U.S. Supreme Court Preview

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ASU Law Professor Paul Bender provides a preview of key cases the High Court will consider during its 2011-2012 term.

Ted Simons: The United States Supreme Court began its new session this week. There are a number of blockbuster cases the court is expected to hear, including Arizona's S.B. 1070 and President Obama's healthcare reform law. Here to talk about those cases and more is Arizona State University law professor Paul Bender. It's always good to see you, always love these kinds of shows. I just mentioned here, they're not even on the docket?

Paul Bender: Well they are on the docket, in a sense. Petitions have been filed in these cases. Like the S.B. 1070 case from Arizona, the state has petitioned and the "Obama care", the Affordable Care Case, petitioned by both sides but those are still pending. The court hasn't granted them yet. The court will certainly grant the one about the affordable healthcare act because we have three Court of Appeals decisions and they're in conflict and it's a federal statute and the question of whether it's constitutional or not. The question is when will it be granted and argued. I would think the grant will probably come in November, or even in December, it would still be in time to be argued this term. Then it would be argued in March or April and decided by the end of June, because the court has a practice it's followed for almost 100 years of deciding every case that's argued before they recess for the summer. So unless the court for some unusual reason, sometimes it does it, very rarely, decides to put it over for re-arguement, then the court will decide. That does not mean that the court is going to decide whether the legislation is constitutional or not. Because there are several ways or several problems in the case that could lead the court to say they don't -- they're not going to decide it at this time.

Ted Simons: Interesting. I want to get to get to that case in a second. But that sounds like it's smack dab in the middle of the election seasons and campaigns.

Paul Bender: It does.

Ted Simons: How much are the elections going to impact, they shouldn't, but how much will they?

Paul Bender: I don't think they'll impact them at all. It's interesting, I would think it's almost certain how eight of the nine justices are going to vote on that case. If they get to the constitutionality of the legislation. If they decide not to get to it, it could be a bigger majority than that. The only vote that's really in doubt, I think, is Justice Kennedy's.

Ted Simons: It's still a Kennedy court, isn't it?

Paul Bender: Yes. Absolutely.

Ted Simons: I don't know how long we've had you on this program, but it's always been a Kennedy court.

Paul Bender: Well, no, for a while, maybe it was before you started doing the program, but it was an O'Connor and Kennedy court.

Ted Simons: There we go. There we go.

Paul Bender: But since O'Connor has left, the court has really hardened. Because it was O'Connor and Kennedy and three people on the right and four people on the left, but O'Connor was replaced by Alito, who is probably the most conservative person on the court, even more so than Justice Thomas or Justice Scalia. So you have four solid conservatives on one side and four moderately liberal but on these issues they are far apart from the conservatives and case after case after case, it's Justice Kennedy who decides the case.

Ted Simons: Let's get to these cases. We know that the court will take up or likely take up and it seems like, correct me if I'm wrong here, the extent of federal government power plays into a lot of the bigger cases.

Paul Bender: It could be, you could call this a federalism term. The two cases they haven't taken yet but which we think they might take, one the healthcare case and the other, the 1070 case, both involve federalism, the relationship between the federal government and the states.

Ted Simons: Talk about 1070. Why wasn't the Ninth Circuit opinion enough?

Helen Purcell: When you lose, you rarely think it's enough and the state wants to overturn it because the Ninth Circuit held that critical parts of 1070, the central provisions, are unconstitutional and the state wants to get that overturned.

Ted Simons: Not so much coming from the state's perspective, but why wouldn't the Supreme Court say that particular decision is enough and there's no reason for us to take this.

Helen Purcell: They may very well do that. Because there's no conflicts in the circuits now. It's just one state statute. There are other states like Alabama and I think Utah and Georgia, have passed similar statutes but they're all different. So this case isn't of national importance. The court may wait for the other cases to reach the court of appeals level and if there's a conflict between them, then they might take the case. I think there's a significant chance that the court will not take that case because it's only one court of appeals decision and it's a peculiar Arizona statute and there are other statutes in the pipeline and they may just wait to see whether -- if the courts of appeals agree completely, they may never take it.

Ted Simons: The Ninth Circuit was saying that the Arizona law, you can't make laws that are inconsistent with the will of congress and isn't that basically what the Ninth was saying?

Paul Bender: Well, it's a little bit more specific. That's clear everybody knows that. States cannot do something inconsistent with congress. The question is whether the Arizona law is inconsistent with what congress has done. The federal government brought this lawsuit and said it's inconsistent with the way we want to run our immigration policy and we want you to strike it down. That's a powerful argument for the court to disregard because you have immigration, everybody knows is primarily a federal subject. If the federal government wants to regulate it, it's up to them. So if they come in and say we don't like this state statute because it affects our immigration enforcement, it would be awfully hard I think, not impossible, for the court to disregard. The Ninth Circuit did not. The other thing I think that might affect the court in not taking it, one of the judges who agreed with the Ninth Circuit, Judge Noonan, is a very conservative judge and wrote a powerful opinion about why 1070 is unconstitutional and the court might feel that they don't want to take it and disagree with him.

Ted Simons: If they take it up, is it another 4-4-1 with Kennedy?

Paul Bender: Probably.

Ted Simons: What do you think he'll do?

Paul Bender: In this case? If they do take it up I have no idea.

Ted Simons: Interesting.

Paul Bender: That's my problem, in most of these cases I have no idea.

Ted Simons: Let's talk about the Affordable Healthcare Act. It sounds to me again like another 4-4-1 thing.

Paul Bender: It's interesting, if you apply existing law, there's no question that the statute is constitutional. Because healthcare is a national problem. The healthcare market is a national market. Having people get healthcare insurance is in the national interest, both as a matter of regulating commerce because the health of people affects commerce, and also recruiting an army and educating a public, all of these turn on whether the public is healthy. If the question -- if you look at the precedence, congress can regulate something that regulates interstate commerce and other federal interests, they can do this. What congress has done is said that everyone has to buy health insurance, the reason for doing that if everyone doesn't, some may wait to buy it. Because congress wants to pass something that you can't deny insurance because of preexisting conditions so smart people like you seeing that, I'll not get health insurance, I'll wait until I get sick. If people did that, the whole system would collapse, the rates go up. And it's important -- congress has chosen a way do that that strikes people as unusual. To require everyone to buy an insurance policy. We're used to that with states and automobile -- the requirement that you have insurance, but it's a voluntary thing. But here, the argument is if you're alive you have to buy a insurance policy and there must be something wrong with that and I think that's the main reason why the court might -- why the court -- those on -- will say it's because you can't force people do that.

Ted Simons: So not quite sure where Kennedy would go on this one?

Paul Bender: No, it's hard. He normally joins with the conservatives on this kind of issue. And on the other hand, he has a great respect for the federal system and I think he understands that under normal approaches to the federal system, this is really a federal problem and the federal government has to do it, unless nobody can and so if I had to guess, I would guess he would go with the liberals and oppose the legislation.

Ted Simons: If you had to guess, a narrow decision or broad?

Paul Bender: Well, if I had to guess, they might not even come to the decision. They may hold as I was saying it's not -- it doesn't go into effect until 2014. So why would the court now want to decide whether it's constitutional or not? You don't have 0 make a decision now -- have to make a decision, you can wait until then. It may be that nobody will decide not to get health insurance. Things might change between now and then. The court could say, we'll wait and see what happens. Another problem is that a couple of these suits brought by states, like the Virginia suit, where is the state standing to challenge something that a federal government tells you as an individual you have to do something. What states have tried to do and Arizona has done this, pass a statute saying you can't make any of our citizens buy health insurance. But that's not going to give them standing. They have no right to disagree with the federal law. I think the first question is whether the court will want to decide the case. It's hard to predict. Will the upcoming election affect the court's view of that? I would guess not, even though some will think what it's going to do to the election. They're non-political animals. But can you predict various decisions will do to the election? I think it's a significant possibility they'll take it and say that it's not just -- wipe out the decisions below and wait until the thing goes into effect. But if they do, we'll have a very interesting and very important ruling on the constitutional system.

Ted Simons: We have an issue regarding the FCC, the federal government policing the airwaves with the FCC versus fox. There were profanities and maybe a bare rear end. What's going on here?

Paul Bender: The FCC, for years -- this case has been through the courts at least once before. For years has been trying to clear the airwaves of indecent speech. They first did it in the George Carlin case. Here are the seven things you can't do on television and he said them. And the FCC said, no, you can't say them and the Supreme Court upheld their right to do that. Banning those words during prime time hours. When children might be watching and after that, the FCC stuck to those words. Later, 10-15 years ago, the FCC tried to broaden that and say, anything we think is indecent, the problem is what's indecent? And even if you know, how do you stop people from saying it? One case under investigation is a Notre Dame football player interviewed after a game where they beat Pittsburgh, said, Wow that -- and using a four-letter word. How do you stop someone from doing that in live television? A lot of these cases happen in awards presentations where people, they win, they forget that. And it's very hard to do. We can't -- it's interesting, it's very hard for us to talk about this case, because if I were now to mention the words involved, this station might get fined for that. You can't tell whether I can do it or not. I suppose I can because this is a news program, but the FCC's decisions have been all over the lot. The second circuit I think it was held that the FCC's policies are unconstitutional because it's vague. You couldn't tell what it meant. All of this says it indecent and you've been enforcing it in an inconsistent way but how do you get a clear policy. You can't say these words. That sounds silly, number one. And number two, people come up with other words.

Ted Simons: What is the court likely to do, or should I ask, what is Kennedy likely to do?

Paul Bender: That one could split. I don't know what the court is going to do. My guess is that the court would agree it's unconstitutionally vague and hope that the FCC would decide to cut it out and stop trying to do the impossible. How in the world can you have a television system which covers current events and current culture and stop it from having word that's people currently use, not just French people but all kinds of people.

Ted Simons: The FCC say they have to protect all kinds of people, especially kids.

Paul Bender: The easy answer that the court could give, there are parental control chips now that have to be in all television set; and you can always turn off the set or not tune into the channels that have this stuff and so, this kind of thing is unnecessary. The FCC has been trying to figure this out for 25 years, and still hasn't figured out a constitutional way to do it, so maybe it's time to stop.

Ted Simons: We have a fourth amendment case regarding the power to track a suspect. Some sort of tracking device without a warrant.

Paul Bender: There are two very interesting fourth amendment cases. One is what you mentioned. The question is whether it's constitutional for police to put a GPS device on your car without your knowledge and without a warrant so they can track all of your movements. They did it in somebody they suspected of dealing in drugs and used the evidence of his movements over a period of time to show he was a member of a conspiracy and didn't have a warrant and the question is that an unreasonable search. Something you should get a warrant for. And that's an interesting and hard case because probably and I think it's pretty clear, that the court would hold it's not unconstitutional for the police to follow you wherever you go by having actual people follow you. If that's ok, why can't they do it by a mechanical device. What the court said in that case, I think the D.C. circuit, says there's a difference. It's true your movements are public in a sense, but the public doesn't know all of your movements.
Ted Simons: Right.

Paul Bender: And so putting them all together is --

Ted Simons: 24/7, For a extended period of time.

Paul Bender: Even though each individual movement is public, when you put them all together, that gives information about you that ought to be private. It will be interesting -- predicts, that one I would predict that the court will say it's constitutional to do that.

Ted Simons: What about the other fourth amendment case?

Paul Bender: Whether you can routinely always strip search everyone who you arrest and bring them to jail no matter what you arrest them for. This case involved a person who didn't pay his parking tickets and there was a warrant out. They subjected him to a very, very intensive strip search. Made him take off his clothes and bend over and lift up his genitals and made him take a shower. They do that to everybody and the question is whether that's an constitutional thing to do. And the court held it was constitutional to strip search and do a body cavity search of every prisoner who had a contact visitor after the contact. The same thing could happen here, you could get arrested and have a bomb inside of you. The argument the other way, look, of course, if you're arrested for a petty crime, what's the chance of someone arrested for having a dog off a leash is going to come into jail with contraband.

Ted Simons: Isn't one of the arguments that the states are using here, is that folks get arrested for minor offenses just to smuggle contraband into jail?

Paul Bender: That's possible, but first, you have to get arrested and taken to the right jail and if the courts held this unconstitutional, it wouldn't mean they could never strip search you if they had any cause, reasonable suspicion, but in this case, they do it for everybody regardless who they are, how old, and what offense, that strikes me and think it will strike some, maybe a majority of the court, as being too intrusive. The fourth amendment is individual rights area where the court has had sensitivity. Justice Scalia cared about it. Justice Kennedy cared.

Ted Simons: Last question -- one of the bigger terms?

Paul Bender: If they take the healthcare act and decide the constitutionality. It could be. Otherwise, there's really nothing other than that and maybe the 1070 case if they take it. That's really explosively important. Frankly, we talked about all of the interesting cases on the court.

Ted Simons: That's good. We wanted to get your idea where it goes. Things like gay rights and the university of Texas, the admissions standards?

Paul Bender: They might take the university of Texas thing. I don't know if they'll take it in time to hear it this term. They heard a case involving religion rights the other day and an Arizona case the other day which is somewhat interesting.

Ted Simons: We've got to stop it there. Good to see you.

Paul Bender: Good to see you, Ted.

Ted Simons: That's it for now. I'm Ted Simons. Thanks for joining us, you have a great evening!

Paul Bender:ASU Law Professor;

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