Horizon, Host: Ted Simons

July 5, 2005


Host: Michael Grant

U.S. Supreme Court


  • ASU Law professors Paul Bender and Catherine O'Grady join Michael Grant for HORIZON 's annual review of the U.S. Supreme Court session. The analysis includes the implications from key rulings and the effects of retirements on the Court.
Guests:
  • Paul Bender - Arizona State University law professor


View Transcript
>> Michael Grant:
Tonight on "Horizon," the retirement of Sandra Day O'Connor from the U.S. Supreme Court overshadows a court session with many significant rulings. Now the question is, who will replace the independent-minded justice who played a pivotal role in key decisions? Plus, will another Arizona lawyer resign from the high court? Chief justice William Rehnquist's battle with thyroid cancer has not prompted the 80-year-old justice to retire, at least not yet. The first Supreme Court vacancy in 11 years comes on the heels of several important rulings. One allows local governments to take private property for commercial development. Another decision makes Internet companies liable for promoting file sharing of copyrighted music and movies. Plus, Justices rule the Ten Commandments can be on government property depending on how and why the commandments are displayed. A look at the Supreme Court and its key decisions, next on "Horizon." Announcer: "Horizon" is made possible by the friends of channel 8, members who provide financial support to this Arizona PBS station. Thank you.

>> Michael Grant:
Good evening, I'm Michael Grant. Welcome to a special edition of "Horizon." The United States Supreme Court concluded its term in late June. In all, the high court issued 72 decisions on such topics as medical marijuana, the sharing of music and movies over the Internet and capitol punishment. But all of those have been temporarily overshadowed by the retirement of Sandra Day O'Connor. Joining me to talk about the Supreme Court are two of ASU's finest law professors Paul Bender and Cathy O'Grady.

>> Catherine O'Grady:
Thank you for that complement.

>> Paul Bender:
Michael never had us, so he can say that.

>> Catherine O'Grady:
That's right.

>> Michael Grant:
Well, Cathy, there had been a fair amount of speculation toward the end of the term that it might be Justice O'Connor retiring and not justice Rehnquist. I will admit, I didn't credit the speculation, but it turned out to be right.

>> Catherine O'Grady:
In hindsight, we think of those who were speculating about Justice O'Connor retiring, but certainly the big momentum and all of the interest has generally been behind that Chief Justice Rehnquist would be retiring very, very soon here. I think it was a bit of a surprise, and it took a lot of court observers' breath away to have it be Sandra Day O'Connor who retired.

>>Paul Bender:
She had had medical problems some time ago, but she seemed healthy and she was making a lot of speeches around the world, but I think her husband's illness is the thing that led her to feel that she should leave the Court.

>> Michael Grant:
Paul, we were talking before we went on the air. It seems to me that there were sort of two Justice O'Connors on the court. The first few years almost got the impression she was trying to find her role, trying to find her sea legs, perhaps, and then obviously, fairly quickly, but I would say the late 1980s, she became a key swing vote on a lot of key issues.

>> Paul Bender:
Yes, she became -- I don't think she changed any judicial philosophy while she was on the court the way some people have in the past like Harry Blackmun was thought to get a lot more liberal, but she became more confident as time went on. She knew she was the fifth vote in a lot of cases, and she was comfortable in that role. That's why this appointment is much more important for the short term, anyway, than the chief justice resigning, because if the chief justice had resigned, he would be replaced by somebody who would probably vote more or less probably all the time in civil liberties and similar cases the way Rehnquist would. He was one of the most conservatives on the court.

>> Michael Grant:
Because of the role she occupied as a swing vote it becomes a much more controversial replacement.

>> Paul Bender:
She over the last five or ten years, she has most often been the swing vote in close cases and the justice who dissents the least. She has been occasionally Kennedy, but mostly her has been the center of the court. So now, if you replace her with somebody a lot more conservative than she is, all of the five-four cases that have come out, the more liberal way with her joining in with the moderates and so-called liberals, will come out the other way. And there is some pretty important cases there.

>> Catherine O'Grady:
I've heard that she really doesn't like the term swing voter or that she doesn't like to hear the characterization of herself as a swing vote, but clearly, she has found a middle ground on this particular court in recent -- the past many recent years, and has been one on the court that lawyers understand they can persuade. She is somebody that will listen and look at the facts of each case very carefully, and very conservative on principles like federalism and the state versus federal government alignments, but is more persuadable and some have said more pragmatic, perhaps, in understanding on each case what the impact would be.

>> Michael Grant:
One of the things that happened here, I recall, I think we made this comment over the years, to a certain extent, it wasn't so much Justice O'Connor changing, it was the fact that the Court changed around her very much through the 1980s and into the early 1990s.

>> Catherine O'Grady:
Right, in the last 25 years.

>> Paul Bender:
Really strong liberal voices on the court, Thurgood Marshall and Brennan and Blackmun who were on court when she came and who are no longer on the court and so she almost naturally seemed to be more liberal than she was when she first came on the court, but there is some really important issues where she sided with the conservatives. One that jumps to my mind because I argued these cases was her ruling in a 5-4 case that it was unconstitutional to draw election districts in order to have a minority majority. I mean, that was a very important case. The liberals were furious, a 5-4 case. I think it was wrong and she -- every time I argued one of those, I said I can persuade her because I know I'm right, and she's a sensible person. Never worked. It --high hopes for persuading her but they didn't come through.

>> Catherine O'Grady:
Then, of course, the Ten Commandments cases which we'll talk about in a minute, Michael, she was siding in both of those cases with the more liberal Justices in finding real problems with public displays of the Ten Commandments.

>> Michael Grant:
Speculation on replacement, much of the focus has been on attorney general Alberto Gonzalez, but I suspect that we have no idea.

>> Paul Bender:
We have no idea. The president obviously would think about a woman because it would be a regression, and O'Connor, interestingly, said many times that there should be women on the Supreme Court, plural, and she really meant that. That would be a betrayal of her not to have a woman, and obviously, somebody who is Hispanic there has never been a Hispanic on the Supreme Court and the president clearly is interested in that. And then you have the politics of the matter. The real right wing conservatives who will insist on having somebody who is like Scalia and Rehnquist. O'Connor was not that, and they see her as a disaster.

>> Michael Grant:
The left is also concerned, though, particularly in abortion cases and those kinds of things.

>> Paul Bender:
Because the few victories that the left has with her, for example, a 5-4 decision upholding the Michigan law school's Affirmative Action program. For many years she voted that those are unconstitutional, time after time after time, Affirmative Action and many different things, but here, and I think that shows that she is open to persuasion, and she -- and in that case, she said hey, we would not have a diverse legal profession unless we had Affirmative Action, and that's the kind of thing that would move her rather than some overarching philosophical --

>> Catherine O'Grady:
--there will be key cases next term, one of them puts a hallucinogenic tea used in a certain religion right up against the controlled substance architect the federal act. I think we know how O'Connor would come down on that, but it will be interesting to see a new justice, and others, too.

>> Michael Grant:
Justice Rehnquist obviously did not resign. Maybe he'll wait until the fall and see how he feels?

>> Catherine O'Grady:
I think he's going to wait, now especially with Justice O'Connor resigning. I think Chief Justice Rehnquist will be very much in tune with what that means in the political process of things, and not wanting to leave the Court without a full array of justice of the nine on the court when it begins in October, and I also think he'll --

>> Michael Grant:
His health remains a problem.

>> Catherine O'Grady:
He'll listen to his doctor, obviously.

>> Paul Bender:
The experience indicates that people in that situation want -- try to stay on, even though they have had serious problems. Justice Frankfurter tried to stay on, and I think he will try. If he can do it, I think he'll stay on for another term and probably see how he feels as the summer goes on. But see, if he waits until the end of the summer, then the Court is going to be short-handed for a significant period of time and he knows that also.

>> Catherine O'Grady:
I've heard that he's doing very well in terms of the administration of the court, overseeing a renovation program at the Court that's in progress, and is up on top of all of his cases and that he's done well and has done -- been on top of the works, so.

>> Michael Grant:
Well, we'll move to discussion of the cases in just a minute and we're almost out of time for this segment, but only 72 cases. It's getting fewer and fewer.

>> Paul Bender:
Every year less and less, if it keeps up, there won't be any law clerks, because there won't be any cases.

>> Michael Grant:
What's the explanation for that?

>> Paul Bender:
I think there is a twin explanation. The main one, I think, is that the court in the last 20 years has not made a lot of new law, and it's the making of new law, which creates Supreme Court cases, Miranda probably spawned 3,400 cases in the Supreme Court, believe it or not. So that's not been happening. And the other is that the lower courts and Supreme Court were appointed by the same presidents and they agree on most things and that's not always true.

>> Michael Grant:
Some of the most important rulings by the Supreme Court come at the end of the session. The high court was true to form this year with decisions on such issues as eminent domain, public displays of the Ten Commandments, and the downloading of music and movies from the Internet. Let's move to that new London Connecticut case, Cathy. Is the 5th amendment to the United States constitution three words shorter than it was on the first Monday of October?

>> Catherine O'Grady:
What do we mean by with the public use"? Is there no longer such a requirement or a limitation on the -- on our governments? The Court has, in this particular case, read it very, very broadly, and they have looked -- this is a fairly unique case, because we haven't seen an eminent domain case in the court for quite sometime. And the precedent has allowed eminent domain, the cities to condemn private homes for development, but only in situations where there is blight or where they are blighted. And in his dissent to this, Justice O'Connor said, actually, when a city condemns a blighted or dangerous property, that's a public benefit or public use right there, the direct condemnation is the public use. Here she argued, we have no public use. But, the majority, it's a 5-4 opinion, found that the development plan that was proposed by the city of new London, to take this enormous acreage of land that was on a waterfront, to make a hotel and a business and a waterfront walkway and all of that --

>> Michael Grant:
A health club, that was my favorite.

>> Catherine O'Grady:
A park. It's part of a big complex.

>> Michael Grant:
I like the health club thing.

>> Catherine O'Grady:
That's a public use right there. And then there were residents there as well, but that, the city decided would bring in so many jobs and tax revenue that it would be considered a public benefit.

>> Michael Grant:
You know, I always thought the corollary to bad facts make bad law was good facts make good law, but this case, is teams to me -- you were talking about the facts -- so to turn that on its head, this is a woman whose family had owned the property for more than 100 years if I recall correctly, had been born there in 1918. She and her husband had lived there for decades. They brought the property next door for their son and daughter-in-law, as you said, no allegation of blight, and the court says, well, you know, just take it.

>> Catherine O'Grady:
Right, exactly, and you know, the facts -- and that's true. I've never had so many people ask me about a Supreme Court opinion as this one. It's a very scary thing for a lot of people.

>> Michael Grant:
It touches something at a deep core.

>> Catherine O'Grady:
That's part of it. These homeowners are so compelling. Their homes, that they couldn't hold onto them despite all of those years, but the facts on the other side were what the majority Justices found so compelling that the unemployment rate in that area was double what it was in the state. That it was economically distressed. They had lost a Naval research base, so this, the court found, somebody on that side of it, the lawyers on that side of it did a great job of really building up those facts, and saying, this is a proposal. It's an integrated plan to --

>> Paul Bender:
it's not just taking it from one person and giving it to another. It said if there is a real economic problem and a real economic development plan, that's the public use. Maybe the most important thing --

>> Michael Grant:
I still think that the health club is important.

>> Paul Bender:
The most important thing for people in Arizona, is that the Arizona constitution, as most state constitutions have, has a provision that's about this, and it starts off by saying you cannot take private property for private use. So there is a chance there that the Arizona Supreme Court will protect property owners' rights, which they can beyond what the Supreme Court does.

>> Michael Grant:
In fact, Justice O'Connor who referred to the majority ruling as perverse encouraged state legislators in the wake of this ruling to take steps on it.

>> Paul Bender:
The state supreme courts could do that.

>> Michael Grant:
Now, let's say we're strolling the grounds of the Texas State Capitol and we stumble on the Ten Commandments.

>> Paul Bender:
You sort of crash into it. I think it's six feet tall.

>> Michael Grant:
And we think no endorsement of religion there but we wander into a Kentucky courtroom and we say I say that's an endorsement of religion, try to sort that out.

>> Paul Bender:
I may be crazy, but it seems to me that's an easy -- those are two easy cases to distinguish. They are quite different.

>> Michael Grant:
They are.

>> Paul Bender:
The Texas thing was put there years ago, not by the government, by the fraternal order of eagles as part of a national campaign by Cecil B. DeMille to give publicity to the movie the Ten Commandments. It has on it, put by the Fraternal Order of Eagles. And more important, there is 20 or 30 other monuments like it around it, something about the Alamo, veterans memorials, war memorials, stuff like that. So it seems to me, the government didn't do that with any purpose to say, hey, we're religious people and you better be religious, and nobody would think they did, but the Kentucky case, they took the Ten Commandments alone, framed them up in a monumental way and stuck them on the wall of a courthouse. Now there you have the judges saying, hey, we're all Judeo-Christian here.

>> Michael Grant:
Wasn't there involvement by the Kentucky legislature somehow? I thought I read that.

>> Catherine O'Grady:
They did. They issued a proclamation of some sort or statement saying that this is the purpose behind the purpose was clear, that this was a religious purpose behind these, or that we ought to pursue that in the courthouse.

>> Paul Bender:
And when challenged as you just saw in the graphic, they put three or four other little things around it, which in some ways makes it even worse.

>> Catherine O'Grady:
Because they concentrated on God, in God we trust, and the references to the Almighty in the things that they tried to add to it.

>> Paul Bender:
Yet the court was 5-4 in each case, four people said they are both unconstitutional, four people said neither are and only Justice Breyer sees the distinction that I see.

>> Michael Grant:
Are the Ten Commandments in Bolin Plaza safe for all time.

>> Paul Bender:
I don't know for all time.

>> Catherine O'Grady:
They are so much like the Texas case. They are just the same sort of display, and pioneer women and all of the other things that are around them, yeah.

>> Michael Grant:
Let's say hypothetically that the movie "the Ten Commandments" is put on Grokster, is says sill B. DeMille's estate going to get damages for that?

>> Paul Bender:
That's not clear. What happened was, as you probably know, most people who use computers know, there was a thing called Napster which let people share files, peer to peer, they say. I've got a copyrighted song, you've got a copyrighted song, I don't have to buy yours, and you don't have to buy mine, because I'll give you mine for free and you'll give me yours for free. The ninth circle held that was copyright. But we're very hard to find and catch. You can't effectively stop it. They held that Napster was an infringer because they went through Napster.

>> Michael Grant:
It was a facilitator.

>> Catherine O'Grady:
It was a centralized database.

>> Paul Bender:
One thing we know about computer geeks is that they always find a way to get around anything, so when Napster decided that, Grokster said we won't do anything, we'll sell the software, give it away, and then you and I can share files using their software. Now we're in a constitutional right line, but they are making money from it because they sell ad space and somehow that depends, the revenue depends upon how many people do this. The Supreme Court held that the fact that they weren't in the loop did not immunize them if they intentionally and deliberately encouraged people to violate copyrights in movies or songs by doing this. Now, the plaintiffs still have to prove that they did that, but there is very stock evidence. The real question is -- I think the plaintiffs will win this case -- now another service will come and they won't encourage people. They don't have to. Everybody knows you can use it that way, and the court did not resolve what to do there. Justice Breyer had one view. Justice Ginsburg had another. That issue is up in the air.

>> Catherine O'Grady:
The numbers are so huge, 135 million people have downloaded the stream cast software. Their web site says how they are going to fight this to the end. You can get every brief in the case from the stream cast web site. So, they are going to fight it.

>> Michael Grant:
Someone should copyright their pleadings. A victory for wine connoisseurs and small wineries as the Supreme Court ruled 5-4 that state laws prohibiting direct shipments to customers are unconstitutional. In another case, the Justices ruled the cultivation and use of marijuana for medical purposes violated the Controlled Substance Act in which congress outlawed certain drugs. Ten states passed laws for the medical use of marijuana. Let's pick up the winery case. That was interesting because it's throwing the -- test my memory here, 21st amendment against the interstate commerce clause.

>> Catherine O'Grady:
Specifically the dormant commerce clause which is an unspoken within the commerce clause that states cannot impact interstate commerce in a way that might discriminate against out of state vendors or suppliers. In these cases, the states at issue, I think there are about 26 states that treated in-state wineries with a preference. They were allowed to sell directly to the consumer, while out of state wineries could not. They had to go through a wholesale-retail network before they could get out of state. Well the court said section 2 of the 21st amendment gives to the states the power to regulate liquor if it's intoxicating beverages. They are treated differently, but a majority of the court said no, just because it's alcohol -- they treated it as if it were a good, an article of commerce and the states under the dormant commerce clause cannot discriminate against out of state providers.

>> Paul Bender:
Basically saying, if the state wants to be dry, it can, but it's got to dry equally. If they want to be semi dry and permit we are beer they can do that.

>> Michael Grant:
Cathy, it seems intuitively correct result from the standpoint that well, if the State was exercising its power granted by the constitution to say no alcohol at all, fine, but if it was doing it in a discriminatory fax against interstate commerce that would be good but it was a 5-4 decision.

>> Catherine O'Grady:
It was a 5-4 decision with Justice Stevens wrote the dissent saying today our young people, 86-year-old Justice Stevens said in his decent look at alcohol as if it were another item of testimony commerce that we could purchase that is entitled to these type of protections, but he said the framers never saw it that way. This was considered to be something that was almost shocking, you know, we have to allow the states to regulate it, and the 21st amendment in his view would trump any sort of prohibition that is we find in earlier, you know, implicitly in the dormant commerce clause. So, yeah, it was a 5-4 ruling. We had Rehnquist with both of these cases, the pot and wine cases, we have Rehnquist right there for states, whatever the states are wanting to do, he's in favor of the states, typical of justice Rehnquist, I think, but in both of those cases Justice Scalia leaving his side and going to either endorse the federal government in the Controlled Substance Act or the constitution.

>> Michael Grant:
Speaking of good facts, you would have thought that the medical marijuana case would have been good facts.

>> Paul Bender:
You can't get better facts than that.

>> Catherine O'Grady:
No kidding.

>> Paul Bender:
Not only the person, but the state, you have somebody, two people, using marijuana for clearly legitimate medical purposes, one of them the evidence was she couldn't stay alive without it. In California, and you have California saying they should be allowed to do that. And you have the Supreme Court saying that the federal government has the right to stop them from doing that, even though they are doing it for medical purposes, even though it has no connection with interstate commerce directly and even though the state wants to do it. It's really interesting because the people you would think would be sort of permissive toward marijuana were the people who mostly voted that the federal government could stop it, and the people you would think would be more horrified by marijuana were the people who said that the states rights should prevail. It's sort of a flip.

>> Catherine O'Grady:
It's a federalism case.

>> Paul Bender:
But the new revolution of federalism whereby they are going to cut down on the power is not a strong principle that the court will stay with. Justice Scalia says that's an important principle, but here he was on the other side, and I think Kennedy was also. So, I think that this shows the federal revolution, federalism revolution, these limits on congress is really stalling.

>> Michael Grant:
Almost out of time, but certainly one of the other major cases of the term was the juvenile death penalty case.

>> Catherine O'Grady:
Yeah, and the court has sort of tracked what it did a couple of terms ago with mentally retarded and the death penalty there. They look and found a national consensus against execution of juveniles. These are individuals who have committed the crime while they were under 18, and now, of course, years later, they are subject to death under our previous rules and the court said, no. Interestingly, too, the court looks at international norms and really used them for one of the first times to say we were the only nation who were executing juveniles, people who committed crimes as juveniles, and they decided to prohibit that.

>> Paul Bender:
That's a very controversial point. They said we're not -- this isn't where. We're deciding it, but it ought to make you feel comfortable with what you're doing that we're the only country who is doing this, and Justice Scalia just hit the roof, and said what in the world does what England thinks or France thinks or Brazil thinks has to do with what our constitution means. Our constitution is our constitution. He's completely wrong about that, because the Eighth Amendment says cruel and unusual punishment. I don't think that's an insular national concept. What's cruel is broader than that, and what's unusual is broader than that. I think this is a very strong case for looking to what happens around the world rather than just what happens in this country.

>> Michael Grant:
All right. Well, it was -- this was a really interesting term.

>> Catherine O'Grady:
It was a fun term.

>> Paul Bender:
Not mind boggling in importance but interesting.

>> Michael Grant:
Very interesting.

>> Catherine O'Grady:
Good facts, exactly.

>> Michael Grant:
Cathy O'Grady, thanks to for joining us to talk about it. Paul Bender, always a pleasure.

>> Paul Bender:
Same here.

>> Michael Grant:
That's it. Thank you for joining us on this special edition of "Horizon." I'm Michael Grant. Have a great one, good night.

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