United States Supreme Court Review

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Arizona State University Paul Bender will review the major United States Supreme Court cases decided this past session, including the historic ruling on same-sex marriage.

TED SIMONS: Coming up next on "Arizona Horizon," our annual Supreme Court review. We'll look at the bigger cases in one of the most consequential sessions in recent years. A Supreme Court review, next, on "Arizona Horizon." ¶¶ ¶¶

VIDEO: "Arizona Horizon" is made possible by contributions 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. The U.S. Supreme Court ruled on a number of major cases this session, including several that directly impacted Arizona. Here now to help us make sense of the high-court's decisions is ASU law professor Paul Bender. Good to have you back, Paul. Always enjoy the show. From top to bottom.

PAUL BENDER: You need to go to law school.


PAUL BENDER: You would love it.

TED SIMONS: I probably would like it.

PAUL BENDER: You would, all seriousness.

TED SIMONS: We talked and we've had you here every year, and it's a Kennedy court this and Kennedy court that, is it still a Kennedy court?

PAUL BENDER: It is still a Kennedy court, but the important thing is that Kennedy is moving to the left, so far as we can tell from this term. This term was remarkable in the number of cases, important cases that came out on the liberal side and the very few that came out on the conservative side. One way to tell that is to see who's in the majority the most. Kennedy for years has always been in the majority more than anybody else. This year it was Breyer, was in the majority the most, and Sotomayor who was in the majority second most, and Ginsburg was fourth most and Kagan was fifth most. Kennedy was in the middle there. Those five were in the majority more than any conservative. That shows you how things shifted this year.

TED SIMONS: Is that the court shifting? Is that certain justices shifting or are those -- is that case specific?

PAUL BENDER: I think it may be to some extent case specific but it's not justices shifting. It's Kennedy shifting. If Kennedy's court -- when he changes his mind about something, the court changes its mind about something. And he did that, usually for years I remember, in 5-4 cases where you know, the conservative block and a liberal block, now Kennedy was in the middle. He would sometimes go with the liberals but at least twice as often he would go with conservatives in 5-4 cases. Last year, he went with the liberals twice as often as he went with the conservatives -- That gives you some sense of what's going on. And some of them are really important cases. Gay marriage is one case. The Arizona redistricting case. A lot of people thought that was going to come out the other way.

TED SIMONS: Chief Justice Roberts, we've talked about this before, his idea of the court as being special, as not being partisan and these sorts of things. Is he -- has he changed? What's going on with him?

PAUL BENDER: Well, I don't see him as somebody who's trying to be nonpartisan, because a lot of his opinions are really partisan. Citizens united was a really partisan decision. Kennedy wrote that but he was in the majority. He has not succeeded in bringing the court together at all. The court's not together. It's not as though the liberal and conservatives are reaching some kind of compromises. It's Kennedy who's more often voting with the liberals. In all these 5-4 cases. The gay marriage case -- the Arizona case, the redistricting case, a couple of First Amendment cases, the Obamacare case Kennedy voted with the liberals, so did Roberts. But Roberts's vote was unnecessary. And that's also a change for him because the last Obamacare case he voted on the other side.

TED SIMONS: Indeed. One more justice before we get to the cases now. It seems as though justice Antonin Scalia, we've talked about these cases on the show and we quote from him usually in dissent because is he getting increasingly bombastic?

PAUL BENDER: I wouldn't say increasingly, not less. Maybe a little bit more. But the thing that he's always been that way, and I think it's a self-destructive thing. But he's really mad this year because he's losing case after case after case and he does not take losing very well at all because if you disagree with him, you have no mind, you don't understand the American system, he doesn't know how to disagree with you in a mild way.

TED SIMONS: He's used to jiggery-pokery, pure applesauce, some of this stuff has been very strong.

Well, that's not new, although maybe there's more of it, like I just wrote down some things from his opinions today, he'll say the majority opinion is quite absurd. Outrageously wrong, utterly devoid of textual support. Now, when these are your colleagues, these are the people you're sitting with on these cases all the time and you're saying you're utterly devoid of substance in your views, that is not going to get you any adherence, and I think what's happened to Scalia is maybe when he came on the court, he expected to lead a kind of conservative revolution. Renquist was doing that to some extent but he's been completely a failure at that because he doesn't persuade anybody because he doesn't speak in ways that persuade people. He's just so mad and so bombastic that I think if anything he drives people away from his position.

TED SIMONS: He still gets along with Ginsburg famously, though, correct?

PAUL BENDER: Scalia does. Personally, I think the personal relationships are fine. I don't think there's any bad personal relationships on the court. I don't think he's like that in person.

TED SIMONS: Let's get to the cases and there's so many. Let's touch back here on congressional redistricting, the question of whether or not the Arizona dependent redistricting commission has the authority to redraw maps and the court said yeah.

PAUL BENDER: But only -- the only maps that were at issue in that case were the congressional district maps. There was no challenge and there can't be any challenge to the redistricting commission's power to draw state legislative maps because that's in the Arizona Constitution, and there's nothing in the U.S. Constitution which talks about it but there is something in the U.S. Constitution about who draws maps for federal elections and it says it should be done by the legislature of the state and the state legislature, after the second round of redistricting, and they didn't like what happened to the congressional districts because right after that election, the second election after that, I think there were five Democrats on the congressional delegation and so they said something must be going wrong here, they found this legal theory and it says a legislature, we're the legislature! And that was their theory. The problem with that is they're not the legislature. The legislature of Arizona are the people of Arizona. The Arizona Constitution could not be clearer. All ultimate legislative power is in the people and if the legislature does something the people don't like, they can take out a referendum position and stop it from going into effect, put it on the ballot and it never goes into effect if they vote against it. If the legislature doesn't do something that the people want, they can put a statute on it, an initiative statute. So in Arizona, the legislature is the people who drafted that language, that's 1789 we're talking about, they didn't know from direct democracy. There were no states organized that way so I think and the court ended up thinking when they say legislature, they mean the legislative process of the state, whatever it is and that's what the majority said and they said the legislative process said here's what the people want, and that's what they did.

TED SIMONS: And that's why you have Ginsburg saying that the people themselves are the originating source of all the powers of government, that people are the font of government power but chief justice Roberts on the other side says legislature does not mean people.

PAUL BENDER: Well, if you just look at the word legislature without thinking about the purpose of that provision in the Constitution, without asking yourself were the framers of the Constitution, if the people of the state wanted to give the districting function to an independent commission in order to get it out of politics, would the framers of the Constitution want to stop them from doing that? If you could come up with a good reason for that then I could understand why legislature would mean legislature. He never did that. He just said can't you read? It says legislature. That's the end of it.

TED SIMONS: He said it was a contorted interpretation of an irrelevant statute.

PAUL BENDER: Well that was a particular federal statute which defenders of the commission were invoking. That was not that strong an argument. But he refused to understand direct democracy and that's what that case was all about. At the end of the oral argument, I thought the commission was going to lose because nobody on the court seemed to understand direct democracy but something happened to Ginsburg between them, because she wrote a really good opinion describing what those kinds of direct democracy things are in western states.

TED SIMONS: And real quickly this is the one that Scalia said was outrageously wrong, utterly devoid of textual and historic support.

PAUL BENDER: Well that's just wrong.

TED SIMONS: And by the way you said now that the independent redistricting commission can't be challenged as far as its authority to draw maps. It is being challenged and the court will hear regarding the legislative maps but on a different issue.

PAUL BENDER: Completely different issue. They held that case while they were deciding this one. Why? I don't know because the issues are completely different. The issue in that case is whether the commission in drawing legislative districts departed too far from the one-person, one-vote standard. It doesn't have to be exactly one person, one vote. The population doesn't have to be exactly equal but you can have some flexibility but not too much and that's what that case is about and they have another case involving that kind of issue, which has never come up before. When you say one person, one vote, who's a person? Do you count only registered voters? Do you count people who are eligible to vote? You could come up with very different results that way, the court has never resolved that so they had already taken that case, and I think they see the Arizona case as a companion to that.

TED SIMONS: Interesting. And look forward to that one next session.

PAUL BENDER: If the commission loses that case, nothing big is going to happen. All they've to do is move a few people from this district to that district to equalize the population.

TED SIMONS: Cramming too many Republicans into too few districts I think was the bottom line there.

PAUL BENDER: If the commission lost this case, you know the legislature had maps all drawn up already to gerrymander the state as well as they could.

TED SIMONS: Everyone and their brother had a map drawn up. Same-sex marriage, let's review the court's decision and why that decision was made.

PAUL BENDER: That decision was made I think because it's really Justice Kennedy. Justice Kennedy was the leader of the court in saying that gay people had a right to engage in sexual relations, that you could not make homosexual behavior a crime. It had been a crime for hundreds of years. Well, when homosexual behavior is a crime, of course you're not going to let gays marry, nobody's going to think of these people getting married, as soon as they get married, they're going to commit a crime. When it became established in one of his opinions that homosexual people had the same right to engage in sex with people that they had a romantic relationship with as heterosexual people, now, it seems to me you've removed the major reason why you never recognized gay marriage. And now, how is a gay couple different from a couple of 75-year-olds who can't have children either who want to get married because of the companionship? Kennedy said they're no different anymore.

TED SIMONS: Roberts, not endorsed by the Constitution, Scalia, it lacks even the thin veneer of law and dissents the mystical aphorisms of a fortune cookie.

PAUL BENDER: That was one of his better ones this year. They have a different view of what the Constitution means and it is really different from what it's meant in the Supreme Court for the last 100 years. That case, the gay marriage case involved two really strong constitutional doctrines, Scalia believes in neither of them, the equal protection clause and the idea of a fundamental right. And in order to interfere with a fundamental right, the court has said for years that you need a compelling interest and in order to draw a classification on grounds like race, some kind of innate trait that you're discriminating against somebody for, you have to have a compelling interest, or close to it. That has been the law and the question here was were they going to say that sexual orientation classification, that the right to marry is a fundamental, right? He never used the word fundamental right in his opinion but that's what the opinion is all about. He describes why marriage is so important to those people and all the consequences they have, especially on the children, that if they can't get married and he says well what's the reason for stopping them then? The main reason you had was what they were doing was immoral but now, you can't say that anymore. And so if you can't distinguish them from other couples who can't have children, then why keep them away from something that he sees as that important?

TED SIMONS: Real quickly last point on this. Will we see ancillary cases from this wind up at the Supreme Court?

PAUL BENDER: You may see some, yeah. Although I don't think you're going to see a lot. There may be some resistance to this in the same way there was resistance to the desegregation cases in the 1950s. But I think if the Supreme Court says to let gay people marry, that means you have to let them do all the things that married people do. You can't say well you're married but you can't file a joint tax return because it says in our law that a joint tax return can be filed by a man and woman who are married and you're not a man and a woman, that's not going to work. There may be some areas where -- although I can't think of any where you can treat them as not being married, I don't think that's a big problem. The main problem is going to be the collision between gay marriage and religion rights and that's already come up but I think that will be solved in a way that is not going to be very contentious. Nobody wants to make a minister of a church where a church says it's sinful to engage in gay marriage do a gay marriage so that's not going to happen.

TED SIMONS: All right. Let's move on here, lethal injections. Again, Arizona not necessarily directly involved although I think one of the presenters was but it does affect us here, we were using that same drug.

PAUL BENDER: Yeah, we and a few other states did what Oklahoma did. It's a really interesting story. When lethal injection started, there was general agreement that this was a good development because there was three-drug cocktail that was used. The first drug is supposed to put you in a coma and the next drug paralyzes you and the next drug stops your heart but you didn't feel any of that. The problem was the first drug, the key drug, became unavailable to the states because the people who make the drug, they're in other countries, refused to sell it to states that wanted to use it to kill people so states that want to go on with capital punishment had to find another drug and Oklahoma and Arizona and a few other cases found this one and the issue in this case was does it work? Does it really put you in a coma? It's a little bit hard to tell because if it works, you're never going to know what the person -- but there have been some bad occasions, one of them was in Arizona, of executions which it looked like the person was really suffering and so four people on death row in Oklahoma said hey, that's cruel and unusual punishment.

TED SIMONS: And the court said no and I thought this was interesting. Alito said there was no alternative with a lesser risk of pain and that got to Sotomayor to start referring to burning at the stake and all sorts of other things.

PAUL BENDER: Well, what Alito said, which is very troubling is he said if you want to come in here and say that this method of execution is cruel and unusual punishment, you have the burden of saying how you want to be killed. You have to give us, you have to give the state an alternative. And he said and it doesn't matter if there's no alternative, then they can use the thing they want to use because there has to be capital punishment. Sotomayor got very upset about that and I can understand why. So that's a really strong death penalty opinion. The issue in that case was who has the burden of proof? Here's a drug that may work. It may not work. Okay. If it doesn't work it's like being burned at the stake. There was some evidence about that. It was a burning feeling you get from the second and third drugs. So what do you do about that? Maybe we're torturing this person, maybe we're not. Who has the burden on that issue? And the court said clearly it's the prisoner who has the burden and the prisoner did not convince the district court that it was going to be torture and therefore, he loses.

TED SIMONS: Is the bigger question here regarding death penalty itself as cruel and unusual, and is this a door opening to that issue?

PAUL BENDER: It may be, although it's a very slight opening. There was a time in the '60s and early '70s when there were several people on the court who were really troubled about the death penalty and there was a movement to get some cases going to challenge the death penalty as unconstitutional in and of itself. That didn't work. The court suspended the death penalty because it said it was random, it didn't have standards, and then states came back with standards in the late '70s and so some states reinstituted the death penalty. And that had been working well. But in this case, Breyer writes in a long opinion that Ginsburg agreed with, we reinstituted the death penalty because there would be standards and it was going to be the worst of the worst. Like Justice Stewart said, the death penalty is like getting hit by lightning, it was that random and that chancy and he says that has not worked. Everybody knows it hasn't worked. It's still chancy, it's still random, it still has effects that are disparate on minorities, so maybe we ought to take a look and see where it's constitutional or not. Only one other justice joined that. I don't think too many other justices are about to do that. But it does open the issue again which had been closed on the courts for 30 years.

TED SIMONS: Did I see that the five youngest justices, none of them seemed interested in reopening it, which is interesting.

PAUL BENDER: Well, I guess that's true. Although I would think that they were the most likely ones to join Kennedy and Ginsburg in reopening it, Breyer and Ginsburg, it would be Sotomayor and Kagan.

TED SIMONS: Obamacare.


TED SIMONS: Affordable Care Act. 6-3, 6-3 Roberts, as you mentioned, earlier joining with the majority there. Talk to us about this and again, what was looked at here as far as you know, a fair reading of this legislative plan?

PAUL BENDER: Right. It's a complicated statute. It was very badly drafted. It went through major revisions. You remember all of that as it was being done, and there are lots of drafting errors in there. The dissenters in that case said and people I think understood that what the statute said -- the question is whether you can get subsidies for your health insurance if you're in a state that does not have a state exchange, only has a federal exchange. Okay. And the people challenging it said hey, it says you can only get a subsidy if you're on a state exchange. It doesn't say that. It says you're eligible for a subsidy if your income is below a certain level. It says in figuring out the subsidy, you should do something that relates to what the state exchange is doing and that was not meant to be an eligibility, it was a factor and they left it that way because they were too sloppy to take it out. When the statute started, everybody thought all the states were going to have exchanges. Somebody said that's not going to happen and we ought to have a backup and so they said okay if the state doesn't want it, the federal government will open the state exchange. And they didn't go around and take out the places where it said state exchange and put in state or federal or any exchange.

TED SIMONS: Again, it's one of the literal readings versus context.

PAUL BENDER: There, chief justice Roberts was all for the context and not the literal reading whereas in the Arizona case he was all for the literal reading and not the context.

TED SIMONS: And it sounds again, and Obamacare is where you got the pure applesauce from Scalia and words no longer have meaning but it sounds as though Roberts who wrote the opinion, did you find it interesting he wrote the opinion?

PAUL BENDER: I think he voted that way so he could write the opinion. If he had voted the other way, then Kennedy who have signed the opinion.

TED SIMONS: Interesting.

PAUL BENDER: So maybe he voted that way so he could write the opinion and it's a really good opinion. I mean, he can write really good opinions. But there he says hey, you've got to understand this, you've got to think of what is going on, what are they doing? Why didn't he say that in the Arizona case? What were the framers doing when they said legislature, did they mean the former legislature, even if the people didn't want that? So he does it in one case and not in another. He is not alone in not approaching interpretational issues in a principled manner. Nobody does.

TED SIMONS: Gilbert sign ordinance, right here in good old Arizona. Free speech? Freedom of expression?

PAUL BENDER: Freedom of expression won in that case. Everybody in the court agreed it should but I think the court and this bothers me, the court went off on the wrong reason. They said it's content discrimination because that you have political sign, it can be this big, if it's a sign advertising an event, it has to be a lot smaller and they said that's content discrimination and you have to have a compelling reason to do that. The right answer to that question is those people did not have a fair chance to advertise their church services because you could only put it up 12 hours before the service! The service is 9:00 Sunday morning. They would have to go out Saturday night and put up the signs, who's going to see them? And then you had to take it out a couple of hours afterwards. So it was a direct invasion of their First Amendment rights and Kagan wrote an opinion saying that, and I wish they would have rather than get into the abstraction of is it content discrimination or not?

TED SIMONS: All right. Other free expression cases by the way, there was something in Texas regarding the confederate flag that's interesting.

PAUL BENDER: Very interesting. Came out at the same time the big thing about the confederate flag. Texas like a lot of states, including Arizona, decided to make a little money and maybe do other things by renting out space on their license plate, so that for a fee you can get anything put on there. Well, not anything, because I think they had 350 different kinds of plates, the Knights of Columbus, they had a plate for Arizona Sundevils which had the Sundevil on the plate. That was okay. Well, the confederacy, I forget, veterans of the confederacy society and they're a legitimate club and they have a purpose and they said we want our symbol on there. And the authorities in Texas said no. It will offend too many people and we're not going to do that and so the issue was whether the authorities in Texas had a right to keep that off because it would be offensive and the court held that they did have a right to do that.

TED SIMONS: Because it's government and not private.

PAUL BENDER: They said it's government. I don't think that's a good answer because it's not government speech. It's their speech, the people who put those things on the license plate, they're the ones who decide what to put on the license plate. When you see a license plate which has -- I'm a sun devil fan, do you think that the state took that position? Because there are other license plates that are U. of A. fans, the state can't be on both of those sides at the same time. Nobody takes those as being government speech and yet that was the reason the court gave for deciding it that way.

TED SIMONS: We've got about 30 seconds left. We can't get into the housing discrimination, but I would encourage for people to look that one up. Very interesting. Very important. Quickly.

PAUL BENDER: It saved the disparate impact theory of antidiscrimination statutes, what the dissenters wanted to do was to say you couldn't win a case under the fair housing act, title seven discrimination or any of those statutes, unless you could prove that the discriminator purposefully discriminated. Again, the fact that he was discriminating, in fact, didn't make any difference to the dissenters, so that would have been a major change if they had won.

TED SIMONS: It showed the effect, not the intent.

PAUL BENDER: That's been true for years and it stays the same way.

TED SIMONS: Great stuff. Always a pleasure to have you here.

PAUL BENDER: Very enjoyable Ted, thanks.

TED SIMONS: Friday on "Arizona Horizon," it's the Journalists' Roundtable. We'll discuss the political fallout from this week's Supreme Court decisions. And an audit of the State Department of Child Safety raises a number of concerns. Those stories and more, Friday, on the Journalists' Roundtable. 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

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