Horizon, Host: Ted Simons

July 5, 2006


Host: Michael Grant

U.S. Supreme Court Wrap-Up


  • ASU Law Professor Paul Bender discusses the most significant decisions made by the Supreme Court during this term. From issues concerning the military prison at Guantanamo Bay to Arizona’s insanity law, Bender examines these decisions in the context of the changes brought to the bench by Chief Justice John Roberts and new Justice Samuel Alito.
Guests:
  • Paul Bender - law professor, Arizona State University


View Transcript
Michael Grant:
Tonight on "Horizon," we look at the most important decisions made by the United States Supreme Court this session -- from Guantanamo Bay prisoners to the Arizona insanity law, an examination with ASU law professor Paul Bender.

Announcer:
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Michael Grant:
Good evening and thanks for joining us tonight on this special edition of "Horizon." I'm Michael Grant. The United States Supreme Court's term ended with a bang with a monumental decision regarding Guantanamo Bay prisoners, which perhaps most people, including myself, don't understand. Also, in evidence… chief justice John Roberts and Justice Samuel Alito are impacting the court, deciding cases that might have gone differently had justice Sandra Day O'Connor remained on the bench. These changes have focused attention also on Justice Anthony Kennedy, who now is providing something of a swing vote, a role previously played by O'Connor. According to the Supreme Court institute, there were sixteen cases decided by a five-vote majority this term. Kennedy was on the winning side 12 times. Joining me now to talk about the personalities of the court and the impact of the changes, -- and we may even get to some decisions -- is ASU law professor Paul Bender. Paul, welcome.

Paul Bender:
Hi, Michael, nice to be here.

Michael Grant:
Is this Kennedy the new swing vote angle Kennedy?

Paul Bender:
The new sole swing vote. The new single swing vote. He and O'Connor played that role for the last 11 years before this term. There was four people on the right of them. Rehnquist, Scalia and Thomas. Souter and Stevens, Ginsburg on the left of them. People could win if they got either O'Connor or Kennedy. In the states challenging Michigan law schools affirmative action program Kennedy is dead set against, but they got O'Connor's vote. Now, they can't get O'Connor's vote because she is not there. The people who replaced her, either Rehnquist or Alito, are not going to vote the way she voted in almost every case. Their votes this term were as conservative, in fact, in Alito's case more conservative than either Scalia or Thomas and Roberts and Scalia did about the same. Alito sat in 18 cases this term that involved issues that -- some political consequence issues. How many of those 18 cases do you think he voted with the liberals?

Michael Grant:
Well, this is a pop quiz that you administered before the show. It was zero.

Paul Bender:
And you remember the answer. Zero. Zero. Thomas once. Okay. Roberts twice. And Scalia three times. What you have now is if those guys can get Kennedy, they have a majority. And Kennedy in his time on the court tends to vote with them two or three times as often as he votes with the other side. Sometimes he votes with the other side. Guantanamo case a good example, the gay rights a good example. Affirmative action cases he tends to vote and has voted with the conservative. He is still a swing vote and always has been. Now, he is the only one. The liberals have to get him to win the cases.

Michael Grant:
I don't know if you have the statistics on this, but was or has historically justice Kennedy been swingier than Justice O'Connor?

Paul Bender:
Very --

Michael Grant:
Or vice versa.

Paul Bender: I think it is about 50/50. People like to say she was the first woman on the court and makes her powerful and she was. In fact, over the years I think it was 50/50. Some years he had the fewest dissents and some years she had the fewest. Depends on the issue. Kennedy has been migrating a little bit in his views. Seems like he is becoming more sensitive to minority rights and more questionable on things like the death penalty. So it will be really interesting when he is all alone in the middle and he knows it is up to him whether he will continue that migration and maybe side with the liberals a little more than he has in the past or whether he will do the opposite or remain the same. In all events if you want to talk about who the supreme court is these days in any closely divided case, it is Kennedy, and you can see it this term. Guantanamo. The Texas redistricting cases. All of those decided with Kennedy as the deciding vote.

Michael Grant:
This was a very unique term. You and I were walking back through our supreme court history and you know it a lot better than I do. But very rare for two justices to join the court in a single term, and certainly very rare for a chief justice and a new associate justice to join the court in a single term.

Paul Bender:
I don't remember when a chief justice and associate joined. I remember that in the Nixon presidency justices Black and Harland left at the same time and justice Powell and justice Rehnquist who later became chief justice were appointed at the same time.

Michael Grant:
'71 or '72.

Paul Bender:
'72. It is possible when that happens that you could have a big shift in the court if both are different from the two people they replaced. That is not true this time. I think you will find that Roberts' voting record is similar to Rehnquist. There is no real change there. The real change is O'Connor who agreed with the liberals a third of the time, a quarter of the time. The Michigan affirmative action case is a perfect example. There is no question the way I think Alito would come out there, he would be against it, she was for it. Another case like that, I don't know what he would do, but he might do something different. She voted that was unconstitutional to put the ten commandments in a courtroom and voted that a male basketball coach had standing to challenge gender discrimination against his girls basketball team. I can't see Alito voting for that. In this year there were three cases reargued after she left the court.

Michael Grant:
Right.

Paul Bender:
A lot of people think she was going to be with the liberals in the cases and the conservatives held up their defense until she left and then had the cases reargued and Alito was with them in all three cases and those cases involved the death penalty, for example, the knock and announce rule, something about employee speech protections. There are a lot of potentially important issues where there is a change.

Michael Grant:
And we will talk about the decisions when we talk about the decisions themselves. Explain to us again, though, the rule that drives some cases to be reargued? It has to do with the judge being on the court later but not having been there for oral argument.

Paul Bender:
Basically two rules. You can't participate in a decision after you leave the court. You can vote, but your vote doesn't count unless it comes down before you leave. That is different from Arizona where we had retired justices participate in cases a year later because they were argued while they were on the court. So that stopped O'Connor from participating in any case that came down after late January. She only participated in a small portion of the court's term. Less than a quarter. The other twin rule is up until now these are not constitutional rules. You can't participate unless you were on the court when it was argued. Even if you didn't hear the argument, if you are home sick you can participate, hear the argument on tape. Alito couldn't participate in any case argued before February 28th or something in early February was the first time he sat on the court so that left him out of close to half of the court's cases. Half the arguments. So there is a group of cases in between which only had eight justices and three of those were reargued before and each one of those Alito joined the four conservatives to a 5-4 decision.

Michael Grant:
While there was relative unanimity among justices of the two terms, the tougher decisions were reflected by slimmer margins. Influential decisions on Guantanamo bay prisoners, state redistricting, and death penalty and fourth amendment concerns. Paul let's start with the Guantanamo case. I'm not sure that I really -- I was joking during the intro copy, I'm not sure that I truly understand what the case was about, although I do understand that it affected a very narrow slice of the people being detained at Guantanamo Bay.

Paul Bender:
Most commentary you hear in the press and most people think including some people in congress think that the case directly affects the status of the, what, 600 people detained in Guantanamo as enemy combatants. It doesn't. It only involved the ten people of those 600 who the government has decided to charge as war criminals. Violations of the rules of war. Not just being enemy combatants. It is not a crime to be an enemy. You can be a prisoner of war.

Michael Grant:
The prime defendant in this case having been Osama Bin Laden's driver.

Paul Bender:
That was the allegation, yeah. And the president set up the military commissions to try those people. Those military commissions are not the group that makes the determination about whether the other 600 people are enemy combatants or not. The government gives them a review. It is some kind of review panel. Those review panels are being challenged because of their procedures. That challenge was not involved in this case. All that was involved was whether the military commissions that the president set up and had special rules about, whether those complied with the law. And the court held 5-4 that they did not. Primarily because of their procedures. Five people said that the procedures were defective and the most important defect was that the defendant had no right to see or hear the evidence against him or to be present in court when that evidence was presented. It was at the option of the presiding judge, the presiding officer, and justice Kennedy and the more liberal justices all held that that violated both federal law because congress had said that you have to use court-martial procedures in the military commissions. And court-martial procedures do not permit that. And also because it violated the Geneva convention, which says they said you have to use court-martial procedures if that is what you use for your own soldiers.

Michael Grant:
Here is one of the things I didn't understand about the decision. They cited the Geneva convention but also said that congress could fix this, which would seem if it was violative of the Geneva convention it would be just as fenced off from congress as it would from the president. Not to say that a treaty can't be adjusted, but the congress just simply couldn't move in and say that is okay, go ahead and try them.

Paul Bender:
I don't know how you get out of a treaty, but it is not a casual thing to do. And in this case to withdraw from the Geneva Convention would have important consequences for the country. Kennedy agreed it violated the Geneva Convention. It is not clear -- the Geneva Convention is still there. And two, it seemed to me that a procedure that might sentence somebody to death or a long prison term accusing him of a crime where he doesn't get a chance to see the evidence against him or be in court when he is being tried might violate the due process clause. And I think the due process clause is going to be held to be applicable at least in some part to the proceedings, even though they happened in Guantanamo. The court a couple of years ago decided Guantanamo was the United States for some of those purposes. That is another reason why congress might not be able to -- my guess is that congress will compromise and try to pass something with procedures that are a little bit more compliant with the due process clause. And that the court will probably permit those things, and the question would be whether the Geneva Convention will permit those and we don't know the answer to that.

Michael Grant:
Arizona's insanity law was challenged. A case up in flagstaff.

Paul Bender:
Right.

Michael Grant:
Involving a person -- a fairly young person diagnosed as schizophrenic who killed a police officer up there. Pick it up at that point.

Paul Bender:
The interesting -- most interesting thing about that case to me is he was arrested, he did clearly kill the police officer. He was charged with deliberately killing a police officer and not just an ordinary killing, and he was not tried for several years because he was judged unfit -- mentally unfit to stand trial. But then they said that he was recovered enough to stand trial. His mental condition was good enough and so they tried him and he alleged insanity and Arizona had the old insanity rule -- I hope I get this right -- said you are insane if you don't understand the nature and quality of our act or if you didn't know it was wrong. Arizona and a number of other states took out the first of those so that the question now is did you know it was wrong. And one issue in this case was, whether that was constitutional and the court held that was constitutional, that states could adjust the insanity defense at least that much. The harder issue in that case was having failed to show he was insane the defendant wanted to introduce the psychiatric evidence that he did use on insanity. Psychiatrists, psychologist, about his mental condition on the issue of whether he knew it was a police officer. Whether he was aware enough of that to have what we call a mens rea. The Arizona court of appeals held -- I didn't think necessarily correctly -- that in Arizona you can't do that. Psychiatric evidence can only come on the issue of insanity. The Arizona supreme court denied the review and the court took the case from the Arizona court of appeals and upheld that review even though justices Bryant and Souter said that that was relevant. It was okay to keep out because it would confuse the jury.

Michael Grant:
Let me pick -- let's move to a couple of political decisions and then I want to cycle back to the criminal side. One decision that came down late in the term was the constitutionality of Vermont's campaign finance structure.

Paul Bender:
Right.

Michael Grant:
The court holding that Vermont's campaign contribution limits were so low they were unconstitutional.

Paul Bender:
Right. Because they -- they didn't permit contributions large enough to permit candidates to get enough money to run a meaningful campaign.

Michael Grant:
I think this was misreported in the -- in the local press as having an impact on clean elections, which I think at least -- That's wrong. You and I are in agreement that. Clean elections is voluntary. Is it possible though that the Arizona campaign contribution limits, which are fairly low, that is always in the eye of the beholder, that it might have some impact?

Paul Bender:
Absolutely. I think campaign contribution limits around the country are going to be examined to see if they are too low. It is not necessary that every state have the same limit because conditions and number of people are different and what office you are running for is different and size of the district is different, but very low. And I understand -- I don't know exactly what Arizona's are but they are fairly low. Would be open to challenge under the rule. It didn't say -- and this is the important thing about it -- it didn't say that all campaign contribution limits are unconstitutional. Justices Scalia and -- just because they are too low. Scalia and Thomas wanted for years to overrule that rule and say you can't limit campaign contributions any more than you can limit campaign expenditures. Kennedy has suggested he would agree with that. I think they were hoping that Roberts and Scalia would agree with that. They didn't. Kennedy still hadn't made up his mind. Roberts and Alito said we don't have to reach the question of whether the are all unconstitutional because these are -- because they are too low so we will reach that later. They said at the confirmation hearings that they believe stare decisis.

Michael Grant:
The Texas redistricting case I guess was just -- was just fun because Texas had redistricted earlier -- early in the decade.

Paul Bender:
After the census. You have to --

Michael Grant:
It is mandated. But then the republicans gained control of the legislature and say let's just redistrict again.

Paul Bender:
Right.

Michael Grant:
And someone brought a challenge to that and in the main the Supreme Court there said that was okay.

Paul Bender:
It -- there is nothing unconstitutional about it. It is a real mess if every state starts doing it. Most people think they won't. The question was raised whether it was constitutional to redistrict just because you gained control of the state legislature mid census and the court held that there was no constitutional rule against it. There was one district that they reapportioned to reduce minority voting strength and the court held 5-4 with Kennedy at majority in both parts of the case that that violated the voting rights act and would have to be redistricted and that will result in all the surrounding districts being redistricted.

Michael Grant:
Was part of the argument there that you are using data that is too outdated? Doing this again and that is kind of stale.

Paul Bender:
In that one, I really don't remember that. I thought it was that the minority strength was being reduced. That is something that it prohibits in redistricting.

Michael Grant:
Well let's go a couple states North to the Kansas death penalty provisions were challenged.

Paul Bender:
Kansas has a strange rule that if there is an aggravating circumstance which justifies the death penalty the defendant can put in mitigating circumstances but he doesn't win unless the mitigating circumstances outweigh the aggravating. If there is a tie, they are supposed to sentence to death and the court 5-4 upheld that with justices Alito and Roberts joining Kennedy and Scalia and Thomas. That is not a very important case except with regard to your attitude on the death penalty. That's one where I think that O'Connor might very well have come out of the other side.

Michael Grant:
There also was a cruel and unusual challenge on lethal injection. And that I believe was coming out of Florida, was it not?

Paul Bender:
I think so. But the -- the important thing there is that the court didn't decide whether lethal injections are cruel and unusual punishment. It decided that people could challenge lethal injections who had already brought one habeas corpus. The congress has reduced Habeas Corpus drastically so that now, generally you can only bring one habeas petition. So now, if that rule applied, they couldn't challenge whether lethal injection was cruel and unusual punishment. The argument is that the drugs used don't always do what they are suppose to do. The drug doesn't make you unconscious, and the next paralyzes you and you are in terrible pain and you feel it, and the next one stops your heart, no pain. Nobody knows whether that is true or not. These people said okay, let's challenge that procedure as violating our civil rights, our right to be free from cruel and unusual punishment. Not a habeas action. The court said yes, you can do that. 9-0, as I remember. And so that opens up these challenges and will be a big issue over the next several years.

Michael Grant:
Speaking of cases that were reargued. The so-called knock and announce case was reargued. The controversy, as you indicated earlier, as to how Justice O'Connor might have ruled on the case. More importantly --

Paul Bender:
The facts are is knock and announce constitutional rule that you have to -- unless there is an emergency if you have a search warrant you have to knock.

Michael Grant:
This was the case with a search warrant.

Paul Bender:
With a warrant you have to knock and give the person a chance to come to the door and let you in peaceably rather than breaking down the door. And you have to wait half a minute or a minute unless you hear the toilets flushing inside and drugs going down in which case you are allowed to break in. Here they didn't wait. They did break in. The guy was in the shower. So it was a technical violation of the rule but it was a violation and they got some evidence and to me the important issue was do you exclude that evidence. Now, normally you exclude evidence obtained in violation of the constitution. This evidence was obtained in violation of the constitution. The court held 5-4 the knock and announce rule isn't all that important so we will not exclude the evidence and what good would it do to exclude it anyway, it wouldn't affect police behavior. I think that is wrong. The important thing is in that case and in another case where two foreigners, not Americans, were in jail and they have a right to have their consulate notified, the people in the office from their countries, and they weren't in those cases. And they were interrogated and gave confessions and they said that should be excluded because if the consulate had come and talked to them they probably would have told them to shut up. There the court said well, it is only the Vienna convention. That is not all that important either so we will not apply the exclusionary rule there either even though there was a violation of the law.

Michael Grant:
Thinking more highly of the Geneva convention --

Paul Bender:
One justice did --

Michael Grant:
-- where you -- [ overlapping speakers ]

Paul Bender:
We are talking about Kennedy here who had a different view in those cases. To me this is the beginning of either the complete end or a substantial reduction of the exclusionary rule. The current majority of the court does not like the exclusionary rule and I think you will see it not apply increasingly in cases except in ones where the crime is not very important and the police violation is very important. That is to me extremely important. Because the exclusionary rule has been the way the fourth amendment has been enforced in the United States. Police used to search without warrants. With impunity because what was going to happen to them and evidence would come in. And it stopped that and I think it made police pay attention and that may stop and --

Michael Grant:
Of course, the argument has been made for a long time because it has been a controversial subject that perhaps you could fashion some other remedy as opposed to excluding the evidence but this could seem to indicate the Supreme Court may be headed down that way

Paul Bender:
Without any remedy being fashioned. Those are the two most important cases of the term.

Michael Grant:
Law professor Paul Bender, that is all the time we have got. An interesting term and I guess we have to watch the docket for what cases.

Paul Bender:
The next one will be equally interesting, I assure you. The court may be in transition, and it is going be interesting.

Michael Grant:
Law professor Paul Bender, thanks again. And our thanks to you as well for joining us on this special edition of "Horizon." I'm Michael Grant. Hope you have a great one. Good night.

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