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SCOTUS differs over activist judiciary claims

<em>NBC  News’ Washington bureau chief and host of "Meet the Press" offers insight and analysis into politics past, present and future.</em></p>

MSNBC:  Two big events this week... First the election of a new pope and, Thursday night, you moderated an historic discussion with three sitting members of the United States Supreme Court.  Let's take the second event first.  House Majority Leader Tom Delay, R-TX, recently said the judiciary is running amok.  What did the Supreme Court Justices have to say in that regard?

Tim Russert:  Justices Sandra Day O’Connor, Antonin Scalia and Stephen Breyer were there to tell young people, the constitution is an important document and the three branches of government are something they should know about.  And in the course of our conversation, I asked about the rising tide of anti-judicial rhetoric.  And the answers were fascinating.

Justice O’Connor talked about how, historically, we have gone through things like this… you know, President Franklin Delano Roosevelt packing the court and other instances. 

Justice Breyer said no matter how people may talk and feel; the beauty -– the treasure –- of our form of government is that people obey the rule of law.  And he cited Bush v Gore.  A lot of people were angry, he said, but nonetheless people abided by and obeyed the Supreme Court.

Justice Scalia said he dissents from this, because he thinks what has happened is because he believes over the past 60 years the justices have become politicized because of judicial activities in setting policy and people will try to take control of that institution.

It was the first time I have heard, in an open and public forum, three justices – enormously smart, well-trained lawyers with deep respect for each other – with deep philosophical differences about what is going on in America.

MSNBC:  What a rare insight to a group of people who hold such an important roll in our whole process of government, but from whom we don’t often hear publicly.

Russert:  I asked them about that.  I said, in terms of a learning tool for young people, we do get audio tapes from the Supreme Court hearings – usually a bit later – from Bush v Gore and from the University of Michigan affirmative action case, we got them relatively quickly. I asked, “Is there a time when we’ll get audio tapes in a quick turnaround or even live or would you consider letting television cameras into the Supreme Court.”

Justice Scalia said, if there was a 24-hour, gavel to gavel Supreme Court TV channel and people could sit there and watch the full context, he said he would be for it.  But he said his concern is the video would be edited down into eight-second soundbites and it would be counterproductive – people would not have the proper understanding of what the court really does.

MSNBC:  Is there any sort of “auditioning” going on right now for who might replace Justice Rehnquist, who’s not in good health?

Russert:  Certainly not Thursday night.  What these justices did was open up their minds and shared them with the country to allow us to have a sense of who they are – we turned back the curtain and showed a little transparency.

I was curious.  I asked, “Is there any vote trading.  Do you ever say, ‘Look, I’m with you on that case and you be with me on this case.’?  And they all three said, “Absolutely not!  Every case is decided on its merits.”

I asked, “Are you aware of what an impact a decision could have on our country -- a case like Bush v Gore?  Is there an attempt to have a consensus or even a unanimous decision?” And they acknowledged that they are aware of the cultural, societal or political impact of a decision.  Sometimes they’d like to have a consensus or a unanimous decision, but no one’s ever forced to vote in a uniform way.

As it was over, I said, “Well, we’re out of time, which is unfortunate, because I was going to ask everyone here if they were ever interested, at sometime in their career, in being Chief Justice of the Supreme Court?”  And they all roared and we walked off the stage.

MSNBC:  Switching gears here to Pope Benedict XVI.  There were expectations that he might not be of the same theologically conservative mode as his predecessor.  Has that been put to rest?

Russert:  Yes, by the rapidity by which he was selected in a two-thirds vote. 
You know he’s going to have a news conference -- meet the press, if you will -- on Saturday.  In the last presidential campaign, Pope Benedict, then-Cardinal Ratzinger, sent a letter, basically warning Catholic politicians to tow the line. 

MSNBC:  There’s already some Monday morning quarterbacking – that’s he’s 78, not in great health and may, in fact, be meant to provide a buffer period of several years until some sort of transition can be made.

Russert:  Those are the operative words, the “transitional pope.”  There is a sense the next pope may be from South American, Central America, Africa or Asia – the areas of growth for the Catholic Church.  The Cardinals weren’t prepared to do that now, but by choosing someone who is 78, as you describe him, clearly that looks like the master plan.

MSNBC:  What’s up on Meet the Press, Sunday?

Russert:  We’re going to talk about the new pope, Pope Benedict XVI.  As I said, he’s having a news conference on Saturday.  And on Sunday, after he’s formally inaugurated, we're going to get seven people around the table -– one of his former students, other catholic theologians and political observers -- to talk about the new pope and what’s in store for the Catholic Church worldwide, and also what effect will his papacy will have on Catholic politicians in the United States.