Deep Dive: Supreme personalities

>>> today's deep dive takes a look at what we learned about the nine individuals who inhabit the top court this week as jerry seinfeld used to ask who are the people. the lack of cameras gives it tough to get an immediate read on the justices and who they are and where they stand on the arguments but what we heard this week brings insight about how each court member carries himself or herself, and what personality they bring to each case. there were lighter comments from justice breyer that drew laughs but he was also short with lawyers at times.

>> if it were true that there were some terrible epidemic sweeping the united states and we xoont say that more than 40 or 50%, i can make the numbers as high as i want, but you would say the federal government doesn'tve the power to get people inoculated, it cannot require people even if the disease is sweeping the company to be inoculated, the federal government has no power -- go ahead.

>> justice kagan submitted an opinion on the medicaid expansion that may have given us an idea how she would have approached this as solicitor general.

>> the federal government is here saying we're giving you a boatload of money, there is no matching funds requirement. there are no extraneous conditions attached to it. it's just a boatload of federal money for you to take and spend on poor people 's health care . it doesn't sound coercive to me, i have to tell you.

>> two justices shared a joke with the crowd before a comedy legend became part of the discussion.

>> the chief has said, i can ask this. he doesn't always check first. to determine whether something is coercive, you look to only one side, how much you're threatened with losing or offered to receive, and the other side doesn't matter. i don't think that's realistic. i mean, i think -- you know, the old jack benny thing, your money or your life, and, you know, he says, i'm thinking, i'm thinking, it's funny because it's no choice.

>> but whenever the laughs took over too much, it was up to chief justice john roberts to settle things down.

>> you can't refuse your money or your life, but your life or your wife's, i could refuse that one.

>> let's leave the wife --

>> mr. clemente, he's not going home tonight.

>> let's go on.

>> i'm talking about my life. take mine, you know?

>> i wouldn't see that either.

>> i won't use that example. forget about it.

>> it'senough frivolousness.

>> thank you for joining me.

>> good to be here.

>> we had this audio out, we got to hear the personalities of the justices in a way most of the public normally doesn't. how much did we hear this week that the public heard that you hear all the time, how much was similar, and was any of it different?

>> it was very similar. i'm not quite sure the chief justice two have told them to cool it. i just don't know. it can be very funny. and it can be a lot of fun and it can be very stressed and tense. and you saw all of that this week.

>> what was interesting there were a couple moments late on wednesday when scalia and sotomayor were having too much fun and you got a sense roberts didn't like it. how nervous was he about the fact that they're in the spotlight in a way they haven't been before?

>> look, he's the chief justice of the united states , people call him the chief justice of the supreme court , his title is chief justice of the united states and he takes that very seriously. and i would have to say he's sort of a tight chief justice.

>> rehnquist wasn't this tight when he first took over?

>> rehnquist was just an entirely different personality. he didn't -- he didn't as much preside, but he was sort of like the father who just gives you one dirty look and have been cools it. you don't have to say much of anything. it's hard to remember what he was like at the very beginning of his chief justiceship, and he'd been on the court also for a while.

>> for so long.

>> for quite a while.

>> he was so comfortable. let's talk about this issue, there's a lot of panic at the white house to be frank. they really thought this wasn't going to be that hard of a case. they knew there was a lot of politics around it but they really thought looking at it they could get as many as seven votes in their favor. now they are biting their fingernails. should they be biting their fingernails?

>> they should be biting their fingernails. this court unlike other courts when i was first covering the court and you really couldn't tell at all from their questions, most of the time, not all of the time, but most of the time the questions are indicative of what they're thinking and you would have to say that this is a very, very close case up there right now. now, i do want to say, chuck, that the white house was right not to worry about it way back when. the entire legal community except for i would say the really hardcore --

>> very minority of the legal community.

>> everybody, including conservatives, thought, oh, this case is a piece of cake .

>> so, how much -- i think the question that a lot of folks that are watching this wonder is how much politics is there on this court ? is it more political on this court than previous courts? is it the same we just see it more? which is it?

>> it's much more ideologically divided. that's not republican/democrat, it may coincide with republican/democrat.

>> well, this one really could.

>> yes.

>> the 5- 4 bush /gore --

>> yes.

>> -- it was a 7-2 democratic, republican appointments. this is a 5-4 split republican, democrat appointments.

>> because of the bush appointments which were very, very, very conservative, the court has become so much more conservative. i would say on economic regulatory matters and you are seeing a hint of this here, we haven't seen a court this conservative perhaps since the early -- mid -- since the mid- 1930s , early new deal era.

>> there's whispers around town that say chief justice roberts is concerned of what a 5-4 decision could do in either direction, that it's an -- that he realizes there is this perception that the court is looking more and more political every day. if it's going to be 5-4 upholding, do you buy the idea he would jump in and be the six and write the opinion?

>> i think that's possible. but if it's 5-4 the other way to strike it down, there's no way that there's a sixth vote anywhere.

>> there's no sixth vote anywhere. when you are looking at 5-4, is the court going to get damaged politically by this perception that this was done simply on party lines ?

>> probably. you know, it's -- the court has lost some credibility since bush versus gore . it's still way better regarded than either -- either of the other branches of government. but it used to have the approval or the respect, when you did polls, of people in both parties. and now increasingly it's republicans who respect the courts and democrats who are having great reservations about it and i'm not sure there's anything -- if the court is going to take us in a dramatically different direction, it's representative of what we see in the rest of the country and you're going to see people split on it the way they are about everything else.

>> be in for a rough ride. nina totenberg from npr, nice to have you and talk about this. what a week.

>> what a week. it's been