U.S Supreme Court Review

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ASU Law Professor Paul Bender provides his analysis of cases decided this year by the U.S. Supreme Court.

Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. The U.S. Supreme Court's most recent term included a landmark decision that opened the door for more spending by corporations in political campaigns. The court also ruled that the second amendment extends beyond federal law to state and local jurisdictions. And Justice John Paul Stevens is retiring, with hearings underway for his replacement, Elena Kagan. Here to talk about the Supreme Court's session and other matters involving the court is Arizona State University law professor Paul Bender. Always a pleasure. Good to see you.

Paul Bender: Same here, Ted.

Ted Simons: Retirement of Justice Stevens, what does it mean? What's his legacy.

Paul Bender: It's hard to say, the most important thing for people now is will it change the court? The answer is no. As far as one can tell. Elena Kagan's voting pattern won't be identical, but will be similar and so nothing will change in terms of the profile of the court case -- it's interesting, because justice Stevens was appointed by a Republican administration. And he and Blackmun were the middle justices and gravitated to the left a little bit. But in Steven's case, the court gravitated to the right. He's been a little bit quirky. Original, interesting ideas. In recent years, he's been the leader of the liberal bloc and if he's knowing to be missed, it's because of that leadership. Those people all think for themselves and he hasn't been powerful in rounding up a fifth vote. I don't think it will have an impact on the future of the court correctly, but he was a wonderful justice. His legacy will be as someone who did the job correctly. Compare and contrast with Elena Kagan. You say nothing will change on the court. What do you say of a justice Kagan compared to a justice Stevens?

Paul Bender: She will vote with the more liberal justices almost all the time. She thinks for herself and he thought for himself. But their approach to life is similar. She's sensitive it the rights of minorities as he was. I think she's a strong advocate of the equal protection clause and believes in reproductive rights the way he definitely and he ended up voting the way Democrats did. She worked in the Clinton White House and she's a moderate, not a flaming liberal and he wasn't either.

Ted Simons: The fact that she has no experience as a judge. Some critics saying that's not good. And some refreshing.

Paul Bender: It's more than refreshing. It's really needed. You have a court of nine people all of them federal appellate judges before they got on the court. It's nice to have that experience, but that's a narrow experience of life. Very often, the Court of Appeals say we would like to address this independently but we can't. Only the Supreme Court can change it. Those big issues that the Supreme Court gets, I think they need people on the court who have life experience than I hate to say it, just being a law professor. But it's not like spending your life practicing law if a big law form or holding elective office and seeing politics from the inside. As justice O'Connor did. If you think back of the great justices. Earl Warren was never a judge before being on the court. Hugo Black. Brandeis was never. And I don't think she'll bring that kind of experience but a somewhat different perspective because she hasn't been a judge and I think that's refreshing.

Ted Simons: We've talked about the past about this being the Kennedy court in the sense of his swing vote having so much sway. I'm reading from others, suggesting it's turned into a Roberts' court.

Paul Bender: That's wrong. It's a Kennedy court.

Ted Simons: It's still the Kennedy court.

Paul Bender: If you saw the "The New York Times" the other day, the nine most important decisions of the term. Who voted in the majority, justice Kennedy. One or two of those votes were -- his vote, never made a difference in the result. He will join five to make six. But I've never seen him join four to make five. Whereas, Kennedy does that more frequently than anyone does. He's the swing vote. Roberts will vote with the liberals. He's beginning to understand this, since he knows about the court. If there's five votes on the liberal side and Roberts Jones them, he gets to sign the opinion. If he votes on the other side, Stevens gets to. And now -- along the liberal, so I think that's what is going on. It's a Kennedy court and even when Kennedy is with the five -- the other four conservatives he is shaping their decision more than any one else because they need his vote. They need all those votes but he's the hardest to get and so I think he has required them to do things in a narrower way than they might otherwise. For example, the gun control case they just reaffirmed. That's a narrow opinion. Justice -- the same happened with an affirmative action case a couple years ago, with a voting rights case. It keeps on happening. I'm arguing a case in the court next fall and in that case, as in so many other, I know the whole case turns on how Kennedy will vote.

Ted Simons: For those who are saying and the "The New York Times" say among them, it's turned into the Roberts court because he's pushed campaign finance and gun rights and you're saying not so fast?

Paul Bender: It's not true. If Roberts thought determining the result by his vote, then it might become the Roberts court. He's not doing that. There's no case in which he voted on the liberal side, in which he was the deciding vote. He does it to shape the opinion and maybe he's trying to but I haven't seen evidence that he's persuaded anyone to come with him.

Ted Simons: Do you see the court heading toward a particularly unpredictable phase?

Paul Bender: Well, they've been that way. They've been that way for the best 10-15 years, because they're so closely divided and because the swing justice, O'Connor and Kennedy -- first it was both and now just Kennedy, are fairly unpredictable. Kennedy sometimes does things which would strike some as being revolutionary. He's the leader about gay rights and often does things that people would say was extremely conservative. Like the campaign finance case. So it's hard to figure him out. More than a little bit hard. He's right in the middle. In a way, that's the way the whole court should be. It's not a good idea that when you get up -- for example, I'm going up in the fall to argue a case about the Arizona tuition credit -- tax credit law -- you know you have sure four votes against you and four on your side and you're really arguing about one person. That's not right. You should be arguing to nine people and somehow they've got into blocs that vote together. Not always. But big cases, they vote together all the time except for Kennedy who usually votes with the conservatives and sometimes on the other side. That's not the way the court should be. You should be arguing to nine independent thinking people and all of the votes should be up for grabs.

Ted Simons: You mentioned campaign finance. Citizens united. Allowing unlimited corporate spending. That's a big decision, isn't it?

Paul Bender: Clearly, of the term and perhaps the most important decision of the decade. We don't know yet because we don't know what corporations are going to do with that right. But there, astonishingly, which goes to show you can't believe what they say at confirmation hearings. Nobody should be taken in the belief what they say. You have Roberts and Alito telling you they want to decide things narrowly. The campaign finance case, they organized the baseball game and the teams and decided who was going to win all by themselves. They wanted to make law and they made very much important law. Namely, that corporations have the same rights as real people to spend their own money -- corporations' own money, on election campaigns. You can spend your own money, and so can Microsoft. And there's money they've made, commercially obtained money, that's an enormously large amount of money. If they now can -- they now can -- if they now will use those enormous resources to influence election that could be a really important thing in American policy. Whether they'll do that, we'll to wait to see.

Ted Simons: Does the decision suggest, A, a more pro-business court or increasingly more pro-business court. And if so, does that mean that financial regulation, challenges down the pike, healthcare challenges down the pike, what does it say for those challenges?

Paul Bender: There's no question it means a business-oriented court. Whether they're getting more that way, I don't know. They've been that way for a while. It's up to Kennedy. If he wants to be business-orient, the others almost certainly are. There's the possibility of a replay of the mid 1930s where the old Supreme Court, the nine old men, stood in the way of reform legislation that the new deal passed in the first four, five years of the Roosevelt administration. Until the court changed and then Roosevelt got to appoint a whole bunch of new justices and the new deal got upheld. It's possible that -- again, it's up to justice Kennedy, hold parts of the healthcare legislation unconstitutional as beyond congress' powers and the new financial regulation, perhaps. And those are possibilities that could happen and you could have the same kind of -- you would have the same constitutional crisis of a country that's moved pretty much to the left, not all the way, maybe it's moving back a bit, since the time of Ronald Reagan or George W. bush and a court that's rock solid conservative. If anything, more conservative than Ronald Reagan and that's what you get when you have lifelong justices.

Ted Simons: And one more, petition signature.

Paul Bender: The court had the chance to -- and you can never tell what a case is going to be in court until it's decided. Depends on the opinion they wrote. They had a case where the party was containing that signatures on referendum and initiative petitions, by constitutional requirement, must be kept secret. That you can't -- people can't use public records laws to find out who signed petitions. That's an -- a startling proposition and would have made a difference in Arizona where we challenge those things all the time and the court rejected that. But that's the beginning of continuation of the battle in citizens united. That's the beginning of claims that are going to be made and justice Thomas is already making them, that you can't reveal people's political contributions. That case was political action of signing a petition. But justice Thomas wants to say that if I contribute it a political candidate, that -- I have a right to have that remain secret also because people know I've contributed, they might do bad things to me. In the same way people argued here. The court did not -- gratefully pleased -- only Thomas took that position in this case. It's ironic, because the court says every time it strikes down a campaign finance regulation, don't worry about it, because we have -- there's disclosure laws. That case is important for what it didn't do.

Ted Simons: Shifting gears. How protections apply to state and local as well as federal. Big case?

Paul Bender: Big in results but not big because effect knew it was going to come out that way. The big case was two years ago when they held the second amendment gave individuals rights to own guns to protect themselves, at least in their own homes. The court had never said that about the second amendment. It was unclear what it means. The only opinion of the court seems to suggest it was not an individual right. Just the state's right to have militias. Once they said that, the case involved the District of Columbia. So it involved the bill of rights, the real Bill of Rights which was only applicable against the federal government but that's not really important -- if you live in the district, it is, but around the country, the important gun control laws are state and local laws so the question before them this term is did that decision apply to identical ordinances in Chicago and a suburb of Chicago? And everybody knew the court -- how can you hold that something is a constitutional right and every other important constitutional right has been applied to the states. Freedom from search and seizure, self-incrimination. How can you take the second amendment and say that one is not applicable. Once you say it's an individual right. So the result of that case is very important because now there's going to be a wholesale attack around the country on gun control regulations and the court has been extremely guarded and careful, probably because they don't have a majority. About saying what the -- what they call level of scrutiny is for gun control rights. Is the same intensive scrutiny that abridgment of speech and religion get. Or low level that ordinary economics get where you can do almost anything you want. But you can't ban all handguns of people in houses period. And we'll tell you about the other some day so it's going to open that up and there will be a lot of cases and the court will work that out.

Ted Simons: A couple of non-murder cases, nonetheless sentenced to life without parole.

Paul Bender: They found it was unconstitutional, again, 5-4, Kennedy writing the opinion. It is unconstitutional to sentence juveniles for crimes they committed while juveniles. In this case, he was over 18. To sentence people for crimes they committed while juveniles to life imprisonment without possibility of parole. Because you're taking away the chance of rehabilitation or hope from the defendant. And it's maybe ok to do that to a 30-year-old, but it's unconstitutional to give up on an 18-year-old or younger. That is a remarkable decision for this court. This court does that every once in a while. This court, like an old jalopy. Puttering along. A little to the right and left and forward and backwards. Sometimes it takes a jerk. This was a jerk to the left. That's a completely new thing for the court to open up sentence -- the possibility of sentences other than the death penalty and can be cruel and unusual punish ... How far they'll go, nobody knows. But that shows justice Kennedy's power on the court. He's been a leader in constricting the use of death penalty and now he says you have to treat juveniles in a different way. No matter how horrible, you can't sentence someone at the age of 16 commits a horrible you have to hold out the possibility of getting out.

Ted Simons: Was it a lurch to the left for the University of California law school group that wanted to keep people out and the university said you do it, we're not going to recognize you. It sound like the court said the school was right.

Paul Bender: It came out 5-4 on the liberal side and again, justice Kennedy a swing vote. I don't think it's a lurch to the left. If it came out the other way, it would be a real lurch to the right. It's a really interesting question because, what you have is a religious organization saying that it discriminates against them to prohibit them from discriminating. The Christian legal society wanted to be a recognized organization and wanted to discriminate who would be voting members of the organization. They had to sign a pledge saying they agreed with the principles of the society and one was you can't be a homosexual and wanted to discriminate against homosexuals. The school and the whole university had a rule you couldn't be a student organization if you discriminated against people because they're homosexual -- or a lot of other things and the court said it was a rule that you had to take everybody. All-comers, they called it. You had to let any student into the organization. You have had a rule intended to stop discrimination which a group said discriminate and says its religion tells it to discriminate and the court rejected that view. If it adopted it, that would have opened up a lot of attacks. But I consider that a lurch back and forth.

Ted Simons: We have three cases that look like they're going to affect Arizona. One of which you said you were involved with. The tuition tax credit. We can certainly talk about that. And employer sanctions seems like -- were you surprised the court took this?

Paul Bender: Not at all and it was signaled they would because the ninth circuit upheld our employment sanctions law a couple years ago. There was a petition, the Supreme Court asked the solicitor general for her views, upcoming justice Kagan, her views about whether to take the case. They do that about 10 times a term and the solicitor general usually waits. And the end of may comes, hey, you going to answer that question and they get around to doing it and said, court, we think you should take this case. When you ask the solicitor's general's advice, the chances are you're going to take it. That doesn't mean you're going to come out that way, in this case, there's a good chance they will. They're going to take another Arizona case, they've decided the case, even though a petition hasn't been filed. That's the clean elections matching funds case. Similar to citizens united and Bush and Gore. These are the most activist group of judges I've ever seen. Either liberal or conservative. They decided it was so clear that the ninth circuit decision upholding the matching funds provision was wrong that they would stop the matching funds provisions have being used in the upcoming election even though they never looked at a brief. All they had was the ninth circuit decision saying it was unconstitutional. You don't stop something and say that wasn't important to do anything about so they'll clearly grant that petition, filed in August sometime and granted in October or November and so we'll have three cases before the court next term involving important Arizona law. The case I'm going to argue in November, involving the constitutionality of the tuition tax credit. Our challenge is that it's unconstitutional not because it's unconstitutional to give school vouchers to children. But because the Arizona system has religion organizations giving out the vouchers and they give them on the condition you send your kids to religious schools and we argue that's unconstitutional. The clean elections case is also important because matching funds is catching on around the country and it's part of campaign financing because if you don't have matching funds provision then you have to give as much money as these people can give at the beginning, right? So you have to give more money than you need to because if you can't match the funds, you have to give it all -- the funds, you have to give it all at the beginning. That would put a big dent in campaign financing.

Ted Simons: Employer sanction, overtones to possible challenge for 1070?

Paul Bender: In the employer sanctions case, there's a specific preemption. Because it's a federal crime and they say we want the states to stay out of it. In the 1070, there's no similar explicit preemption. But the underlying issue is immigration something that's exclusively federal and the court's opinion, maybe a narrow opinion, but if they broadly say that immigration is exclusively federal, it's important it be that way and they say why, that would have a big impact on what ultimately happens to 1070. They're not going to say that until a year from now. The ninth circuit is going to have to guess which way it's going themselves.

Ted Simons: Thanks for joining us.

Paul Bender: Nice to be here, Ted.

Paul Bender:ASU Law Professor;

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