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LIVE FROM THE HEADLINES

Supreme Court to Decide on Death Penalty, Child Molestation, Anti-Sodomy Cases

Aired June 25, 2003 - 19:21   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ANDERSON COOPER, CNN ANCHOR: Tomorrow, in other news, the Supreme Court is expected to release several rulings that could impact life in America in a range of ways. We're talking about the death penalty, prosecuting child molestation, and perhaps most controversially, laws that make certain kinds of sex between consenting adults illegal, particularly if they're gay.
CNN legal analyst Jeffrey Toobin filed a brief for us on Lawrence v. Texas. Take a look.

(BEGIN VIDEOTAPE)

JEFFREY TOOBIN, CNN CORRESPONDENT (voice-over): The knock on John Lawrence's door came on September 17, 1998. Houston police tipped by a neighbor to the presence of weapons, found nothing of the kind, just Lawrence and another man, Tyron Garner, having sex.

But two men having sex is illegal in Texas, so Lawrence and Garner were arrested and held in jail for more than a day. They took their case to the Supreme Court, and it's the last big case of the term, due to be decided tomorrow.

So what, you might say? How many states could have laws like this one? And how many times do police and prosecutors actually bring cases like this one?

Well, 13 states have so-called anti-sodomy laws, and cases like this are rare, but not unheard of.

Still, the principle is an important one. A lot of gay people and a lot of straight people, for that matter, were offended that the government would make any kind of private, consensual sex a crime.

In 1986, the Supreme Court upheld a similar Georgia law, but at the oral argument of the Texas case in April, it was clear that several justices thought times had changed, and that the state had no business in John Lawrence's bedroom.

No matter what happens, the Houston police did catch at least one real criminal. That neighbor, who said there were weapons in Lawrence's apartment? He was convicted of filing a false report to the police.

(END VIDEOTAPE) COOPER: Jeffrey Toobin, as you can see, is with us once again, and Jeffrey, you were in the court while this was being argued. How do you think they're going to rule?

JEFFREY TOOBIN, CNN CORRESPONDENT: Well, you know, the lawyer for the state of Texas, the district attorney of Harris County, Mr. Rosenthal gave one of the worst arguments...

COOPER: Really?

TOOBIN: ... I have ever heard. It was appalling. And the justices, even the justices on his side like Justice Scalia, were trying to help him along he was doing such a terrible job.

But I was struck that there were several justices who were clearly appalled that this law was still on the books. In 1986, that precedent I think is hanging by a thread. I think the reason it's taking so long for them to reach this decision is they're split 5-4, I bet, probably as always, Justice O'Connor in the middle.

COOPER: And the ruling's tomorrow?

TOOBIN: The ruling almost certainly is tomorrow.

COOPER: We're probably going to talk about it a lot tomorrow night.

Let's talk about the future of the court, because there are a lot of rumors, a lot of speculation that as many as two justices may actually retire?

TOOBIN: The rumor mill is in overdrive on retirements. It's a little less than it was earlier in the term. It's such a political process, because I mean, these justices now that if they retire next year, it's very likely that the Democrats will simply filibuster or delay the process until the 2004 election.

If you want to retire and give George Bush a shot at filling the seat, this is the seat -- this is the time right now.

COOPER: But also, I mean, timing is key, because if it's, say, announced in July they're going to retire, Congress is in recess in August, and then the likelihood that President Bush would be under pressure to fill it by the first week of October.

TOOBIN: Well, it's almost for certain that even if there's a retirement now there would not be a seat filled by October, but it would certainly be filled during President Bush's term, unless people were voted down.

The rumor mill says Chief Justice Rehnquist and Justice O'Connor are the most likely people to leave. But you know, my rule of Supreme Court resignations is those who tell, don't know, those who know don't tell. So no one really knows.

COOPER: Just to talk about the procedure a little bit, if Rehnquist did retire, that would mean President Bush has two nominations really to make, because...

TOOBIN: Well, it depends, because you could -- if he nominated someone straight from, say, off the court to chief justice, that would just be one seat to fill. But if he were to elevate someone, that would be two processes...

COOPER: Which would be more likely?

TOOBIN: Don't know. Warren Berger was nominated from another court straight to be chief justice. Chief Justice Rehnquist was nominated from an associate justice. There's no rule; the president can do either one.

COOPER: And as you said, this has become so politicized, perhaps more than any time else in history. I mean, there are already groups on all sides of the political spectrum, already raising money for television commercials.

TOOBIN: They're not just raising money. They're spending money on television commercials. Look for the abortion groups. I think abortion is really going to dominate this debate, the future of Roe v. Wade, the case that everyone knows, that people have such strong feelings about. That's going to be, I think, central to any nomination fight, and I mean, think about it. People spending money on television commercials on a vacancy that doesn't even exist yet.

COOPER: That's fascinating. All right, Jeffrey Toobin, thanks for being with us.

TOOBIN: We'll know more tomorrow.

COOPER: All right. Keeping it real with Jeffrey Toobin.

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