Ted Simons: Tonight on "Horizon," the United States Supreme Court starts a new session with a new justice and a number of important cases. A look at the U.S. Supreme Court, next on "Horizon."
Good evening, and welcome to "Horizon." I'm Ted Simons. The United States Supreme Court started its new session this month with justice Sonia Sotomayor taking the bench for her first full session. Some of the big questions before the court -- can a group distribute a documentary blasting a candidate 30 days before an election? Are dog fighting videos protected by the first amendment? And are the city of Chicago's gun restrictions constitutional? Here to help guide us through the court's most important cases this session is Arizona state University law professor Paul Bender. Good to have you back on the show. I always love these, because they've got so many cases, but before we get to those -- .
Paul Bender: The court is really interesting.
Ted Simons: It is, especially this session. But Sonia Sotomayor replaces Souter on the bench. Any tangible difference?
Paul Bender: The one tangible difference you've already seen. In the first week of oral argument, she's very active on oral argument and very strong, and she has a lot of questions. Souter was not that active. He always asked great questions, you could always tell Souter knew what the issue was on any case, but she seems -- her votes are not going to differ from Souter's in any substantial way. I would be amaze first degree they were. So her coming on the court is not going to change how cases come out, but I think she'll be a strong presence on the court. She's a strong person, she's not shy about saying what she thinks, and I think she may have ultimately some effect within the court's dynamics. But in terms of –and I think she'll be a very visible Hispanic woman judge on the court, which I think is also good. But I think decisions in the next few years are not going to be different from what they would be if Souter was still on the court.
Ted Simons: As a former prosecutor, is she more likely than Souter, maybe to look a little differently with criminal caseses?
Paul Bender: Souter was a prosecutor. Souter was attorney general.
Ted Simons: OK.
Paul Bender: Of his state for a long time. So, no, the answer is no.
Ted Simons: Kennedy still -- he's still a big yeah.
Paul Bender: that's the thing that's happened. And we're stuck with that if you like to look at it that way, for the foreseeable future. That is a court that now is composed of four very conservative justices. Chief justice Roberts, and justice Alito, and justice Scalia and justice Thomas, and four moderately liberal people. Justice Breyer, Ginsburg, and Stevens, and now justice Sotomayor. And those groups of four stick together under amazing percentages of the time in closely divided cases. And then there's justice Kennedy. And he is in the middle. And he's been in that position now for a couple years since justice O'Connor left. So the liberals could win if they got one of them, now they -- if they have one of the two, now they only have one chance, and that's Kennedy. So it's really the Kennedy court. In almost every closely divided case you can think of, if you talk to lawyers involved in the case, all they ask is, how can I get Kennedy to vote on my side? And he has been slowly moving to be more -- less conservative. He, for example, has been an advocate tremendous strong advocate of Gay rights, the strongest advocate of Gay rights on the court. He's changed his views somewhat about race conscious affirmative action. He used to be completely opposed to it, but a couple years ago chief justice Roberts wrote an opinion about how using race to integrate was just as bad as using it to segregate. And Kennedy said, you know, you're wrong about that, I'm with you on this case, but you just don't understand how different those things are. That's a new thing for him. So one of the real questions is, is he going to keep moving, how is he going to keep moving and what kinds much cases will he keep moving? Because it's going to be this way for the foreseeable future. Justice Stevens has given some indication that he might retire at the end of the year. If he retires and he's replaced by somebody like justice Sotomayor, that's not going to change the court. The next oldest person on the court is justice Ginsberg. If she leaves and is replaced by somebody like that, that's not going to change the court at all. The real conservatives on the court are quite young, except for Justice Scalia. So we are -- we have this Kennedy court for the foreseeable future. Another interesting thing is, you have these four very conservative people on the court. It's interesting because at the time that the court is getting more conservative, replacing justice O'Connor with Alito, the country is becoming more liberal, replacing bush with Obama. And that -- if I'm one of the conservatives on the court I’m saying, you know, we're never going to have in the next 10 years, maybe, certainly five, if I'm a conservative on the court, we're not going to have more power than we have announcement we're not going to have a fifth person. The fifth person is Kennedy. So it makes it much more important for them if they want to have lasting effects on changing the law back to the way it used to be, which they want to do in a number of areas, it's -- they're going to be pushing I think hard to get Kennedy to join them. And Kennedy, it seems to me is drifting in the other direction. So that kind of dynamic on the court I find, is really interesting.
Ted Simomn: indeed. Let's get to some of the bigger cases. Citizens united versus FCC. It involves this documentary on Hillary Clinton when she was a candidate and whether or not that is corporate free speech. Talk to us about that.
Paul Bender: Yeah. That could be the most important case of the year. It could be one of the most important cases of the decade. Because the basic issue in the case is whether a long-time American rule that corporations did not have the right to make electioneering advertisements and elections—that free speech right of individuals or did not apply to corporations-- that the government could limit corporate speech. The court asked the lawyers in that case to argue whether they ought to overrule those precedents. And if they did that, then we would have a situation where we're talking about commercial corporations, and we're talking about lots of money that's earned by commerce, General Motors sells a lot of cars, makes-used to make millions of dollars. Can that money can spent before an election by the corporation in support of a candidate? That's a very important question. The fascinating thing is, it arises in this case which doesn't involve a corporation like this. What you have here is an issue corporation, a family values corporation that was -- it's a nonprofit corporation that is opposed -- was opposed to Hillary Clinton and they want to show this documentary 30 days before the primary. The FEC decided to say they couldn't do that. And they have the strongest argument of any corporation about free speech because they're not a commercial corporation. So the court seems to be winding up to decide this very big issue about whether big commercial corporations can take over the election process with all of their money in a case that doesn't involve a big corporation. So it will be interesting – you know the court keeps saying, people say about the court that they are a minimalist court, they move in little steps. Well, this ain't a little step. This would be an enormous step, and it would be taken in a context that's completely different from the real issue. And they brought this on themselves. They asked the parties to argue this. The parties were arguing it on a much narrow basis.
Ted Simons: It seems to me -- correct me if I'm wrong -- but it seems almost the question is, are corporations different than individuals? And isn't that the bottom line question?
Paul Bender: That's the question, the answer is yes, they are. Of course they're different. A corporation is alive. Corporations don’t walk and talk. They talk. They don't walk. They don't vote. Corporations are artificial entities. The question is whether the first amendment, the freedom of speech of people, that's what most people thought it always meant. Now the argument is being made that oh, no, it doesn't matter whether people, or machines or corporations, you don't worry where the speech came from. That's a very important issue. And a very difficult issue to solve.
Ted Simons: What do you see the court doing?
Paul Bender: That's a hard one. And it's up to justice Kennedy. I think there are four people on the court who would want to overrule that precedent. There must be. Because they had the case re-argued. And asked the lawyers to do that. And they wouldn't do that unless there were four people on the court who would at least think seriously about doing that. I hope they don't, because if they want to face that issue, they ought to face when it Congress tries to do something that really stops the corporation that has a threatening -- that threatens to overcome the system with its money. And that's not happening in this case. So I hope they don't face the big issue in this case, but boy - the oral argument in September, it sounded like they wanted to do that. And if they do that, that could revolutionize American politics.
Ted Simons: OK. Let's keep it moving. We've got a couple cases in Florida regarding juveniles who have committed serious crimes, nonhomicidal crimes, but serious enough to warrant life in prison with no parole. The court is looking at cruel and unusual for those sentences?
Paul Bender: You probably know that the court has held that it is unconstitutional to give the death penalty to people who commit crimes while juveniles. That's cruel and unusual punishment. The question in this case is, well, OK, can we give them life without parole for non-homicidal crimes? And that's a step beyond the death penalty. These two juveniles, they're different. They’re two cases, both are different. One involves a juvenile who at the age of 16 committed a robbery, and then was put on probation, they didn't sentence, they put him on probation for three years after serving a year in jail and if he did the probation, they would let him go. But it's out of -- gets out of jail after a year and does it again. So they bring him in for probation violation for the first crime, and the judge says, you're incorrigible, I'll sentence to you life without possibility of parole. When that finally happened, he was I think he was 19 or 18, the second crime occurred when he was 17. The other case involves a 13-year-old who was convicted of raping a woman as part of a robbery. And that was his first adult offense. He had a record of juvenile offenses and they thought he committed a lot of adult offenses but he had never been convicted of them. The first offense the judge sentenced him, the 13-year-old, to life without possibility of parole. He's now 33 years old. He's been in jail all that time. But that seems to me to be a different issue when you're dealing with somebody that young, and you're going to say, you can be kept from society for the rest of your life for something you did when you were 13 years old.
Ted Simons: So with those two cases, with that difference, does the court look on one case and say, that's an unfinished product, that’s a 13-year-old who is unfinished, the older kid may be more of a finished product -- how do they do this?
Paul Bender: It's not easy. I think that the tendency would be to draw a line between the two of them. But where do you draw the line? 18, 17, 16, 15? That's something the courts are not terribly good at and don't like to get involved in. And yet they're faced with these two startlingly different cases. One is somebody who’s almost an adult who has shown that in some ream sense he's incorrigible. The other is a 13-year-old kid who maybe is incorrigible as a 13 year-old, but most people probably think somebody at that age is not beyond help. I think the temptation for the court, I would think, would be to treat the cases differently. If they do that, that will be interesting, what they say the difference is.
Ted Simons: United States V Stevens includes videos of dog fights and dogs hunting which the government says is animal cruelty. But the --
Paul Bender: not dogs hunting, just hunting and picking up dead birth certificates -- birds that people shoot. Dogs hunting by attacking pigs and ripping them apart --
Ted Simons: The question is, is this educational, an exemption for educational videos to show what a pit bull can do?
Paul bender: That's not what's involved here. What's involved in this case are videos of pit bulls for people who like to watch pit bulls fighting and who get enjoyment out of that. The federal government passed a statute some years ago making it a crime to show, sell videos of animal cruelty which is torturing or killing animals deliberately, OK, and it says you couldn't do that in states where it was a crime, or you -- that torturing was a crime, or you couldn't show the videos in states where it's a crime or you couldn't show videos of torturing that occurred in states where it's a crime. That raises important first amendment issues. The Supreme Court has held for years that obscenity defined in a very strange way is outside the first amendment. Then they held that child pornography, which is somewhat like obscenity but uses children in -- for sexual pictures, is outside the first amendment. The government's argument here is, well, if that's true, and if the reason why you're stopping videos of children, even though they're not obscene, from being shown because the children are being molested, and you want to stop children from being molested in order to make these videos, and also you want to stop encouraging people to do that, these animals are being molested. This conduct toward animals is illegal, and inexcusable. And you ought to be able to prevent that for the same reasons. And the argument on the other side is, hey, this is the first amendment, and let's not expand any exceptions to the first amendment. If the court were to uphold this, which I don't think they will, but they might, if the court would uphold this, it would open up the possibility of other kinds of exemptions, like really violent kinds of stuff, violent video games, which a lot of people have wanted to. The question is whether the court should enter an area where they say that speech has so little positive value, and so much potential harm, that it would be possible to ban the speech. This statute has an exception for videos that have redeeming social value. And I think the big point in the case with that exception is whether it's clear enough so you can draw the line on whether people will be uncertain of what they can do, and that would have maybe a chilling effect on legitimate speech.
Ted Simons: Wasn't the exemption though, the idea that the plaintiffs saying the exemption for educational, religious, political, and scientific value, that this is educational to show what a pit bull can do and so --
Paul Bender: no, I don't think that's the defense. The defense is the statute is unconstitutional. This is being used as sort after test case.
Ted Simons: Salazar V Buono, about an eight-foot cross in the desert.
Paul Bender: Most people have heard about that in the last few days. It was argued a couple days ago. Again, very interesting. Years ago the veterans of foreign wars, since the 1920s, put up a cross in what is now the Mojave desert national park or monument, as a memorial to veterans of the first World War. And they put up a cross as a memorial. And it's been there for a long time, the plaque that was with it is gone. And then somebody suggested to the park Service that, hey, this may be unconstitutional, you have a cross in the middle of a park, just a cross, nothing else. And so the park Service said, we're going to move it. And Congress got alerted to that and passed a statute that said don't you move that cross, you leave it there. Then somebody sued, actually somebody who worked for the park Service sued and said, I think it's unconstitutional to have it stay there. And the district court said, you're right, it is unconstitutional, so government, you either move it or take it down or cover it up, or you do something like that. Then Congress acted again and they said, OK, we'll deal with that. The government did not appeal that. We'll deal with that, we won’t to move the cross, we'll change the ownership of the land and so they swapped the acre that the cross was on for five other acres abutting the park that somebody was willing to give them, and said, OK, now the cross is not on government land anymore because the acre belongs to the VFW. And they -- the statute says the secretary of the interior should make sure the cross stay there's and make sure the plaque stays there, which says this cross is a memorial in honor of the veterans. And the issue was whether Congress can evade a district court decision in that kind of way. There's a preliminary issue in that case which may well be that the deciding one, and that is whether the plaintiff has standing to sue about this. Normally individuals don't have standing to complain that the government is doing unconstitutional. In the area of religion, if it costs money, a taxpayer can do that, but this doesn't cost money. And so the question is whether this person who says he's offended by it being there, he walks through the park and sees the cross, whether that is enough to give him standing, and I suspect the court will hold, because the other issue is so thorny, the court will hold, no, he does not have standing so the cross will stay.
Ted Simons: Interesting move by Congress.
Paul Bender: Yes. Congress and the courts sometimes have tension.
Ted Simons: We've got a couple of cases in Chicago regarding handgun sales in the Chicago city limits. Didn't we have that a couple years ago back in Washington --
Paul Bender: People may be confused about that. There was a big gun rights case in a couple years ago where the court first time held you have -- individuals have a second amendment right to possess guns for self-defense. It's not clear in the language of the provision. So you would have thought, OK, now everybody has a second amendment right to possess guns. That case involved the District of Columbia ordinance. That's a federal statute. So the second amendment applies to that because the first eight amendments applied only to the federal government. Chicago has almost an identical ordinance. The question is, is the second amendment applicable to the states, even though when the bill of rights was first enacted it only limited the federal government, the Supreme Court has included most of the provisions of the bill of rights in the 14th amendment concept of due process: free speech, freedom from unreasonable searches and seizures, compelled confessions and stuff. The question is whether they will include the right to bear arms as one of those fundamental rights that is applicable against the states under the 14th amendment.
Ted Simons: So the idea that a federal law supercedes state doesn't apply here because of the idea of applying directly to federal.
Paul bender: Well, the question is whether the -- whether this provision of the bill of rights applies to the states. When the bill of rights was first added to the constitution, it only applied to the federal government. And it's been a slow process since the civil war in the 14th amendment of adding provisions of the first 10 amendments into the 14th amendment. And now the question is whether this one should be added. I think the court will pretty clearly add it, because how can they say that this right is different from all other rights? Free speech applies, freedom of religion applies, freedom from unconstitutional search and seizure applies, why not this one? On the other hand, the second amendment, when you read it, sounds like it's meant to be protective of states, because it's meant to protect the states' right to have militias, which was one of its main things. Well if it was meant to protect the states, why should it stop the states from doing what they want to do. If states are willing to control guns and that interferes with their right to have a militia, they've made that choice. Why isn’t that up to them. That's the argument on the other side.
Ted Simons: We have time for one more. This -- as a sports fan, this captures my imagination. American Meadly v. the NFL, clothing company, this is basically goes to the antitrust nature of professional sports leagues.
Paul Bender: The question is, is the NFL, or any sports league, one entity or 25 entities. Each team is separate. Of course they get together with each other a lot of times when people competing with each other in other businesses, manufacturers of clothing, manufacturers of cars, can't get together with their competitors and say, OK, here's what we'll do. Here's the price we'll charge, here’s what’s we’re gonna chargem that's monopolization. So if it's separate -- what's happened is they all got together and decided we're going to buy our team hats or something like that from only this company. And the people who are suing are a different company. They're saying, hey, you're getting together and fencing me out of the market. You can't do that if you're separate entities. And they say, we're not separate entities, we're one league. And he says, but you compete with each other all the time. Yeah, we have to do that, otherwise we wouldn't have any games. It's an interesting question. Are these leaguing one entity, in which case they could all get together and decide what prices to charge, they decide on their schedule, how to hire people, they decide about reserves and how to trade people and stuff like that, salary. Or are they going to be treated as separate entities, which have to act independently about those things?
Ted Simons: Is this the kind of thing you think the court would -- to consider the NFL, for example, 32 separate entities, that's a big change for a very lucrative professional enterprise. Is the court ready to take that step?
Paul Bender: I don't think so.
Ted Simons: OK. Interesting bunch of cases this time around.
Paul Bender: Yes, it is. And as I say, I think it's going to be interesting to see how Sotomayor seems to affect the court and see whether Kennedy is going to be pulled by the real conservatives into doing some big conservative changes before the conservatives lose control of the court. Or is he going to move toward the liberal side.
Ted Simons: Do you see a lot of split decisions, do you see many of the cases we talked about, any of these things overwhelming one way or the other?
Paul Bender: Well these cases are all controversial. And they are probably mostly going to be split decisions. The court has a lot of cases, this year it's taken more cases than usual, but the court has at least half the two-thirds of the cases are not that controversial. They involve interpretation of federal statutes and things like that where the court is often unanimous. So, the court isn't divided this way in everything, but it is divided in the way I described before, in these cases with a lot of of political overtones like corporate speech, like free speech, like crosses in the park, and perhaps even like life sentences for juveniles. And so there will be those cases I think will be evenly divided, and everybody will be looking to see whether the court is getting more conservative, or whether Roberts is having an effect on moving Kennedy back into the conservative fold more consistently, or whether Kennedy is declaring more independence from that and siding with the other side more. And even when he votes with the conservatives, he has the ability to make them write a narrow opinion, because they need his vote, rather than a broad one. So it's the Kennedy court.
Ted Simons: Interesting stuff. Thanks for joining us.
Paul Bender: Nice to be here.