Ted Simons: Coming up next on "Arizona Horizon," ASU law professor Paul Bender joins us for a preview of the U.S. Supreme Court's current session, which includes cases on campaign finance reform, presidential appointment power and affirmative action. A Supreme Court preview, next on "Arizona Horizon."
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Ted Simons: Good evening, and welcome to "Arizona Horizon," I'm Ted Simons. The United States Supreme Court session is underway with the high court set to consider a number of intriguing cases in the coming months. Joining us for a special preview of the session is Arizona State University law professor, Paul Bender. I always look forward to this show, Paul, good to see you.
Paul Bender: Thank you for having me.
Ted Simons: Let’s talk about recapping the last session and do a comparison to see what we can expect from this session.
Paul Bender: Last session was expected to be a real blockbuster session. They had three big cases at the end of the term, and one of them turned out to be a blockbuster, which was holding the Voting Rights Act, section 5, unconstitutional. And that's a really important decision. The other big one was whether state bans on gay marriage were constitutional, and that did not happen because the Court decided they did not have jurisdiction. The lesson from that, you never can tell what's going to happen until the Court acts. The Court can decide some things in a very broad, meaningful important way, and it can decide the same cases in a narrow way.
Ted Simons: Is this a court that tends to go broad or narrow?
Paul Bender: When they have the votes they tend to go broad. People talk about Chief Justice Roberts as being a minimalist and a gradualist. That’s not true. If he gets five votes for something that he wants to do, like Citizens United, or like you can't use the commerce clause to support Obamacare, though he said you could under another provision of the Constitution, if he can get five votes he'll do it, and I think you'll see some of that this term. And there's something behind that. I think they realize, given the state of politics today, there are probably as many solid conservatives on the Court now as there are going to be in the next 10 or 15 years, because Obama's not going to appoint a solid conservative. If the Democrats win the next presidential election, which certainly looks possible, and that person has two terms, the solid conservative block on the Court may be at its high watermark. It doesn't have five, it's only got four. Then there's Justice Kennedy, even though he votes with them, he often moderates the view he'll agree to, so it's not nearly as broad as they wish. If they see a chance to get something changed that they want to change, and it's part of the agenda, people like Roberts and Alito and Scalia and Thomas to reverse a whole lot of constitutional law that's developed over the last 30 or 40 years if they can, and the chance is I think they are likely to do it. If they can't do it now, they may never be able to do it.
Ted Simons: Justice Ginsberg was recently quoted as saying this is one of the most activist courts in history. What do you make of that?
Paul Bender: First of all, I don't like that characterization of a court, activist or not. All courts are activist in the sense they do what they think is right. If they don’t do it, they don’t think they have to do it. What she meant by that, I think, this court probably more than any other court since the mid-1930s is willing to strike down legislation that a large majority of Congress has approved. That is legislation that most of the people seem to want. She thinks it's activist in that sense. She was talking about the Voting Rights Act in that case. The Voting Rights Act was reauthorized, section 5, by Congress in 2008, I think. The vote in the Senate was unanimous, 100-0, to reauthorize it. In the House not quite 100%, but 98%. The Supreme Court holds that unconstitutional. That's remarkably activist in the sense of the Court saying, we know what's right. The fact that everyone in Congress thinks that something is necessary, we can just disregard that if we think the opposite. That's the sense in which she thinks they are activist, that they are willing to strike down the opinions of most of the people in the country. Same thing with Citizens United. The ban on corporations involving themselves in politics with corporate money is 100 years old. This Court questioned it, they have the five votes to do it, and got rid of that while they had a chance to. That's activist in the sense that they will reach out and grab an issue and if they have the votes they will decide it, even if they are going against the Democratic majority.
Ted Simons: If they have the five votes, that includes Kennedy. Sounds like a Kennedy court still.
Paul Bender: It is clearly still a Kennedy court. Kennedy is in the majority of almost every closely divided case. And every case, when you talk to the lawyers about how is this case going to come out, the first thing they say is, what's Kennedy going do. It almost always turns out on his vote.
Ted Simons: That is healthy to have such a block of four and a block of four, and then one in the middle?
Paul Bender: It's not so much in the middle, he’s healthy in the sense that he's not firmly committed to any block. He tends to vote with the conservatives more but he's an independent thinker. That's the way they all should be. When you have eight of them on every issue -- Well, not every issue, but every issue with any political overtones, abortion, free speech, criminal defense rights, all kinds of stuff, equal protection, these four stick together and those four stick together, and that's not healthy. You want to have nine people who think independently. You would expect nine very smart people who think independently to find they don't often think the same as three other people.
Ted Simons: Let's get to some cases here. We'll start with campaign finance reform which I believe they have already heard the arguments.
Paul Bender: Last week.
Ted Simons: Sounds like aggregate caps? What's going on?
Paul Bender: What's going on, what's potentially very important going on is that the -- in the mid-1970s the courts first addressed it, a case which judges the constitutionality of campaign finance law, the court made a distinction between expenditures and contributions in elections. It said it is unconstitutional to limit expenditures. If you have the money, you can't be stopped from spending it in general. But they say contributions are different because they are just giving money; they affect speech, but they are not speech itself. So that you could limit contributions, although you couldn't limit expenditures. So what's been the law since then is that there are two kind of federal limits on contributions. There's a basic limit, the amount you can give to a particular candidate; I think that's now $2500 or $2600 for any election cycle for a federal election. And the amount you can give to a party, the state party to a federal party, there are limits like that. If you gave the maximum you could give under all those things, if you're a Republican and you wanted to support every Republican candidate for the House and Senate, the Republican candidate for President, you could give like $3.5 million and still stay within those basic limits. So Congress has put an aggregate limit on it and said you can give this much to a candidate, this much to a party. But your total contributions over a two-year period are limited to about $117,000. That's what’s being challenged in this case, not the limits on particular contributions but the aggregate limit. The argument is that how can the aggregate limit be necessary to stop corruption, if I can give a candidate $5,000 and that doesn't corrupt you, I'll give another candidate $5,000 and that doesn't corrupt him, either. How am I corrupting anything? The lower court said look, in Buckley the court said contribution limits are okay and we're not about to overrule that. The Supreme Court has taken that case, and they have felt -- this is one where it's pretty clear Kennedy wants to get rid of contribution limits. I would think this is a good first step to do that. Get rid of the aggregate limits and then the basic limits. It's like Citizens United. This court is very comfortable with money being used to influence elections.
Ted Simons: Impact of Citizens United on this particular case?
Paul Bender: After Citizens United, any kinds of limits don't make any sense. Corporations which have almost an infinite amount of money in election context can support any amount they want to support any candidate they want. What's the point of limiting anything you do, because you can't do anything like what General Motors can do. I think it's clear, if Kennedy will join with that, the court probably wants to get rid of all contribution and expenditure limits. That means money takes over politics.
Ted Simons: Let's get to the next case here. This is regarding the President's recess appointment power. This is a hot subject in Washington and touchy on partisan grounds here. But now the court's looking at this. What exactly are they looking at?
Paul Bender: It comes from a National Labor Relations Board case. The President has had a lot of trouble getting appointees and nominees to the National Labor Relations Board confirmed. In January of 2012, between the end of one session and the beginning of another session of Congress, he made three appointments to the labor board. The question is whether those three appointments are valid. If they are not, the labor board has not been a valid institution since that time, because they have only had two real appointees. What's at stake is not only this case, but all the cases decided since January 2012. It's -- this is a place where events have grown past the Constitution. When the Constitution was adopted, you had Senate and House sessions of three months, four months, five months, six months maybe, and the rest of the year was recess. So most important federal positions have to be appointed with nominations by the President and consent by the Senate. Well, suppose that the Secretary of State or the head of the National Labor Relations Board were to die a couple of days after the Senate goes into a six-month recess. You don't want to let that office remain vacant during that time, but it's an office that needs confirmation. The Constitution has in it a recess appointment power. Vacancies that happen during the recess of the Senate can be filled by the President with a temporary appointment which lasts until the end of the next session. So if the Senate recesses on July 1st and July 10th a vacancy opens, the President can make a recess appointment. That's good until the end of the next session, like a year and a half. In that time the hope is they would confirm somebody. Well, what's happened of course is that the Senate sessions go longer and longer and longer, there aren't six-month recesses or even three-month recesses. Also, the President had increasing problems getting people confirmed. The Senate will hold nominations, nothing happens. There's been a lot of tension there and fighting back and forth. Presidents have started making recess appointments in things that don't really look very much like recesses. Congress has started saying, we're not recessing. These appointments were made January 3rd of 2012. Early in December of 2011, the Senate said, we are now going into pro forma sessions. Every three days we will come back and say we're in session and do no business for the next three days. Then we'll come back and do it. Why every three days? The constitution says no House can adjourn for more than three days without the consent of the other. From December to near the end of January they were pro forma in session. The President said I'm going to fill these vacancies. The question is can he act during that period? That is a recess when the Senate says they are in session, and in fact they adjourned saying we're not going do anything for the next three days and we'll come back again, and not doing anything for the next three days. The basic question before the court is can the President act during those times.
Ted Simons: What do you think the court's going to do?
Paul Bender: The court added a question to the questions that the parties presented. If the Senate does what I just described, that is pro forma sessions every three days, is that a time when the President can make recess appointments? I think that shows somebody on the court, maybe five people, are going to say, look, that's a phony session. That's really a recess. If you're saying you're only pro forma there, that should be treated as a recess, and the President can make appointments. If they don’t do that, they are -- really are hobbling the President, not only this President but any President from filling up important posts.
Ted Simons: Ted Simons: It's a de facto shutdown.
Paul Bender: A shutdown of the particular parts of the government. Here a shutdown of the labor relations board. That's a case of tremendously important possible consequences.
Ted Simons: We have another affirmative action case. This one involving Michigan and a ban on affirmative action, is this an important case?
Paul Bender: It could be. It's important for Arizona because we have the same ban in Arizona, section 35 of article, II of the Arizona Constitution. When you read it, you don't think it does very much, at least I don't think it does very much. It says that educational institutions in the state that are run by the government, and the state generally, cannot engage in discrimination on the grounds of race, while giving preferences on the grounds of race. When I read that, I don't think that that applies to affirmative action programs at a university that are intended to diversify the classes at a University. That's not giving a preference to anybody. The University does it for their own educational purposes, not to prefer somebody. When you give alumni children a preference, that's to prefer alumni children. But this is for educational reasons. The Michigan proposition has been shown to everybody as a ban on affirmative action programs. The issue before the court is, can a state constitutionally tell its educational institutions, you may not engage in affirmative action for the purpose of diversifying the class, something the Supreme Court says you can do. The state says we can do it, we don't want to do it. The lower court held in an opinion in the sixth circuit I think came out 8-6, that was unconstitutional because it put a special burden on minorities. If minorities wanted to get some relief or benefit from the admissions process of the Universities, they couldn't. They have to go to the people and get a constitutional amendment. If athletes want to have a preference for football players, they talk to the college admissions committee and get that. If alumni want to have preference for their children, they can do that. The sixth circuit says that's a discrimination against minorities because it makes it harder for them to get their interests served than any other group.
Ted Simons: When the court looks at something like this, and they look at a voter-approved measure, does it make any difference at all, as opposed to coming from the legislature?
Paul Bender: No, it doesn't. A voter-approved measure doesn't get any special consideration. The courts decided a couple of years ago -- in an opinion by Justice Kennedy, by the way, that doesn’t play a role. You have four people on the court who don't want to have any race conscious affirmative action. Kennedy doesn't like affirmative action but he has been willing, as O'Connor was, to say it can be used in some circumstances. If you have four people who think all affirmative action is unconstitutional, they are not about to vote to say the state has to permit affirmative action. The question is what’s Kennedy going to do?
Ted Simons: What's Kennedy going to do?
Paul Bender: I would suspect he would vote with the conservatives on this one and say a state is free to choose not to have affirmative action and free to choose to have it. It's a question up to the state to make a decision.
Ted Simons: Interesting. We have another case involving picketing limits at abortion clinics. Tell us about that.
Paul Bender: This is another case where they could -- why did they take this case? Years ago they decided it was constitutional for states to establish sort of no picketing zones around abortion clinics. They had a case I think where you couldn't get within 100 feet of the entrance to an abortion clinic and confront women going in to get abortions but telling them they shouldn't do that, that it was constitutional to keep those people out of that zone so women would be free to go in without being harassed. This case is a Massachusetts 35-foot zone around the entrance of abortion clinics. Lower court says, we've already decided this, the Supreme Court has decided this, this is constitutional. Now, why did they do that? Are they really about to hold it is now unconstitutional to stop people from harassing, going in the face of people who are going into a medical facility? Otherwise, I don't understand why they took the case. That could be a very big change. It also could be very closely divided. I'm sure there are four people on the court who would not want to do that.
Ted Simons: They are calling it sidewalk counseling, and it impedes their ability to talk to the intended subjects here.
Paul Bender: They say they have a right to face-to-face close conversation. If they stay 35 feet away, they can shout, offer literature, hold up signs. They want to get right in the face of the women and say, you shouldn't have this abortion. They say that violates their free speech rights.
Ted Simons: If the 100-foot limit in Colorado is okayed by the Supreme Court --
Paul Bender: Well, that's what the lower court said. Massachusetts said 35 feet, how can that be bad? And then the Supreme Court takes the case. It leaves you scratching your head as to what's going on there. This Court is very strong on free speech. And Justice Kennedy is very strong on free speech. It wouldn't be beyond possibility for the court to reconsider those decisions and say the Constitution requires letting anti-abortion protesters have a right to directly confront people going into abortion clinics. That seems to me to be wrong. I think the right of somebody to have a serious medical procedure to be able to do that with peace of mind should prevail over the right of somebody who wants to talk to them, even though the people that want to talk to them don’t want to hear from them. The fact that the court takes the case suggests the court may be reconsidering.
Ted Simons: How is this court with search and seizure cases? We have a couple of them this go-around.
Paul Bender: Search and seizure is something that some people on the court, Scalia primarily, who you would think of as conservatives who wouldn't sympathize with criminal defendants, occasionally vote on the side of the criminal defendants. Last term, there were a couple of dog cases, involving the use of dogs sniffing for drugs. And police took a dog up on the porch of somebody's house to sniff under the door to see whether there was marijuana there. The dog sniffed and found marijuana. The question was, was that an unconstitutional search. Scalia wrote an opinion saying yes, it was unconstitutional to take a dog onto somebody's porch was enough of a breach of privacy. That's not 100% clear that that’s the right answer. one of the close cases where occasionally the court will decide in the defendants' favor. There are two cases this year, both kind of interesting. One is a guy suspected I think of murder, but they don't have enough to get a search warrant to search his house. They go to the house and knock on the door and a woman answers and they say, is anybody inside? She says, no, nobody's inside. A guy pops up and says no, I'm inside and you can't come in here. Police say who are you, he tells them, and they arrest him, they think they have probable cause. Then they ask the woman, can we come in. She says, you can come in. The question is if that was a constitutional search. Assume they don't have a warrant, they would normally need a warrant unless they get the consent of the tenant, the owner. One said don't you come in here, and the other one, after they took the first one away, says you can come in here. The question is whether the cotenant can override.
Ted Simons: Wow!
Paul Bender: And there are some cases about that which suggests that the cotenant cannot override him if he's there. The lower court case said, once they take him away she can do anything she wants. That's one where I would say the chances are she can override him, especially since they have taken him away. The other case involves an anonymous tip that somebody's driving recklessly. He just forced me off the road, his license number is such-and-such, and police forward it to police in patrol cars and say, hey, look out for a Ford with this license plate. They find the car and follow it for five minutes. He drives reasonably and then they stop the car. They say, show us your license and stuff like that. They check the I.D. and come back to the car and smell marijuana. They say get out of the car and they find drugs in the car. The question is was that stop legal? The police who stopped him saw absolutely nothing that was suspicious. It was on the basis of an anonymous tip transmitted to them over the police radio but they knew it was an anonymous tip. Does that provide a basis for stopping the car, when police who stop it don't see anything going on that would justify stopping this car.
Ted Simons: What kind of corroboration would be needed?
Paul Bender: Well, if the car was driving erratically.
Ted Simons: If the particular police officer saw the car, not if he heard about the car. What about the radio communications?
Paul Bender: Somebody said the car was driving around, we don't know who said that. On the basis of that anonymous tip, it could have been somebody out to get these people.
Ted Simons: Set them up for something.
Paul Bender: Is that enough to justify the stop of the car?
Ted Simons: What's the court going to do on that one?
Paul Bender: Why are you asking me the questions of what the court does? I would guess the Court would say that's enough in that situation because there's enough of a chance that people are driving in a reckless way that they would want to resolve doubts in favor of safety.
Ted Simons: 30 seconds left. There are even more cases out there, chemical weapons, just strange stuff out there. Is there a case you think with lasting political and social impact?
Paul Bender: Of the cases we talked about? I think the lasting political impact is probably the recess appointments clause. If the court rules the President cannot make those appointments when the Senate is formally in session, but not really in session, that gives the Senate the power to frustrate the President's agenda by refusing to appoint any people. I think that is a big political impact. If they really are about to get rid of contribution limits, that can have a big political impact, also.
Ted Simons: All right. Great stuff, thank you for being here.
Paul Bender: Glad to be here.
Ted Simons: Tomorrow on "Arizona Horizon" a look at controversy and concerns involving the Arizona Medical Board. We will talk to Jana Bommersbach about her new children's book. That's Tuesday evening at 5:30 and 10, here on "Arizona Horizon." That is it for now, I'm Ted Simons. Thank you so much for joining us. You have a great evening.