Nina Totenberg, the acclaimed NPR Legal Affairs Correspondent whose reports regularly air on All Things Considered, was a keynote speaker at the 2021 MSBA Legal Summit, sharing stories and insight gained from her lengthy career as a legal reporter. Ms. Totenberg has earned widespread recognition for her coverage of the United States Supreme Court over four decades and has been honored seven times by the American Bar Association for continued excellence in legal reporting.
Ms. Totenberg is not an attorney but is considered to be the dean of legal affairs correspondents. Over the years, she developed a deep understanding of the law, and ultimately, she found her lack of a legal degree to be beneficial as it helped her to report complex legal matters in a manner that a person without legal training could understand.
Ms. Totenberg was a print reporter prior to joining NPR, and early in her career found that she was frequently the only woman in the newsroom. The atmosphere at NPR was different, though, as there were many women working there, largely because the salaries were so meager no men wanted to work there. She was recruited to work on breaking news stories rather than features, and in the beginning covered everything in the legal field, including the Supreme Court, investigative hearings, and House and Senate judiciary committee hearings. Currently, there are about ten reporters who handle the tasks previously assigned to Ms. Totenberg.
Four Chief Justices have been at the helm of the Supreme Court during Ms. Totenberg’s career. She described Chief Justice Earl Warren as a remarkably able leader and administrator, though her interaction with him was limited. He was followed by Chief Justice Warren Burger, who was the polar opposite of Chief Justice Warren, in that he regularly engaged in behavior that irritated and alienated other members of the Court, like switching his vote at the last minute.
Chief Justice William Rehnquist observed but thankfully did not adopt Chief Justice Burger’s behavior. Instead, he was straightforward and fair, earning the widespread respect of other members of the Court. Ms. Totenberg described Chief Justice John Roberts, who has held the position for over fifteen years, to be a good steward of the office of Chief Justice. It remains to be seen whether he will remain a controlling force on the Court now that there is a conservative supermajority. She noted cases dealing with many important issues, like the Affordable Care Act, abortion rights, gun rights, labor rights, affirmative action, and anti-discrimination laws will be before the Court Court in the near future.
When Ms. Totenberg initially began covering confirmation hearings, no broadcast news organizations were present. Justice Sandra Day O’Conner’s hearing was the first to be televised and Ms. Totenberg believes live coverage was very valuable in the beginning as they often provided subtle insight into how Justices would rule. Recent nominees have been tight-lipped, though, and little information was provided about how they would rule.
Ms. Totenberg formed relationships with Justices Ruth Bader Ginsberg and Antonin Scalia prior to their appointments to the Supreme Court and considered both of them to be close friends. Her relationship with Justice Ginsberg began after she called her to ask questions about a brief she had written on a case being argued before the Supreme Court, which resulted in an hour-long explanation. Following that conversation, Ms. Totenberg regularly called Justice Ginsberg, who at that time was a Rutgers University law professor, to check-in and the two became friends.
Looking back over her tenure covering the Court, Ms. Totenberg believes the late Justice William Brennan had the biggest impact, noting he was a significant force in every notable controversy decided by the Court during his appointment. Much of his work has been undermined recently, however, and ultimately may not stand the test of time. She thinks the current Court will be the most conservative since the 1930s, and law that seems well-established may be overturned.
The biggest misconception the public has about the Supreme Court is that the Justices should rule in favor of what is right, rather than what the law dictates. Ms. Totenberg noted that ruling according to the law frequently, results in unjust outcomes, but it is the Court’s duty is to uphold the law. While she tries to keep her personal opinions separate from her work, Ms. Totenberg found the Pentagon papers case, in which the Court vindicated the idea of the free press, to be the most memorable ruling of her career on both a personal and professional level.
Ms. Totenberg reported on the Clarence Thomas confirmation hearings and became part of the story when she broke the Anita Hill story. She believes that Justice Thomas continues to hold a grudge regarding his confirmation proceedings, which she attributes to human nature. She explained, though, that her job is to report the news, regardless of whether it makes people uncomfortable. She is happy that she reported the Anita Hill story but resents the idea she became part of it as she did not engage in any unethical or unprofessional behavior.
The discussion with Ms. Totenberg will be available on the MSBA website.