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tv   PBS News Hour  PBS  June 28, 2013 6:00pm-7:01pm PDT

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captioning sponsored by macneil/lehrer productions >> brown: president obama arrived in south africa today, for a weekend visit likely to be shadowed by concerns about ailing former president nelson mandela. good evening, i'm jeffrey brown. >> warner: and i'm margaret warner. on the "newshour" tonight, we talk with charlayne hunter gault about the legendary south african leader and his nation. >> south africa will only be 20 years old in its democracy next year and they take baby steps and sometimes, as you know, with baby steps they stumble and fall. >> brown: then, with edward snowden still on the run, we examine new revelations about the scope of the government's monitoring of internet activity. >> warner: betty ann bowser reports on provisions in the new health care law that aim to limit the need to rehospitalize medicare patients after they're discharged.
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>> in the past we simply gave the patient a prescription and hoped for the best. what we are doing is making is making sure that we are in constant contact with the patients after they are sent out. >> brown: marcia coyle wraps up this year's supreme court term and sorts through the key rulings. >> warner: plus, mark shields and michael gerson analyze the week's news. >> brown: that's all ahead on tonight's "newshour." >> major funding for the pbs newshour has been provided by: >> and with the ongoing support of these institutions and foundations. and...
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and friends of the newshour. >> this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. >> warner: president obama landed in johannesburg, south africa this evening, his second stop on a week-long tour of the continent. the president's long-planned visit, with his family, comes at a delicate moment. as south africa's 94-year-old former president, nelson mandela is clinging to life in a pretoria heart clinic.
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>> warner: it's unclear if the two men will meet. white house officials said that decision rests with the mandela family. aboard air force 1 enroute to johannesburg, president obama said he was not seeking a photo op, adding: mandela remains in critical condition, but his ex-wife winnie said today there were positive signs. >> i'm not here to answer medical questions. i'm not a doctor but i can from what he was a few days ago there was great improvement, but clinically he is still unwell. >> warner: many gathered outside the hospital are preparing for the inevitable passing of their icon.
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>> our hearts are breaking at the moment. he is such an inspiration and he is a true south african hero. i think he is a world hero and we all are absolutely devastated. >> warner: the near-quarter- century since mandela's release from prison and his 1994 election as president brought tectonic change in south africa. the end of the racial apartheid spurred social and economic development, and catapulted the small democracy to the world stage. the country even hosted africa's first-ever world cup in 2010. but for many, dreams of a better life remain unrealized. income inequality is among the greatest in the world, though some blacks have joined the elite. crime, corruption, and high unemployment plague the country. frustrations boiled over last year. strikes by platinum mine workers-- angry with their low wages-- turned deadly. in one instance, 34 people were killed when police opened fire on strikers. still, business figures, like
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this bank analyst, hope the president's visit will boost economic ties between the two countries. >> and as the united states emerges from what has been a fairly difficult economic cycle, south africa really needs to do its bit in trying to cement those relationships, expanding on those trading relationships, because right now our trading relationships with europe still remain the dominant factor and we need to diversify some of that over the coming years. >> warner: for now, south africa continues to struggle in recovering from the global recession. first quarter growth this year was the slowest since 2009. >> brown: for more on south africa and mandela, i spoke a short time ago with former and now nbc news special correspondent -- charlayne hunter-gault. well, charlayne, welcome back to the newshour, as always. first, tell us a bit about nelson mandela, how he's seen in south africa today. what is his role there?
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>> well, thank you for having me, as always. you know, nelson mandela remains the icon of the world and the icon-plus in south africa. he really is the father of the nation in so many ways. i mean, he represents everything that a young democracy strives for, that his own country hasn't yet come to, but they're striving for it. so he lies in what i understand is a fairly peaceful situation. he responds from time to time to his daughter. i spoke with zinzi mandela a couple days ago and yesterday and she was very excited because he was very emotive when she said that barack obama was coming to south africa. he actually opened his eyes and smiled. i think he sleeps a lot. i've had an elder parent and mother-in-law and i understand
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that as someone who's almost 95. he'll be 995 in july. so you know he's had some challenges but he's also had probably the best medical care for a geriatric patient if not in south africa if not in the world so, you know, someone else might have succumbed to the kinds of challenges, medical challenges, he's had a while ago. but because he has -- and i'm told he has a renown geriatric specialist working on his case he continues to go up and down, but right now he's stable and even some say as of yesterday he was improving. >> brown: charlayne, you have covered this country for a long time, you've lived there. for those of us that don't follow it day by day, year by year, as this is happening with nelson mandela and as president obama is there what is south africa? where is south africa now in its
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evolution from apartheid days? how would you describe it. >> well, i'd describe the whole continent where democracy is new. i mean, south africa will only be 20 years old in its democracy next year and they take baby steps and sometimes, as you know, with baby steps they stumble and fall and so on the one hand there has been an increase in the middle-class. there's been an increase in the standard of living. there's a smaller number -- proportion of people at the bottom in part thanks to government social grants and child care for the poor people. there is a -- an increase in the middle class and you can see that when you go to south africa. when i first went there in '85 and again in '90 and '94 there weren't many apartments. most people were wealthy enough to have houses-- houses with fences, of course-- but houses
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or nice properties. now you see a lot of apartmentses which suggest that there is a growing middle-class and these apartments are being built to accommodate them. at the same time, you probably have read about the street demonstrations where young people and others are demonstrating because of a lack of basic services. so you do have the same thing we had in america when our riots broke out in '68: two societies. one black middle-class and starting to go up, whites still for the most part prosper although you do now have some on the street begging as you have other beggars. but most of the beggars are on t streets are immigrants from other countries, particularly zimbabwe where they're running from a repressive government. but you also have in the rural areas people who are still struggling to get decent water. i know of a study that they recently did on sanitation and clean water which is just
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devastating. i mean, so many people in the rural areas don't have those basic amenities. so you have a country that's divided into two and not unlike our own you have people at the bottom who are worse off and people at the middle and upper who are better off. >> brown: speaking of our own, what about relations with the u.s.? or how the u.s. is seen. how is president obama's arriving there -- has arrived. how he seen? how is the u.s. seen now days? >> i think most south africans really love the fact that a black man is president of the most powerful country in the world. i think they would like to see more engagement. i think you have a young group who will protest, as you probably reported, but the majority of south africans, i think, really respect the president and hope that he will lay out some of the things that they would like to see happen between the united states and
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south africa. they want more engagement with the country because it's falling behind in terms of investments and things of that sort. so i think that's what they're looking for. but generally they're going to embrace him, i think. >> pelley: charlayne hunter-gault, thanks so much. >> thank you, jeff, for having me. >> warner: still to come on the "newshour": chasing government secrets leaker edward snowden; keeping medicare patients from going back to the hospital; wrapping up the supreme court's term, plus shields and gerson. but first, the other news of the day. here's kwame holman. >> holman: a heat wave baked a large swath of the western u.s. today. temperatures hovered in the triple digits from parts of idaho down to arizona. readings are expected to approach 130 degrees in death valley, california. airlines are monitoring the heat because it's close to the limit for safe operation of some planes. and fire crews are on alert in case wildfires ignite. forecasters expect the scorching temperatures to last through the weekend.
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dueling political rallies were held in cairo, egypt today after friday prayers. the gatherings were ahead of massive demonstrations planned for sunday, to call for president mohamed morsi's resignation. thousands of morsi's supporters waved flags and banners outside a mosque in the capital city. but in tahrir square, opponents demanded he leave office immediately. >> ( translated ): we are here today because president mohammed morsi is a killer. we are here to bring back the rights of our country, because president morsi and the muslim brotherhood have destroyed the country. >> ( translated ): we are sending the opposition the message that the president possesses legitimacy and that no one could make him step down. he reached this position through democratic elections and that is the only way he is going to leave. >> holman: in the coastal city of alexandria, clashes broke out between government supporters and opponents. two people were killed in the violence. egyptian officials said one of them was an american citizen. it was widely reported a retired four-star general is at the
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center of a justice department leak investigation. retired marine general james cartwright reportedly has been told he's a target in a probe involving a 2010 secret cyberattack on iran's nuclear facilities orchestrated by the u.s. and israel. cartwright was in charge of the cyber operation and details of it appeared in "the new york times" last year. the u.s. senate went into recess last night without passing a bill to stop student loan interest rates from doubling beginning monday. last summer, lawmakers delayed the increase for a year as they searched for a bipartisan solution. but time ran out. rates on government backed stafford loans will jump to 6.8% from 3.4%. congress still could lower rates retroactively when it returns. police in boston searched the home of professional football player aaron hernandez this morning, in connection with a double homicide last year. earlier this week, hernandez was
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arrested and charged in a separate murder that occurred last month, the shooting of his friend, semi-professional football player odin lloyd. hernandez pleaded not guilty. the new england patriots have since cut the 23-year old from the team. his contract was worth $40 million. stocks on wall street ended the day on a down note, after a turbulent month of trading. the dow jones industrial average lost more than 114 points to close at 14,909. the nasdaq edged up one point to close at 3,403 for the week, the dow gained nearly 1%. the nasdaq rose more than a percent. those are some of the day's major stories. now, back to jeff. >> brown: and we update the story of edward snowden, as a family member of the former intelligence contractor defended him on national television this morning. ray suarez reports. >> you know, at this point i don't feel that he's committed treason. >> suarez: the father of former c.i.a. contractor edward snowden told nbc news today his son is not a traitor. >> he has, in fact, broken u.s.
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law in the sense that he has released classified information and if folks want to classify him as a traitor. in fact, he has betrayed his government, but i don't believe he's betrayed the people of the united states. >> suarez: lonnie snowden also told attorney general eric holder he believes his son would voluntarily return to the u.s. to face espionage charges, if the justice department promises not to hold him before trial or subject him to a gag order. snowden himself remains out of sight. his passport has been revoked by the u.s., and he's reportedly still holed up in the transit area of a moscow airport; he arrived there six days ago after leaving hong kong. the u.s. has asked russia to extradite snowden to the u.s. for trial. on tuesday president vladimir putin said "no." >> we can hand over foreign citizens to countries with which we have an appropriate international agreement on the extradition of criminals.
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we don't have such an agreement with the united states. >> you don't have to have an extradition treaty though to resolve some of these issues. >> suarez: president obama said yesterday that snowden and the untold amount of classified material he's yet to disclose still poses a threat. >> i continue to be concerned about the other documents that he may have. that's part of the reason why we'd like to have mr. snowden in custody. >> suarez: today the washington post reported that federal investigators believe u.s.i.s., the contractor responsible for screening snowden for his security clearance, misled the government about its background checks. snowden has applied for asylum in ecuador, but yesterday its president said there's a hitch. >> ( translated ): mr. snowden is not on ecuadorean territory so, technically, we cannot process his asylum request yet. if he is allowed to go to ecuadorean territory, well, that's something that we haven't considered, we would probably
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evaluate it but, right now, he's in russia. >> suarez: the "washington post" also reported that following the attacks of september 11th, the national security agency cultivated relationships with phone companies and internet providers to obtain domestic records. and today 26 u.s. senators sent a letter to director of national intelligence james clapper, asking him to publicly disclose information about the duration and scope of the n.s.a. surveillance program. for more i'm joined by barton gellman, a senior fellow at the century foundation and pulitzer prize winning reporter. gellman was one of the first journalists to make contact with edward snowden. and bart gellman, we now know there was an inspector general's report inside the n.s.a. about its activities after 9/11. what did it reveal? >> it revealed an immense amount. it's 50 some pages and it's a -- it's a look back on the operation that was known inside the n.s.a. as stellar wind and
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was actually we now know four separate programs. i mean, i spent a lot of time trying to figure out what was the bush-era warrantless program, devoted a couple chapters to in the my book and i could never crack the details. what exactly were they doing? what was it that led to a huge rebellion in the justice department in which jim comfy, who's now president obama's nominee for f.b.i. director and others threatened to resign. so -- >> suarez: did those people go along with the programs for a time and there was one they they just couldn't go along with? >> the brief history of it is that it was invented largely by vice president dick cheney and his lawyer david adding on the with the help of mike hayden, who was running the n.s.a. the justice department had secret opinions written by john knew, who's the same g.i. who wrote the torture opinions and others that became quite
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controversial later and when jack goldsmith became the ed of the office of legal council at the justice department by around the end of 2003 he started to become convinced there was a big problem with this program. march of 2004 goldsmith and jim comfy, who's the deputy attorney general, convince attorney general john ashcroft that he has to say no to part of it. and then john ashcroft becomes quite sick, comfy has the confrontation with cheney and eventually with the president and nearly resigns. so here's what we know -- >> suarez: now that you've had a chance to look over documents that reveal things that you didn't know for years after trying to find them out, what would you say the tone of the inspector general's conclusions stpwh-r was he a probeus? was he judgmental and casting harsh judgment on what had happened or generally looking at it as something that happened in the wake of a terrible tragedy in the united states?
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>> well, this report is written with an inside view. it is not blaming anybody for anything it's a kind of very dry and i'd say sympathetic factual accounting of the sequence of events. what we know for the first time now-- and i wrote about this almost two weeks ago in the "washington post"-- is that there were four different programs. there was the program that president obama admitted although he mischaracterized it which was listening to some american phone calls. there was a similar program for reading e-mails and looking at other internet content and then there were two programs that went after record and logs of communications, call detail record that showed who was calling who and when and from what devices and those were being directed on every single american. and the similar stuff for e-mails and internet chats and voiceover internet. this isn't listening in or
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reading the content, this is logging everyone who talks to everyone and when, including all americans isn'ted of nothing and data mining that. >> suarez: at this point is there any certainty of the whereabouts and the manner and life of edward snowden? where he is and what he's up to? >> i sure wouldn't say i'm certain about it. i don't think there is. he has disappeared into the bowls of the moscow airport some days ago. it is said or implied that he's still in the transit area and therefore not legally on russian territory. he could be anywhere. i don't think that russian t russian government is being especially forthcoming. we don't know what the issues are diplomatic, legal or otherwise, and he seems to be in almost a kind of twilight zone right now. >> suarez: what about his eventual fate? his father was hinting that there are terms under which his son would surrender while rafael
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correia, the president of ecuador, seemed uncertain about whether snowden was headed there. i have no idea whether his father is speaking for his son in the sense of whether his son has communicating with his father. and i don't know how exactly to read the ecuadorian president. ecuador has never stated flatly that it would give asylum to edward snowden. he had reasons that he was heading there and i think that his wikileaks escorts believed that they had a deal. i did detect a certain amount more hedging in the public statement of the ecuadorian president than i had before but i don't know what to make of that. >> suarez: is it possible that the senate and the senators who've asked for more answers from james clapper are going to find out more from the director of national intelligence than they would have known to ask if not for these leaks?
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>> well, it is just an undeniable fact that many members of congress are learning things that they did not know to ask until snowden released into the public documents describing secret programs that the obama administration wanted to keep secret. we have -- we have had a national debate that was enabled only because of him, and that includes most members of congress. i believe what's happening here in the current request is that members of the senate are asking for public accounting of things that they do know in a classified sense and that they do not believe should stay classified. for example, you had -- >> suarez: finish your thought. >> i was just going say about ron widen and senator udall as well asked clapper to correct a public statement because they knew it was false based on classified information but they couldn't cure it themselves.
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>> suarez: barton gellman from the century foundation, thanks for joining us. >> thank you. >> warner: much of the attention surrounding the healthcare reform law focuses on questions of coverage and cost. but the law also includes numerous provisions aimed at changing or improving the quality of care. hospitals are already starting to deal with one of those changes: new penalties they could face if too many older patients have to be re-admitted. and some are asking whether the levies are fair. "newshour" health correspondent betty ann bowser reports. >> reporter: 70-year old retired engineer daniel tollins has been in and out of the hospital so often he's known in medical circles as a frequent flyer. >> i have a number of medical issues any one of which can kill me. but i'm living with all of them.
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>> reporter: tollins has hypertension, diabetes, a liver condition and cancer. so on this rainy boston morning he's on his way to an appointment he hopes will help keep him healthy. the appointment is at the gym. it's just one part of an aggressive program at beth israel deaconess medical center in boston to monitor frequent flyers like tollins after they're discharged. hospital readmissions are expensive. nearly two million medicare beneficiaries are readmitted within 30 days of discharge every year, costing medicare $17.5 billion in hospital bills. some health care reformers think hospitals could cut some of that spending if they more aggressive in following up with seniors in the first 30 days after they go home.
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>> i think the whole direction that healthcare has to move as a system is toward lifelong continuity of case in which the hospital becomes a citizen in helping patients through their journey and that means your job is never done. >> reporter: dr. donald berwick is the former medicare chief who directed implementation of the first year of a new program under the affordable care act. it imposes stiff financial penalties on hospitals with high readmission rates-- a change that some hospitals believe is penalizing them unfairly. berwick says the new penalties are overdue. >> as long as a person is still there in life then the whole idea of discharge out of sight, out of mind, that has no place in healthcare. the fact that i went home six months ago doesn't mean that hospital doesn't have a sense that i'm there and have needs and they want to make sure i'm doing well. >> reporter: so far more than 2,200 hospitals have been hit with $280 million in fines.
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the penalties apply to readmissions for three specific conditions: heart attack, heart failure and pneumonia if they occur within 30 days of discharge. as the program moves forward, by 2015, those that continue to have high readmission rates will lose up to 3% of what washington pays them to take care of medicare patients. beth israel was among the top 8% of hospitals to be fined. it was hit with $2 million in the first round. but even before that, the medical center was working on a way to more carefully monitor medicare patients after they leave the hospital. it's called pact which stands for post acute care transitions. >> good morning, mr. tollin. it's julie from the hospital. >> reporter: julie cowell is one
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of 12 nurses and pharmacists working with discharged patients in the pact program many, like tollins, have multiple chronic medical conditions. >> i come in to make sure that he understand everything that's happening and then make sure all the pieces are together. does he have all the medications that he needs, are the outside services appropriate for him? >> let's say i need a ride, let's say i'm having a certain medical problem she will see to it. she will screen and evaluate what that is and then make a determination. she just seems to have an ability to know when i need help, she calls me. >> do you think it keeps you out of the hospital? >> definitely. by all means. >> reporter: dr. kevin tabb is the president and c.e.o. of beth israel. >> in the past we simply gave the patient a prescription and hoped for the best. what we are doing is making is making sure that we are in constant contact with the patients after they are sent out.=x v it's those kinds of thingswspáxd
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i call doing whatever it takes. those kinds of things are making a real difference. >> reporter: in the early months of the pact program, beth israel has seen a 20% drop in readmissions. but as the programs director dr. julius yang says, there are still mountains to climb. >> many of our medicare patients who are discharged from the hospital on average leave prescribed 12 or 13 different medications and that's just a different medications it could be up to 20 pills a day to navigate and that is extraordinarily complex. many of these medications are somewhat high risk so they have to be managed very closely. >> reporter: and while statistics show that readmissions nationally have declined slightly 0.6%, some, including dr. tabb, have questioned whether the new policy is fair or needs to be adjusted. >> hospitals should take a lot of responsibility. at the same time, i think its important to acknowledge that hospitals are only one piece, and if we only affect change among acute care hospitals and
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don't affect change anywhere else, we won't really get a different type of care. >> reporter: and dr. yang thinks there is only so much a hospital can do to keep a senior with multiple, chronic medical conditions from returning. >> sometimes i'm driving in a car that has 200,000 miles on it and if it comes back for another issue it's hard for me to hold the car repair shop responsible for that. >> reporter: in daniel tollins case, he was hospitalized three times in two months. at least one of those readmissions was because of a new medical problem that was previously undiagnosed. dr. ashish jha, a physician and professor at the harvard school of public health, has been studying the readmissions policy. he questions if its fair objective to hospitals with large numbers of poor patients who tend to be sicker than other
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seniors on medicare. >> if you are a safety net hospital and you have mostly poor patients and mostly chronically ill patients should we compare you to a community hospital in a wealthy are which has relatively healthy patients? i would say that's not fair. >> reporter: some early research shows safety net hospitals, like beth israel, are receiving higher penalties under the readmissions program than smaller medical centers with a less diverse patient base. ironically many of the very same hospitals that so far have received the highest fines also have some of the lowest death rates. >> you would think that if readmissions was a really good quality measure you would find hospitals with low death rates >> if you look at for instance the u.s. news publishes its list of top 50 hospitals. those hospitals tend to have very low infection rates. very low mortality rates.
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very low death rates. guess what they tend to have very high readmissions because they do such a good job of keeping their patients alive that many of them are readmitted. >> reporter: dr. berwick agrees the readmissions policy needs some tweaking, especially as it applies to safety net hospitals. but he argues it's an important first step. right now, berwick says, medicare patients find themselves constantly drifting in and out of hospitals in a fragmented unaccountable world. >> to change healthcare from if we are courageous and we invest, hospitals will be different places that actually can think differently about how we could follow mrs. jones all the way home and make sure she's ok for the long haul. >> reporter: it will be another year or so before beth israel has more conclusive data on its pact program. in the meantime, statistics don't mean much to a 70-year old
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retired engineer who lives alone and faces a cancer diagnosis. daniel tollin will be the first to tell you that what keeps him focused is walking the journey with a nurse named julie. >> it's a personal touch, it's coordinating resources that i need. this is what she's doing. >> brown: a postscript to betty ann's report: dr. berwick- - who played a key role in shaping healthcare reform in massachusetts-- announced his bid for governor last week. you can find more of our reporting, including tips for staying out of the hospital after being discharged, on our website. >> warner: we turn now to the supreme court where justices wrapped up the term with a blockbuster week of decisions on affirmative action, the voting rights act and same-sex marriage. more broadly, many of the term's
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54 rulings could have lasting effects on business practices, employees, individual rights and the balance between congress and the states. for more on the bigger picture, we turn once again to marcia coyle of the national law journal. her new book is "the roberts court." and how appropriate. so, marcia, what is -- if you step back, is there a big theme for this term? something that really define this is term on the roberts' court? >> i think so, margaret. if i recall in october when the term began i said this would be a term about equality because of the potential for major decisions involving affirmative action, voting rights and same-sex marriage. i think this term will be known for the court's dramatic invalidation of a key section of the voting rights act and for its very significant but incremental step toward same-sex marriage. >> warner: and in both those cases the court either in one case invalidated the defense of marriage act entirely passed by
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congress and in another pretty much gutted the voting rights act, also passed by congress a couple of times. would you call that an activist court? >> (laughs) "activist" is such a loaded term. i'm very careful about using it. generally a court is considered activist when it strikes down a low that congress enacted and it's considered negatively activist by the people who supported the law. chief justice roberts in the voting rights decision quoted from an old opinion in which he -- the opinion said that striking down abact of congress is the gravest and most delicate act -z that the court is called upon to perform. so i think when the court strikes down a law, you have to really look very closely, especially if it's a 5-4 decision, at why it did that. did the law discriminate? did congress exceed its powers under the constitution? did congress not have rational reasons for it? so we look not saying whether
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it's right or wrong. the court striking down the key section of the voting rights act, yes, i think that was activist. striking down section 3 of doma? yes, that was activist. i think on doma less so than on the voting rights act because congress was given explicit power under the 15th amendment to ensuring the guarantee of equal protection in voting rights. doma was enacted almost as a panicked reaction by congress to a hawaiian supreme court ruling. it did not do hearings on the voting rights act. congress had 20 months of hearings, a 15,000 page record justifying why it was reauthorizing the act in 2006. so as i said -- not saying whether it's right or wrong. yes, these were activist rulings. >> warner: now, another major party in many of these cases were the states. how did the states fare? were they winners in a lot of
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these cases or was it mixd? >> i have a hard time seeing any real consistency in how the court this term approached either state power or congressional power. i think that there is language in the doma decision that favors states rights but also it speaks of equality under the federal constitution. the decision doesn't seem to rest on states' rights. on the other hand, the voting rights decision, there was great concern about states' rights so i think this terms you have winners and losers and one of the losers, i think, is congress for the most part. >> pelley: now yesterday i think i received this from the chamber of commerce touting how many cases that they've been a party to they won. is this -- was this a very kind of pro-business term? >> the court has been accused of
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being pro-business almost since the time chief justice roberts took to the bench in 2005 and the business community has won significant victories in the last eight years and in particular in this term. i would point to certain areas where the business community has been very successful. the court has tightened rules on forming class actions. it is enforcing arbitration agreements where consumers may have small claims the court has said pretty much you can not band together in class actions in order to arbitrate those claims. even under our federal job bias laws the court is making it harder for employees to bring discrimination claims or to prove them. so, yes, i think business has been very successful this term. >> warner: so to what degree is chief justice roberts shaping
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this court? and, if so, in one what direction? >> i look at this court and on the surface this is a court that has five conservatives and four moderate to liberal members. chief justice roberts has a conservative majority. is he moving the court to the right? well, the court began moving to the right rather significantly under chief justice rehnquist and chief justice roberts has a fairly solid conservative majority except justice kennedy. now, justice kennedy can move left or right in a very narrow band of cases. as we saw this term in equality cases, cases involving the dignity, the liberty of the individual. and so i think justice kennedy emerges this term as being most influential. >> warner: because he is the swing vote. he was in the majority more than anybody. is that in a particular direction? i mean, you said individual
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liberties. what else? can you often -- when youer that arguments and you analyze the case can you predict with some certainty at least in your own mind if not our our viewers which way kennedy will go? >> not always. there are certain areas where he's been consistent in how he has voted over the years. the first amendment, he's almost ababsolutist on first amendment free speech. and, again, even with doma it wasn't entirely surprising because he wrote two prior decisions on discrimination on the basis of sexual orientation. it was -- voting rights and affirmative action, he shares the chief justice's dislike of race-based classification. but he's not willing to go as far or as fast as the rest of the conservatives on the court in those areas. he's not been willing yet to say race no longer matters in this country. >> warner: hence the affirmative action decision, the
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university of texas one essentially it lives to fight another day. >> it does. and it's really a surprising decision, margaret, because it took eight months to produce a 7-1 ruling that was 13 pages long. so i'd love to know what happened behind the scenes? >> warner: i'm sure you'll find out. marcia, thank you so much. >> my pleasure. >> brown: and finally tonight, to the analysis of shields and gerson. syndicated columnist mark shields and "washington post" columnist michael gerson. david brooks is off today. welcome to you. i don't know if we can go behind the scenes of the supreme court but let's start there, mark. this momentous week, three major issues in american life really looked at by the court. was there a theme? what jumps out at you generally? >> i think the theme -- if one thinks about american presidential elections in the last generation there have been villains to the conservative
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side have been liberal do-gooders, child pornographers and activist judges. >> brown: just to pick three category, right? >> i don't think there's any question that activist judges emerged this week. liberals seemed to be pleased that the activist judges repealed an act of congress, doma, which, you know, basically repealed it, i mean, we can go into the legally niceties, marcia understands them a lot better than i, obviously. but at the same time conservatives were delighted that it limited the voting rights act. a lot of conservatives were. so you had to be in an activist court. i do think the part that margaret and marcia discussed about the pro-business side -- i don't think there's any question that this court is anything but economically populist. it's s very much employer and large institution directed. >> brown: michael, what do you
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make of what happened this week? >> i guess i have a slightly different take. it's hard to determine a single philosophy, judicial philosophy here. sometimes they deferred to political action, sometimes they aggressively overturned it, sometimes they avoided choices for political reasons, i think. so you have a situation where the -- but you do have a common outcome which is really the strengthening of states rights in a lot of these cases. you have it in the voting rights case clearly. you've got it in marriage law. you even have them saying that state officials can invalidate referendum because they won't defend it in court. so this is a philosophy of tinkering. sometimes they put their finger on one side of the scale, sometimes the other. it seems rather political and outcome-oriented. it's not always judicial activism but sometimes it seems like judicial arrogance. they're intervening in a lot of different ways to do balance here; balance there. >> brown: but when you take a specific case like the voting
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rights case, do you see that as tinkering or was this a dramatic change? >> i think it's a dramatic change. if you taken a act of congress-- which is more than a constitutional act, as marcia pointed out,. 15,000 pages of testimony by a 98-0 vote in the united states senate it's extended, by 390-33 in the house, you can't get 390 house members to agree on a mother's day resolution. they extended it. and, you know, the court basically -- led by the chief justice said, no, this is not going to be -- this is not acceptable to us. and somehow this has an other worldly quality about judges. they seem indifferent to the fact that once they say money is speech that we're going to have $4 billion campaigns. they seem indifferent to the fact that once they say the voting rights act is suspended that the attorney general of texas, mr. greg abbot, says
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we're going to go ahead with the texas voter i.d. law which had been held up by the justice department is now going to be imposed. under the texas voter i.d. law, a valid student identification from the university of texas at austin is not adequate to prove who you are. but a concealed weapons permit is perfectly okay. i mean, that you can pack heat going into a beer garden is fine in order to vote. i mean, so we're going to see -- i don't know, this is what -- the direction i see it going. >> brown: go ahead. >> well, obviously i agree with mark. that's a little more than tinkering on the voting rights act. this is a case where i think the majority of the court actually made a pretty good case that this targeting of various states and localities was outdated. that these formulas should be updated. but that's a policy case. there was very little constitutional case here. you know, the -- if the chief justice wants to make those changes he can run for the
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senate. >> that's right. >> this was debated by the congress. they had hearings on this topic, on this specific topic. then they came to a decision that barack obama voted for and george w. bush signed. you have to have a compelling constitutional reason to void something like a recent -- almost unanimous decision of the congress. he really -- the chief justice did not produce that reason. >> brown: what about the same-sex marriage case? let me ask you first, michael. one thing, michael, a lot of talk about the changing culture into which this fits. is the court leading the way? oops, we just lost lights and power here. (laughter) just for our audience at home, we've got a big storm going on around us and we've been hearing thunder and lightning and now we're sitting in the dark. but we'll keep talking. >> it wil literally in the year. figuratively we're bright in the light. there we go! let there be! >> brown: you speak with the
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light. is the court leading the way here or following the culture? >> well, first of all we have seen a remarkable change. people forget on this issue that barack obama and hillary clinton both ran in 2008 opposing gay marriage. and now we have about 50% of americans who support, with california, about 30% of americans living in localities that have gay marriage. that is a massive social change, faster than any that i've seen in a long time. i don't think the court wanted to lead social change on this. they found a way to defer to states on this issue. the decision is oddly mixed. it's a strong affirmation of federalism, so strong that it applies to the federal government. at the same time, you have justice kennedy essentially lecturing anyone who opposes same-sex marriage and saying that it's done for reasons of bias. and so -- but i think the ruling itself allow this is to move forward in a democratic fashion.
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>> brown: what do you think? court leading the way or society leading the way? >> mr. dooley, the great american political philosopher that created finley peter dunn in the 19th century said "the supreme court follows the election returns" and i don't think there's any question here that this is a movement that is spectacular in its volume and its intensity and its momentum. just think: 2004 george w. bush was reelected carrying ohio and the key to carrying ohio, the architect was ken melman, interesting enough, who now eight years later, nine years later, is one of the prime supporters of same-sex marriage. but was a ballot initiative in ohio to outlaw same-sex marriage which drove up the turnout among conservative religious voters in rural areas and provided the margin of victory in ohio and ohio provided the margin of victory for president obama's reelection over john kerry. and that, to me, is absolutely
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remarkable. and the theme has been just one of equality. not one of special treatment, we just want equality. and i think the arguments that were used against it have been so disproved. i mean, somehow that that sph *l that moved in over the next block was going to threaten traditional marriages all over our neighborhood. that obviously didn't happen. >> this was also probably a good outcome for supporters of federalism and gay marriage. a roe. have like decision that produced gay marriage on alabama would force deep changes in alabama >> brown: but what about the politics going forward? mark raised past politics, republican politics. what happens now in the states and federal level around this issue? >> we're going to see quick battles on referendum in major states that will take a lot of money and attention. oregon, ohio, indiana are likely
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to have these changes. the republican party itself-- as we're learning-- is going to have divisions, internal divisions on this. you have people like rob portman who have become strong supporters of gay marriage but i would say that republicans are united in their conviction-- including portman-- that this should be done through legislative methods and not done through the imposition of courts. >> i don't argue that. but what it does is it energizes a base which is quite frankly representing a distinct minority of the country at this point. and it a shrinking minority. so you saw republican house members yesterday michele bachmann among others saying we're going to lead the fight here. to the degree that this becomes the face of the republican party when it doesn't have a national standard bearer or president, i think that's a problem for the party this is seen as narrow minded, that is seen as sort of mean spirited. so i think the other thing is over the past ten years, 15 years, more and more people
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because of the climate, because of the acceptance of gay people and gay status, gay identification have come out. and more people have relatives, friends, neighbors, coworkers so they have a greater stake in this. i mean, i just think the momentum -- and i agree michael that what we saw on "r.o.e." is very divisive in the country. american remains pro-choice and antiabortion. i mean, the ambivalence on that 40 years later to a considerable degree because we have not resolved in the the same way politically. >> brown: we we still have more states banning same-sex marriage. are we going to be looking at a continued system of kind of patchwork quilt of states in that -- sort of a version of the red state/blue state in this country over issues like same-sex marriage, abortion, et cetera? >> well, i think that there's a big division in views on this. i think many supporters of gay
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rights believe this is going to advance to a majority of states and cover most of the country and that the courts at that point may be more prepared to declare under the 14th amendment a protection here. but there are significant portions of the country are not going to make this change in any short order, it seems to me. it will be a source of division. i don't think it's as last ago source of division as on the abortion issue, however. >> no. >> for opponents of abortion, this is a matter of life and death. there's a deep emotional intensity on both sides of that issue that i'm not sure a debate on the nature of a social institution is going to engender. >> well, i mean, in large part because the dire consequences predicted that it was going to somehow undermine, sabotage, subvert traditional marriage if it occurred. just obviously that's been disproved. i do think that where you'll find in state after state is employers, the business community saying, look, in order to get the best people in here we have to change the law here.
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we have to make it more welcoming to gay workers, to make it a climate where people want to come, are going to feel that they're leaving the coasts and that blue america to come to a place that at least they can be comfortable with their own values. >> brown: and that's going to change the politics and the law? that and the culture? >> and i think the more and more people who -- it's equality. i mean, it's a very straightforward argument. it's not we want special treatment for left-handed unitarians who are less than four feet tall. i mean, it isn't anything like that. it's just saying we want people treated the same. and i think that has been a -- it's been a persuasive argument. >> brown: mark shields, michael gerson, thanks very much. >> warner: again, the major developments of the day: president obama arrived in south africa for a weekend visit
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likely to be shadowed by concerns about ailing former president nelson mandela. violence spread in egypt ahead of mass rallies aimed at unseating president mohamed morsi. two people were killed and one of them was an american. and a heat wave baked a large swath of the western u.s., with temperatures set to reach nearly 130 degrees in some places. >> brown: online, how your mental health may be affecting your career. kwame holman has more. >> holman: americans with mental illnesses are two-to-three times more likely to be unemployed. a report from the organization for economic cooperation and development looks at the financial implications and steps health care systems can take to help. that's on our homepage. and from our "agents for change" series, two childhood friends used their passion for social justice to build a nonprofit dedicated to creating jobs for youth in the slums of nairobi. read about their start-up called lively-hoods.
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all that and more is on our website margaret? >> warner: and that's the "newshour" for tonight. on monday, we'll report on the weekend's demonstrations in egypt. i'm margaret warner. >> brown: and i'm jeffrey brown. "washington week" can be seen later this evening on most pbs stations. we'll see you online and again here monday evening. have a nice weekend. thank you and good night. >> major funding for the pbs newshour has been provided by: ♪ ♪ moving our economy for 160 years. bnsf, the engine that connects us.
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