The United States Supreme Court begins its new session October 3. The court starts the new session as it ended the previous one, short one justice following the death of Justice Antonin Scalia and the lack of action by the U.S. Senate on naming a replacement. Arizona State University law professor Paul Bender will talk about that and the important cases the court is going to hear in its new session.
TED SIMONS: THE UNITED STATES SUPREME COURT BEGAN ITS NEW SESSION MONDAY. THE HIGH COURT WENT BACK TO WORK AS AN EIGHT-MEMBER BENCH WHILE THE U.S. SENATE STILL REFUSING TO CONSIDER A REPLACEMENT FOR JUSTICE ANTONIN SCALIA. HERE TO TALK ABOUT THE COURT IN GENERAL AND A FEW CASES IN PARTICULAR IS ASU LAW PROFESSOR PAUL BENDER.
PAUL BENDER: GOOD TO BE HERE TED.
TED SIMONS: IT LOOKS LIKE IT'S NOT GOING TO END ANY TIME SOON, WHAT'S THE IMPACT?
PAUL BENDER: THE IMPACT OF THE VACANCY ITSELF IS NOT SO BIG OF THE COURT CAN GET ALONG WITH EIGHT PEOPLE, IT WILL HAVE A FEW TIE VOTES. THE BIGGEST THING IS WHO IS GOING TO BE THE NEXT JUSTICE AND MORE IMPORTANTLY, THE BIGGEST THING THAT'S GOING TO HAPPEN FOR THE SUPREME COURT IS THE ELECTION FOR PRESIDENT. DEPENDING ON THAT ELECTION, THE CHARACTER OF THE SUPREME COURT CAN BE RADICALLY DIFFERENT, IF TRUMP WINS VERSUS IF CLINTON WINS. WHY IS THAT BECAUSE THERE IS IMMEDIATELY ONE VACANCY. YOU HAVE TWO PEOPLE IN THEIR 80S, JUSTICE GINSBURG AND JUSTICE KENNEDY AND YOU HAVE SOMEONE GETTING CLOSE THERE, JUSTICE BREYER. AND SO THE NEXT PRESIDENT MAY HAVE TWO, THREE APPOINTMENTS AND THE COURT HAS BEEN SO DIVIDED THAT IF CLINTON BECAME PRESIDENT AND WOULD BE ABLE TO FILL THE SCALIA VACANCY, REPLACE TWO OF THOSE PEOPLE, YOU WOULD HAVE A SOLID LIBERAL MAJORITY ON THE COURT AND THEY'D BE THERE FOR QUITE A WHILE. IT'S NOT ONLY LIBERAL, THOSE ARE YOUNG PEOPLE WHO HAVE ARE IDEAS AND CREATIVITY AND SO YOU MIGHT SEE A REAL CHANGE IN AMERICAN CONSTITUTIONAL LAW WHICH HAS BEEN IN A VERY DULL PERIOD FOR THE LAST 15, 20 YEARS, ON THE OTHER HAND, IF TRUMP WINS AND GETS TO REPLACE SCALIA AND TWO MORE PEOPLE LIKE SCALIA ON THE COURT, THAT WOULD ESTABLISH A VERY CONSERVATIVE MAJORITY, AGAIN FOR A LONG TIME. BECAUSE ALITO AND THOMAS ARE NOT THAT YOUNG. THAT'S THE MOST IMPORTANT THING FOR THE COURT.
TED SIMONS: IF CLINTON WINS AND GOES AHEAD AND FINDS SOMEONE CONSIDERED RELATIVELY FAR LEFT. NOT CENTER LEFT BUT FAR LEFT. I MEAN, IS THERE ANY CHANCE THAT THE SENATE MIGHT SAY AIN'T GOING TO HAPPEN?
PAUL BENDER: I SHOULD AMEND WHAT I SAID BEFORE, IT'S NOT ONLY WHO WINS THE PRESIDENCY, IT'S WHO WINS THE SENATE. CLINTON WITH A DEMOCRATIC SENATE YOU MIGHT GET DIFFERENT APPOINTMENTS THAN CLINTON WITH A REPUBLICAN SENATE. SO THAT'S THE -- AND THE JUSTICES ARE AWARE OF THAT AND THAT'S WHY I THINK YOU'RE SEEING THE COURT THAT HAS TAKEN LESS CASES AND SEEMS RELUCTANT TO TAKE BIG CASES. ONE OF THE BIG CASES IT TOOK BEFORE JUSTICE SCALIA DIED, THEY PUT OFF THE ORAL ARGUMENT. IT WAS TAKEN IN JANUARY, ARGUING CASES THAT WERE GRANTED IN JUNE, MAYBE BECAUSE THEY WERE HOPING THE VACANCY WOULD BE FILLED BEFORE THEY HAD ARGUMENT AND THAT'S NOT GOING TO HAPPEN BUT PROBABLY HAVE TO HAVE IT DONE. BUT I THINK YOU CAN TELL WHEN YOU READ THE ARGUMENT, I'VE READ THE TRANSCRIPTS OF THE LAST TWO DAYS, THAT THE ATMOSPHERE ON THE COURT HAS CHANGED. JUSTICE SCALIA IS NOT THERE TO MAKE IT DIFFICULT FOR THOSE ARGUING AGAINST HIM. POOR JUSTICE ALITO DOESN'T HAVE ANYONE -- AND ROBERTS DOESN'T DO THAT AND THOMAS DOESN'T SPEAK AND SO THE COURT SEEMS TO BE, WHEN YOU HEAR THESE CASES ARGUED, A LIBERAL COURT ALREADY.
TED SIMONS: AS WE'VE MENTIONED BEFORE, PREVIOUS TIMES YOU'VE BEEN ON THE PROGRAM, SEEMS TO BE DRIFTING LEFT IF ONLY BECAUSE JUSTICE KENNEDY SEEMS TO BE DRIFTING LEFT. IS THAT STILL OCCURRING?
PAUL BENDER: IT HAPPENED LAST YEAR. LAST YEAR, KENNEDY AGREED WITH THE LIBERALS IN CLOSELY DIVIDED CASES. MORE OFTEN AS HE AGREED WITH THE CONSERVATIVES. THAT NEVER USED TO HAPPEN. HE ALWAYS AGREED WITH CONSERVATIVES. YOU CAN -- NOT IN EVERY CASE BUT IN SOME AREAS LIKE THE DEATH PENALTY, KENNEDY IS MOVING IN THAT DIRECTION SO THAT'S ALREADY HAPPENING. IF WE GET A PRESIDENT CLINTON TO REPLACE SCALIA AND THEN TO PUT ONE OR TWO OTHER JUSTICES, YOU COULD GO BACK TO THE DAYS WHEN YOU HAVE A CREATIVE SUPREME COURT WHICH TRIED TO FOCUS ON THE REAL PROBLEMS THAT ARE IN THE UNITED STATES. INCOME DISPARITIES FOR EXAMPLE, HEALTH DISPARITIES. THE COURT HAS DONE NOTHING IN THAT AREA. THERE WAS A TIME WHEN IT WAS THOUGHT THEY COULDN'T DEAL WITH THOSE PROBLEMS BUT THE WARREN COURT DID, AND THEN IT STOPPED AND THAT COULD HAPPEN AGAIN DEPENDING ON WHO WINS THE ELECTION.
TED SIMONS: FEWER CASES THAN USUAL AND NO APPARENT BLOCKBUSTERS. IS THAT BECAUSE OF THE MISSING SEAT?
PAUL BENDER: I THINK IT COULD BE. SUPPOSE YOU'RE A JUSTICE ON THE COURT AND YOU KNOW THAT THE COURT IS CLOSELY DIVIDED. YOU SEE A CASE, YOU DON'T KNOW HOW IT'S GOING TO COME OUT SO YOU MIGHT SAY WAIT AND SEE. BECAUSE I'M GOING TO BE AGAINST IT IF SO AND SO WINS THE ELECTION. I THINK THERE'S A GENERAL FEELING OF RELUCTANCE TO DO ANY MORE THAN THEY HAVE TO UNTIL THEY SEE WHO WINS THE ELECTION.
TED SIMONS: WHICH GIVES A LOT OF POWER TO THE LOWER COURTS.
PAUL BENDER: THEY CAN HOLD THINGS FOR A WHILE. DON'T HAVE TO ACT ON CERTAIN PETITIONS RIGHT AWAY.
TED: A COUPLE OF CASES HERE IN PARTICULAR. THIS REGARDING RACIAL STATEMENTS MADE IN DELIBERATIONS.
PAUL BENDER: THIS IS AN INTERESTING AND POTENTIALLY IMPORTANT CASE. IN THAT CASE, AFTER SOMEONE WAS CONVICTED, TWO OF THE JURORS FILED AFFIDAVITS SAYING ONE OF THE OTHER JURORS HAD MADE BIASED STATEMENTS ABOUT HISPANICS, MEXICANS, DURING THE -- THE DEFENDANT WAS A MEXICAN, DURING THE DELIBERATIONS. OH, HE'S A MEXICAN MAN, OF COURSE, HE DID THAT. THAT WAS SAID. AND THEY SAID, THEY WERE WORRIED ABOUT THAT AND THE ISSUE IS ASSUMING HE SAID THAT, WHETHER THE COURT IS GOING TO GO INTO THAT. THE COURTS HAVE HAD A TRADITION OF NOT LETTING JURORS IMPEACH THEIR OWN VERDICT. THAT IS, YOU DON'T LET JURORS AFTER THE VERDICT, COME INTO COURT AND SAY, I SHOULDN'T HAVE VOTED THAT WAY OR SOMEBODY MADE ME DO THAT. BECAUSE IF DO YOU THAT, YOU ON EVERYTHING UP TO COMPLAINTS AFTER THE VERDICT. BUT THIS IS A VERY, VERY TROUBLING THING, IF -- IF YOU'RE CLEAR THAT A JUROR VOTED ON THE BASIS OF RACIAL PREJUDICE, DO YOU SIT BY AND LET THAT HAPPEN? SO THAT'S A DIFFICULT ISSUE FOR THE COURT.
TED SIMONS: THE ENTIRE JURY MIGHT SAY GUILTY BUT BECAUSE THE ONE JUROR SAID GUILTY NOT BY EVIDENCE BUT BY REASON OF HIS OWN BIAS, THE QUESTION IS, IS THAT A UNANIMOUS VERDICT?
PAUL BENDER: YOU NEVER KNOW, OF COURSE, YOU NEVER KNOW WHAT WOULD HAVE HAPPENED HAD YOU HAD A NON-BIASED PERSON THERE AND YOU DON'T KNOW HOW MUCH THE BIAS STATEMENTS INFLUENCED THE OTHER JURORS. AND THE ISSUE THERE IS, IS THAT A FAIR TRIAL, A FAIR JURY AND THE COURTS NEVER DEALT WITH THAT. AND I WAS SURPRISED THEY TOOK THAT CASE, IF THEY WERE TO GIVE RELIEF IN THIS CASE THAT, WOULD OPEN YOU UP THE DOORS TO JURORS CHALLENGING VERDICTS ALL OVER THE PLACE.
TED SIMONS: YOU COULD HAVE A JUROR NODDING OFF OR A JUROR THINKING WE HAVE MARTIANS ABOUT TO ATTACK US.
PAUL BENDER: IF YOU GET INTO WHAT THEY'RE THINKING, IT BECOMES DANGEROUS.
TED SIMONS: ANOTHER RACIAL COMPONENT IN ANOTHER CASE, BUCK V. DAVIS. WHAT'S THAT ABOUT?
PAUL BENDER: REFRESH MY RECOLLECTION ON THAT. OH, YES, THIS IS THE CASE -- IT'S ALSO VERY TROUBLING. IN THAT CASE, IT'S A DEATH PENALTY CASE. AND IN THAT CASE, THE DEFENDANT'S APPOINTED LAWYER CALLED AS AN EXPERT OF -- A PSYCHOLOGIST, THE ISSUE WAS ON SENTENCING. HE WAS GUILTY, EVERYBODY AGREED HE WAS GUILTY, THE QUESTION WAS SHOULD HE GET THE DEATH PENALTY AND TURNED IN LARGE PART WHETHER HE'LL BE DANGEROUS IF HE EVER GETS OUT. THE DEFENDANT'S OWN LAWYER CALLED A PERSON WHO SAID THAT BLACK MEN ARE MORE DANGEROUS THAN OTHER PEOPLE. THE DEFENDANT WAS A BLACK PERSON AND THAT GUY TESTIFIED IN EIGHT OTHER CASES IN THE SAME WAY. THE TEXAS ATTORNEY GENERAL DECIDED TO VACATE THOSE EIGHT OTHERS BUT DIDN'T IN THIS ONE. THE THING ABOUT THIS IS THAT CASE AND THE CASE OF THE JUROR SAYING SOMETHING RACIALLY BIGOTED IN THE DELIBERATIONS, WE KNOW -- WE KNOW THERE'S A BIG PROBLEM WITH RACIAL DISCRIMINATION IN OUR JUSTICE SYSTEM, ARE THE COURTS GOING TO SIT BY AND LET THAT HAPPEN OR SAY, WE'VE GOT TO DO SOMETHING ABOUT THIS. WE HAVE TEXAS PUTTING ON AN EXPERT IN EIGHT OR MORE CASES SAYING THINGS, RACIALLY BIGOTED THINGS AS A REASON TO SENTENCE PEOPLE TO DEATH OR CONVICT THEM. IT'S A CHALLENGE TO THE COURT TO TRY AND FIND A WAY TO DEAL WITH THAT.
TED SIMONS: IN THOSE CASES, IS THAT TESTIMONY ALLOWED TO BE CHALLENGED? CAN YOU SAY THAT THE GUY IS LOONEY TUNES OR IS FULL OF IT?
PAUL BENDER: I DON'T THINK SO, ONCE HE SAYS IT, FIRST OF ALL, THERE'S NOTHING YOU CAN DO ABOUT IT, BUT EVEN IF THE JUDGE SAID, HEY, JURORS DON'T LISTEN TO THAT, BUT WE HAVE NOT DONE THAT, BUT THE COURTS HAVE NOT SAID, THAT TESTIMONY WAS BIGOTED. THROW IT OUT. YOU CAN'T LISTEN TO THAT. SO THESE TWO CASES INDICATE AN UNDERLYING PROBLEM OF RACIAL DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM. IT'S A BIG PROBLEM AND POLICE BEHAVIOR IS A BIG PROBLEM. THERE'S ANOTHER CASE INVOLVING POLICE WHO DELIBERATELY FALSIFIED A DRUG TEST. THEY SAID IT WAS ECSTASY INSTEAD OF THE PERFECTLY LEGAL DRUG THAT THE PERSON HAD. THEY ARRESTED HIM, HE STAYED IN JAIL FOR A MONTH AND A HALF UNTIL THE PROSECUTORS DETERMINED THAT THE POLICE HAD DELIBERATELY LIED TO PUT THIS PERSON IN JAIL. THE PERSON IS NOW SUING THE POLICE AND THE COURT HAS TO DECIDE WHETHER HE HAS A VIABLE LEGAL ACTION. YOU WOULD THINK, OF COURSE. BUT OUR COURTS SOMETIMES GET SO TIED UP WITH TECHNICALITIES.
TED SIMONS: VERY LITTLE TIME LEFT. A MINUTE OR SO. TRINITY LUTHERAN CHURCH V. PAULEY. THIS WAS A STATE FINANCIAL AID TO A RELIGIOUS INSTITUTION.
PAUL BENDER: THAT'S IMPORTANT BECAUSE WE HAVE THE SAME CONSTITUTIONAL PROVISION THAT THAT STATE HAS. THAT NO STATE FUNDS CAN BE USED TO AID RELIGION. IN THIS CASE, A RELIGIOUS SCHOOL WANTED STATE FUNDS TO REPAVE THEIR PLAYGROUND AND THE PEOPLE WHO RUN THE PROGRAM SAID WE CAN'T LET YOU IN BECAUSE YOU'RE A RELIGIOUS GROUP AND THE RELIGIOUS GROUP SAID YOU'RE DISCRIMINATING AGAINST RELIGION. THE STATE CONSTITUTION SAYS DON'T GIVE MONEY TO RELIGIOUS GROUPS SO THE QUESTION IS, IS THE STATE CONSTITUTION AND THE ARIZONA CONSTITUTION ALSO CONSTITUTIONAL.
TED SIMONS: WITH THIS COURT, THE MAKEUP AS IT IS, EIGHT MEMBERS AS THEY ARE. THESE CASES WE TALKED ABOUT, THE TWO INVOLVING RACE AND JURIES AND COURT PROCEEDINGS AND THIS ONE, INVOLVING FINANCIAL AID TO RELIGIOUS INSTITUTIONS, VEERING LEFT, RIGHT?
PAUL BENDER: MY GUESS IS IF YOU LOOK AT THINGS THAT WAY, IT'S VEERING LEFT AND CERTAINLY IF CLINTON APPOINTS THE NEXT JUSTICE, IT'S GOING TO VEER LEFT. IF TRUMP APPOINTS THE NEXT JUSTICE, IT WILL STAY THE WAY IT'S BEEN, WHICH IS A RELATIVELY CONSERVATIVE COURT WITH KENNEDY MOVING TO THE LEFT. BUT THEN IF HE'S PRESIDENT, HE'S GOING TO FILL THE NEXT COUPLE OF VACANCIES AND THAT SUBSTANTIALLY CHANGE THE COURT.
TED SIMONS: WOW, WHEN IT HAPPENS, WE'LL GET YOU BACK -- SEEMS LIKE EVERYONE IS WAITING AROUND FOR THIS AND YOU JUST KEEP WAITING.
PAUL BENDER: THAT'S RIGHT AND YOU WON'T HAVE A GOOD IDEA UNTIL AFTER THE ELECTION.
TED SIMONS: GOOD TO SEE YOU, THANKS FOR JOINING US.
Paul Bender, law professor, Arizona State University
