LYLE DENNISTON, SUPREME COURT REPORTER: Well I’ve been at it almost 50 years. In two more years it’ll be 50 years. But I’ve been covering the court for one medium or another.

Started out in 1958 with the Wall Street Journal covering the court. And since then I’ve parlayed one job into the next one and stuck around all this time. So it’s – this is my 48th year and I’ve got two to go to make it a half century.

LAMB: How long with you with the Journal?

DENNISTON: I was with the Journal from ’58 to ’60. Then I took six months off to go in the Army. And then I came back to the Journal and stayed with them until 1963, I think. Then I went to The Washington Star and stayed with The Star for almost 19 years, I think.

And then when The Star collapsed I went over to The Baltimore Sun and stayed there 17 years. But all of these jobs were covering the Supreme Court.

LAMB: Are you a lawyer?

DENNISTON: I’m not a lawyer. I’ve always indulged the arrogance of saying that the only time I’ve ever been in law school was to teach because I taught at the Georgetown Law Center for eight years, got in kind of the side door because another fellow was a lawyer and was teaching.

And he and I worked out this class that we loved to teach together. So we took it on jointly and then he, unfortunately, died and so I kept teaching. But I’ve had a fascination with the law, lawyers and judges, since I was 17 years old working on my hometown newspaper and covering the local courthouse.

LAMB: Can you remember the first time you went into the Supreme Court and what your reaction was?

DENNISTON: I don’t think I can remember that. I mean, probably it’s somewhere in the recesses of my mind. But I do remember being really impressed with the serenity of the place, with the salinity of it.

And every now and then, even after almost a half-century, I still every now and then go into the court, up the front steps to just kind of experience the majesty of the court. Of course, never losing sight of the fact that I’m a journalist and not really supposed to be an admiring spectator but a more skeptical spectator of what the court does.

But there’s aura about that place that, Brian, that it just really remarkable. It’s very infectious. And it never changes. Actually the only time that I can ever remember being put off by the atmosphere around the court was when the court was deciding the Bush versus Gore case in 2000. And the place was surrounded by INAUDIBLE 24 hours a day. The satellite trucks where all the television operations were outside. And it was just an unholy experience to be in the midst of the, you know, a media maelstrom and then have the center of all of that attention be this supposedly serene and removed and reserved institution.

So that was pretty off putting to me. But I still – there’s a little catch in the emotions every now and then when you look around and see that wonderful place and all the – most importantly we remember all that has gone on before.

LAMB: Which Justice over the years have you known the best or been closest to or had the most open opportunity to speak with and interview?

DENNISTON: Well probably three about the same level. I mean, never very much interviewing on the record. But I was pretty close Lewis Powell, a wonderful, portly Virginia gentleman and spent a lot of time with him just personally.

I was fairly close to Potter Stewart who – and liked him a whole lot. I mean, Potter was really a wonderful and very decent human being.

And Stephen Breyer. I mean, Steve the present (ph) justice of the court. I think Stephen kind of took a kindly view of me early on because I was a Boston Globe reporter for a while. And Stephen is very fond of Boston and of the Globe.

And so I’ve been fairly close to him. I would consider him probably the one on the bench now (ph) with whom I’d like to have and do have the most contact.

LAMB: What would you say to someone outside this town and outside – and even in this town that had never been in the court – what about it inside do you see that we don’t?

DENNISTON: You mean as a journalist going into the clerk?

LAMB: Yes. What are the – what’s it like behind the scenes in the court?

DENNISTON: Well it’s very quiet there. I mean, it’s – even when the oral argument gets kind of combative, you have the real sense of being removed from politics and from social disruption and anxiety.

And it’s a place where you have a sense that something terribly serious is going on, serious not in the negative way but something that’s kind of ultimate. And when you also realize that there is this continuity, that this is the court that has had a link with all of its past, that history is just astonishingly important to what it does and to the justice of those individual mindsets, I don’t have that sense when I’m in the Capitol Room and in the White House press room.

And the politicians, you know, who tend to be addicted to the moment don’t have a very long sense of history, except somebody like Senator Robert Byrd of West Virginia. But in the Supreme Court you do have the sense – whether you’re a journalist or some other serious spectator, you do have the sense that you’re witnessing history repeating itself over and over again because it all comes back.

LAMB: In a minute I want to show a clip of each of the justices and have you talk about them. But before we do that, where’d you grow up?

DENNISTON: I’m a native Nebraska boy. I grew up in a little town in eastern Nebraska called Nebraska City right along the Missouri River about 50 miles south of Omaha and grew up in a large family. I was one of seven, the next to the last among seven.

My father ran a meat market. My mother never finished high school. She went to the eighth grade and she was in a milliner. She made hats. And so we just grew up wonderfully happy years in a little town in Nebraska and thought going to Omaha was the biggest thing that you could possibly do in life and grew up there, went to high school there.

And then three years out of high school I worked at my little local newspaper as a reporter. By the time those three years were up I’d saved about $300 and went off to the University of Nebraska. And that started a career in both academic and journalistic life that I try to continue.

LAMB: How’d you get to Washington?

DENNISTON: I had a scholarship to go to Georgetown University. My undergraduate college, the University of Nebraska, gave a scholarship in the journalism program to one of the graduating seniors to use wherever he or she wanted to to study whatever they wanted.

And I had always thought that I would like to study political science at the graduate level and American history. And where better to do that than to Washington. So I took my scholarship and came to Washington to go to Georgetown University to get an MA.

LAMB: You said 48 years covering the court. And one of the more chaotic periods was over the Bush v. Gore. What was, in your opinion, the most important decision you’ve covered in all those years?

DENNISTON: Oh, that is so hard to try to figure that out.

LAMB: Well one or two. I mean, they don’t have to be the most important.

DENNISTON: Well I certainly think that Bush versus Gore was in terms of historical importance – by the way, I’m one of the few people – the few people who consider themselves progressively minded who think the court got it right not because of the winner of that, George Bush, but because I really do believe that there was a constitutional crisis.

And a constitutional crisis of that dimension can only be settled by the Supreme Court of the United States. And so I thought they got it right. It was messy. It was not terribly well done. And it was – but it was a very interesting time to be around as a journalist.

Probably, you know, all of the school desegregation cases were awfully important. I wasn’t there for Brown versus Board of Education but I got there about four years after that.

And so I also remember all of the old loyalty and subversion cases. I mean, we’ve forgotten about those McCarthy days. But the court was very centrally involved in trying to curb those excesses. That was very interesting.

I just – just a wonderful flow of fascinating decisions year in and year out. I’ve never had a dull year there, Brian. You know, in somewhere around February or March, I think, oh this next term just is going to be dull, not going to be anything of real interest. And by the time you get into November, all over again you’ve got good stuff. And it’s going to be a big year.

LAMB: A couple quick, small questions. Can you telephone a justice? And will they take your call?

DENNISTON: Well a couple of them I can do that. It’s not something that I like to do because I think that’s fairly intrusive. It’s much nicer to just sort of go up and sit down and be relaxed and have one-on-one exchange because there’s an urgency about telephone calls from journalists that I think doesn’t work very well with somebody on the court.

LAMB: Can you get – can you go in their offices without – I mean, is it easiest to walk in their offices and ask their assistant or whatever to see them?

DENNISTON: No because the – we operate – members of the press – on the ground floor. And all of the chambers, the offices of the justices, are one floor up from us. And because of the security considerations around the court, if you’re going to a chambers you really have to be escorted. You can’t just go up there and walk in.

And you don’t – you don’t really want to do that because the chambers are trying very hard to be secure. And the police get a little nervous when you do that.

I remember one episode – I didn’t witness it but I knew about it – where a young member of the court staff went upstairs because he had some business he had to do with Justice White, Byron White. And he went into the outer anteroom and no one was there. And he went into the inner second room, which was where the law clerks operated, and nobody was there. So he stuck his head into the justice’s office and White was there sitting at his desk.

Well White immediately pressed the buttons under his desk that summoned the police. Of course the poor young man, here all of a sudden the police are rushing in and here he is standing in front of Justice White trying to explain why he was intruding into this inner sanctum.

But it’s a fairly secure place. And it works better if you just tell somebody that you’d like to go upstairs and you get permission to do so and go in. But decorum is really important around that building.

LAMB: As you well know, better than most people there, nine justices on the Supreme Court. And we’re going to run a video clip of each of the nine and have you talk about them.

DENNISTON: OK.

LAMB: We should also tell our audience that they weren’t selected for any particular reason. We just wanted you to be able to see what they look like. And we put a camera in front of them almost every time they speak, if they’ll let us.

And we’re going to do it in descending order from the one justice that’s been on there the longest, and that’s 31 years for Justice John Paul Stevens. He’ll be 87 on April the 20th. He was appointed by Gerry Ford. Here he is.

DENNISTON: OK.

(BEGIN CLIP)

JOHN PAUL STEVENS, SUPREME COURT JUSTICE: To think a good deal about the issue, I have concluded that it would be unwise to amend the Constitution to reverse those decisions. Ironically those decisions seem to have solved the flag-burning problem because nobody burns flags anymore.

What once was a courageous act of defiant expression is now perfectly lawful and therefore is not worth any special effort.

More importantly, given the decision of Justices Brennan, Marshall, Blackman, Scalia, and Kennedy, because now the law of the land, burning the flag is now a symbolic act that conveys a far different message than it once did. If one were to burn a flag today, the act would convey a message of freedom that ours is a society that is strong enough to tolerate such acts by those whom we despise.

(END CLIP)

LAMB: Now that was just about six months ago. He’s going to be 87 years old. What’s he like?

DENNISTON: Well, he’s an absolutely perpetual youth character. I mean, he’s young in heart, young in spirit. He’s obviously in sound health so far as any of us in the public can determine.

He’s very candid with you when you talk with him in chambers. He will even go so far as to discuss some cases, which most of them won’t do. But he was – when he first came on the court in his early years he was really thought as of a maverick because he was – he was kind of a solitary justice who more or less went his own way.

But as time went on he became leader in the court. And now there is no question but what he is the leader of what’s called the liberal block, the more progressive members of the court. He’s just a sweetheart. I mean, he’s a delightful human being.

LAMB: How’s his health? And I’ve also heard that some people call him the FedEx judge because he spends a lot of time in Florida.

DENNISTON: Well he does have a home in Florida. And I don’t know when he gave it up but he used to fly his own plane back and forth to Florida. And he once told me, as a matter of fact, he said, you know, this job we haven’t isn’t really heavy lifting so I can easily go back and forth.

And he still does, I think, spend a lot of time in Florida. And – but he’s always at the court when he needs to be. And he’s – as I say, he’s a genuine leader. And on those days when the chief justice is away and he gets to preside over the public sessions, I think he loves that.

LAMB: Justice Antonin Scalia’s been there 20 years. He’s 71 years old. And he was appointed by Ronald Reagan. Here he is at the Federalist Society.

(BEGIN CLIP)

ANTONIN SCALIA, SUPREME COURT JUSTICE: If you want to change things, if these 300 million people want to change things, you don’t have to use the Constitution to do it. Use the legislature. That’s what we do in a Democracy.

And it’s very undemocratic for the court to say, ”Make the change.” It’s quite possible for the people to abolish the death penalty, to permit homosexual conduct or for that matter same-sex marriage, and to permit suicide and all sorts of things.

The issue is whether a judge can say a living constitution has morphed. And so what you used to be OK is now not bad, is now bad. That’s the living constitution I’m talking about. And it’s the one that I wish would die.

(END CLIP)

DENNISTON: Well, I mean, typically iconoclastic, I mean, Justice Stevens is - - if there is anything like a verbal bomb thrower in the court…

LAMB: Justice Scalia.

DENNISTON: …Justice Scalia. I’m sorry. If there is anything like a verbal bomb thrower, it’s Nino Scalia. He’s very clever. He’s very aggressive verbally. He’s a dominant figure in oral argument. He almost never leaves any doubt about how he’s going to vote in a case when you hear him in public argument.

He is not as influential as we all thought he would be when he came on the court in 1986. He is such an incredible intellect. I mean, he is so bright. But we – all of us and me included – assumed when he came on the court that he would really become a dominant presence.

Well, he’s a very visible presence but he’s not a dominant figure in the court’s work or in its jurisprudence. And in more modern times, in more recent times, he’s undertaken what he dissents to be very personally critical of people with whom he disagrees. And that’s – I think that’s kind of unfortunate because that – that adds a bit of corrosion to the process that perhaps ought not to be there.

But he’s a wonderful person to cover for a journalist because he makes news all the time. And it’s usually very stimulating, very exciting news.

LAMB: Is he open to you if you call him and go see him?

DENNISTON: I don’t make any effort to see Justice Scalia because I learned early on that he’s very selective in what he does and in his relations with the press. And so I just – and I had the sense – perhaps incorrectly – but I had the sense that there wouldn’t be much value in going out to spend time with him because he doesn’t trust the press very much.

And so I would prefer to spend my time with people who think people in the press corps are OK sort of folks.

LAMB: The day we’re taping this, Justice Kennedy is testifying before the Appropriations Committee. And here’s a clip almost as we’re talking about this. And he is talking about the administration of the building itself. Let’s listen.

(BEGIN CLIP)

ANTHONY KENNEDY, SUPREME COURT JUSTICE: You mentioned (ph), Mr. Chairman, graciously the building project. You said you’d be anxious to hear about it. I don’t like to disappoint you, but we are disappointed in the progress of the project.

This was supposed to be a four-year project. You approved the funding. We worked very hard to get the funding down. A four-year project is now, by the contractors own estimate, more than a year behind by our project – our own project manager’s estimate more than two years behind.

We have 25 to 33 percent of our building we can’t use. It doesn’t look good. It’s inefficient. And we have these visitors from around the world. And we take the one year or two year delay very seriously. We do not think the architect with the capitol or the contractor took us seriously.

(END CLIP)

LAMB: Now Justice Kennedy, 70 years old, has been there 19 years. He was also appointed by Ronald Reagan. He kind of took on the architect there of the Capitol. Does he (ph) like to do those kind of things?

DENNISTON: Well Justice Kennedy is a very candid fellow. I mean he’s candid when he’s on the court. He’s candid when he appears before congressional committees.

Recently I noticed he was before the Senate Judiciary Committee in a rare appearance to talk about judicial independence. And he was very blunt about not wanting cameras in the courtroom. He said it would provide an insidious temptation to think one or more of our colleagues during oral argument were playing to the cameras.

But one cannot look at Kennedy in any form – the Supreme Court or outside of it – without realizing that now more than ever he is the most influential member of the court in terms of having the one really decisive vote on a court that is very closely divided.

He’s the new O’Connor. I mean all those years that Sandra Day O’Connor was the tie-breaker, well, Justice Kennedy was in that role some of the time, not as often as Sandra O’Connor was. But now he is really the make weight (ph) in the court, a role, by the way, which I know he personally thinks very high of.

He is…

LAMB: He likes it…

DENNISTON: …he’s always just a very – he’s quite self-centered fellow. I mean, he – and when you talk with him he does the talking and you do the listening. And he’s – some people think of him as a Hamlet, you know, because he’s kind of a – sometimes acts like a rather tragic figure.

But he’s very smart. He’s an excellent judge. And he’s a very engaging fellow to be around. I’m see him now and then in places like opera company performances, that sort of thing. And he’s a very open and friendly fellow. His wife is just a delight, too.

LAMB: So we have seen – and by the way, are they all – I guess David Souter’s not married. Are the rest of them all married?

DENNISTON: They are. Yes.

LAMB: And their wives are alive?

DENNISTON: They are. Yes.

LAMB: Justice Stevens we saw, liberal, Justice Scalia, conservative, Justice Kennedy, you say, is in the middle?

DENNISTON: The middle. Very much the middle.

LAMB: The next one’s been on the court for 16 years. He’s 67 years old. He was appointed by George Bush, 41, and it’s David Souter of New Hampshire.

(BEGIN CLIP)

DAVID SOUTER, SUPREME COURT JUSTICE: I think it’s a fair statement that most of the subjects, most of the elements of the planned renovation, so-called, that are contributing to the very high dollar figure, elements that either are pretty close to pure security owns (ph) that nobody five years ago was thinking much about or they are elements of architectural update which we now realize have tremendous security implications.

And that is – that does not solve (ph) to cover the soreness of the price tag completely. But it goes at least in some direction toward an explanation of why the figures are coming in the way they’re coming in and why they are thought – why we think it’s necessary to get in them.

(END CLIP)

LAMB: He’s talking again about architecture and building and…

DENNISTON: That’s construction – the reconstruction of the courthouse.

LAMB: …and that was in – the year 2000, before 9/11, and they’re still there talking about security. What’s David Souter like?

DENNISTON: Well he is the recluse on the court. I mean, he’s – he does not like being seen in public or heard in public. He very seldom makes public speeches. Recently he did make a speech at a grade school in New Hampshire. But it’s rare for him to go out in public.

And he – among the members of the court who resist the idea of having cameras in the courtroom, David Souter is the most aggressive on the subject because…

LAMB: Want to say something about the woman (ph) off to the left over his right shoulder, Kathy Arberg. And the reason I want to mention her is that she’s the head of the press operation over there.

DENNISTON: Yes she is.

LAMB: And how big is the press operation and how much do they care about their images?

DENNISTON: Well I don’t know that the justices themselves are paying a lot of attention to how the press treats them. Some of them – Justice Scalia sometimes has shown himself to be a little bit thin-skinned about media coverage.

The new Chief Justice John Roberts is, I think, very aware of what the media is saying about him and does not particularly like it if negative things are said about him.

But I think by and large they are not really consumed with fascination with what the press is saying about them.

LAMB: How many people work for these people, these justices?

DENNISTON: Well, the staff of the court is very small. I don’t know what the figure is, Brian. It’s probably somewhere around 300 or 400 people. There are only about five people in the press operation. And they are not only shepherding those of us who are reporters around. They are really flaunting for the court in all public contact.

I mean, the public writes a lot of letters and makes a lot of telephone calls with the court. So Kathy Arberg and her staff are very busy with just maintaining public information.

LAMB: Can you go see Justice Souter?

DENNISTON: I have – I did early on. But, you know, it was funny. I’ll just tell you a couple of anecdotes. The first year he was there I thought, ”Well, why don’t – to get acquainted with him I’ll invite him to go with me as my guest to the White House Correspondence Association, which is a big social function that makes the press feel good about itself because it feels intimate with official Washington.

But he declined and said, ”You know what, I’m so new. I still haven’t figured out what kind of a relationship I want to have with the press.”

So I waited about five years. And I asked him again. And he said, ”Well, I’m still trying to figure out what kind of a relationship I want to have with the media.” But he was – if you run into him – and one does – at functions around the court, he’s very open, very engaging. But one gets the impression that it’s just not a good idea to ask to go into the chambers because the chances are that you’re not going to – not going to be welcome, at least not very often because he tends not to want to be visible, even around the court house.

LAMB: You know, when you talk about power (ph) centers – the court being one of the three branches of government – Justice Kennedy and testifying in front of the Appropriations Committee said that they needed $66 million – which is in this town not a whole lot of money on a $2 trillion budget – and that they needed five new people.

Can – do they – from your experience do they have enough people to get this job done? He also said that the number of cases they’re projecting to do this year is 79. That’d be 79 hours for the whole year.

DENNISTON: Well it’s – the decline in the court’s case load is – it’s a mystery to a lot of people. And sometimes the justices insist it’s a mystery to them though they’re completely in control of it because they have almost unlimited discretion as to what they will hear and what they won’t hear.

I think they do quite a good job. But I am totally convinced that they could do a lot more. I mean for the court to sit as a bid in February for some days only one hour a day and only about six or seven cases for the whole time when they normally hit 12 cases in a sitting – which 12 cases means you sit only in the morning.

So back in the 1980s, early 1980s and to the middle 1980s, they were sitting four hours a day: two in the morning and two in the afternoon. So the decline in the case load and the decline in the final output of decisions is way down.

Now I don’t think it necessarily means that we should reduce the membership of the court from nine to seven. Sometimes the court has gone down in membership in its history. But I do think that we – if we’re not wasting we’re underutilizing a very important public resource, which is the Supreme Court of the United States.

LAMB: Clarence Thomas has been on the court for 15 years. He’s 58 years old. He also is appointed by George Herbert Walker Bush. Here he is.

(BEGIN CLIP)

CLARENCE THOMAS, SUPREME COURT JUSTICE: I think that it will, in the future, it runs the risk of undermining the manner in which we consider the cases. I think it will have an effect on the way the cases are actually argued and maybe even – not adjudicated substance from the standpoint of substance.

But certainly the – it would change our proceedings. And I don’t think for the better.

I also think it will raise additional security concerns as the other members of the court who now have some degree of anonymity lose that anonymity.

(END CLIP)

LAMB: What kind of a guy is he?

DENNISTON: Well he’s two different kinds of people, at least from my perception. As a person, as a human being, he’s very warm. He laughs very easily. He’s very sensitive to people’s personal troubles and concerns.

He and his wife have reached out a number of times to people in not as good circumstances to help them out. He’s an uncommonly generous person for a person in such a high place.

But his approach to the law is very, very aggressive, a very – I call it iconoclastic. I mean, Justice Thomas would take a lot of the court’s constitutional jurisprudence and just throw it out and start all over.

For example, he doesn’t believe that the part of the constitution that keeps the government and religion separate should apply to the states at all. The states should be free to do what they want to accommodate religion.

He would – he would really make a revolution in constitutional doctrine if his ideas were followed. So – and there’s one other facet of him that I think is really unfortunate and that is his lack of participation in the give and take in oral argument.

I mean, most people who really understand the way the court works know that the oral argument is the first time the justices really get a chance to discuss seriously the issues that they’re deciding because when the case comes up in the first instance it’s a quick look to decide whether to hear it.

But when they come to oral argument and sit there for an hour, only an hour per case, that’s a very important moment at which they shape the agenda for the decision. And if you don’t participate at that point then you are not participating, at least not very actively, in shaping the agenda of how the discussion at least is going to begin on how you decide the case.

Now why he does not participate is not known to me. It’s unknown to most people and even who know him. But he doesn’t take part. And I think that’s a shame.

LAMB: Ruth Bader Ginsburg, 13 years on the court, 74 years old, has had cancer as has John Paul Stevens. Any indication of a return on that?

DENNISTON: No, I think her health is excellent so far as it appears. I mean she – after she had colon cancer and she bounced back almost immediately it seemed – I mean, she went horseback riding, she was playing golf. You know, she’s – she’s a very tiny little creature. And she looks unbelievably fragile.

LAMB: That’s – she was appointed by Bill Clinton. Let’s watch a little bit.

(BEGIN CLIP)

RUTH BADER GINSBURG, SUPREME COURT JUSTICE: It isn’t so much a question of switching sides in order to have a clear majority. It’s taking what would be your ultimate position.

Let’s say you have an idea that this case should be a major headline case, should rule squarely on an issue that will cover the waterfront. But there’s a fallback position that would decide this case that way leaving many questions open.

That kind of compromise or accommodation is not unusual on the court.

(END CLIP)

LAMB: What’s the difference in political philosophy or judicial philosophy between Clarence Thomas and Ruth Bader Ginsburg?

DENNISTON: Well Justice Ginsburg is a very cautious jurist. She’s what we in the press would refer to as a moderate. Her ideas are quite progressive, some would say liberal. Obviously her history as a women’s rights advocate led us all to believe that when she got on the court she would be – she would be even more liberal than she is.

But her experience on the lower court, on the D.C. Court of Appeals should have told people that she was going to be a moderate centrist, a little bit to the left of center philosophically.

She’s a very sound judge. I would – if I were a litigant I would be entirely happy to have Ruth Ginsburg decide my case for me because I think she’s imminently fair. But as I say, she does appear to be awfully fragile which perhaps yields to the temptation among some journalists to think that she’s thinking about retiring.

But I don’t think that’s the case. I mean these brewers (ph) come up every year about someone else is going to retire. And they usually don’t pan out. But she’s a very engaging, wonderful member of the court – and by the way very close personally to Justice Scalia.

They were on the Court of Appeals together. They spend time together socially. They’ve also – the two of them have been extras in the Washington Opera Company. And so they’re very close.

But they’re very different in their – in their jurisprudential outlook. LAMB: Now is she open to talk to you as a member of the press?

DENNISTON: Yes. Yes. She will – she talks to a number of members of the press with great frequency. And she’s – she’s very engaging when she does so. And she’s – she’s a very active public figure, too. I mean Ruth makes a lot of public speeches.

She’s involved in a lot of legal and judicial conferences. She’s a real ambassador for the court not only in this country but around the world.

LAMB: By the way, all the justices, maybe save one, have come from the Court of Appeals in one way or the other. Did Justice Souter come from the Court of Appeals or he came…

DENNISTON: Yes, he came from the U.S. Court of Appeals in Boston.

LAMB: So they all…

DENNISTON: So they all came from Courts of Appeals. I think when – now that Justice O’Connor and the Chief Justice Rehnquist have gone, Rehnquist, of course, had never been a judge. O’Connor had been a judge only on a middle level appeals court in the state of Arizona.

LAMB: Ever happened before in history?

DENNISTON: Oh yes. Early on. I mean, the people came from – often came from private law practice. I mean, Lewis Powell, for example, had…

LAMB: No, but I mean has it ever happened where all of them have come from the Court of Appeals.

DENNISTON: I would doubt that it ever happened before because, you know, it used to be thought that the president would and should look beyond the lower federal judiciary in order to get a different mix. That’s why politicians like Earl Warren made very good justices when they came on the court or Byron White was an excellent judge but never sat on the court.

LAMB: Well when you, over the years, over the last 48 years, have reported on the court, can you get an answer to questions you might have once you look at an opinion? Can you call anybody and say, ”What do you mean by this?” Or do you just have to take it exactly as it’s stated in the opinion?

DENNISTON: Well it doesn’t do any good to call somebody and ask them about it because they won’t respond. Each of them takes the view that when the decision is issued that speaks for the decision.

And most of the time, Brian, I’ll tell you it is not hard to figure out. I mean, if you’ve done it as long as I’ve done in particular. The court writes with great clarity. I mean, so (ph) now and then when you read some of David Souter’s writing you think you’re reading Beowulf, you know, because it’s very – it’s very stilted arch kind of English at times.

But most of the members of the court – and even Souter can do this, too – write with great fluency. The opinions are quite brief comparatively speaking except, you know, a big case like one of the war on terrorism cases tends to get to be very long.

But they do speak clearly. And if you’ve – if you’ve done your homework as a serious legal journalist always should do it isn’t hard to figure out what they did on it.

LAMB: Can you stay on the court until you die?

DENNISTON: You can stay on the court until you die even if you are infirm. I mean, Justice Douglas’s last couple of years on the court he was very unwell and he was – his mental capacity had failed a lot after a stroke.

And as a matter of fact, no one tried to push him off the court. But the other justices did collaborate to keep him from participating in really close decisions.

LAMB: And he was there – he’s the longest serving justice in history?

DENNISTON: So far he is, though I think John Stevens is beginning to approach close to the record.

LAMB: Thirty-six was his years and 31 is John Paul Stevens’s.

DENNISTON: And John Paul Stevens, all things being equal, probably will last at least that long.

LAMB: If he breaks it it would be another five years or so and he would be then 92.

DENNISTON: Ninety-two. Well, Oliver Holmes served until he was 90 and was in good health when he quit, apparently.

LAMB: Stephen Breyer’s been on the court for 12 years. He’s 68 years old. He used to work for Senator Kennedy on the Hill. He was appointed by Bill Clinton. Let’s watch.

(BEGIN CLIP)

STEPHEN BREYER, SUPREME COURT JUSTICE: When we have cases we try to apply the law and get the right answer in the case. And of course we both think, I believe, that ultimately the point of law is to satisfy a human desire that’s probably 10 or 20,000 years old.

The people of course want justice. Justice, justice, shall you pursue. And they want it. And they expect ultimately that the law will help them achieve that very basic and noble end.

And we understand what the basic end is. But we also think – or at least I do and I’m sure Justice Scalia does, that you don’t necessarily get to that end simply by trying to look for what is the intuitively nicer result in each case.

So we’re there to apply the law. But we don’t forget what the ultimate objective is.

(END CLIP)

LAMB: What’s the difference between those two men?

DENNISTON: Well Justice Breyer is a modernist in the sense that he believes that the law does evolve, that the Constitution is a living document that rose and changes with circumstances and times.

And Justice Scalia is an antiquarian and may believe the Constitution means what it meant when it was originally written. And so – and as our listeners can tell from the earlier comments when you had Justice Scalia up there, he does not believe in a living Constitution. He believes that the Constitution is a static document and has a static need.

Breyer is very much into trying to achieve justice. And sometimes it seems that it’s his own personal sense of what is just and unjust as he played it out, for example, in his recent book.

But he’s – as a human being he’s a delightful person. I mean, it’s – you go in his chambers and you always get a cup of tea and you always get a warm reception. And he’s – sometimes he’s a very excitable fellow and he gets really – and conversationally he really gets into it with you.

He also has a reputation I think well deserved of being something of an absent-minded professor. And he’s sort of – now and then you have the impression that Justice Breyer is operating up at this level when reality may be down here somewhere because he tends to be very cerebral at times and seems sometimes really very detached.

But he’s a very influential and of (INAUDIBLE). And I think as time goes on he’s going to become really a dominant figure in the court intellectually, philosophically and operationally.

LAMB: Do you think most of these justices like this job?

DENNISTON: Oh I think they love the job. It’s hard for them – I mean, in the spring time when you get into the latter part of May and they know that they’re driving to finish before the first of July, they get very weary.

And unfortunately some of that’s their own fault. I mean, they tend not to push really hard to get the decisions out until the crunch comes in May and June. And they get very worn out.

But aside from those times, I don’t – they do enjoy the work. But I don’t have the impression that anybody is on a power trip. I mean, you don’t have the sense that somebody really thinks, ”I’ve got this ultimate constitutional and interpretive authority and I’m going to use to a fair (ph) the will (ph).”

I mean, they’re – most of them are really quite modest about what they believe the office of the law is and the office of a judge.

LAMB: How many reporters now cover the court regularly, daily?

DENNISTON: Daily? Probably no more than eight to 10 of us. I mean, and I think maybe that’s an exaggeration because when I go down to the press room – and by the way, we’re still operating in a trailer. The press operation has been in a trailer now for over two years. And we are not likely to get our space back in the court house for another year.

So we’re somewhat victimized by the slow process of the modernization project itself. But on an average day you walk into the press trailer over there and there will be maybe five of us, five or six of us.

A lot of the reporters who cover the court simply come around maybe once or twice to get prepared for the court’s return after recess and are there when the court’s in session but not there the way I am. I’m there at least three days a week, every week, whether the court’s in session or not.

LAMB: You told us that you started out 48 years ago writing for the Wall Street Journal. And you went to the Washington Star and spent 19 years and then 17 years with the Baltimore Sun and a little bit of time with the Boston Globe.

What are you doing now?

DENNISTON: Well after I left the Boston Globe I was thinking seriously about retirement because I’m certainly old enough and I got a nice pension when I left the Sun. And the position with the Globe was just a part-time position anyway.

So I thought I was beginning to move toward retirement. But then when actually I was faced with retirement I wasn’t ready for it. And I volunteered to go to work for a blog, which is a web log that covers only the Supreme Court.

And the blog set up by a young lawyer and his wife, Tom Goldstein (ph) and Amy Howe (ph), to promote their boutique law practice. And they were delighted to have me when I came on board.

And I now spend almost all of my time writing for the Internet. And it’s a very different kind of journalistic culture. It’s – I still try to do it with the same seriousness and hopefully objectivity that I did when I was writing for newspapers.

But I’m – I post a lot of the time. I post at least one story every day. I did a piece yesterday, for example, about an important guide (ph) guide circuit (ph) decision on criminal justice issue.

So I don’t entirely confine myself to the Supreme Court. But by and large I do. But it also gives me an opportunity to go a little bit beyond the straight reporting. I do a fair amount of analysis compared to what I used to do for newspapers.

LAMB: Can – do you have strong personal feelings about what’s right and wrong in this world and do you carry your own personal bias into this work? And if you do or don’t, how does that impact your writing?

DENNISTON: Well I – like everybody I have very well developed personal views, having lived as long and as healthy as I have. But I have always believed as a journalist that you must make every effort that you can to put your personal preferences, your personal value system, aside and try to call them the way an independent observer just walking onto the scene would do.

I mean, it’s – you can’t escape your own biases, I don’t think. So I suspect that when I see a decision that comes out let’s say on an issue involving, let’s say women’s rights, if it’s a negative decision about (ph) against women’s rights, there’s probably a visceral sense in me that I wish it were otherwise.

But I’m aware of those kind of senses. And I’m aware of the kind of biases that I do retain as a human being and make every effort to put them aside. Sometimes it’s a struggle. But I often succeed I think.

LAMB: The next one in line as far as the length of time there is Chief Justice Roberts we’re going to wait and run him last. But Sam Alito, a year and about two months he’s been on the court. He’s 57 years old on April the 1st. He was appointed by this president, George Bush.

(BEGIN CLIP)

SAMUEL ALITO, SUPREME COURT JUSTICE: As I stand here tonight looking out at so many friendly faces I can’t help thinking about what I was doing one year ago tonight. And the contrast is very striking for me.

I was then making my way as best I could through one of the strangest periods of my life. Before President Bush nominated me for the Supreme Court I had spent the previous 15 and a half years as a cloistered Court of Appeals judge in New Jersey.

During that period I could go literally for weeks without ever seeing any human being at work other than my secretary and my law clerks. And to be plucked from that existence and suddenly plunged into the world of Washington politics and media attention was a shock for me.

(END CLIP)

LAMB: What’s he like?

DENNISTON: Well I don’t know him well yet. I haven’t spent time with him. I mean to do that when I get the opportunity. He seems to hit the ground running on the court. He’s obviously very smart. With 15 years of experience on the circuit court in Philadelphia he knows how to do it.

I think he was a bit of a deer-in-the-headlights when he first got on the Supreme Court because he was kind of overwhelmed by that big wonderfully impressive building. I think he was overwhelmed a bit by sitting every day with eight other colleagues because you know in the Court of Appeals it’s usually a panel of three only except in rare situations where they sit as a group.

LAMB: What’s the difference between his judicial philosophy and Antonin Scalia’s?

DENNISTON: I don’t think we know that yet. I mean if you took some of his most visible decisions when he was on the third circuit you would say that he is – he’s not exactly a Scalia clone. You know, the media coined the name Scalito for him, the nickname, because they thought his jurisprudence on the third circuit was virtually indistinguishable from Justice Scalia’s.

I have the impression that he is not quite as much an originalist and antiquarian as Scalia is about what the Constitution means. But we don’t know that. And it may be that his coming on the Supreme Court will introduce him to different perceptions about the law.

And at age 57 – and I can say this now that I’m 76 years old – at age 57 his views probably are not fixed for all time. I mean, he has the opportunity to change his mind and may well do so.

But – well recently, Brian, he’s become much more engaged publicly in the oral arguments of the court. He seems to be less intimidated by the fast pace of oral argument.

LAMB: One more thing (ph) about court, and we’re going to show Chief Justice Roberts in a moment, is that there’s been one appointed by Gerry Ford, two by Ronald Reagan, two by George Herbert Walker Bush, two by Bill Clinton, and two by George W. Bush. Let’s watch Chief Justice Roberts who is the youngest man on the court – youngest person on the court, 52 years old, and has been there just a year and a half.

(BEGIN CLIP)

JOHN ROBERTS, SUPREME COURT CHIEF JUSTICE: John Rutledge, Oliver Ellsworth, Morrison Waite, Melville Fuller, Edward White, if you had asked me before I assumed my present position what those men had in common, I have to be honest and confess that I probably would have been stumped.

It turns out that each of them served as one of my predecessors as chief justice. Now I have come to know not only their names but also their faces because the portraits of the chief justices grace the Supreme Court’s two ceremonial conference rooms.

The East Conference Room holds the first eight. In the places of honor at either end of the room are John Jay, the first chief justice, and John Marshall, the greatest.

You walk across the hall to the West Conference Room. You see the last eight chief justices. In that room the positions of prominence are held by the portraits of William Howard Taft, the former president who convinced Congress to give the Supreme Court it’s own building, and the portrait of Charles Evans Hughes, who lost the presidency by 23 electoral votes and who was the first chief to preside in Taft’s building.

They all seem to be looking down at me with surprise.

(END CLIP)

LAMB: Fifty-two years old. Based on the ages of some others he could be there 30 more years or more.

DENNISTON: I hope he will.

LAMB: What’s he like?

DENNISTON: Well he’s a truly wonderful human being, I mean, as a human being. He’s very friendly. He’s exceedingly smart. He is more conservative than I thought he would be, I mean after a year and a half. Particularly on criminal law issues he’s unbelievably conservative.

LAMB: What does that mean?

DENNISTON: Well I mean the thing that – it’s almost never that you’ll find him siding with the claim (ph) of rights of a criminal defendant or a convicted person and more often with the police and prosecutors.

But it isn’t so much the substantive outcome of cases where he will be on that side. During oral argument he is unusually aggressive towards the claims (ph) of rights of criminal defendants and convicted individuals.

So in that respect I’m a bit surprised. I thought he would – I thought he would be a conservative. I assume that from his prior experience, you know, and particularly his brief time on the Court of Appeals, I thought he would be quite a conservative judge.

But he’s very, very engaging. He’s very clever. I mean, he’s verbally, wonderfully clever. He’s – he doesn’t seem to take himself all that seriously at times.

LAMB: That speech was given to last June’s at Northwestern University. And he took questions at the end. He seems already to be more open. He’s done television interviews. Is that good or bad for the society?

DENNISTON: Well, I think it’s probably good in some respects though I would hope that he and others would always be selective about where they appear because the office of being a judge requires that people continue to have trust that when you decide a case you will decide it without outside influences.

You’ll decide it on the basis of what has been presented to you in the open by the lawyers on each side and considering the precedence in the lower courts, views on the subject.

But there is a temptation, I think, if you begin to appear too often in forums that are not legal or not judicial forums. People will begin to wonder the degree to which you are open to influences other than the influences of the law and the Constitution and the argument of counsel.

So I think it’s good for the justices to get out. I don’t know that the people really need to have a sense that they are intimate with the justices in the same way that they feel that they possess politicians or have a close relationship with them.

I don’t think public favor is necessary to the function of the court.

LAMB: If people want to read you, how do they find that blog?

DENNISTON: Well it’s easily reached. It’s www.scotusblog.com.

LAMB: Have you ever written a book about your experiences?

DENNISTON: I wrote a book a long time ago and it was republished called The Reporter and the Law and subtitled Techniques of Covering the Court. It’s basically a manual on how the law makes news, how courts make news.

I’ve contributed to a number of chapters in books published particularly by CQ Press. But I’ve never done a memoir. Sometimes I think I should do it. My wife and others often encourage me to do it.

But I’m having too much fun covering the news as it happens to take the time out and write a book.

LAMB: Lyle Denniston, native Nebraskan, 50 years almost – just two years shy – a reporter covering the Supreme Court. Thanks for joining us.

DENNISTON: I’m glad to be here, Brian. It’s been a pleasure.