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December 2, 1999
Q & A
Kathryn Kolbert
BY LIBBY ROSOF
The lawyer
whom many credit with saving Roe vs. Wade in 1992 has brought
her passion for constitutional law to a radio show being produced
out of the Annenberg School’s Public Policy Center.
Photo by Candace diCarlo
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A new radio show about constitutional law has become an unlikely hit.
The first 13 episodes of “Justice Talking” were so successful
that it was picked up by 47 public radio stations — more than double
the number the production team at the Annenberg Public Policy Center (APPC)
had expected.
Hosting the show and heading the production team is nationally known
reproductive-health and civil rights attorney Kathryn Kolbert, who has
successfully argued cases before the U.S. Supreme Court. Kolbert, a senior
fellow at the APPC, is one of the 100 most influential lawyers in America
according to the National Law Journal.
The show has some lofty goals — to increase public understanding
of constitutional law and to develop a method of discourse that encourages
individuals to develop thoughtful approaches to the issues that continue
to haunt the public policy debate.
With 26 more episodes now in production and a 52-week commercial-radio
version in preparation, the show, which is taped in historic Carpenter’s
Hall in Philadelphia, no longer has to scramble to fill its live audience
or find its radio audience.
Q. Which of the shows you’ve done so far are your favorites?
A. I think both the best radio and the ones that are the most fun
for me are those in which the issues are closer rather than more polarized.
I like it when our guests are people who have actually litigated the cases.
I also think that that the shows in which the audience is the most personally
involved are the best.
Q. Can you give me an example?
A. For example, we did a show on the right to die and we had a number
of audience members who were either involved in the hospice movement or
who had family members who had recently passed away or had thought a lot
about these issues from a personal perspective. The audience participation
for that show was really quite wonderful because they brought their own
experience to the debate.
In the Nuremberg Files show, the guests didn’t
disagree about the overall politics of abortion so much, but had different
views of the First Amendment and therefore were close politically —but
very different on this particular issue.
The school voucher show, which was in the first series,
brought tremendous public interest and emotional affect from the audience.
Q. Why are you taping in Carpenter’s Hall when, on radio, no
one can see the venue?
A.Well the nice part of about Carpenter’s Hall is that the size
of the forum is appropriate. But in addition, it lends a seriousness to
the debate because of the historical nature of the hall that has just
been fabulous. And people respond to the environment.
Q. How was the experience of arguing before the Supreme Court?
A. Oh, it was an experience of a lifetime. I’ve actually argued
two cases before the court, and been involved in many, many more as part
of the legal team or in other roles, writing defense briefs or asking
the court to take a number of cases. So a great part of my practice since
1986 has been a Supreme Court practice.
Yes, it’s always a scary experience. And particularly
in the cases I did, which were so highly watched, it was quite a thrill.
On the other hand, the fact that there was so much interest,
in my view the lawyer is really the irrelevant party by the time a case
of that magnitude gets to the court.
Q. How is the lawyer irrelevant?
A. It seems to me certainly in the abortion arena the court is looking
to a range of factors, particularly in Planned Parenthood vs. Casey, which
was the case in 1992 which asked the court whether or not Roe vs. Wade
continued to be the law of the land. The court said yes it does. They
changed the way that they’re going to look at abortion cases, to
give slightly more effect to the interests of the fetus, but nevertheless
maintained a constitutional right to choose that’s valid up until
viability. The institutional integrity of the court, the precedents it
has set, what the best way to resolve these intractable issues and a wide
range of public opinion [have more impact than the lawyer].
Certainly a good oral argument can win a case. It’s
more likely that a bad oral argument can lose the case as opposed to the
other way around.
I think that cases of this magnitude are so closely
watched and taken so seriously by the court that it is really the reaction
of the American people that made a difference in Casey. I think there
was widespread belief that the court should not change courses merely
because of the changing composition of the members of the court —
that they owed an obligation not only to the institution of law but to
the institution of this particular court, to avoid the appearance of changing
their route for political purposes.
Q. Do you think “Justice Talking” might have an impact?
A. I think an educated public on these issues is very, very important,
not only for the functioning of the court, but the functioning of how
these issues are resolved in the long term.
Because things that happen in the court are not in and
of themselves. If laws are struck down as unconstitutional, the issues
go back to the legislatures, or they’re resolved among private parties.
Q. Are you saying the courts are political?
A. What I’m saying is they are the check and balance to the political
system. The nice part about the courts is they do have an obligation to
insure that the rights of minorities, those who are not heard in the political
process, are preserved and protected. That is the primary role of courts.
Nevertheless, it seems to me the views of Americans on a range of issues
do influence judges because judges are a part of that society, and as
society changes and grows, the law changes and grows.
Q. I understand you will be teaching a College of General Studies
seminar, Religion and Public Policy, in the spring. Do you have a particular
interest in religion as a constitutional issue?
A. The greatest and most contentious public policy debates today really
involve the interplay between religion and public policy, religion and
government. In the reproductive rights arena I became very interested
in efforts by churches to exempt themselves from statutory obligations,
whether they be civil rights mandates or other kinds of reproductive health
care mandates.
I was involved in a number of cases years ago challenging
mergers between Catholic and non-Catholic hospitals, where the Catholic
hospitals refused to continue to provide reproductive health services
once the merger was complete. So I’m interested to see really what
are the legal underpinnings to that decision and whether or not it’s
appropriate as a matter of public policy.
Similarly in the end-of-life issues around health care,
there’s a variety of efforts of religious organizations to impose
their views on whoever participates in their institutions, and that to
me is a question that has to be resolved as a matter of public policy.
For tickets to upcoming tapings, call 215-573-8828. Leave a message
for which show and how many tickets. For a list of upcoming topics and
taping dates, either phone (same number) or consult the Web page,
justicetalking.org.
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