ARI SHAPIRO, HOST:
The U.S. Supreme Court today opened what promises to be an explosive term. On the docket are cases that, when decided, will please and infuriate big groups of people. NPR legal affairs correspondent Nina Totenberg was in the courtroom this morning, and she's here in the studio with us now.
NINA TOTENBERG, BYLINE: Hi, Ari.
SHAPIRO: Tell us why this is already seen as such an important term at the court.
TOTENBERG: Look. President Trump came into office and filled two Supreme Court vacancies in two years. The first was conservative Justice Neil Gorsuch, filling the seat of another conservative, the late Justice Antonin Scalia. Then in 2018, Justice Anthony Kennedy, a more centrist conservative, retired and was replaced by Justice Brett Kavanaugh, who, as a lower court judge, had a far more hardcore conservative record than Kennedy. So now you have big controversies coming up, and the switch in personnel can make all the difference.
SHAPIRO: Give us an example of - like, there's a big abortion case coming up this term. How is a switch from Kennedy to Kavanaugh likely to impact that case?
TOTENBERG: So in 2016, Justice Kennedy cast the deciding fifth vote to invalidate a Texas law that the court said was both unnecessary to protect women's health and that imposed an undue burden on a woman's right to terminate a pregnancy. Now comes Louisiana with a law that it admits is just about identical to the one in Texas, a law that a federal trial judge said would leave at most just one clinic in the state and one doctor who would be allowed to perform abortions at the clinic. And the question is, will the court stick by its precedent, or will it start down the road to striking down or hollowing out Roe v. Wade?
And that's just one example, but you can replicate it to one degree or another on a whole panoply of other issues - gun rights, separation of church and state, LGBTQ rights, immigration and the status of the so-called Dreamers and presidential power. On each of these, Justices Kavanaugh and Gorsuch have records that are far more conservative than the now-retired Justice Kennedy.
SHAPIRO: So to pivot from the term as a whole to the case that was argued today, tell us what happened in court this morning. It was a case about the insanity defense.
TOTENBERG: Yes. The insanity defense dates back to well before the founding of this country. It's based on the idea that mentally ill individuals who can't differentiate right from wrong are not morally culpable. From the mid-1800's through the end of the 20th century, American law pretty uniformly had a not guilty by reason of insanity defense, and 46 states still do provide for that defense, but Kansas and three other states do not. And the question is whether that violates the Constitution.
SHAPIRO: So whether a state can get rid of the insanity defense altogether - and I understand the case at the center of this argument involves a pretty awful crime, right?
TOTENBERG: A horrific crime - James Kahler shot and killed his ex-wife, her elderly mother and his two teenage daughters, and he let his son, who he liked more, get away. Kahler was tried and sentenced to death under Kansas law, which does not provide for an explicit insanity defense, and the law basically said that as long as the defendant had the intent to kill, his mental state is essentially irrelevant.
Now, I have to say, Ari, that this particular defendant didn't get much sympathy from the justices today. Justice Kagan said that she couldn't imagine the defendant here being found not guilty by reason of insanity no matter what the standard is, and Chief Justice Roberts chimed in that the evidence of insanity here was pretty weak. But the justices were also worried about making the definition so strict that clearly insane people would be punished as if they were sane.
SHAPIRO: Can you give us an example? What do you mean by that?
TOTENBERG: Well, Justice Breyer, for instance, presented this hypothetical. You have two defendants. One shoots and kills a guy named Smith, but he thinks Smith is a dog. The second knows Smith is a person but thinks the dog told him to do it.
TOTENBERG: As Justice Breyer put it, both of these guys are crazy. Why does Kansas say one is guilty and one is not? Pragmatically, what's the difference? So Justice Kavanaugh asked, isn't there a baseline that's been historically accepted about moral culpability? Justice Kagan chimed in at that point, noting that historically, the insanity defense was for insane people and for people who were, at the time, as she put it, called idiots - people who lacked the mental capacity to understand that what they were doing was wrong. Bottom line, these are not easy questions.
SHAPIRO: NPR legal affairs correspondent Nina Totenberg, thank you, and good luck with the blockbuster term ahead.
TOTENBERG: Thank you, Ari. Transcript provided by NPR, Copyright NPR.