Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. Employer sanctions, clean elections, and private school tuition tax credits -- those three Arizona issues were among the cases heard this past year by the United States Supreme Court. Here to talk about the high court's latest term is ASU law Professor Paul Bender. And Attorney Scot Claus from the Phoenix law firm Mariscal-Weeks. Thanks for joining us.
Scot Claus: Thank you, Ted.
Ted Simons: Paul, I'll start with you. I've read people are saying it's the most conservative court in decades. The partisan divide going ever more pronounced. What say you?
Paul Bender: Well, the partisan divide is going more pronounced. When Justice O’Connor left and was replaced by Justice Alito. She was kind of in the middle of the court. I do a kind of chart every year of the court's decisions whether conservative or liberal and chart each justice; Justice Alito is the most conservative justice on the court. You have someone in the middle replaced by the most conservative justice there is. That makes the court – now the supposed liberals, umm… moderate liberals can only win a case by getting Justice Kennedy. Where before we could win by getting either Justice Kennedy or O'Connor.
Ted Simons: Is there a perception that the court is more partisan than ever before and if so, is the court damaged by something like that?
Scot Claus: What I’ve noticed, this is the year of themes, this is the year of the court making what was perceived to be ideological manifest. Professor Bender, I call him Professor Bender because he was my professor 20 years ago. Professor Bender mentioned Justice Alito, Justice Alito voted with Chief Justice Roberts 96% of the time. There's no question that the court is divided along ideological lines which makes it so stark when you have a Justice Thomas joining a Justice Kagan dissent or Justice Breyer joining a Justice Scalia dissent. It's unfortunate that the Supreme court has become so predictable in the way it rationalizes its decisions according to its ideological lines.
Paul Bender: That's so rare to have Justice Alito -- in fact, people for a while were saying that Justice Roberts has made the court more liberal. I don't think there's a case where he joined with the liberals where it made a difference in the results, so the court, as Scot said it, is enormously predictable. The question is, how is Justice Kennedy going to vote?
Ted Simons: So It's still a Kennedy court. Before we get to the cases now - Justice Kagan, impact?
Paul Bender: Well, it's hard for her to have an impact in terms of the results because she replaces Stevens and their outlook is very much the same. I think she's having an impact because she's so clearly very smart and very articulate and very charming. The case I argued, the tax credit case, I think it was the second or third argument she heard and she took over the court at the argument. She was so good about asking questions and so in control and she's written a couple of great dissent so I think she has the possibility of being someone who maybe persuade others to go her way but certainly write, very important and clear opinions.
Scot Claus: When you read the Kagan opinions it's clear she hasn't been inoculated by being on the court so long. I mean she writes like a lawyer and sets out arguments, and goes through her analysis and rhetorically flavors her opinions with phrases like "not so fast," and "if only wishing made it so." So she really writes like a lawyer, writes like a litigator.
Paul Bender: Like a good lawyer.
Paul Bender: Writing like a lawyer would not something that I would say was a compliment.
Scot Claus: Sorry.
Ted Simons: Let's get to the cases here. We'll get to the tuition tax credit in a second, but I want to start with employer sanctions. It was certainly a biggie. Give us an overview quickly and what the court decided?
Paul Bender: It's a preemption case. The court decided that the Arizona statute is constitutional, hence it was not preempted. The issue in the case was not a broad issue as might be the case when 1070 gets to the court but a question of interpreting a federal statute. When the federal government decided to make it a federal offense to hire illegal aliens, it preempted the states from doing the same thing. So they say it is sanctioned, either civilly or criminally. It says that the court shall not sanction employers for hiring illegal aliens but except they may do so through licensing laws and the question was whether Arizona's case was a licensing within the meaning of that exception and the court held it was.
Ted Simons: Pretty narrow focus, wasn’t it?
The other component of the case was whether or not the state of Arizona could mandate something that the federal government made non-mandatory, which is the use of the e-verify program. Congress established an e-verify program and stated that the secretary of homeland security could not require, no not the secretary of homeland security. It said that the federal government could not make participation in the e-verify program mandatory. It certainly seems as though congress had preempted at least the field of how you verify the ability of an immigrant to work in the United States. And the court said, no, the court said just because the federal government says that the federal government can't require an employer to use e-verify, that doesn't preclude a state from requiring that an employer use e-verify, which was the most surprising part of the decision to me.
Ted Simons: All in all, some thought they might get a hint on what the court would do if they got SB 1070. Is that valid here?
Paul Bender: It's valid in the sense that the court in this case, Justice Roberts who was sayingthat the state was preempted and emphasized the fact that the state had to basically be under the supervision of the federal government in applying its law. And find from the federal government whether people were illegal and it couldn't act on its own. If he really means that, then that says -- suggests 1070 is unconstitutional because 1070 is something where the state is free to do what it wants on its own. On the other hand, and I think this is more important, case split 5-4 along ordinary political lines. The four conservatives on one side, the other had Justice Kennedy with them. He's usually conservative. Four liberals on the other side. If the court sees the 1070 case that way, that suggests they'll uphold the statute because I think it's a thing that conservatives tend to like and liberals don't. The most likely thing for the court to do is deny CERT, or hold that the statute -- the case is brought prematurely, we should have let 1070 go into effect before the challenge is brought.
Ted Simons: I know how you feel about the school tax credit case. I want it hear from you from you, what the court decided was not necessarily the proper challenge. Talk to us about this.
Scot Claus: I heard from many people that this was the year of the first amendment. It's true if you only look at part of the first amendment. This wasn't the year of the first amendment for establishment cause. This was the year of the first amendment for freedom of expression cases but not establishment clause purposes. And the court did what I thought the court would do, which was to say that there was simply not standing. It wasn't -- the -- there was no particularized individualized harm which permitted the court to characterize the case as a case for controversy under article three of the constitution.
Paul Bender: The important thing there, they did not rule on the constitutionality.
Ted Simons: Exactly.
Paul Bender: Never got past --
Paul Bender: And the ninth circuit held that unconstitutional but the Supreme Court hasn't ruled even though the case has been before them twice so they held there's no standing of taxpayers to challenge this. Which is really the one big change in the law for the whole term. That's new. Taxpayers have been allowed and permitted in the past to challenge these tax expenditures and tax credits and tax deductions and tax exclusions and in this case, because it's true, we've let them do it in the past but never decided they could. Now we're going to decide they can't. Even though the case was before them and Justice Kennedy wrote an opinion trying to get rid of the case and never suggested they didn't have standing. So the court is clearly moving away from deciding the establishment clause cases. It’s into free speech, but really not into free religion.
Ted Simons: Quickly, does that mean that the case isn't over yet? You find someone who really is damaged, and here we go all around again?
Paul Bender: You could definitely do that, yes.
Scot Claus: I think that that is a very logical tactician thing to do, so find someone who can recognize that individualized, particularized form because you really put the merits of the case in the Supreme Court's lap. You tell the Supreme Court you really want to champion the first amendment. You want to champion the first amendment for corporation, you want to champion the first amendment for large political action committees. Well, the first amendment doesn't just give people the right to speak and right to assemble. It prohibits the government from establishing a religion. Here you are a court and here you are someone not -- suffered a hypothetical but an individualized particular harm. Now decide, does the establishment clause mean what the establishment clause says?
Ted Simons: To be continued. As they say.
Paul Bender: Well, if -- if somebody withstanding decides to challenge it, yeah.
Ted Simons: The clean elections matching funds case, give us a overview and was that a surprise to you?
Paul Bender: No, it wasn't a surprise. It would have been astounding if they had decided something other than that. Because they held the thing unconstitutional before the case got there. They enjoined Arizona from using the matching fund provision in the last election even though no one had filed a CERT petition by that time. If the court is going to stop the state from using the statute it's used for 10 years, suddenly, how can they say, ‘oh, we were wrong’. It's an interesting issue. As all of these cases, the court was batting 1,000 with regard to the Arizona cases. They got all three of them wrong and this one wrong. The question is whether the clean elections matching fund provision violates the first amendment rights of the non-clean elections candidate and the argument was, well, it does, because the non-clean elections candidate knows if they spend money, their funds are going to be matched and so the opponent will spend and that will discourage them from spending money. The notion it violates the first amendment through the government sponsored speech, to get more speech out there, I think is fairly bizarre.
Ted Simons: And yet the majority said it inhibits free speech?
Scot Claus: The predicate is that money always equals speech. Roberts gave -- or was it Alito -- gave a -- it's hard to tell them apart because the frequency they vote together. Set forth examples of how the thousand-dollar donations to one candidate might spur a match from the Arizona clean elections fund. In every instance, it was not clear that the expenditure was for the purpose of speech. Was not for the purpose of expressive activity, yet an essential predicate for the conclusion reached by the majority was, when an expenditure is made in a campaign, when an expenditure is made to benefit one candidate, that expenditure always equals speech, and Professor Bender is exactly right and I think this was a brilliant dissent written to illustrate how if anything, we are increasing political discourse. We're freeing the shackles of the moneyed from the marketplace of ideas. And it was extremely predictable, given the citizens united case, that the court would reach the conclusion that any expenditure of money equaled expression and if the government was involved, that the expenditure would be deemed unconstitutional as abridging the expression of free speech.
Paul Bender: That case makes -- it's the fifth case in the row where the court struck down a campaign financing law. The majority of this court is very much opposed to campaign financing. Whether they'll end up striking down all campaign financing, including the federal presidential campaign is questionable but they clearly don't like it. And they’ll do everything they can to stop it. Roberts' opinion for the court said, you know, they're trying to get a level playing field in Arizona, what's with that? You don't have a level playing field. The important thing to be able to spend as much money as you can. The notion it's illegitimate for a state to get a level playing field in elections?
Ted Simons: We move over to California now, we are going to play videogames.
Paul Bender: I am already going to move there?
Ted Simons: Ypu are already going to move there?
Paul Bender: Yeah.
Ted Simons: Yeah, it feels like we should. 7-2 vote on this regarding violent video games. Again, first amendment, videogames are the same as books, same as movies?
Paul Bender: Does that surprise you?
Ted Simons: Ah --
Paul Bender: It would surprise most people. Anything is one the first amendment these days. Videogame where people push buttons and the result is virtually killing or raping someone, that, the court says is a form of entertainment and visual and therefore protected by the first amendment and because it is, you can't -- in this case, it was stopping from selling to children and the court said you can't even do that. Even though in the sex area, the court said you can stop people from selling girly magazines to children even though you can't stop them in selling to adults. But with violent stuff they said, ‘well, with regulations on obscenity or violence for adults, you can’t have it for children.’
Ted Simons: You got a kid who can't look at a girly magazine but can play videogames in which all manner of mayhem and violence, sexual and otherwise is ok.
Scot Claus: Justice Scalia would say that no, a child can read the girly magazine as long as the parent or uncle allow them to read the girly magazine/ the child on California could have played any violent videogame as long as a parent -- or Scalia going one step farther than he needs to go -- aunt, uncle, good friend purchases it for them, the child can play them.
Paul Bender: It's unlikely an aunt or uncle would give the kid the game if the parent didn't want them to. You would think about court would care with the parents' ability to control their kids and they didn't.
Scot Claus: And I think this is fascinating. Justice Thomas writes a dissent that starts with the puritanical history of child-rearing and says we should judge the words of the constitution based on the parenting skills set and parenting paradigm established when the founders established the first amendment. But --
Ted Simons: Didn't Scalia say something like this had nothing to do with -- wasn't there a response?
Paul Bender: A response to what?
Ted Simons: To what Thomas wrote.
Paul Bender: Let's be clear. Thomas wrote an opinion only for him which said that children have no first amendment rights. There's no -- the only thing you can do is communicate with the parents, that's a remarkable -- it gives you a sense of what Thomas' jurisprudence is. He wants to go back to the 16th century.
Scot Claus: Except that in the same term, Thomas determined that a child can be arrested and not Mirandized.
Ted Simons: Which I want to get to in a second. [Laughter] Let's get to the Wal-Mart case. This has big doings here.
Scot Claus: There was an entire set of cases this year that curtailed the ability of class action plaintiffs or punitive class action plaintiffs to bring class actions. The Wal-Mart focused on Betty Dukes and three class representatives filing a title VII case against Wal-Mart on behalf of all then existing and from a certain time period before and after, female workers in the Wal-Mart system which includes Wal-Mart, Sam's club. About 175 million female workers. The court decided, 9-0, which was surprising to me, a unanimous decision, the court decided that based upon the types of claim, and injunctive and declaratory relief that the plaintiffs were seeking, that the class could not satisfy the commonality requirement necessary to certify a class. And the lack of class certification in cases such as this is often a death knell to the case itself. And that was an important decision because it established a more restrictive rule and interpretation than had been previously pronounced by the court.
Ted Simons: It sounds like if there's no common policy, you can't bring a class action suit?
Paul Bender: That's what is so interesting. Justice Scalia said there's no common policy, but it was a policy of not supervising your managers, nationwide policy of Wal-Mart not to supervise them closely in promotion policies and compensation policies and the argument was if you look at Wal-Mart nationwide, you'll see that there's so much difference between what women are paid and men are made paid and the promotion rates and that they're almost certainly discriminated on basis of gender. So the policy was “not” having a policy. And Justice Scalia said – well, not having a policy. How can that be a common thing?’ It can be a common thing.
Ted Simons: And AT&T? There was a case involving AT&T and -- and phone service and stuff like this.
Scot Claus: AT&T had contracts with its customers that provided for arbitration of class claims, and the court enforced the class wide arbitration provision, stating that all claims were subject to mandatory arbitration under the contract and again, that's usually a death knell for these types of cases. And again, it was a winnowing away of the ability of potential class action plaintiffs to bring their suits in court.
Ted Simons: We've mentioned the Miranda case with the juveniles. Talk about that one. And a couple of search and seizure.
Paul Bender: There was one Miranda case which the court got 5-4, believe it or not. It was that close that you take a child's age into account in deciding whether the child believes he or she is free to leave. You only have to give a Miranda warning if they're in custody. And the kid was brought out of the classroom and brought into a room and closed the door, police standing around and they started asking questions and the issue was, was the child in custody? Did he feel free to leave? And if he didn't, they should have given him the warnings and -- and that you should take the child's age into account. Clear rules and we don't care in the individual case he felt free enough, the police have to know, and shouldn't have to worry about how old the kid is. A remarkable thing. There were two search and seizure cases in both of those case, justice Alito wrote opinions for the majority of the court in which he emphasized the fact that the exclusionary rule was optional. It was not a constitutional, it was a Prudential rule, and the court was free to change it. And suggested that the court, instead of excluding all evidence seized how bad the crime is and how bad the police behavior was and decide on balance if they should keep it out. If you do that, you've lost the exclusionary rule. Because it only works if the police know they've violated the constitution, the evidence won't come in.
Scot Claus: What struck me in that case was an acknowledgment by justice Alito that a warrantless search of a home is presumptively unreasonable, yet there was no analysis in the case that indicated that he took that presumption seriously, or there was no discussion of whether the state had met its burden of proof in overcoming that presumption of unreasonableness that the court did remand it back to the state of Kentucky -- it arose out of the state of Kentucky -- to determine whether circumstances existed for the warrantless search. Whether or not the police knocking on the door created an exigency.
Ted Simons: And I know we talked about this earlier, but we’ve got a couple of minutes left – so this pretty much a pattern that the court is following?
Paul Bender: The four people. The question is, can they get Justice Kennedy to go along with them? They would like to overrule Miranda and the exclusionary rule and dismantle all of the protections that the Warren court created for criminal defendants during the 1960s. Such as Justice Kennedy is willing with watering them down but not overruling and as long as he's on the court, that will continue to be true. But if he's replaced by another Thomas or Scalia, then you have five people who would like to dismantle a lot of the Warren court, which by the way, would include Roe V. Wade.
Scot Claus: You can see the way they are actually framing future opinions to have a basis to do away with the exclusionary rule. Just really quickly, this juvenile case, Scalia's argument for not requiring Mirandizing juveniles is that it requires a subjective analysis of the situation. And Scalia said I thought we had to have an objective application of Miranda. If we include that, that's not workable for law enforcement officers in the field. What he may be doing is setting the stage to write a majority opinion that says Miranda warnings are always subjective and, therefore, cannot be workable.
Ted Simons: Ok. We have to stop it right there. Great discussion. Thank you for joining us tonight on "Horizon."
Paul Bender: Thank you.