Supreme Court Preview

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After a recently-ended blockbuster session, the United States Supreme Court starts a new session October 5. Arizona State University law professor Paul Bender will give us a preview of the big cases the court will hear.

TED SIMONS: Coming up next on "Arizona Horizon," it's our U.S. Supreme Court preview show. We'll look at some of the major cases on the docket for the high court's upcoming session with ASU law professor Paul Bender. A Supreme Court preview, 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 is set to begin another session. Among the cases the justices will be considering in the coming months include issues ranging from affirmative action and the death penalty, to another Arizona redistricting fight. Here to help us make sense of it all is ASU law professor, Paul Bender. Good to see you again.

PAUL BENDER: Good to see you Ted.

TED SIMONS: Love this show. Let's get it started. Supreme court -- Kennedy court, is it still a Kennedy court?

PAUL BENDER: Yeah, but it may be a different Kennedy court. Last term might have been a really significant term in terms of the history of the court. The court changing direction. Since about nine years ago, Justice O'Connor and -- since that time, four very conservative, and Kennedy the swing vote. He would agree with the conservatives two to three times as often as he would agree with liberals. Two of the three times, as many of his decisions came out conservative and liberal. Last term he did exactly the opposite. He agreed with the liberals over and over again in important cases, that five years ago he would not have been on that side. The question is, is that just an aberration for one year or is he changing into more of a liberal justice. If he does, the court changes into a more liberal court. It happened to Harry Blackmun early in his term. After Harry Blackmun, Roland Wade, transformed him into a really strong conservative to what ended up being the most liberal justice on the court. Because he announced an individual right people got really mad at him. They were very ugly in the way they were mad. That pushed them away from him and got them to think that he had done the right thing. Same thing has been happening to Kennedy. Here Kennedy is a conservative guy, he did what he thought was right and he is being reviled as a big mistake. I think having the experience of creating a new constitutional right which he did in the gay marriage case, and generally the community feeling that he did the right thing, getting good grades on that might encourage him to take individual feelings, empathy, the disadvantaged more seriously, rather than to, as conservatives tend to do, treat the thing, let's look at the word. We don't care about the effect on people. He may be becoming a more people-oriented justice and if that is true, the court will change.

TED SIMONS: Before we get into the cases, you mentioned Blackmun and now talking about Kennedy. How often does a Supreme Court justice change radically throughout the course of a career?

PAUL BENDER: Not very, almost never. Blackmun is probably the most extreme example. Stevens is a little bit that way. He was appointed by a republican president. He started out being sort of in the middle of the court. He ended up being the most liberal justice on the court but that is really rare. People tend to stay with what they were.

TED SIMONS: Let's get to the cases. With Arizona, another redistricting case. This one differs from the last one because it is not -- the last one kind of said, all right, we now know who has the power to redistrict, correct?

PAUL BENDER: The big difference between this one and the last one, last one, which the commissioner won, was about congressional district. Republicans in the legislature said that the commission could not draw the congressional districts, but the constitution says that they should be drawn by the legislature of the state and the Supreme Court decided that the legislature of Arizona was the people of Arizona. And which was seems to me to be correct if you read the constitution, it is clear that the people are the ultimate legislature. This case, involves the districting of the state legislature. There is no problem with the federal constitution, doesn't say anything about how the state legislature should be districted. That is a question for the state to decide and the commission, therefore, does the state districts. What the challenge is here is that in -- when the commission did the districts, operative voting rights act with section five. Everything the commission did had to be pre-cleared and it was clear from the beginning of the commission that one of the main tasks was to come up with a map that would get preclearance. Because if you don't get preclearance, you can't apply to get out of -- from under the voting rights act. If you haven't done anything wrong in 10 years, you can apply to get -- everybody on the commission wanted to do something that would be pre-cleared the first time. They tried hard to get districts that complied with the voting rights act. That means they had to not reduce the number of districts with minorities, mostly Hispanics, were a majority because you can't redistrict and have the result be reduce minority voting strength. They came up with 9 or 10 minority districts. But in order to do that, they had -- the other constitutional rule districts have to be of equal population. Well, you're allowed to deviate from that a little bit because sometimes it is just impossible to do equal population. You have to go 10 miles away to get people to put in the district. You don't do that. Here they did it in order to comply with the voting rights act. Some districts are smaller. Other districts have less people. Districts with the greater number of people are almost always democratic districts-- I mean republican districts. Smaller number of people are democratic districts. Republicans are challenging that as being politically bias in favor of the democrats.

TED SIMONS: Is that a one person, one vote.

PAUL BENDER: That is where you start. Can you make variations? Can you make deviations from a one person one vote? And you can make some because of physical things, political boundaries, the question is can you make deviations in order to favor one political party or another? The commission said it wasn't favoring a political party, it was just trying to comply with the voting rights act. The three judge district court in this case said that was their primary objective to comply -- but some of them thought in addition that they were helping the democrats, but it wasn't their primary reason, and so that's the issue before the court. One, can you do that at all to the -- the main argument they're making is that you can't deviate from one person one vote in order to comply with the voting rights act and that seems to me clearly wrong. The voting rights act is the law of the land. You have to comply with it.

TED SIMONS: We are talking deviating from population equality --

PAUL BENDER: In order to preserve minority voting.

TED SIMONS: But when we talk about a population, what are we talking about?

PAUL BENDER: That is a different case before the supreme court, another voting case not involving Arizona. But the Supreme Court has held that voting districts for legislatures stay in Congress have to be of equal population. They have never defined what they mean by population. Is it breathing people or registered voters? That's the main thing and they've left it up to the states to decide that. Texas has been using regular population. It is being challenged by people who say they are living in districts that are underrepresented because their district has a lot more voting people in it than other districts. That is another issue about the reapportionment of the courts will be deciding this year.

TED SIMONS: As far as the Arizona case, what do you think the court is going to decide?

PAUL BENDER: That's interesting. The court took this case. They didn't have to. Whenever they do that, you think there is a good chance they might reverse -- I can't believe that they will say that you can't make deviations in order to comply with the voting rights act. Deviations for other reasons that you would think that would be a very good reason. Harder question, if it is part of the reason why you drew the districts the way you did to favor one party or another, the court might say you can't do that. Which itself would be ironic, because the court has refused to say that political gerrymandering is unconstitutional -- they have never said political gerrymandering -- if you can gerrymander the districts to favor a political party, what's wrong with taking a few people out of one and putting them in another --

TED SIMONS: I think gerrymandering is the epitome of politics isn't it?

PAUL BENDER: If you can do that, why not make this -- that to me is the harder question. The case is going to come out the way justice --

TED SIMONS: What about this next case? We have another affirmative action case involving an American university. University of Texas, Austin, talk to us about it.

PAUL BENDER: This is the case I think more than any other will show where the last term is an aberration or whether Kennedy is really changing. When Kennedy first came on the first -- he has never voted in favor of it, he said you could never do it. He seems to have been softening since then. This case was before the court a couple of years ago. University of Texas affirmative action plan, which is an interesting plan because of most of their minority admissions -- if you finish in the top 10% of your high school class in Texas, you have a right to go to the Austin branch of the university of Texas. Flagship thing. And that gets a lot of minorities in. But the University of Texas says that we want to do more than that. Because the reason we're getting so many minorities through the top 10% plans, high schools in Texas are racially segregated, that is why we're getting so many minorities, because there are schools that are 95% minorities. A lot of minority students there. They say that is not the only kind of diversity we want. We want diversity of minority people not in the top 10% but people we want to have in the university for various reasons, so they have an additional affirmative action plan. Top 10 percent fills 80 percent of the class. The other 20 is filled with a plan which takes all kinds of factors into account, including race. The question is whether they can do that. In the last case Supreme court, an opinion by Kennedy said you can do it for diversity reasons, that's a compelling reason, but you have to narrowly tailor your plan to your diversity objective and it is not clear that you did that, so they remanded the case to reconsider it and narrowly tailor it and the lower court wrote an elaborate opinion saying we think Texas wants to get diversity that they are not getting to just the top 10% plan. We think it's narrowly tailored and that leads back to the Supreme Court, they took it again, which against suggests that maybe they will reverse that.

TED SIMONS: Justice Kagan has to recuse herself on that doesn't she?

PAUL BENDER: Yes. If Kennedy were to join with the liberals, it would be a 4-4 decision. It is a pretty good lower court opinion. That would be a real test. If that is four-four, Kennedy really seems to be changing in racial cases anyway. If he stays with the conservatives and it is 5-3 and they knock out this plan, they could, there are two people on the court, Scalia and Alito -- have said they think no race conscious affirmative action is constitutional. The court could try to use this case to overrule the case in which they held that you -- if they're not going to do that, are they going to send it back to the court to do it over again? I think there is a good chance Kennedy will say look, you tried, I think you're in good faith, so let's let it be.

TED SIMONS: We move on to a tribal court jurisdiction case over non-Indians on the reservations in terms of civil cases, not criminal --

PAUL BENDER: That's right. Criminal cases supreme court decided in an opinion a long time ago that tribal courts did not have criminal jurisdiction over non-Indians. If you commit a crime on an Indian reservation, no matter what, if you rape a woman on the Indian reservation, or murder a member of the tribe on the reservation, the tribe cannot prosecute you criminally. Only the state or Federal Government can do that. But that rule has never been announced for civil cases. In civil cases, the supreme court has said that tribes can exercise civil jurisdictions over non-Indians if they have a good enough reason. If the conduct will' regulating affects the welfare of the regulation. This case involves sexual assault on a teenager who was participating in an apprenticeship program in a supermarket. Manager of the supermarket assaulted and sexually -- and the victim is a teenage member of the tribe -- and the manager is not a member of the tribe. He doesn't live on the reservation, even though he works there. Question is whether a tribal court has jurisdiction over that. And the tribal court said it did. And the supreme court is going to decide whether they do or not. The court could say, and it would be a disaster for tribal courts, court could say that tribal courts don't have civil jurisdiction over non-Indians in the same way they don't have criminal jurisdiction --

TED SIMONS: If the court decides that, or if it doesn't decide that, impact on dealings with American Indian tribes?

PA!: It is very important to American Indian tribes. A lot of tribes are using the money that they get from gaming to upgrade their governmental structures and one of the things they're upgrading are their courts. It is hard, you want tribal members to be judges on the court but some of the tribes have no members who went to law schools. But that is beginning to happen. Tribes are beginning to make their court look more and more like -- they want to do that for a lot of different reasons. One they think maybe the court will let them exercise jurisdiction over non-Indians. If they don't make -- the court is not likely to say that. This is a really important case in the development of Indian tribal courts.

TED SIMONS: We have an interstate commerce case -- I don't understand how they're putting the drug crime affecting Interstate commerce or not? What's happening here?

PA!: There's a thing call the Hobbs act that was passed under Congress's power to regulate Interstate commerce. If you steal something and that theft affects Interstate commerce, that is a federal crime. Okay. You want to know what the facts of this case are? These guys, I forget where it was -- they decided that they were going to enter, rob houses of people who, marijuana dealers. Because they must have a lot of cash around. They went into two peoples' houses dealing marijuana. Where is the marijuana? They said we don't have any. Where is the money? We don't have any. They took watches and rings, they didn't take one marijuana cigarette from the two places and not a lot of money. The Federal Government prosecuting them under the Hobbs act because they have, it says, committed a theft that affects Interstate commerce.

TED SIMONS: How?

PAUL BENDER: Well, the theory of the lower court was that, hey, marijuana sales affect Interstate commerce. The Federal Government has used the commerce power to ban possession of marijuana. So, if the marijuana traffic is Interstate commerce, then if you are going to steal something from somebody selling marijuana, that has to affect Interstate commerce. What do you think of that --

TED SIMONS: We don't have time for what I think.

PAUL BENDER: There is something wrong there, right?

TED SIMONS: The question to me, you have conservatives on the court probably not all that crazy about commerce power and limits to commerce, yet they're probably not all that crazy about drug crimes. How are they going to vote?

PAUL BENDER: Well, they're torn in a case like this. If the past is any indicator, they care more about limiting Congress's commerce power, the conservatives care more about that than they do about catching a couple of crooks. So, this is a really important case. If the court were to do in this case what it did in the Lopez case about 15 years ago and say, no, you can't do that. You have to show that the theft really affects commerce, that would destroy the practical use of a lot of federal regulatory statutes. Most of the statutes are not written to make you -- statute that says that hotels cannot discriminate on the grounds of race, they use the commerce power for that. But you don't have to show that the discrimination that you are complaining about was some somebody out of state.

TED SIMONS: Right.

PAUL BENDER: Hotels generally serve people from out of state. Well, if they do the same thing here, then this will be okay. If they say here, no, you have to show that this theft really affected Interstate commerce, that would have a negative effect on a lot of other regulatory -- and I think there are four people on the court who would like to have that, because they would like to cut that down. This is a potentially very important case.

TED SIMONS: Interesting. A couple of death penalty cases. I would like to go through them relatively quick. Deal with the death penalty but from different angles.

PAUL BENDER: The main thing about the death penalty, last term in a death penalty case, only case at the end of the term that Kennedy agreed with the conservatives, Justice Breyer, an opinion joined by Justice Ginsburg, time to reassess whether the death penalty -- two votes for that. That is the first time that has happened in that way. People are thinking hey, is the court going to do something about the death penalty. I don't think they are. But when they keep getting these cases, at some stage I think enough justices will want to reconsider it that they will It is a very bad record for that. It looks clear that they -- the court usually doesn't decide factual issues but that is what they have to decide in this case. The other case involved a case from Arizona, some years ago, held that factual issues that determine whether somebody gets the death penalty have to be resolved by juries. Judges can't do that. Right jury trial. Florida, apparently, has decided that they will let the jury give an advisory opinion about whether it should be the death penalty, but they're going to leave it up to the judge ultimately. And the question is whether that kind of advisory role for the jury is enough. It strikes me that it is pretty clear that the court would say no.

TED SIMONS: That -- if the jury is supposed to decide --

PAUL BENDER: You would think a jury is supposed to decide.

TED SIMONS: Yeah.

PAUL BENDER: It is ironic, a lot of people think in a lot of places that the defendants are better off if the judge is the one who decide because the judge is more likely to be merciful than juries in many places. You might be torn.

TED SIMONS: Next case, I read these cases and I don't understand how this got to this level. A Pennsylvania chief justice is ruling on a capital case that he prosecuted when he was a prosecutor.

PAUL BENDER: He wasn't really in court prosecuting. He was the supervising prosecutor.

TED SIMONS: He ran the election campaign using this example as I'm a tough on crime kind of guy and he still wants to sit and rule on this case?

PAUL BENDER: You have a problem with that?

TED SIMONS: What am I missing?

PAUL BENDER: I don't know. You're not missing anything. He should not have done that. The problem maybe is that it was a unanimous decision. So, his vote didn't make a difference. And they're making the argument that, hey, maybe he shouldn't have sat, but his vote didn't make a difference so you should affirm the conviction anyway. It puts the court in a difficult position. I hope the court says hey, you can't do that. Why is Kagan recusing herself in the affirmative action case because she was solicitor general when that case was in the office. She might have had nothing to do with it. Everybody understands that if you are the supervising prosecutor, you have to not judge that case when it comes to you if you are a judge later on. But what are they going to do if they say he shouldn't have sat on it? He -- his vote didn't mean anything -- I mean, his vote was not determinative. That doesn't strike me as being determinative because even though his vote might not, he is sitting there with his colleagues and they are going to be reluctant to say, colleague, you shouldn't have a done that and you did the wrong thing. The things you did as prosecutor, unconstitutional. You could say well, his being there, even though the vote was not determinative, he kind of poisoned the whole atmosphere. What do you do? Send it back to the same group of judges. They are not going to change their mind --

TED SIMONS: They're in the going to change their mind, but Mr. Wonderful will not be sitting there passing judgment.

PAUL BENDER: He has retired from the court. He wouldn't be there. I hope they make a strong statement that that kind of thing won't work.

TED SIMONS: We had a double jeopardy case regarding Puerto Rico, Puerto Rico, state, federal --

PAUL BENDER: The double jeopardy clause protects you against being tried twice by the same sovereign. Federal Government can try you and the state can try you. In this case, Federal Government tried them and Puerto Rico wanted to do it again, and the question is Puerto Rico a separate sovereign like a state, or is it like the Federal Government because the Federal Government has the supervisory authority -- Puerto Rico --

TED SIMONS: Interesting. For a minute or so left here. Will this be blockbuster session similar to last time?

PAUL BENDER: You know, you never can tell. It depends on the opinions that they write. It doesn't look like it would be. Last term, Obama care case and the gay marriage case, it is hard to equal that. If they were to do a radical thing with the commerce clause, for example, if they were to say that affirmative action -- those could be blockbusters. I don't think that is going to happen.

TED SIMONS: Do you think that Kennedy will eventually -- could he just bounce around? A guy that bounces around from one side to the other?

PAUL BENDER: Yeah, he sort of has. But he has always bounced in one direction more than the other. Last term he bounced in the other direction. My view is that it is a real change. I think he is changing. I think he has been energized by the leadership that he has had in the gay rights thing, he has been the leader of gay rights on the court and I think that has gotten him to think more about the strength of constitutional rights and about wanting to protect people's rights.

TED SIMONS: Any retirements?

PAUL BENDER: I don't think there will be any voluntary retirements.

TED SIMONS: You always want to watch out for that.

PAUL BENDER: Some of those people are pretty old --

TED SIMONS: You never know. We will look forward to learning more about what happens about the session. Always a pleasure. Great to have you of the

PAUL BENDER: Nice to be here.

TED SIMONS: Thursday on "Arizona Horizon," superintendent of public instruction Diane Douglas joins us in studio to discuss a variety of issues facing her office. And we'll look at a new study on concussions and the high rate of brain disease in NFL players. That's at 5:30 and 10:00 on the next "Arizona Horizon." A reminder, once again, if you want to watch tonight's episode again, please do at azpbs.org/horizon you'll also find previous episodes and learn what we have in store for the future. azpbs.org/horizon. That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening. Captioning Performed by LNS Captioning www.lnscaptioning.com

VIDEO: "Arizona Horizon" is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Paul Bender: Arizona State University Law Professor

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