voting records so far as reflecting “not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist’s embrace of the administration’s political and ideological agenda.” Today’s panelists, however, are less quick to reach a verdict. When Adler asks which of the two newcomers has been more conservative, Sullivan replies, “Too soon to tell.”
Sullivan goes on, however, to suggest how the new justices might express such conservative leanings as they may have: more by approving exercises of federal executive power than by upholding states’ rights. Earlier, she has spoken of states’ rights—a doctrine that still bears a taint from the era when Southern officials invoked it while denying civil rights to minorities—with some warmth. Several states have been experimenting in ways the feds aren’t ready for yet, she points out, enacting right-to-die laws, medical-marijuana laws, and measures to combat global warming. She ends with a nifty one-liner: “I’m recommending that liberals go from singing the states’-rights blues to endorsing blue-states’ rights.”
Biskupic brings up a phenomenon widely noted by Court-watchers: that with O’Connor gone Kennedy has taken over the role of “floater” between the Court’s liberal and conservative factions. But there’s a difference between the two centrists, Biskupic adds. O’Connor’s swing-vote opinions were easy to follow; so far, Kennedy’s are not. Sullivan laments the tendency of justices to write separately, sometimes issuing as many as six different opinions for a single case, rather than form clear-cut majorities. “These are cases that only a lawyer can love,” she says. “They are very hard for the public to understand.”
What about the future? Adler asks. One thing to keep in mind, Sullivan replies, is the advanced age of Justice John Paul Stevens. Now 86, he leads the liberal faction, and his retirement or death in office in the next two years would allow President Bush to appoint another new justice, presumably a conservative who would further shift the Court to the right. Sullivan mentions a website that sings, “Hang on Stevens, Stevens Hang on,” to the tune of the 1960s hit, “Hang on Sloopy.” Biskupic observes that Stevens, who still plays tennis and is “sharp as a tack,” comes from very long-lived stock.
“Is next year going to be the one conservatives have dreamed of?” Adler wants to know. “The year when Roe v. Wade is overruled?”
“The answer is no,” says Epstein with unwonted brevity. To overrule the case would be an “unmitigated disaster,” he believes, breaking the alliance between the religious right and the country-club Republicans. Biskupic agrees, recalling that Roberts worried about “jolts to the system” in his confirmation hearings. She suspects that his position as chief justice will have a moderating effect on him.
Time is running out, and Adler invites audience participation as Kolbert roams the aisles with a portable microphone. There aren’t a lot of questions, however, and none of them is particularly acute; this segment doesn’t make the cut.
The wrap-up had more meat to it than these paragraphs have reflected: discussions of a redistricting case from Tom DeLay’s Texas, a campaign-finance case from Vermont, a case about whether it violates the right to free speech to force military recruiters upon colleges that oppose the don’t-ask-don’t tell policy, one about federal protection of wetlands, one about whether minors must get parental consent for abortions (the Court did send back—that is, remand—this one, in what Sullivan called “a pure punt”).
But the show’s emphasis on personalities was probably no accident. The double shuffle of the Court’s roster was a rare event, and it is quite unusual for a justice to write something as forceful as Kennedy’s slam of Ashcroft in Oregon. Then, too, playing up the law’s human side serves a Justice Talking goal: giving outsiders entrée into the clubby world in which so many decisions that affect our lives and livelihoods are made.
Justice Talking has won multiple awards, including a Webby for the design of justicelearning.org, an interactive civics website for high-school students. Webby winners are asked to limit their acceptance speech to five words. Kolbert went with “This is poetic justice. Thanks.”
Over time the show has grown to be a veritable franchise, with several books to its credit, including The United States Constitution: What It Says, What It Means (Oxford University Press), a hip-pocket guide published in collaboration with the New York Times Knowledge Network and the Annenberg Foundation Trust at Sunnylands. Justice Talking and the Trust have also issued a DVD, Our Constitution: A Conversation, featuring two Supreme Court Justices, the now-retired Sandra Day O’Connor and Stephen Breyer. And Justice Talking itself isn’t just for non-lawyers anymore. Under the auspices of the West End Legal Center, the programs can be parlayed into continuing-legal-education credits in 25 states.
No additional radio programs are currently in the works at Annenberg, although Jamieson mentions factcheck.org, a website for testing the veracity of claims made in political ads, as “a natural for radio. The problem is funding it. The only way we were able to produce Justice Talking was thanks to the Annenberg Foundation.”
Asked whether she considered Justice Talking a success, Jamieson replies (judiciously), “It’s been hard to build up an audience on radio. But we’ve had guests on the show who told us afterward that this was the first time they were in that kind of situation and were actually able to get their views out and be listened to respectfully. That’s very satisfying.”
Dennis Drabelle G’66 L’69, a contributing editor of The Washington Post Book World, has written about Law School Dean Edwin R. Keedy’s journey to Canada’s far North to witness a murder trial in 1917 and a Penn commission that debunked Spiritualism in the 1880s, among other articles in the Gazette.