Supreme Court Review

June 28, 2016

Transcript:

Ted Simons: Coming up next on "Arizona Horizon," it's our annual U.S. Supreme Court review. ASU law professor Paul Bender will join us to analyze the bigger cases and talk about how those were impact by a short-handed eight-member court. That's next on "Arizona Horizon."

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

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. It's our annual U.S. Supreme Court review tonight. We'll discuss the bigger cases and we'll look at how the death of justice Scalia affected what was and what wasn't decided. Our guest tonight is as always ASU law professor Paul Bender. Good to see you. Thanks for getting here. Just yesterday the court makes headlines. We'll talk about that in a second. Overview U. what are you seeing?

Paul Bender: Big thing this term was Justice Scalia leaving the court. That had the most impact on the court and on the law as you'll see when we talk about it. There were a number of cases people thought would be really important. Most did not work out to be important. The case yesterday about abortion probably the most important. Some of that is because of Scalia leaving; some of it is just because the court didn't want to decide a couple of important things. It's important to know that although Scalia died I think February 13th, which is more than halfway through the term, he didn't participate in probably 90% of the term's work because once you're off the court you can't participate in a case that comes on even though you heard argument in the case, even though I'm sure he was writing some opinions which never came down. Once he was off the court then all that is just put aside and so cases that he heard in January, for example, he can't participate in. So most of the cases in the term were decided by an eight-person court.

Ted Simons: No matter what he said, no matter what he did, he may have impacted by way of questioning but that's beside the point.

Paul Bender: Affected by talking to colleagues and convincing him. A federal judge today didn't do too much of that. It would only be in questions in court. He heard argument. I'm sure he was writing some opinions but they have to get assigned to somebody else.

Ted Simons: We mentioned the abortion case in Texas. Was that the most important of the session?

Paul Bender: The most important thing that they decided? I would think so. Yeah. I'm trying to think if there's anything more important. The thing that was supposed to be really important, before we say that, one of the things that people said when Scalia died was, gee, there are going to be a lot of 4-4 decisions or a lot of cases that they will have reargued in order to have a full court. The court as far as I know didn't order any rearmament at all. That is not a surprise because if you order reactor, when would it be? They don't know. It could be a year from now. So they didn't do that. There were three or four 4-4 cases, three I think. In all cases they were decided. The other thing to understand about the only time Scalia leaving the court would change things would be where he was a 5-4 majority. If that majority was going to reverse something that changes from a reversal to a 4-4 affirmment. Otherwise it doesn't change any results. You have the 4-4 cases that came down; the most important was the case involving the constitutionality or the legality of Obama's immigration program. That ended up 4-4. Now, that's a big difference. If Scalia had been there it would have been 5-4, probably, to hold the program illegal. So instead of that, it was a 4-4 affirmment. You have a lower court holding it illegal but no Supreme Court opinion about that the Supreme Court would have had an opportunity to say something really important about presidential power which they didn't say.

Ted Simons: They didn't say much of anything at all in that case.

Paul Bender: Right.

Ted Simons: Offered no guidance at all.

Paul Bender: The court's position, it's been forever, if the court is split 4-4 they say affirmed by an equally divided court. The effect is the same as denial of certiorari.

Ted Simons: I heard this described as a zombie case, all but dead if not completely dead.

Paul Bender: That case?

Ted Simons: Will it return?

Paul Bender: It might if the new president continues the program. The lower court, it was up on preliminary injunction, so that was granted and now they have to talk about whether it should be permanent injunction. If the new president decides to continue the program that case might get back to the court.

Ted Simons: Another case that was 4-4 involved the California teachers association and union dues.

Paul Bender: Another case where Scalia's not being there changed the result. They took that case to reverse it.

Ted Simons: Interesting.

Paul Bender: It was 4-4, so it would have been -- you know which side Scalia was going to be on, you could tell from the argument. That's why they took it. They just affirmed it that case could also come back to the court in the future. So that's still alive. The other case that I'm really interested in that was 4-4 where Scalia's absence changed the results in a way that I like is that the case called dollar general when involved the jurisdiction of Indian tribal courts over nonindians who do business on the reservations, civil cases. They said one of its employees was alleged to have sexually assaulted a reservation kid working at the supermarket. I'm pretty sure they took that to reverse it and it ended up 4-4. That's a good thing.

Ted Simons: You mentioned unions and the Indian concerns. Those were ones they took. Scalia's there. Overturned them. But not there, lower court -- Obama's immigration order, that 4-4 stays. That was --

Paul Bender: Scalia would have voted the same way it came out but if he had been there it would have been an opinion and it might have said really negative things about the president's power. The fact that he wasn't there meant they couldn't say that.

Ted Simons: That means 4-4 -- what do we make of this, then?

Paul Bender: 4-4 is a tie. It's like they never took the case. Technically an affirmance but they don't do anything and the issue can come back to them in the future. They don't write opinions. I think that's right. What sense would it make to have four people say, here's what we wanted to dorks four people say, here's what we want to do, but sorry, we can't do either. That's what they do. That makes sense. Otherwise what you have is -- I'm trying to think of a good example about this. The affirmative action case which in 5-3 the court -- upheld the University of Texas affirmative action program, which is quite an interesting program. That surprised people because they had that case about that program a couple of years ago and they sent it back to the lower court which upheld the program. In an opinion by Kennedy which most thought he's just getting ready to reverse them but he didn't. They sent it back. The lower court said exactly the same thing it said the first time. Kennedy I think changed his mind about affirmative action programs.

Ted Simons: I want to get back to that, Kennedy seemingly evolving toward something different than what he was. The Texas abortion case. Pretty much figured it's the most important case of the session. Talk to us about this.

Paul Bender: Well, I don't think it made a lot of new law. The reason it was the most important case in the session is because the court hadn't had a big abortion case for a long time and they struck down abortion regulations that are spreading -- had been spreading around the country. Arizona has some of the same things I think as in Texas. A lot of states do that. The main reason it's important to me is that Kennedy joined with the four current liberals on the court to say that those regulations are unconstitutional and Kennedy was the senior judge in the majority because Roberts, the chief justice, dissented. So he didn't write it himself but he assigned it to Breyer. Breyer wrote a very unemotional, very straightforward, factual opinion saying, hey, the issue is whether this is undue burden on abortion. It clearly is. The district judge found that it was, the Court of Appeals overturned that with no basis for the overturning. You have a straightforward, unemotional opinion, hey, don't do things that you design to restrict abortion because you don't like abortion because that's not your call. That's our call and it's now Roe and Wade won't be overturned.

Ted Simons: One provision was upgrading these clinics to almost mini-hospitals, the other requiring doctors have to have admitting from privileges at hospitals within 30 miles. Again, looking over this, reading some commentary it sounds as though Texas was almost trying to game the system, trying to finds a way to wiggle in with this, okay, we can't do this, we're going to put these provisions into the law. The Supreme Court almost judging from at the comments and the opinions almost said we're not buying this. We know what you're trying to do here.

Paul Bender: Well, I think the court understands that those regulations were not designed as Texas said they were to help women's health. Those regulations were designed to make it as hard as possible to get an abortion in Texas. The court said, hey, you have a constitutional right to an abortion and therefore we're not going to let a state make it as hard as possible. It's hard for the court to say we know you're up to no good. We know you did this for a bad purpose. They did not say that. They said if that was your purpose, sorry, you don't have any justification for doing that because there were not enough health issues. There was no health issues that the state could point to that this legislation would change because there had not been a lot of health problems with abortion clinics in Texas. Of course you don't have a basis for doing this and you can't because our standard is you can't do anything that places undue burden on abortion. If you are doing something that's going to cause most of the clinics in Texas to close, and you don't have a good reason for it, that's undue burden on abortion.

Ted Simons: We'll see reaction against a number of Arizona laws?

Paul Bender: I would think there would be suits in all the states with those laws. It gives a signal that other kinds of laws that states have been enacting to try to minimize abortion, the most prominent is the one we have in Arizona, which says that you can't have an abortion after I think 20 weeks rather -- the court said viability law. Some states want to move it back to 20 weeks. I think this case indicates they will hold that unconstitutional as well. Kennedy -- it's part of Kennedy to me continuing evolution from a very conservative justice to a moderate justice to now join with the liberals probably more often, certainly last year he did, and I didn't -- this year he did in the Fisher case, affirmative action case, he joined the liberals, in the abortion case he joined the liberals. Another case interestingly Scalia's last opinion which involved retroactivity of an opinion that Kennedy had written a couple of years ago which held that states acted unconstitutionally by sentencing juveniles to life in prison without possibility of parole.

Ted Simons: Yes.

Paul Bender: The court said you can't do that. They are juveniles. How can you say that for the next 70 years they need to be kept in jail? They can't rehabilitate themselves? That was 5-4. I think Scalia was in dissent there. This case, what about the kids who were sentenced to life without possibility of parole 20, 30 years ago who are still in jail? Can they get basically a parole hearing? Because of that? The court said yes. Scalia and three other people -- I think Scalia's last opinion, dissented from that. He said, look, when these sentences were handed down they were constitutional. That's the ends of it. That's the final judgment. So states can continue to confine people in unconstitutional circumstances for the rest of their lives. That was what the dissent said. That was Scalia's opinion. That's in a way to me typified Scalia's jurisprudence. Help didn't care about the human values involved. He cared about the legal values. It was final. You had your appeals. How can you bring this up now? You lost this case. The fact that people are continuing to be confined under unconstitutional sentences did not mean anything to the four dissenters.

Ted Simons: With that in mind, if Kennedy is creeping a little bit left, with the absence of Scalia, does he move even more that way? Let's talk about the dynamic of the court. We can also argue that in some sense Scalia gave cover to chief justice Roberts, allowed him to do things without having this umbrella over here, the louder umbrella. He's gone. Does Roberts veer more center?

Ted Simons: It may have that effect. With Scalia there, Roberts was part of the four-justice group which sometimes had a fifth justice more often than not for most of the tenure. Now if Kennedy desserts him he's left with Alito and Thomas. That's not company that gives you much reassurance that people are going to think that you're doing the right thing. Thomas has very interesting opinions. I think he has a lot of good ideas. A lot of them are wrong, some are right. He's very stubborn. He doesn't compromise or give them up. I admire him for that but he's not the kinds of person that gives you any cover because he's really off the reservation. Not in the mainstream. Alito is moving in that direction as well. So having those two people as your cover I don't think is very much cover.

Ted Simons: All right, so we might have, might have chief justice Roberts again saying I'm not sure I want to hang with these two. Maybe I want to move more center, Kennedy continuing creep a little bit left. Breyer, somewhat center left and we're going to have someone new who more than likely you're not sure about this but more than likely could be somewhat center left as well.

Paul Bender: Well, if it's Merrick Garland, say, to me that would be a very good development for the court. The things you just said happen and Garland was to join the court you would have the possibility of a coalition of moderate people in the center. Garland and Kennedy and maybe Breyer and maybe justice Roberts. That's what the court needs. The court has been just four people here, four there. Kennedy used to be O'Connor and Kennedy, lately Kennedy in the middle. The blocks of four almost never broke up. What the court needs is a moderate center of more than one person. I think if Kennedy continues to do that and someone like Garland comes on the court and Breyer has made efforts in recent years I think to move over and join with the conservatives in some things. He did that this year in a couple of cases we can talk about in a couple of minutes F. that would get Roberts, who I think is capable of doing that, leaving -- I don't know if he does.

Ted Simons: Don't you think he wants that? A consensus court?

Paul Bender: He keeps saying he does, but I think there's only one case in his entire tenure on the court when he ever voted with the liberals when it made a difference in the results. That case the first Obamacare case. He was really criticized by that from conservatives. So I don't know that he wants to do that again but he hasn't. Sometimes he has voted with liberals but not when his vote made a difference in the result. Sometimes he did that to assign the opinion to himself or somebody else rather than letting somebody like Ginsberg write the opinion. Roberts says he wants to do that I think. He may want to do that. He now has a real opportunity to do that. But up until now he has not been doing that. He's written a couple of opinions like citizens United. Those are things that do not indicate a willingness to compromise.

Ted Simons: You mentioned earlier there were some cases that were thought to be big ones. Important. Didn't quite turn out that way. Why do you say the affirmative action case was one?

Paul Bender: Because it kept the law the way it was. That's something which we should talk about. Maybe that's the case where the court will say race conscious affirmative action is unconstitutional. That would have been a really big case. A lot of educational institutions around the country use race conscious affirmative action but they didn't do. That they left things the way they were. In an opinion by Kennedy which indicates he has more willingness to accept affirmative action programs than he used to have. When he first came on the court he was absolutely opposed to race conscious affirmative action. He has been driven by really, really, really negative opinions by people who say it's just like segregation. Brown versus board of education -- Kennedy said no, I agree this is unconstitutional but don't tell me it's like segregation. Segregation was meant to keep the race as apart. These programs are meant to bring them together. I think he has educated himself over the years to feel this is really some good in affirmative action programs. It's important because it solidifies the constitutional status of affirmative action programs.

Ted Simons: Another case thought to be important involved Obamacare and contraception requirements, religious businesses having to follow suit.

Paul Bender: Right.

Ted Simons: Not a biggie?

Paul Bender: It was supposed to be. It looked from the oral argument that Scalia and the four other conservatives were going to hold that it was unconstitutional to force nonprofit religious organizations to buy health insurance policies that their employees could use to buy contraception. Scalia was not there to do that and maybe the court then would have split 4-4 on that issue. The court said, they were right about this; it's really a trivial issue. You have nonprofits saying we don't want to give these people insurance. That violates our religion. The court said you can figure out a way, you and the plaintiffs in those cases, can figure out a way in which the women can have contraception coverage and you don't have to do anything that violates your religion. He spent the case back to the lower courts to try to figure that out. Then turned into a settlement.

Ted Simons: Exactly. Arizona cases. We have three. Texas immigration case affects Arizona. The independent redistricting case when that occurs at the congressional districts last session was deemed okay --

Paul Bender: Independent district of commission now informed both cases both with regard to redistricting, congressional districts and now with regard to redistricting of state legislative districts. They were attacked because they said that they tried to say to the Democrats in districts supposed to be equal size but they can't be exact. There were variations in size by 5% and the court said that's not enough to cause a constitutional problem unless it's done for clearly partisan reasons. They said there's not enough evidence here that it was done for partisan reasons. That frees up the independent redistricting commission to do what it was supposed do. Another case from Arizona that the court reversed summarily without even hearing argument where the Arizona Supreme Court said that you did not -- defendant in a capital case wanted the judge to tell the jury, hey, if you don't give me capital punishment I'm going to give live without possibility of parole. He wasn't a juvenile. The judge is supposed do that because the court said so. The Arizona Supreme Court said he didn't have to. So they got reversed summarily.

Ted Simons: Embarrassing for the state Supreme Court?

Paul Bender: Well -- things get reversed. The other cases which I think might be important and also show something important about the court, there were two 4th amendment cases. The one that I think is the most interesting is the case where an officer stopped somebody; he didn't have a basis for stopping him. That was unconstitutional. But he stopped him and he got his identification and phoned in or used computers to find out whether there were any outstanding warrants and there were, so he had the basis to arrest him so he arrested him. Having arrested him he had a basis to search him and found drugs on him. Now, standard 4th amendment law was that evidence could not be admitted. It's the fruit of the poisonous tree. The poisonous tree is the unconstitutional stopping. The court -- that's a case that could have been a real biggie, the court could have gotten rid of the exclusionary rule. They didn't do that. They got rid of it in this case, in an opinion by Justice Alito, he said it was in good faith and he didn't do anything really bad. Sure it was unconstitutional but not really unconstitutional. We don't think the remedy of keeping out the evidence is appropriate here. That's a big problem for a number of reasons. To me the biggest problem is the police now from that kind of case don't know when the exclusionary rule will be applied and when it's not. The whole function of the exclusionary rule is to deter police from doing unconstitutional things. If you're a police officer and you know you're doing something unconstitutional but beyond don't know that the evidence is going to be kept out, first you don't think it's unconstitutional, two, you say give it a try. So when you change the clarity of the exclusionary rule that's really a problem. The other thing that that was that's really interesting is that justice Sotomayor wrote a really strong dissent saying you may think that this is not an important case, but let me tell you it really is because police stopping people on the street like that whenever they want to is something that really affects certain classes of people in this country, and I think she made reference to the Ferguson -- she said so I think this is wrong. She it seems to me is developing into the only leader except in women's rights issues where Justice Ginsberg is, she with a lot of experience as a prosecutor and trial judge in criminal procedure cases really thinks there are things that need to be reformed in that area and she's starting to try to say that. And with another fairly liberal appointment on the court they may be able to do some of that.

Ted Simons: We'll find out who that next appointee is. Sounds like we're running out of time but sounds like the next personal may not have much of a factor at all in the next session.

Paul Bender: No. When is the next appointee going to be nominated? After the presidential election. Post January 15th, President X could be. Nominate somebody. When is that nomination going to get confirmed, in March?

Ted Simons: When it happens we'll have you on the program. Good to see you.

Paul Bender: Nice to see you.

Ted Simons: That's that it for now. I'm Ted Simons. You have great evening.

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