U.S. Supreme Court Midterm Review

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Arizona State University law professor Paul Bender will talk about the major cases already decided by the U.S. Supreme Court and preview the big cases left for the justices to decide.

TED SIMONS: Coming up next on "Arizona Horizon," it's our U.S. Supreme Court midterm review with Professor Paul Bender from Arizona State University O'Connor College of Law. A Supreme court review next on "Arizona Horizon."

VIDEO: "Arizona Horizon" is made possible by cons abuses from the Friends of Eight, members of your Arizona PBS station. Thank you.

TED SIMONS: Good evening, and welcome to "Arizona Horizon," I'm Ted Simons. Congresswoman Ann Kirkpatrick today announced her candidacy for John McCain's U.S. Senate seat. Kirkpatrick currently represents Arizona's 1st Congressional District. She says the economy will be a key issue in her campaign and add, while she respects John McCain's service, Arizonans should "have a real choice in who they send to the U.S. Senate." Here now with a midterm update of the bigger cases the High Court is considering is ASU law Professor Paul Bender.

Good to see you.

PAUL BENDER: Good to see you.

TED SIMONS: Thanks for stopping in.

PAUL BENDER: Even more to talk about next month.

TED SIMONS: I would imagine, yeah. Let's talk about the tenor of the session so far. Any surprises, anyone doing anything yet?

PAUL BENDER: They still have 25 cases left, more than a third of their caseload. Everything is backloaded and the most important cases tend to come down in June. They handed down three opinions today, but they were not important cases. I think it's too early. The cases we're going to talk about are really the ones that will establish what the tenor of the session is.

TED SIMONS: We can still say it's a Kennedy court?

PAUL BENDER: Until proven otherwise. Every once in a while Chief Justice Roberts makes noises as if he might turn into a swing vote, but they are just noises. He doesn't really continue in that direction. But he could at any time, any one of these cases which would divide 5 to 4. The one time he sided with the liberals to change the result is the Obamacare case. He hasn't done it since.

TED SIMONS: We talked about Representative Kirkpatrick deciding to run for Senate, something she's doing because she anticipates the U.S. Supreme Court coming down on one side of the Arizona Legislature as far as redistricting. In other words, they are not going to draw a nice map for her next time around.

PAUL BENDER: It's a really interesting case. As you know, the people of Arizona decided to take the districting of both the state legislature and the congressional seats away from the legislature and put them in the hands of an Independent Redistricting Commission, which is not elected, it's appointed through a merit selection process really. It's two Republicans, two Democrats and one Independent as the tie-breaker. The first time they redistricted nobody seemed to think there was a problem with what they did with the congressional districts. There's a new commission each 10 years. The second time they came up with three really competitive districts and Democrats won all three of them. The Democrats had five of the seats and Republicans only four. The only thing involved in the case is the congressional seats. Nobody is challenging and they can't challenge the fact that the commission I think will continue to do the state legislative districts. But they found something in the U.S. Constitution -- can't be the Arizona Constitution because the Independent Redistricting Commission is in the Arizona Constitution -- but they say the times, places and manner of holding elections for senators and Representatives shall be proscribed in each state by the legislature thereof.

Legislator says hey, we're the legislature and so the Independent Redistricting Commission has no right to proscribe the districts for Congress." And that's what this case is about. And if you take a straight literal interpretation, it says legislature, that's the legislature. That is not as clear as it might seem. I'm hoping it's not as clear as the Supreme Court might construe it. In Arizona the legislature is really the people. Because the people have -- the Arizona Constitution says the people can veto anything the legislature does through referenda. The people can pass any law they want and the Constitution goes out of its way to say the people can do that despite what the legislature wants. The legislature in Arizona really should mean the people.

TED SIMONS: Why doesn't it say the people?

PAUL BENDER: In those times we were talking about 13 states, the original constitution. There were no referenda and initiatives in the original colonies. The legislature in those states was the only legislative authority. But in the west as time went on, we have more and more of this direct democracy. California has it, we have it, California and Oregon have it. They all filed an amicus brief telling the Supreme Court, in these states you have to give the people the ultimate power. That's really the issue before the Supreme Court. It's whether they are going to read this legislature to say the formal legislature, or whether they can read it to say the people or whoever in that state as the legislative power. And if that's the question, then the answer is in Arizona it's the people, and the people adopted the commission.

TED SIMONS: And yet most folks, and I think you're included here, you don't think they are going to take that.

PAUL BENDER: My guess is they would do what I consider to be the wrong thing. You can't think of -- at least I can't think of a reason why anybody who drafted the original constitution would want to stop the people of a state from saying, we don't want our legislature to redistrict. The first thing they do is protect themselves. Every incumbent has a safe seat. The second thing they do is to gerrymander the thing for whatever party is in power. The other thing they do in Arizona is not to have competitive districts, there are all these safe seats.

TED SIMONS: If the people of the state wanted to change that and make it different, less political, more neutral, why would anybody writing the federal constitution not want them to win?

PAUL BENDER: They will probably, I would assume, go into special session over the summer or maybe in the fall. I don't know if they will wait to January. The election is coming in 2016. The legislature, if the Supreme Court gives them the right to draw the districts I think would want to draw the districts to make sure they are in place in the between congressional election. The committee has something to do with Representative Kirkpatrick deciding to get out of that district. But the legislature could have a special session and pass a new redistricting plan which would probably favor Republicans, because that's what they do. That doesn't mean that that is going to be used in 2016 or even 2018 or 2020. If the legislature does that, the people in Arizona, remember, have the last word. The legislature can only stop a referendum if it has a two thirds vote. They are not going to pass a redistricting plan by a two thirds vote. So anybody could get referendum petitions to put what the legislature does on hold. That would mean the present districts would stay at least through 2016. If they get enough signatures, the people would have a chance to decide whether they want to adopt the legislature's thing or whether they wanted to go back to what -- the Independent Redistricting Commission.

TED SIMONS: And that would get around this case should the court side with the legislature? Because again, Article I, section 4, whatever it is in there, it's saying the legislature has to do this.

PAUL BENDER: But in Arizona the people can undo anything the legislature does. And the Supreme Court is not going to quarrel with that. If the legislature pass as new districting, and if enough people sign referendum petitions, that'll put what the legislature does on hold until the 2016 election.

TED SIMONS: Political races will be running in circles.

PAUL BENDER: The legislature may start to fight with itself. You've got to know what the districts are in time to decide where you're going to run or move so you can live in a district that you can win in. Yeah, that's going to have a big effect on Arizona if the court does what most people think it's going to do.

TED SIMONS: We've got to keep it moving here. Next thing is king-burwell, the Obamacare case. Talk to me about that.

PAUL BENDER: That's really important. It's a question of whether you read the words of the statute. It's not a constitutional case -- without thinking about what the words really mean. The Obamacare statute set up the -- the way Obamacare is trying to achieve its intended result is getting as many people covered by health insurance as possible, there are several different things they do. One is to expand Medicaid so more people are covered by that. The other one is to make it easier for people to buy health insurance from private companies on their own. It permits states to set up health care exchanges in the state. If you -- you buy on the exchange you're supposed to get a good price and the statute says if you can't afford it, then you buy on an exchange, the federal government will subsidize you. There's a lot of money in those subsidies. Everybody, I think everybody in Congress probably assumed that all states would set up their own exchanges. But that hasn't happened. I think only 16 or so states, most states have not set up their own and Arizona has not. The Obamacare statute, which it talks about subsidies, it says subsidies go to people who get their insurance on a state exchange. The people who brought the lawsuit are saying in those states like Arizona that don't have a state exchange -- they have a federal exchange, the statute says if the state doesn't want to do it, the federal government will do it instead. The argument is, that's not a state exchange. So the states that have not established their own exchange would lose all those federal subsidies for the people who are now getting them in order to get them to be able to have health insurance. If that happens, and Arizona persisted in not having its own exchange, we would lose an enormous amount of federal money. A lot of people would lose their health insurance, rates would go up, it would be a disaster.

TED SIMONS: You mentioned if Arizona does not establish its own state exchange. Isn't it in the Constitution now that we can't establish --

PAUL BENDER: Yes, it is.

TED SIMSON: So that's -- that's ballgame, out the window.

PAUL BENDER: I'm not sure that constitutional provision is constitutional, because federal law is supreme. If federal law says a state can establish an exchange, I'm not sure the state has a right to disable itself from what the federal government wants to give it the power to do. But that could be possible and then Arizona would be stuck with not getting any federal subsidies for these people. The people are either going to go without health insurance or they will have to spend an enormous amount of money on it. A lot of people will become uninsured. A lot of money will not come into Arizona. It'll cost the state a fortune to take care of those people and rates will go up. If you narrow the people who are insured, the base of the insurance scheme gets smaller, rates tend to go up. It would really be a very, very disastrous thing for Arizona.

TED SIMONS: What do you see the court doing in this case?

PAUL BENDER: Again, I think in this one I'm going to guess that they will hold that a federal exchange is a state exchange for purposes of that provision. Because what the federal government is doing is substituting for the State. That's the argument that's being made. When the federal government -- it really is the state exchange, just the state exchange the state decided not to do. So the federal government will do it for the state. That's the argument that the court could adopt. And my guess is that they will, because I think it'll dawn on them finally, even if they don't like Obamacare like Justice Kennedy, he voted against it, but he has to realize that this would really destroy the system. It would make it make no sense at all. And that I would think would make him think twice about doing that. Because it's clear that Congress intended these subsidies to be -- that was one of the main ways that Congress was going to get more people covered. If you you couldn't afford it we will subsidize you depending on your income. If Congress intended that why would they only want to do that in states that decided to set up their own exchange? Why wouldn't they want to do that in the entire country? Unless you can come up with a good reason why I would think the right thing to do is to say an exchange is a state exchange.

TED SIMONS: Are we overlapping into states rights arguments there?

PAUL BENDER: Oh, yeah, sure, yeah.

TED SIMONS: That may be one of the items. We've talked about this before, same-sex marriage, four cases wrapped into one, whatever here. Where are we with this and what do you expect?

PAUL BENDER: Where are we is it's been argued. At this time I assume they are going to decide it. Last time they got out of it, they had the California case and decided they didn't have jurisdiction. But in this case I think they will have to decide it. Every federal court but one, that is considered the issue since the Supreme Court decided the federal Defense of Marriage Act is unconstitutional has held there's a constitutional right for same-sex marriage, you can have marriage restricted only to hetero sexual couples, you can't do that. Marriage is between one man and won woman, if the Supreme Court would hold that to be unconstitutional to prevent gay couples from marrying, we would have gay marriage in Arizona and every other state. I think that's the likely thing to happen. Because a couple of reasons. One, the court had a chance to take this issue and didn't. And in not taking it, it let gay marriage go into effect in several states and many thousands of people in those states have gotten married, gay couples have gotten married. Then the court decides to take the case after they let that happen. I think it's very unlikely, having let gay couples marry, to turn around and say sorry, we didn't tell you that. But when you got married you didn't have the constitutional right to do that. I think the court would be really reluctant to do that.

TED SIMONS: Broad, narrow ruling? What do you see here?

PAUL BENDER: I don't see any way to do a narrow ruling in that. There are two issues. The second issue is if the court should decide there is no right to gay marriage that, states do not have to have it, what should map when one state has it and people married in that state move to another state like Arizona that doesn't have it? The court could decide, that's the only compromise I can see. If a state lets you Mary, same-sex marriage marriage, that would be a nightmare.

TED SIMONS: Would this likely be the landmark ruling of the session?

PAUL BENDER: I think most people would think it is. In terms of practical importance, whatever the court does about gay marriage, in 15 or 20 years virtually every state will have gay marriage clearly the way things are going. I don't think it's nearly as important as, say, the Obamacare case. If the court does what the plaintiffs want it to do, it would destroy efforts to get everybody covered by insurance, something that's been working. I think it could destroy it for a long period of time.

TED SIMONS: Something working for some but others say it was unconstitutional from the beginning.

PAUL BENDER: People are getting insured, it's working in that sense.

TED SIMONS: A lot of these things involving Arizona one way or nerd. The lethal injection case, where do we stand on that?

PAUL BENDER: There a case is not from Arizona but it's as if it were, it's from Oklahoma. The state that retained the death penalty all use I think the same cocktail of drugs to inject. It seemed to work well. But the first of those drugs, intended to render you unconscious so you can't feel the enormous pain you would feel if you weren't rendered unconscious when they put the second or third drug in, to stop your heart and stop you from breathing, the drug everybody was using to render you unconscious became unavailable. The people who made it didn't want to sell to it states that wanted to use it to help kill people. States had to find another drug A number of states, Arizona included, found this drug which Oklahoma uses. The first time they tried to use it, it was a disaster. It took a long time for the person to die and that even happened in Arizona, I think. 16 or so people on death row in Oklahoma brought a suit saying it's cruel and unusual punishment. There's a good chance -- Justice Kagan at the oral arguments said it would be like being burned alive. It's a real problem, how will you ever find out? What happens to these people? If they are rendered so that they can't -- they are applies sod they can't talk, they could suffer enormous main, you'd never know it and then they will die. On the surface of it they could look perfectly calm. The plaintiffs are saying until you're sure that the drug your using is going work you can't use it.

TED SIMONS: That's what they are saying?

PAUL BENDER: That's what they are saying.

TED SIMONS: What happens if the court says this doesn't cut it, you have to find new ways of putting people to death. What is the result of this?

PAUL BENDER: If the Court would say that the plaintiffs are right, you can't use that drug, the inmates are right, that you can't use that drug unless you can prove it's going to be effective in rendering you unconscious, then the states would be in a very bad situation, those that want the death penalty. They will have to find something else to do. They have tried and haven't found another drug. Some might go back to the firing squad. Some might go back to the electric chair. So the court's decision in that case, if it were to decide that these people have a good case and that it might be cruel and unusual punishment, that would have the chance of maybe starting the death penalty debate anew again and getting some states to change what they do.

TED SIMONS: With that in mind again, broad or narrow ruling?

PAUL BENDER: That one I think is somewhat like the gay marriage case, they are not going to say hey, we shouldn't have done that. Here they were asked to stay all of the executions of people in Oklahoma. The first person who was going to be executed asked for a stay of his execution. They denied it, he was executed. He was raising exactly the same point these people are raising. If they denied it for him they were really not prepared to stop the other executions. My guess is they will let the states ton use that drug unless somebody can prove that it clearly is an unsatisfactory drug and people will suffer enormous pain.

TED SIMONS: In the town of Gilbert, this street sign ordinance deal regarding First Amendment, religious issues, the whole nine yards.

PAUL BENDER: It's very interesting theoretically, I don't think it's all that interesting practically. Can a city constitutionally have different rules for political signs, different from the rules it has for event signs. What's at issue here is a small church, they don't have their own church building, they do it in schools on Sundays. They rent them and have their services here. They advertise where it is and they put up a sign. The Gilbert ordinance says event announcement signs can only be like two feet square and you can only put them up 12 hours before the event. You've got take them down an hour after the event. Political signs like vote for me for Congress can go up months before the election and can stay for a long I'm afterwards and can be 20 feet wide rather than just a foot wide. The church people are saying that's unconstitutional. You're treating two different signs differently, based on the content. And that raises what is really been a problem in the First Amendment for year. Content discrimination is not constitutional unless you have an overpowering reason. The question in the case is, if you treat event announcement signs differently from political campaign signs is that a content discrimination?

TED SIMONS: Can it be argued that the political signs are an event until election day?

PAUL BENDER: I think that's why they let those signs stay up for a long time. If you're announcing a Sunday service, it doesn't make sense to leave that sign up any longer than after the service. I'm sure the city has good reasons for doing this. If it's treated as content discrimination, the city has to come up with more than a good reason, they have to come up with a really good reason.

TED SIMONS: Could the church says every Sunday from now until December 25th, and it has to stay up there because the event is the biggie on December 25th.

PAUL BENDER: They could try to do that, I don't know if they could get away with it as political sign not an event sign.

TED SIMONS: This was argued way back in January.

PAUL BENDER: It's the third oldest case the Court has. What's going on there? I think it's so complicated from the First Amendment perspective, and the Court has -- pardon me to being disrespectful but the Court has really messed up that area. It's virtually incomprehensible what they have done and they are having trouble figuring it out. Very possibly somebody doesn't know what side he or she is going come out on. It's going to be a really fractured decision, there may not be an opinion of the court. Without an opinion of the court you don't know what the anxious is. It seems to meet court's gone off on the wrong track here by making things turn on whether the content discrimination. That's not what should be important for the First Amendment. What should be important, if there's a viewpoint discrimination. If we treat you better than we treat me because we like your message and we don't like my message, that's really a no-no under the first amendment. But if you treat political signs different from event signs or I'd logical signs which just say about an ideology rather than a candidate, what's so dangerous about that? That's not taking sides in a debate. It's not censoring anybody's views. I would approach it not in terms of content discrimination but viewpoint discrimination. The court has not done that.

TED SIMONS: Of these cases which do you see decided the quickest, the earliest?

PAUL BENDER: They all could be decided last day of the term.

TED SIMONS: Or they could be tomorrow.

PAUL BENDER: Next week they could be. I would think the gay marriage case is going to be at the very end of the term. And I would think the Obamacare case will be at the very end of the term.

TED SIMONS: Two biggies.


TED SIMONS: All right, great stuff, thank you for being here.

TED SIMONS: Wednesday on "Arizona Horizon" we will take a closer look at Representative Ann Kirkpatrick's decision to frown John McCain's U.S. Senate seat. And we'll hear about efforts to improve teaching skills through professional development. On the next "Arizona Horizon." That is it for now, I'm TED SIMONS. Thank you so much for joining us. You have a great evening.

Paul Bender : Arizona State University Law Professor

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