U.S. Supreme Court Midterm Update

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ASU Law Professor Paul Bender examines key cases before the nation’s high court.

Paul Bender: Arizona had three cases before the U.S. Supreme Court this term, and as discussed earlier in the show, there could very well be a fourth. For an update on some of the more notable cases considered the high court this term, we welcome ASU law professor Paul Bender. Before we get to some particular cases, a midterm update. Let's talk about the new justices. What are seeing from Kagan and Sotomayor, how's she's settling in?

Paul Bender: You know it's interesting it is exactly the midterm. The court is finished hearing arguments, they won't hear anymore arguments. But they've decided exactly half the cases they're going to decide. So they have about 40 left to decide and they'll do that in the next seven weeks, every Monday from now on is a decision day. The new justices, it's interesting, Kagan replaced justice Stevens and there's not much difference there in their philosophy or jurisprudince. She, however, has started on the court an active and impressive of a manner as any justice I've heard of or seen. I saw her in one of the first arguments that she listened to and I argued one of the first cases she heard and she was masterful. She took over the court, her questions were direct and forceful. So I think she may bring something to the court that Stevens didn't have and that's a energy and maybe a zeal to try to change people's minds. Whether she'll succeed is doing that questionable. I think she's been very impressive and so is Sotomayor -- those two women are extremely strong people and going to be on the court for a long time and really shape the court as much as the recent Bush appointees.

Ted Simons: No shrinking violets?

Paul Bender: Not in the least.

Ted Simons: We've talked about this numerous times in the past, now, is it still a Kennedy court?

Paul Bender: Yes. It's just amazing how that remains true. Because you have four people who are moderate liberals who almost always stick together on issues of political importance and you have four people quite conservative, Alito and Roberts and Scalia and Thomas. And just as Kennedy usually sides with them, but he's the only one of those five who has any record of going over to the other side, chief justice Roberts I don't think once has voted with the liberals in a case where it meant any difference in the result and I think the same is true about Alito. So Kennedy is in all close cases, the question is what he is going to do.

Ted Simons: Is there any indication he's veering right or left or staying the course in the middle there?

Paul Bender: There's been some movement of him to the left in the last 10 years or something. Mostly in areas like gay rights. He's strong on free speech, but the rest of the court is also. So there isn't very much movement so it remains a very conservative court because he's very conservative.

Ted Simons: We just talked about S.B. 1070 and I don't want to spend too much more time on that. But do you think the court will hear the case?

Paul Bender: I think it's a toss-up. The first thing to understand is they're not going to hear it this year. They're finished hearing arguments this year and probably won't even decide whether or not to take it this year. Because if the state waits to the due date of their petition, which is I think July 11th, the court is recessed by then. Even if they filed a petition in two or three weeks, the court wouldn't have time to decide before they recessed at the end of June whether to take it. So almost certainly deciding in October whether they'll take the case and it's a close case. There's no conflict in the circuits. That reduces its importance but on the other hand, other states are beginning to pass laws something like this. Not exactly, so that could have some effect. I think it will turn on whether there are several people on the court who think the nine circuits are wrong. If several people think they're right I think they'll deny and let it stand. The only reason to take it if you have three or four people who think the ninth circuit is wrong. And that's questionable to have been right. Judge Noonan, who concurred in the result, is a very conservative judge, as conservative as those four, and he wrote a powerful opinion why 1070 is unconstitutional.

Ted Simons: You referred to this earlier. The tuition tax credit challenge. Didn't make it through the court. We've talked a lot about this, give us your thoughts on this and just the idea that the court -- your idea that government financing of religious activity, the court just didn't buy that.

Paul Bender: No, it's important to understand the court did not decide on the constitutionality of the Arizona tax credit system. They said that taxpayer plaintiffs did not have standing to challenge. Even though they have challenged things like that, I think Justice Kagan, she counted 16 times and the court never mentioned any problems about standing and that's the kind of objection the court should raise on its own. The court which has been trying to decrease federal jurisdiction in these cases said taxpayers can't challenge it, somebody else would have to and they didn't reach of the constitutionality. That's one of the three Arizona cases. The other two have not been decided yet and they're among the most important cases left. One is the constitutionality of Arizona's employment sanctions law that makes it a state civil offense to hire an illegal alien and the issue is whether that state statute is preempted by federal law. There's a federal statute that says states may not punish or penalize people for hiring illegal immigrants. Only the federal government can do that. It's a federal offense and wanted to keep the states out of it. Except states can use licensing laws or in licensing, they can use that as a factor and the question is whether the state here, which said you're going to lose your license, whether that's the kind of licensing law that is meant. So that can be a very narrow decision. It could be broad. The court could say broad things about states' roles in immigration. The other case that's there is the clean elections case and that's potentially very important. If the court were to write a broad opinion which would put in doubt government financing of election campaigns. We know there are three or four people on the court who would like to stop government financing of elections and leave it entirely to private money. This case doesn't directly raise that, but the possibility of the court holding on that ground. Otherwise, the case is about whether the state matching funds provision violates the first amendment and it's a hard argument to even follow because with the matching funds, it gives the clean election candidate extra money to do more speech if the clean election's candidate opponent exceeds what's the clean elections candidate spends. It's more speech, not less. And yet the court stopped the statute being used in the last November election here. You don't come along and stop a statute from being used when it's been upheld by the court below. There's a chance the court will rule it unconstitutional and it's hard for me to understand why because it doesn't interfere with free speech.

Ted Simons: We've had many debates on that issue on the show and what the other side will say that, it harms -- it puts a chilling effect on my speech and keeps me from doing something.

Paul Bender: Doesn't keep you --

Ted Simons: It keeps me from doing something if I want my message out there to the degree that you're not sending your message.

Paul Bender: The only thing that keeps you is that your opponent may speak.

Ted Simons: Yes.

Paul Bender: Is that unconstitutional?

Ted Simons: I want to present the argument --ant you.

Paul Bender: You don't want any competition.

Ted Simons: What I'm saying we'll have folks on the air, I decided not to spend -- not to spend money on the message because I knew it would help you too.

Paul Bender: It doesn't help the other side it, permits them to match your speech and one would think the first amendment would be in favor of more speech. Both sides equally represented so the messages get out and the election turns on not who can buy more television time, but the election turns on the merits of their arguments.

Ted Simons: We've -- I think we discussed this earlier, but I want your opinion again. Midterms update on the funeral -- the pastor there in Kansas.

Paul Bender: Right, that's an interesting case because it's symbolic of the really strong views the court has about the first amendment. A lot of people would have thought, hey, picturing the funeral of a dead soldier and saying things, the parents were sinful in letting them be in the army. That wouldn't be protected by the constitution. But the court said it was protected. On the other hand, the court did not say it was absolutely protected. They said the state cannot stop it with a state tort action for invasion of privacy because it's so vague and general, you can't tell what you can do and can't do. But they said, some states passed laws, specific laws, limiting picketing at funerals, saying you can't -- less than 100 feet away, and those laws might be valid and doesn't give the people the absolutely right. What it says is if the state wants to stop them, it has done it in a specific and clear way.

Ted Simons: A first amendment showdown there, isn't it? With the variety of angles going?

Paul Bender: Yeah.

Ted Simons: Video games. This is California.

Paul Bender: Another first amendment.

Ted Simons: Talk to us about that.

Paul Bender: That's an interesting case. It was argued a long time ago and the court still hasn't decided. That's a California statute which prohibits the sale or rental of violent video games to children. People under 18. And the question is whether that violates the first amendment and the ninth circuit said it doesn't and the court took the case. People might be surprised what's the first amendment have do with video games. But the ninth court held that video games are protected by the first amendment and the state was saying, look, if this is sexual material, the court has created a category of material -- sexual material for children which can be stopped for -- selling to children even though the material can constitutionally be protected in sale to adults. And California, you should do the same for violence. We should be able to prohibit them for children in the same way we're able to prohibit sexual stuff for children. The ninth circuit said no, that's wrong and that's the issue before the court. Whether they're going to carve out an exception to the first amendment for violent material for children the same as for sexual material and children.

Ted Simons: Does the state have to show a link between these games and harm?

Paul Bender: If they did, then they probably could do this. But they can't. And you can't possibly show that kind of thing. I mean, there were studies introduced but they can't show with the certainty you would need that there's a clear and present danger of harm. The state's argument was it affects the personality of the children. That is, it makes them more accepting of violence and stuff like that. A lot of it turns on whether you think children have the same first amendment rights as adults. A lot of people would say what's the harm in stopping children from seeing this stuff. But my guess, the Supreme Court, which is strong with the first amendment, will agree with the ninth. It's similar to a case, videos and movies of animal cruelty and there was a federal statute stopping that and the streak said that was unconstitutional.

Ted Simons: The CONNICK V. Thompson. A district attorney can be sued for not training workers correctly?

Paul Bender: A prosecutor in Louisiana deliberately railroaded a black man to get him convicted for murder and sentenced to death for a crime he was innocent of. It's too complicated to go into. But the prosecutor deliberately -- the constitution said he had to give the evidence to the defendant. He hid it. And this guy gets convicted and sentenced to death. He was one day or two of being executed and the prosecutor who did this has terminal cancer and confessed to another prosecutor what he had done and the friend, still a prosecutor, said nothing about it for five years while this guy is about to be executed. After he was exonerated by this evidence, because it was found, he sues the prosecutor's office for putting him had jail for I think it was 18 years, unconstitutionally, and the Supreme Court of the United States says, sorry, the prosecutors have immunity. Unless you can show they've -- they grossly didn't train their people -- even though the particular prosecutor deliberately did this, the Supreme Court says the victim cannot recover.

Ted Simons: Quickly, surprised?

Paul Bender: No, not at all, that's part of a trend -- a chain of you cases in the court. They're going do it again with John Ashcroft being sued for using the material witness statute unconstitutionally to put people in jail and the court will say you can't sue him either.

Ted Simons: Got to stop it there. Good to see you. There's it for now, you have a great evening.

Paul Bender:ASU Law Professor;

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