Horizon, Host: Ted Simons

October 5, 2005


Host: Michael Grant

Supreme Court Preview


  • The United States Supreme Court starts its new session October 3rd with a new Chief Justice, John Roberts. Before the session is over, the court will likely have another new Justice, replacing the retiring Sandra Day O'Connor. ASU Law Professors Paul Bender and Cathy O'Grady discuss the changes and their implications on the cases that will come before the court this session.
Guests:
  • Paul Bender - Arizona State University law professor


View Transcript
>> Michael Grant:
Tonight on "Horizon," newly confirmed United States Supreme Court Chief Justice John Roberts gets right to work at the court. Meanwhile, Harriet Miers, the woman nominated by President Bush to replace Sandra Day O'Connor largely remains a mystery. We'll talk about changes on the Supreme Court with two ASU law professors, who will also discuss some of the big cases the Court has accepted this session. That's next on the Supreme Court preview.

>> Announcer:
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>> Michael Grant:
Good evening, and thanks for joining us on this special edition of "Horizon," a Supreme Court preview. I'm Michael Grant. Tonight, we'll discuss how the Court will be impacted by the presence of a new Chief Justice and the replacement of another justice. And, we'll talk about cases such as Oregon's right-to-die case currently being heard by the Court. Here now to talk about that and more are Arizona State University law professors Paul Bender and Cathy O'Grady. You know, we don't get together frequently enough. It's the first week in October.

>> Cathy O'Grady:
Our traditional gathering.

>> Paul Bender:
We also get together at the end of the term to see how we did at the beginning of the term in our predictions.

>> Michael Grant:
The new Chief Justice seems to be off to a running start, asking you know --

>> Paul Bender:
Everybody asks questions on the court.

>> Cathy O'Grady:
Except for Thomas, Thomas doesn't ask that many questions.

>> Paul Bender:
Rehnquist did not ask a lot of questions but even in a 10-minute argument before the court in recent years, there are a loft 10-minute arguments if there are two parties, you can expect one question from everybody but Thomas. And Roberts knows that court. He's argued before that court. So I'm not at all surprised that he's in the spirit of that. He'll probably ask good questions.

>> Michael Grant:
And Cathy, that's part of it. I mean, obviously this is a guy who is comfortable with the Supreme Court.

>> Cathy O'Grady:
And they are comfortable, I think, a little bit with him. They probably feel like they know him. He's been in front of the court so many times, and coming right into that Chief Justice role, I think he really just started without very much learning curve, just up and running. And it'll be interesting to see, there's one view that Rehnquist used to close down the discussions fairly impatiently in conferences with the Justices, so they used the hour-long oral argument to really vet some of their own concerns, to really have a very engaging dialogue with each other, as well as with counsel. It wills -- it may impact how Roberts runs the conferences, if he allows that kind of discussion to happen.

>> Paul Bender:
That won't change. They love to talk on the bench. It doesn't have anything to do with not talking in conference. You can't stop people like Breyer and Scalia from talking. Rehnquist was a nice low-key person in person. As Chief Justice and as the runner of meetings, he's a tyrant. So, boy, when that red light went on, you had to stop. He would stop you in mid-word. I doubt very much if Roberts will do that.

>> Cathy O'Grady:
No.

>> Paul Bender:
And in running meetings, you're right, the word is in the conference, Rehnquist was impatient with discussion. He wanted to get to the vote.

>> Michael Grant:
Do we know what to expect yet from a Roberts court?

>> Paul Bender:
Well, you know, that's a misnomer to name the court after the Chief Justice, because -- it doesn't mean it's a Roberts's court. It's the court when Roberts was Chief Justice. Chief Justices have no, really, greater influence on decisions than anybody else on the court. It wasn't the Warren court but the Brennan court, for example. He was much more influential in what the Court did. If it is a Roberts' court, that will mean that he has taken that role of persuading other judges and getting groups together to compromise on majority opinions. That's very hard to do with these very independent-minded people.

>> Michael Grant:
Cathy, that's a very important point, because the skills that necessarily make you a good advocate before the Court, don't necessarily make you a good coalition builder or good person at putting together five votes, six votes, seven votes, whatever the case may be?

>> Cathy O'Grady:
Right, exactly. And you know, I think that President Bush obviously thought that Roberts would fit that role better than even some of the existing justices on the court, like, for example, Scalia, who was thought about for this position.

>> Paul Bender:
Yeah, but Scalia would have raised a lot of controversy. It would have been a long drawn-out confirmation battle. Same thing with Thomas. I'm surprised he didn't think of Kennedy, because by experience and temperament, he's the kind of person who I think -- and he knows the court. Roberts is the youngest person on the court and he is the Chief Justice. Even though he knows the court --

>> Cathy O'Grady:
The experience he's had, this has got to be really challenging for him.

>> Paul Bender:
He's got to be tactful. Where Rehnquist became Chief Justice after he had been on the court for 10 years. It's a lot easier to do that. But you know, to be the Brennan of this court to, be the person who gets coalitions together, you can't have too many principals. If you really cease everything in a principled way and logical way, it's hard to compromise those principles to get another vote. Roberts does not seem to me to be the compromising kind. I think he knows what he thinks. He thinks things through. If he thinks things through and thinks something is right, it's unlikely that he will change it to get a fifth vote.

>> Michael Grant:
Paul, I want to get to Harriet Miers in a minute, but before we do that, obviously, Justice O'Connor remains on the court.

>> Paul Bender:
In name only.

>> Michael Grant:
That's the point that I wanted to cover with you. What position does this really leave the Court in with Justice O'Connor there but not truly there?

>> Paul Bender:
It's an 8-person court. Justice O'Connor is there. She'll ask questions, which she did this week. She will participate in conference, but her vote will not count.

>> Cathy O'Grady:
Unless the case is decided while she is still on the bench.

>> Paul Bender:
The only way -- they never issue opinions before the end of November, except in the most trivial cases.

>> Cathy O'Grady:
But she could be on the bench through the --

>> Paul Bender:
I was going to say, if there was a long drawn-out confirmation battle into January, then she could participate and they might rush a couple of things into December that she had sat on in order to let her participate if they were 5-4, but it's hard for me to think that that confirmation battle there will last that long.

>> Michael Grant:
Let's lay out what I consider to be a fairly likely hypothetical, confirmation of a new associate justice, say, in the late November-December time frame. She comes on, for example, has not participated in the oral argument on the right-to-die case.

>> Paul Bender:
Under the court's traditions, and I don't think they'll break them, she would not be able to participate in any case that was argued before she was confirmed. She would have to be on the Court at the time of the oral argument. For one reason, because they have the conference right after the oral argument. She wouldn't have participated in the conference. That's why it's an 8-person court. The cases heard this week, O'Connor is not going to be able to vote on unless it is a long-drawn-out battle and MIERS will not be able to vote because she is not on the court. There may be 4-4 cases.

>> Michael Grant:
What happens in a 4 to 4?

>> Paul Bender:
If they leave it 4 to 4, they leave it affirmed and nobody writes an opinion. It isn't really precedential. When they see it's 4-4, if they want to resolve the issue, if it's important for them to resolve it at that time, they will order it reargued after the 9th person gets on. And given their calendar, it would be possible to order a case argued in October, reargued later in the term because they don't have enough cases even to sit every day when they are in session. This session, they are leaving out one day. So that might happen. You might see a case argued this week. The court split 5-4 with O'Connor in the five, and they might, after O'Connor retires, they might order the case reargued at the end of the term.

>> Michael Grant:
Cathy, let's go to Harriet Miers.

>> Cathy O'Grady:
Okay.

>> Michael Grant:
She's the president's nominee to replace Sandra O'Connor as associate justice --

>> Cathy O'Grady:
Uh-huh, the great unknown.

>> Michael Grant:
Everybody is kind of scratching their head.

>> Cathy O'Grady:
Well, it'll be interesting to see the confirmation hearing, and I hope we learn a little something about her through that process, although, I don't think we will. She -- we all kind of know her background, she's from Dallas, Texas. She went to SMU undergrad, SMU law school, worked for a large law firm in Dallas where she was the first woman partner.

>> Michael Grant:
Became managing partner.

>> Cathy O'Grady:
That's an amazing responsibility at a large law firm like this, and then she was the president of the state bar, which is also an enormous responsibility to shoulder. But, we don't know much about her views, especially with respect to the big social and constitutional issues that we debate and have debated for the last 20, 30 years, and that are going to come before her on the Supreme Court. There, there seems to be a terrific lack of information. She seems to be, by all accounts, a very quiet person, the type of person who is very good at eliciting opinions from others, but not sharing her own opinions in a forthright way at least, or at least in a clear way. So the record doesn't indicate --

>> Michael Grant:
Perfect oral argument posture.

>> Cathy O'Grady:
Perfect lawyer. She is a lawyer and she's been described as a lawyer's lawyer. She is very, very cautious, I think. And I think we won't see a lot of questions from her for a couple of years on the bench.

>> Paul Bender:
She hasn't been a judge. I think it's wonderful, will be wonderful if she gets confirmed to have somebody on the court who is not a professional judge. I think we have too few of those people. Nobody there is nobody on the court. Rehnquist was the only person who hadn't been a judge. When you look at the Supreme Court's history, some of the major figures in their history were people who came on the court from politics, Academia, Felix Frankfurt. Government, William Douglas, Charles Evans was a presidential candidate, Thurgood Marshall, lifetime of civil rights litigation.

>> Michael Grant:
Oliver Wendell Holmes?

>> Paul Bender:
He was a judge in Massachusetts for a long time. A balance is nice, but I think we miss having people with real-life experience. Now, I may end up thinking she's terrible because I disagree with her opinions, but I like the idea that she comes from a law firm background. She sees things the way a lawyer does. Those people on the court, there is only one of them who had any real experience as a private practitioner and that's Stevens, and that's been a long time ago. I think they ought to be on the court. We ought to have people who are practitioners.

>> Cathy O'Grady:
She is a woman and two women out of 9 is not enough. That's not sufficient diversity, but it's better than one, so that's a good thing. The other thing I learned about her in doing research, I did find a piece that nobody really has talked about yet that suggests she's very detail-oriented, and almost to a fault where she is wanting every stone uncovered and she's a very process-oriented person. So that will tell lawyers something what sort of posture to take in front of her on the bench.

>> Paul Bender:
She's been involved in bar issues, like one of the things she's recently been involved in is bar questions about letting people question in states where they don't live pro hoc vice admissions. People admitted in New York and have a case in Chicago, they have to hire local counsel or can they do it themselves. She was head of a taskforce on that. That's the kind of issues she has been involved in rather than social issues.

>> Cathy O'Grady:
Right.

>> Paul Bender:
That's fine. Because I don't think -- I'd like to have somebody on the court who hasn't deeply thought about those issues and who comes to them with a fresh mind.

>> Cathy O'Grady:
I'm afraid she's deeply thought about them but we're never going to figure out what her deep thoughts are.

>> Paul Bender:
It wouldn't bother me if she comes to them fresh.

>> Cathy O'Grady:
That wouldn't bother me either.

>> Michael Grant:
We may do that over a series of previews and reviews over the next 5, 10 years. The court started its work for this session, Monday, dove right into one of the biggest issues that we'll hear, Oregon's physician assistant suicide law. Cathy, the case is a tension between sort of state rights and obviously federal control of medications?

>> Cathy O'Grady:
Well, Oregon has had this death with dignity act for over 10 years. The voters have reaffirmed it, and it has a lot of procedures in place that protect the patient and make sure that this is informed and two doctors, that kind of thing. It would allow a physician to assist a terminally ill patient to end their life. And this is now coming right up against the Controlled Substance Act, and it's kind of an interesting little history. When the voters reaffirmed in Oregon this act in 1997, John Ashcroft was a senator, and he and other senators went to Janet Reno, who was then the Attorney General. And they wanted her to declare that this is violates the controlled substance acts and therefore doctors are violating the act if they issue prescriptions.

>> Michael Grant:
The drugs are not being used for a healthful purpose.

>> Cathy O'Grady:
They said this is not legitimate under the Controlled Substance Act and Janet Reno said I'm not going to do that. It's up to the states to decide what a legitimate medical practice is. It is not up to me as the Attorney General, and Oregon has decided that this is legitimate and, you know, I'm not going to reach into that. And as soon as the administration changed and Ashcroft became the Attorney General, he issued this directive that is now known as the Ashcroft Directive, saying, you know, I direct the DEA to enforce the Controlled Substance Act against all physicians in Oregon or any state that has this sort of statute, Oregon is the only one, and to prosecute under controlled substance.

>> Paul Bender:
The enforcement is that they lose their license to write prescriptions. The enforcement is to stop them from practicing medicine. So it's pretty drastic.

>> Cathy O'Grady:
The directive says it doesn't matter if the state has a statute that allows this kind of thing, the Controlled Substance Act overrides. I think the issue is who gets to decide under the Controlled Substance Act, who gets to decide how this act applies to doctors. This is not a controlled scheduled one drug like the marijuana case last year.

>> Paul Bender:
The Attorney General is supposed for follow congress's idea of what sorts of things doctors shouldn't prescribe. The real question is what did congress mean by that and did Ashcroft properly interpret it, or did Reno properly interpret it.

>> Cathy O'Grady:
The Ninth Circuit said Ashcroft came in without enough authority from congress and just overturned what its predecessor had done, and they --

>> Michael Grant;
And froze it keeping the right to die statute?

>> Cathy O'Grady:
And there was a dissent on the Ninth Circuit panel. The supreme court took that up and it will be an important case.

>> Michael Grant:
It loads as a states rights case. Do you get an early look at John Roberts and how he may view that aspect of it?

>> Cathy O'Grady:
Here's what I think is interesting about that. Four years ago in the Washington case, Washington had a prohibition against physician-assisted suicide. The court held that there is no constitutional right to physician-assisted suicide. In that particular case, Justice Rehnquist and Justice O'Connor both said this is an area that we invite the states to get involved in. This is an ongoing debate. It should be in the states, and we want to see the laboratory of the states in action. I think Roberts' mentor, justice Rehnquist would have been on the side of Oregon in this particular case. But -- so that's an interesting thing to see what his mentee is going to do. Justice Rehnquist was states right, even in the marijuana case from last term. But justice Roberts, I think he's going to support the Controlled Substance Act.

>> Paul Bender:
This case is very similar to last year's marijuana case where California said you could use marijuana for medical purposes and federal law said you couldn't, and the Supreme Court came down on the side of the federal law. It's very hard for me to distinguish this case from that case. It will be interesting to see whether they find a way to distinguish it.

>> Michael Grant:
Right.

>> Paul Bender:
I don't know. It'll be close. That might be one of the cases that would be 4-4, and we could reargue.

>> Michael Grant:
A drug case of a different kind, drugs used in religious ceremonies and whether or not the federal government can restrict that.

>> Paul Bender:
Yeah, the federal government prohibits the importation of a whole bunch of substances on schedule one. On that schedule is a substance that a Brazilian religious sect has been using for religious purposes, never used outside of their religion, only used by adults, and there are 100 of them or so in the United States.

>> Michael Grant:
It's a hallucinogen?

>> Paul Bender:
Yes. And they want to import it. The federal government stops them from importing it. And they say that that action by the federal government violates the religious freedom restoration act, which, as applied to the federal government says that congress cannot do something that substantially, interferes with somebody's practice of religion unless they have a compelling interest to do it. The government's position is hey, congress put it on the schedule, that's a compelling interest. The people who want to import it say, no, you have to show that this particular drug imported by these people, that you have a compelling interest to stop that, and you don't, because there is absolutely no evidence to indicate any danger or -- that these people use it for recreational purposes or anything like that. Every court so far has agreed with the drug importers and disagreed with the government, and it will be interesting to see whether the Supreme Court changes that.

>> Cathy O'Grady:
You know, there is something similar about these cases, they both involve the Controlled Substance Act, but they both involved no investigation, sort of no evidence, just this assertion that this is the way it is, and it's on the schedule, so that's it. That's all we need to do. And the Court is saying, no, we need more than that. We need an investigation. We need some analysis that there is going to be a problem here, that there is a compelling interest or something.

>> Paul Bender:
They didn't say that in the California marijuana case.

>> Cathy O'Grady:
Right, that's true.

>> Paul Bender:
The difference may be there. Congress said, hey, we want this growing of marijuana to be a crime. Congress here said something quite different. They said in general we want these drugs to be a crime, but if they interfere with somebody's religious practices, then you shouldn't stop it unless you have a compelling interest. It's possible to distinguish them in that way.

>> Michael Grant:
Let's move over to New Hampshire. It's got a parental notification law that doesn't have the normal -- I would call it an escape valve to go to the Court in emergency circumstances?

>> Cathy O'Grady:
Actually, it does. . The New Hampshire statute has which is sometimes call the judicial bypass, it would allow a minor to go to a judge if she is afraid or she doesn't want to go to her parents. The problem here is there is a 48-hour waiting period, and there is no health exception. There is no exception that says, for this abortion regulation; we will make an exception if it's necessary for the health of the woman. There's what's called a death exception, if the doctor decides she's about to die, next forget the 48-hour waiting period and the parental notification, but there is no health exception. So one clear and interesting question is, do you need a health exception for the health of the woman for any sort of abortion regulation at all, whether it be parental notification, or late term, what is sometimes called partial birth abortion, that was the last time, five years ago, that the Court has had an abortion case, and they said in that case involving the Nebraska statute, which was a partial birth abortion-type of statute, that you have to have a health exception for the health of the woman. And in order to make it constitutional.

>> Paul Bender:
This is a timing thing. These are juveniles. The statute says you can't give a juvenile an abortion, unless you notify the parent and give them 48 hours to do something. But it has an exception for medical emergencies, that is, if the woman is about to die, you don't have to wait 48 hours to tell the parents, but it doesn't say if she's about to become a paraplegic or if she's about to lose a limb or something like that. And so that's really the argument.

>> Cathy O'Grady:
Or if she has preeclampsia or something like that. These things are serious and fast. The other issue is what standard should courts apply to evaluate regulations like this that are just tested on their face? Is it the Casey undue burden standard or is there another standard that's stricter and harder? That's a technical and legal issue.

>> Paul Bender:
Everybody will be looking at the new Justices.

>> Michael Grant:
Precisely so. I was going to say that it seems like this is a perfect case where all eyes will be focused on John Roberts and perhaps Harriet Miers to get some indication as to how they view these cases.

>> Cathy O'Grady:
Absolutely. This has ramifications because of the federal statute that's been on appeal and is heading up to the United States Supreme Court itself, the federal partial birth abortion statute which this whole notion of the health exception for the mother and whether that's needed to make it constitutional has lasting ramifications. So we haven't had an abortion case in a while. Everyone will be watching this.

>> Paul Bender:
Their vote in a case like this is no relationship to whether they want to overrule Roe and Wade. That's a completely different issue that everybody will assume that "Roe v. Wade" is the law here. People will like at what Roberts and Miers will do.

>> Michael Grant:
In terms, though, of how far government may go in either restricting or not --

>> Cathy O'Grady:
It's chipping away.

>> Paul Bender:
Where they are willing to Chip it away, but the big issue, is there going to be five votes to overrule it. They won't learn that here. This is not a term with very big cases in and of themselves, but it's a term with a lot of little case that is give hints about very big issues, like the right to die case.

>> Michael Grant:
Its like traffic signs session, which way might the Court go.

>> Paul Bender:
And you've got two new people and it's a closely divided court. It's really going to be interested trying to gather how these people are going to approach these issues when the big issues come before them.

>> Michael Grant:
All right, the federal government says to colleges and universities, if you take our money, you've got to allow our military recruiters on campus, and somebody sort of honked about that in congress September?

>> Paul Bender:
Yes, it's a gay rights case. Or academic freedom case. Law schools around the country, law schools very prominently said to the military, you would not hire gays. That kind of discrimination violates our policy. We don't let people hire on campus if they discriminate race or grounds, gender grounds, ethnic grounds or sexual orientation grounds, so we won't let you recruit on our campus. You can do it across the street, but you can't use our placement office, because you discriminate. Well, Congress passed the Solomon amendment that says that's what you think. You can do that, but the university, the whole university doesn't get any funds. And so, the case now, the question now is whether that threat interferes with academic freedom, where the law schools and other schools have a right to have that kind of a policy, and whether the government is unconstitutionally interfering with that right by putting that enormous pressure on them.

>> Michael Grant:
You state that as academic freedom and I'm running through my list of constitutional amendments and time I'm not coming up with those exact words. Is this a First Amendment --?

>> Paul Bender:
What's changed since you went to law school?

>> Cathy O'Grady:
Did you miss that? Did you miss that amendment to the constitution?

>> Michael Grant:
I must have been napping.

>> Paul Bender:
It's a privacy amendment. There is a lot of subtext. And you are absolutely right. The Court has never really clearly talked about academic freedom as a strong right. That's the most interesting thing about this case, do colleges, universities, have constitutional rights to have policy this like that, anti-discrimination policies, and if they do, can the government interfere with them because they want to recruit people?

>> Cathy O'Grady:
And Michael, they are using the boy scout case, the law schools have framed an argument around the boy scout case from a couple of years ago that we talked about on this show, to say that they have an expressive association right under the First Amendment, and when they are forced to include within their school a member that does things that they don't agree with, that that sends an unwanted message to the students.

>> Paul Bender:
I'm a little uncomfortable with saying law schools are like the boy scouts.

>> Cathy O'Grady:
And their expressive associations.

>> Paul Bender:
Specially the "boy" part of it.

>> Cathy O'Grady:
They did say they are like boy scouts, so.

>> Michael Grant:
We'll come back to that subject on the Supreme Court review. Paul Bender, ASU College of Law, thank you very much for being here. Cathy O'Grady, that was terrific. It should be an interesting term.

>> Cathy O'Grady:
It will be. Thank you, Michael.

>> Michael Grant:
To see transcripts of "Horizon" and find out about upcoming topics, you can do that by visiting our web site and you will find it at the following address, www.azpbs.org. Thank you very much for joining us for this special edition of "Horizon," the Supreme Court preview. I'm Michael Grant. Have a great one, good night.

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