Supreme Court Midterm Review

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The United States Supreme Court has already decided several big cases that deal with affirmative action, prayer at city council meetings and campaign contributions. Arizona State University law professor Paul Bender will review cases already decided and cases still pending before the court adjourns.

Ted Simons: A mid-term look at the current U.S. Supreme Court session shows that several big cases have already been decided with a number of other notable cases still pending. ASU law professor Paul Bender is here to talk about what we've seen so far this go-around. Good to see you again.

Paul Bender: Nice to see you.

Ted Simons: Let's in general, thoughts on the term so far?

Paul Bender: You know, it's near the end of the term, because the term starts in October and ends at the end of June. But in fact the term is only about half over, because most of the important cases are decided near the end of the term. It looks like they'll decide about 75 cases, which is what they've been doing recently. They have about 30 more to go. And they tend to be the more important cases. But up until now, they have decided at least three cases that are quite important. And they're about five cases that are yet to be decided that are potentially very important. So this could end up being a really important term. There's no big blockbuster like the gay marriage case, but these as you'll see in a minute, the cases they've already decided have the potential at of really changing things.

Ted Simons: Let's start with affirmative action there in this case. This was a Michigan case?

Paul Bender: It's from Michigan, yeah. But it affects Arizona because we have exactly the same constitutional provision that was involved in the Michigan case. Michigan has a constitutional provision as does Arizona that prohibits the Universities, the state Universities from engaging in race conscious affirmative action. And the question is whether that -- The prohibition of affirmative action was constitutional. The lower court held narrowly that it violated the equal protection clause because it disadvantaged minorities because it was minorities who would be wanting to get these affirmative action programs. And anybody else could go to the University and say, hey, start an affirmative action program for athletes, alumni, children, flute players, whatever. They can go and the University is free to do that. But if a minority group goes and says we want an affirmative action program for members of our group, the state constitution prohibits the University from doing that. That was the basis of the lower court decision, was that -- And there was some previous Supreme Court cases that seemed to support the idea that if you make it harder for minorities to get something done on their behalf, then is true for other groups that that's unconstitutional. The court in this case said you're over reading those cases. They don't mean that. The only time it's bad to stop people from doing something to help minorities, if the minorities have been harmed in some way. But here, the court says the fact that there are very few minorities in the University, that's not legally causing harm, the university has a right to have an affirmative action program, but it doesn't have to. And therefore if the voters want to take over and say, well, the University can decide not to have it, so why can't the voters decide not to have it, they ought to be able to decide we don't want an affirmative action program.

Ted Simons: It seems like the bottom line there that the court is basically saying let the voters decide.

Paul Bender: Yeah, let the voters decide. Right. And so what that means is that any state would now be free to adopt the constitutional amendment prohibiting its universities from having affirmative action. And that could be a disaster for the diversity of American universities, because schools continue to use admissions generally use admissions formula for the general population, which have a discriminatory effect upon minorities. If you use like if our law school just used our usual criteria for admission, we'd have very few Hispanics, very few blacks, almost no American Indians. So if schools can't use affirmative action that would really change the face of higher education. And this authorizes states to adopt constitutional provisions that would stop that kind of affirmative action.

Ted Simons: Was this decision expected?

Paul Bender: Yes.

Ted Simons: Ok. No surprise there.

Paul Bender: No surprise at all. It was 5-4. But it was expected, yes.

Ted Simons: Ok. Another case decided involving starting government meetings with sectarian prayer. What's this about?

Paul Bender: Well, what it's about is a city council in New York started its city council meetings, and you know city council meetings are not like a legislature meeting, because the people come there and they make proposals, the city council does all kinds of things. So at the start of the meeting, with the city council people up in the front, but people in the audience who were getting ready to make presentations, they started with a prayer. And for about 10 years they only had Christian prayers. And some of them were really overtly sectarian. People making the sign of the cross, and invoking Jesus Christ. And the second circuit said you can have prayers, but you can't have prayers that are that consistently one religion, and that openly sectarian. And the Supreme Court took that case, which really surprised me, cause I thought what are they going to do with that? They're in a real fix, the Supreme Court. They can't really say that you can't start an official function with a prayer, because they start their official function with a prayer. Number one. And number two, because Congress has always done that. And because they healed state legislature could do that some years ago. On the other hand, it does seem to a lot of people, including the dissenters in this case, a little unseemly to have a governmental function started with a really strongly sectarian prayer. Let's ask our god, not your god, but our god for help in doing things. But the only way the court could deal with that would be to say, you can pray, but it has to be a bland prayer, or nonsectarian prayer. And I think Justice Kennedy correctly says that that's not a thing a court ought to be doing, is censoring prayers to make sure they are non-sectarian. But still you don't want to let them do anything at the beginning of a meeting. So he shifted it from saying what I think -- It from saying from what I think they warned him to say, that it has to be nonsectarian, to saying you can have a sectarian prayer but you can't have it be so strong that you seem to be proselytizing or you seem to be expressing a discriminatory attitude. If you do that, then that would be unconstitutional. So the courts still have to draw the line between permissible and nonpermissible prayers but they moved the line over toward the sectarian end of the scale.

Ted Simons: So ok because it's ceremonial, ok because it's a national tradition, but don't denigrate, don't proselytize.

Paul Bender: Yeah, I'm glad you said ceremonial, because Justice Kennedy in his opinion invented a new term for me, a ceremonial prayer. That seems to be an oxymoron.

Ted Simons: So basically this is -- You don't think this is over, we'll see more cases along these lines?

Paul Bender: Well you may. What you'll see is an outpouring, a lot of city councils were reluctant to start with prayers. Some had done it, they were challenged and they stopped. But I think this may give rise to a lot of places doing it, and if the prayers get really strong, then there will be litigation about it. But it really does change things in the country from a time when prayers at these kinds of meetings, government meetings, where the public participated, I think we're going out. People realize that's really not a good thing. It's one thing to have the legislature-- it's something where only legislators are there, if the legislatures wanted, and no one is complaining about it, who cares? But here people are coming to petition against the city council, arguing cases to the city council on a zoning variance, suppose you are a Muslim. And -- Or an orthodox Jew and the prayer is very strongly Catholic or Christian something like that. What are you supposed to do? They ask you to stand, the person giving the prayer says everybody stand. If you don't stand, and now you're about to argue the city council that you want something, and you are showing that our dissenter, that's very uncomfortable. So to me the right answer is they shouldn't be any prayers at all. But if there are going to be prayers I guess I favored the dissent saying, ok, if they get to be too sectarian, then the court should strike them down. It's vague, but at least it puts some break on it.

Ted Simons: All right. We also had a case, we discussed this on the program before, the McCutchen case, overall limits on campaign contributions struck down. You still got the caps on the donations to single candidates but the aggregate is now adios?

Paul Bender: The aggregate is now adios. And I think it's another step toward adiosing the individual caps. There are four people on the court who clearly don't like any restrictions on campaign financing. But Justice Kennedy up until now has been unwilling to go along with it. So they've been eating away at laws. In this case what they said was, it was a federal law that capped the total amount you could give to all candidates in all federal elections in a particular cycle. It was a lot of money. I think it was about $100, 000. But you couldn't give $100 million to all candidates. And the court said, no, that's unconstitutional. Because the only thing that justifies limiting campaign contributions is a quid pro quo exchange. That is, I'll give you a contribution if you do something for me. And this was not tailored to that. This just said that people could not give more than a certain amount of money to all the candidates all around country. And they said that doesn't turn on whether they're getting something back for it. The court says it's got to be direct. I'll give you this, you give me that. Therefore it wasn't corruption, that the states -- The federal government Sen titled to fight. So that opens up the possibility, it's really interesting, because people can say in Arizona, if you have a lot of money, you cannot only really influence elections in Arizona, you can influence elections in New York, in California, in Maryland. You can give your money anywhere you want. That seems to me to be people complain about citizens united, and that's a problem. But this in some ways seems to me to be even worse, because it is removed -- What you're having is people from one part of the country trying to influence elections in another part of the country, that is people in New York are going to influence what people in Iowa vote for for Congress? For the state legislature. That use of money to do that kind of thing strikes me as being a little bit against Democratic traditions.

Ted Simons: Quickly, was it unusual Justice Thomas wrote a separate opinion, he basically wants to get rid of all of the limits, and Justice Breyer read his dissenting opinion from the bench. Unusual?

Paul Bender: The first is not unusual. Justice Thomas has a lot of positions on constitutional issues that he is the only one who takes that position. And he's staunch about it. He's not going to change. Breyer reading his opinion in that case from the bench is a little bit unusual. He doesn't usually do that, he doesn't usually get that upset, but I think it's because he really thinks that this -- I think he sees what's coming. What's coming is removing all restrictions on campaign finance laws. So he sees coming that the court is going to open the floodgates completely to money dominating elections, and he thinks that's a bad idea.

Ted Simons: There are a number of pending cases, and we can't get to all of them, or even most of them, or even more then maybe one of them, but the one I think that seems to be interesting to you involves search and seizure and cell phones.

Paul Bender: Yeah. That's potentially a very big case. At the end of the term the court heard two cases that raise the question of whether when you get arrested for anything, going through a stop sign, or murder, it doesn't matter, whether if you have a cell phone on your person, the police are entitled to seize it without a warrant and to go through it, look at everything in it without a warrant. And the government is taking the position that they can do that. And I think the court -- It's really the first Time when the court has to face how the digital revolution affects the fourth amendment in a really important way. Because what the government says is if you have a bench bunch of papers on you they could look at those. All a cell phone is is a bunch of papers. You know maybe a million papers instead of five, but what's the difference. So that's going to be very interesting to see what the court does with that.

Ted Simons: What do you think the court is going to do with that?

Paul Bender: I think they will put some limits on police ability to look at anything on your cell phone. It's hard, because what they should want to say is you can look for the stuff that is related to the reason you arrested the person, but how do you do that with a cell phone? When you're look for one thing you're going find other things.

Ted Simons: Right, anyone on the list all of a sudden becomes part of the -- OK. Real quickly, there's one more I want to get to, and this one involves the President's recessed appointment power. Because it seems to me, this is a quietly very important case.

Paul Bender: It's potentially very important, yeah. The recess appointment power is an anomaly. It really doesn't make sense any more. It was put in the constitution at a time when Congress was -- Senate was in session for maybe three, four months of the year, then they would go away. And for six months they wouldn't be there. Well, the secretary of state leaves office, you don't want to say to the president he can't have another secretary of state so they gave him a recess appointment power. The recess appointment assist is one where the president can appoint without senate confirmation and the appointment last until the end of the next legislative session after the senate comes back, they can decide what to do. Well that's not true anymore. There are no real long recesses. And so what presidents have done is continued to use the recess appointment power because as you know, many presidential say nominees just don't vote on them so the President says okay I'll wait for you to leave on the weekend, and I'll appoint a recess appointment. And that's what's at issue in this case. Whether in the very brief recesses the president can make a recess appointment.

Ted Simons: Is there any hint how narrow or how broad they could decide that case?

Paul Bender: It could be very -- There's a whole spectrum of different decisions they could make. I don't think it was -- I listened to the argument I didn't see any indication of whether it's going to be broad or narrow. I'm not even sure what they're going to do about it. It's a real dilemma for them because it's -- The president has people he needs to appoint. Congress is not doing its job. Should the president have a way to get around that, that's the issue before the court.

Ted Simons: Very quickly, the concept of the filibuster, which the definition seems to have changed here in recent years, how does that factor in?

Paul Bender: The fact they've gotten rid of filibustering of judicial appointments I think has some effect upon this decision. Because that's -- That makes it harder for the senate to slow up those appointments. So that tends to support the side that would say the President cannot make these appointments. But this case is not involving judicial appointment. This case involves members of the national labor relations board and the senate wouldn't fill them for a long time. So the board didn't have any members. And you can stop an agency for doing something with that, so the president said, Ok, I can't let that happen, so I'll wait until they leave town for a couple days and I'll appoint somebody. That doesn't seem right either.

Ted Simons: All right, well lots of good stuff there and when the session ends we'll invite you back, because there's a lot more to talk about. Good to see you again.

Paul Bender:Law Professor, Arizona State University;

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