Ted Simons: Coming up next on Arizona Horizon, a review of the major cases decided by the U.S. Supreme Court this session, analysis from ASU law professor Paul Bender. A Supreme Court review next on Arizona Horizon.
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Ted Simons: Good evening, and welcome to Arizona Horizon. I'm Ted Simons. The U.S. Supreme Court's recently completed session included a number of major decisions, highlighted by the Hobby Lobby case, which ended the high court's term with a bang. Here now with analysis of the court's session is ASU law Professor Paul Bender. It's good to see you. How you doing?
Paul Bender: It’s good to see you Ted, I’m doing fine.
Ted Simons: Before we get to individual cases, this session, what did it say about the Roberts court?
Paul Bender: Well, there was no really big case in this session although people thought Hobby Lobby was going to be a big case, but it turns out not to be that big a case. And it doesn't say much about the Roberts -- We've had the same basic Supreme Court now for 20 years. Actually ever since Justice O'Connor left and was replaced by Justice Alito you have four very conservative justices, you have four moderately liberal justices and you have Justice Kennedy in the middle. And he is a moderating influence on the conservatives. Because he usually, not always, but usually doesn't want to go along with a really extreme position. So when they win cases and they need his vote, he tends to moderate the positions. And sometimes like once every three or four times, he goes along with the liberals most startlingly with regard to gay rights, for example. So it's a court that isn't going to do very much. Because the people on the right have an agenda, but they don't have five votes. They need Kennedy and Kennedy doesn't agree with everything they want to do. The people on the left would like things to remain the way they are, and sometimes they lose that if Kennedy goes to the right and sometimes they manage to keep it the same way. So it's not a court that you're going to expect a lot of important decisions from.
Ted Simons: Are they locked into these blocks?
Paul Bender: More or less, and that’s one of the really interesting things about this term. Is that near the end of the term it looked as though maybe they weren't locked into these blocks and there were a couple of cases near the end of the term which were unanimous, and people said, hey, it's changing. It's not. They were unanimous in result but they were not unanimous in reasoning. And the -- Some of the unanimous cases have the sharpest divisions, for example, the abortion picketing case, the zone in front of an abortion clinic that you couldn't enter. That's a unanimous decision striking down the Massachusetts statute. But there are bitter disputes between Scalia on the one hand and Roberts wrote for the majority. There was an example there where I think Roberts and the liberals really tried to compromise, because the liberals who I think were opposed -- Wanted to keep the Massachusetts statute there but were willing to compromise and say, we'll strike down this statute because you should have a more restrictive statute, which can still protect the people, even though we'd rather not do it and Roberts wrote the opinion, and it's a moderate opinion, but it didn't solve the differences.
Ted Simons: Is Chief Justice Roberts, is he emerging as a moderating figure?
Paul Bender: In that case it looked like he might be. But the next day there are a couple of days that show that that was a false start in that direction. It's possible that he could be. But it's still true that there's only been one case since he joined the court where he voted with the liberals and it made a difference in the result. It had been only one case and that was case number two. So in all these years in the Obamacare case, and in the abortion case, abortion picketing case, the only two cases where he joined with the liberals where it made a difference, in one case the result, in the other case in the opinion. Otherwise, he has always been on the conservative side when his vote mattered. And Alito has never joined the liberals about anything. And so there's still a hope that they would do that, but they're really bitter divisions on the court.
Ted Simons: Are the liberals joining the conservatives on votes?
Paul Bender: Well, the abortion demonstration case was one where they did. They agreed that the statute was unconstitutional and took a moderate position that the state will have to go back and redraft the statute to be more restrictive. And I said to myself, hey maybe we're beginning to get some compromises? But it didn't work out that way.
Ted Simons: Let's get to individual cases. We'll get to the buffer zone in a second here, but I don’t know I thought it ended with a bang here with the Hobby Lobby case. You're saying not that big of a deal? What’s going on here?
Paul Bender: No. What most people don't understand about the Hobby Lobby case is most people think it involves the first amendment. Freedom of religion clause of the first amendment. It doesn't. If that case were brought by the Hobby Lobby people under the first amendment they would have lost clearly, and all the opinions in the case say that. Because Justice Scalia some years ago, in the early 90's I think basically emasculated the first amendment as it applies to this kind of case. He held 5-4 that if a statute which is neutral on its face and it's a general application, interferes with your freedom of religion, for example, a statute in that case, which prohibited the use of PEYOTE and it interfered with Native American churches members using PEYOTE as part of a religious ceremony, that that did not involve the first amendment. It didn't violate your freedom of religion to have your freedom of religion interfered with by a statute as long as the statute was neutral on its face and was a general application. He wanted an exemption from statute go to the state legislature and get it. And that still the law. That's never changed. And so Hobby Lobby could not bring the case under the first amendment because Obamacare which requires employers to get these insurance policies for their employees is a statute of general application which is neutral on its face. So they sued under a federal statute called a Religious Freedom Restoration Act, which ironically was passed by Congress almost unanimously in order to reverse Scalia's decision emasculating the first amendment. And that's why it's called the Religious Freedom Restoration Act. It was meant to restore religious freedom to the way it was before Scalia's decision. So that's what they were suing under.
Ted Simons: And so the claim was basically what, it violates religious freedom the idea of an employer having to include contraception in insurance packages.
Paul Bender: And the court held that if the employer's belief was sincere, that it would be sinful for him to support this contraceptive he thought was like an abortion, that that was an exercise of their religious freedom rights under the statute. Not under the constitution. But under the statute. But that still didn't end the case. Because even though under that statute even when something interferes with your religious freedom, the government can do that if it has a compelling reason for doing it, and if the statute is narrowly tailored to serve the reason. And the court in an opinion by Justice Alito admitted that the government had a compelling interest in requiring employers to get these policies for their employees, because the Government's interest in health preventive health care, which is what this is all about, is compelling. So then the issue was, is it narrowly tailored? And the court said no, and the reason they gave for saying it wasn't narrowly tailored is the reason that is not going to be applicable to very many if any other situations. They said, look, in drafting Obamacare, the administration decided to make an exemption for religious corporations. Corporations that practice religion themselves. And HHS set up a way that they could comply with the statute, they just say they don't want to cover a contraceptive and then the insurance company covers contraceptives on its own. And the HHS said it doesn't matter to the insurance companies because they save money by doing that, because they will pay less out in fees for doctors if they cover contraceptives than if they don't because people without contraceptives are going to run up more expenses. And so what the court said was, hey, you did that for religious corporations, these people are religious and they run a corporation, you could do it for them also. And if you did it for them, then you would serve your compelling interest without interfering with their religious freedom. So that's why you have to do that here. But that is not going to happen in most other cases, that there is an alternative way of serving the government's compelling interest that does not interfere with the Government's objectives.
Ted Simons: So is this a broad or narrow ruling? I mean does it apply to transfusions, does it apply to vaccines?
Paul Bender: Well first of all, it only applies to federal legislation. Because RFRA only applies to federal legislation, it has absolutely no direct application to state legislation. RFRA originally applied to state legislation, but the court emasculated RFRA and said that it could only apply to federal legislation. The Congress had no business interpreting the constitution on behalf of the states. So it only applies to federal legislation, it only applies to closed corporations, that is where the stock is not publicly held. And it applies when people have a sincere religious belief that they believe is being compromised by what they're being asked to do. But even when that's true, it doesn't apply if the government has a compelling interest in making them comply, unless there's another way that the government can serve the compelling interest. So take vaccination, for example. If an employer says I don't want to pay for vaccinations, the government would have a compelling interest to require him to do that, and there would be no other way to do it than to require him to do it, because the special procedure that they set up for the religious corporations wouldn't apply. So in a way the Obama administration made itself lose that case by being agreeable to religious corporations and they set up a way that Religious Corporation could avoid doing it, so the Supreme Court said if you did it for them you can do it for these people.
Ted Simons: Ok, real quickly before you go to the next one here, it sounded like a Justice Ginsburg's dissent was relatively harsh for her. Is that accurate, and what did you make of the decision?
Paul Bender: It was very strong, yes. And she doesn't usually write -- It wasn't harsh, it was just strong. And I think what she was -- She to me had the right view of the case. The question to me is what did Congress intend in the Religious Freedom Restoration Act in restoring the situation to the way it was before Scalia wrote that opinion emasculating it? And if you look at it that way, she's clearly right. Because nobody thought when the Religious Freedom Restoration Act was enacted that it would cover something like this. Religious Freedom Restoration Act was a coalition between the joint sponsors with Teddy Kennedy and Orrin Hatch, the coalition between the far right and the left to restore religious freedom, and I don't think anybody was thinking of people who own profit making corporations who said our religion tells us we don't want to buy an insurance policy. The easy answer to that case then we’ll go onto the next one is, that insurance policy is compensation to the employees. How can somebody say that paying compensation to my employees invades my religious freedom? Suppose you own a McDonald's and you're paying all your employees the minimum wage, and one comes up and says hey can I have next week off I want to get an abortion. You say sure, how much it is going to cost? She says a thousand dollars and the employer says well I'm going to deduct a thousand dollars from your salary because I don't want to pay for that abortion. You would laugh at that as an exercise of religion. That's what this case is about.
Ted Simons: Interesting. All right. We'll leave it at that huh goodness gracious. Let's move on here now, the next one is -- This one we kind of referred to earlier during our midterm discussion, cell phone searches that are the cell phones are seized during an arrest. What did the court say about this?
Paul Bender: That's the one case in which the court was completely unanimous. There was a unanimous opinion except for Justice Alito wrote a little concurrence. The court held that although it had adopted this doctrine of search incidents to lawful arrest so that when you get arrested for anything, the police can search your body, and can search anything you're carrying with you, and look at it, the theory being that you might have a gun in there, or a bomb, and so they have to search you to safeguard themselves. And also you might have evidence in there that you would destroy if they didn't take it from you. So the question in this case was, ok, if they can seize your wallet, that's in your pocket, can they also seize the cell phone that's in your pocket? They can look through your wallet, can they also look through everything on the cell phone? And the government said well, it's the same thing. We can see something you have and look through it. And the court I think correctly realistically said come on, there is a big difference between what people have in their wallet and what they have on their cell phone. And that that is carrying search incident to a lawful arrest doctrine too far. And so you can do it, search but you have to get a warrant.
Ted Simons: Impact of this on law enforcement.
Paul Bender: Very mild. Because they can always get a warrant.
Ted Simons: Okay, cause I know DOJ was saying this would impact law enforcement.
Paul Bender: Yeah, I don't understand that. Because they will -- The court went out of its way to say you can safeguard if there's evidence on there --
Ted Simons: Of impending danger?
Paul Bender: Yeah, you put it in a faraday bag or something like that so that it can't be erased or it can't be used to detonate a bomb, and then you go get a warrant and then you can look through it. To me the interesting thing about that case is the court didn't talk about this, ok, you get a warrant, what does warrant say? And how -- A warrant is supposed to describe with particularity the place to be searched and the thing or things to be seized. Suppose I arrest you and I -- For gang activity. And so I get a warrant to look through your cell phone for evidence of gang activity. Well, how I do look through your cell phone for evidence of gang activity without looking through everything on your cell phone? You have a bunch of pictures there, I look to see if you have any pictures with gang members. Well you might have a picture with something else that has nothing to do with gangs but once I see that picture if it’s incriminating, I can seize that picture. So to me the challenge of this case is how is the warrant requirement going to be applied? Will that really end up being a safeguard of privacy, but as things stand now, the police will not be deterred or hobbled by this very much because they can safeguard the cell phone, and go get a warrant. And the only cases they won't be able to search it are where they have no probable cause.
Ted Simons: All right. Let's keep it moving here now. You referred to this earlier, the abortion buffer zone case, this involved what a Massachusetts law, 35 some-odd -- Correct me if I'm wrong, but isn't there a law in Colorado that was upheld by the high court?
Paul Bender: It was not exactly the same thing. And I think the court took that case in order to overrule the Colorado case. But only -- But a case can be taken if only four members of the court want to take it. Four members of the court who wanted to overrule the Colorado case and that’s why the court got the case. But there were not five members of the court who wanted to overrule the case so what you have is a split opinion. You have Justice Scalia and three other people saying, we should be overruling the Colorado case. But you have the majority of the court, and here are the liberals and Justice Scott Kennedy to join with them for a moderate decision saying the Massachusetts statute goes too far. Because what it does, is it completely prohibits people who want to counsel people getting an abortion, that they shouldn't. Peacefully, who want to go and say, hey can I talk to you, can I give you a leave let, the statute prohibits you from doing that within that 35-foot zone. The court says you don't have to be absolutely prohibiting that, you can do things to stop people from intimidating people, blockading people, harassing people, that's what your statute should say. And unless you come and prove to us that those statutes won't work, we're not going to let you prohibit all activity in that zone.
Ted Simons: What -- Does it make a difference that public streets and sidewalks were more likely to be involved 35 feet away?
Paul Bender: Well they were clearly. That's what the 35 feet was a sidewalk in front of the clinic. And they had to make an exception for people using the sidewalk to go someplace else. And they had to make an exception for people going into the clinic and employees going into the clinic. But these women who wanted to counsel people about abortion and who didn't want to scream at them and didn't want to intimidate them, but wanted to talk to them were not permitted to go in that zone and talk to them. So I think the liberals on the court would have preferred to leave the statute in place. Because it does stop the possibility of intimidation. But they compromised with Justice Kennedy to write an opinion saying you can safeguard the people getting an abortion, but you have to do it more narrowly. You have to say, we prohibit harassment and intimidation. You can't just keep everybody out of that zone. So there was a real attempt at compromise.
Ted Simons: And that was unanimous wasn’t it?
Paul Bender: The decision was unanimous, but the attempt at compromise was not --
Ted Simons: I got you, yeah.
Paul Bender: Even though five people were willing to strike down the statute ok, four people said no no no, you're not doing it the right way, we want you to you strike it down more forcefully. We want you to say that you can't have any statutes like this protecting thing. So that was an attempt to accommodate. And an attempt to compromise but it didn't work.
Ted Simons: And the Colorado law still hangs around for awhile?
Paul Bender: Oh, yeah.
Ted Simons: Ok. I’ve got a couple left here. I want to get to this business of streaming copyright television fair, because this was fascinating what this company tried to do. Talk to us about this.
Paul Bender: It's another case like the cell phone case which involves the courts having to deal with technology. And the way the world has changed because of the digital era when information gets digitized. And I think in the cell phone case they did that successfully. And I think they probably did it successfully here. What it is, is this guy developed a way of, I shouldn’t use the word but I will, stealing television programs and without paying a royalty to the people who own the copyright and selling them to people to see over their computers by basically renting aerials that will rent you an aerial, they have these tiny little aerials, they'll tune that to whatever station you want over the air stations only, and then you can get that over the air station on your computer. So you don't -- All you're interested in is Netflix and those kinds of things, and broadcast television, then you don't have to have the cable contract and you can save yourself a lot of money. So he was selling this ability to get the over the air television to people for a modest amount of money and people were doing it. And technically I think the Copyright Act probably did not prohibit that. Because the Copyright Act was covered -- The language is very difficult to understand sometimes, but it's not written with digital stuff in mind. And so the question was, is it a public performance? How do you know whether somebody renting an aerial so you can plug your computer into it is a public performance? But Justice Breyer for the court said, look, we all know what's going on here. And this guy is basically stealing this stuff and he ought to pay a royalty. So we're going to interpret the Copyright Act to do what it ought to do, even though it doesn’t really do that.
Ted Simons: I thought it was fascinating the guy was basically saying, these are broadcast signals, they're free. I'm giving you an antenna, you decide whether or not you want to take it, but by the way that antenna is $8 a month.
Paul Bender: Yeah you’re right. Well and if he sold you an antenna and you put it up on your roof yourself that would be perfectly ok. But what is going on here is he's not doing that, he’s keeping the antenna. And all he's doing, the court said it's just like cable television taking broadcast signals and selling them. And since they have to pay royalty, this guy should pay a royalty.
Ted Simons: And that reversed a lower court decision apparently.
Paul Bender: Yeah, I think it did.
Ted Simons: Wow.
Paul Bender: And Scalia dissented in that case, and I thought he was right. He said, hey look, the statute doesn't prohibit it. Maybe it should. These lawyers are take advantage of a loophole but what's wrong with that? That's what lawyers are supposed to do.
Ted Simons: Real quickly now, this -- the idea of the President getting recess appointment power. That kind of played out pretty strong here toward the end.
Paul Bender: Strong, but really not very important, because the Senate had remedied the problem by forbidding filibusters of appointments and so the problem had more or less gone away by the time Supreme Court decided the case. And I think what they decided was right, again, it's a problem of a constitutional provision that was written to deal with a problem that no longer exists. The problem was in the early days Congress; the Senate would sit for a couple of months, and recess for the rest of the year. Well what happens if the secretary of state dies the week after the Congress recesses? So the constitution normally you can't appoint a new secretary of state without senate confirmation. But the recess appointment clause says during the recess of the senate if a vacancy happens during the recess, you can make a temporary appointment to last until the end of the next session after they come back, so that that office will be filled. Well Congress doesn't recess for that long anymore, they hardly recess at all.
Ted Simons: They weren’t recessing at all; they were sending guys back there every three days just to make sure nothing would happen.
Paul Bender: Exactly. And presidents recently, and it's not only Obama, same thing has been true of Republican presidents, have become very frustrated at they'll send nominations up, and the Senate won't even act on them. They just sit there. Meanwhile the office is open. So they wait for them to leave for a weekend, and they make a recess appointment. So the court had to decide can you do that? And the court said no, that's not a real recess. The court ended up saying if it’s 10 days that they're not sitting at all, then you can do it during those 10 days, but they still let the Senate say we're sitting even when they're not sitting by coming in every three days and gaveling into session and ending the session in 30 seconds. So it ends up stopping basically the recess appointment power from being very useful, and that's ok, because you don't need a recess appointment power dealing with recesses you can fill because the senate is away. You need something to deal with recesses -- Because senate won't act on the nomination. But you can't construe the language of the constitution to deal with that.
Ted Simons: All right, those are some of the biggies this session. We had our midyear conversation as well, so some of the early cases we've already discussed. Next year, are we going to see gay marriage? Is that going to be the biggie next year?
Paul Bender: It could. Remarkable thing is happening in the United States, legal system with gay marriage. 10 years ago nobody would have thought that there was a serious chance of the Supreme Court of the United States saying there was a right to gay marriage. But in the last couple years about 20 federal judges have faced that question, and every one of them has said that there's a constitutional right to gay marriage. And one court of appeals just held that there's a constitutional right to gay marriage. And so that case or one like it is going to come up to the Supreme Court. They may wait for a couple of courts of appeals to decide it. If they took it the first time, this court of appeals decision came down a couple weeks ago, if they don't go for rehearing and just petition for right to the Supreme Court over the summer, the court could grant that petition in the fall and the case could be argued in the spring and decided by this time next year. But if they go for petition for rehearing, or if the court doesn't take this case and waits for another it wouldn't be next year, it would be the year after. But sometime in the next year or two that issue is going to come back to the court and it's hard for me to see how when every federal judge's safety issue has said that there's this right, that Justice Kennedy wouldn't say the same thing.
Ted Simons: And you think that would be again, a Kennedy court, a Kennedy decision.
Paul Bender: A Kennedy decision. And it might be more than 5-4. It's a remarkable development that the public has said, hey, we think in general this ought to be a right. The public opinion has changed enormously. And so the court is in the position of leading here, the court can say, well, the public has now understood that this ought to be a fundamental right, and we'll go along with that. Rather than being a crusader, which I don’t think they wanted to be.
Ted Simons: All right. Great stuff as always. Good to have you. Good to see you again.
Paul Bender: Nice to be here, Ted.
Paul Bender: Friday on Arizona Horizon, The Journalists' Round Table gives way for an economic special. Hear why Arizona is lagging behind the nation in job recovery, and we'll talk about the future of the Arizona Sun Corridor. Those stories and more, Friday that’s at 5:30 and 10:00 right here on Arizona Horizon. One more reminder on our website, www.azpbs.org, that's www.azpbs.org, that’s where you go to see past shows, and see what we have in the future, by the way next Monday we have a debate between Republican candidates, primary candidates for the Attorney General's race. That means Tom Horne and Mark Brnovich so don’t miss that. That's it for now. I’m Ted Simons, Thank you so much for joining us. You have you a great evening.
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