Horizon, Host: Ted Simons

May 29, 2008


Host: Ted Simons

Supreme Court Mid-term Review

  |   Video
  • The United States Supreme Court has already made some major decisions this session, such as ruling in favor of an Indiana voter I.D. law and ruling that lethal injection is constitutional. Get a review of major decisions made so far and a look toward the end of the session in a Supreme Court mid-term review with ASU Law Professors Paul Bender and Cathy O'Grady.
Guests:
  • Paul Bender - Law Professor, Arizona State University


View Transcript
>>Ted Simons:
Tonight on "Horizon" the U.S. Supreme Court has already made some big rulings, but the biggest is yet to come. The court has ruled on lethal injection and a voter I-D law, and has yet to decide on a major gun rights case. A Supreme Court mid-term review, next, on "horizon." Hello and welcome to "Horizon". I'm Ted Simmons. The United States Supreme Court has upheld a voter I-D law in Indiana. It also has upheld a lethal injection case out of Kentucky. Yet to be decided is a historic gun rights case from Washington D.C. here to talk about those cases and others are Arizona State University Law Professors Paul Bender and Cathy O'Grady. Thank you both for being here on "Horizon."

>>Cathy O'Grady
Nice to see you.

>> Paul Bender:
Good to be here.

>>Ted Simons:
I want to get to specific cases in a moment. But first an overall general review of the court. Paul, current makeup-How are the ideological lines drawn.

>>Paul Bender:
Well you know when the two Arizona justices left Justice O'Conner and Chief Justice Rehnquist and were replaced Chief Justice Roberts and Justice Alito. Roberts for Rehnquist is basically the same thing. Roberts was this law clerk I think his voting pattern is about the same as Rehnquist's was. But there was a big difference between Alito and O'Conner. Alito's first two terms on the court, first term and a half-He was the most conservative justice on the court last term. He voted on the liberal side of cases where the court was divided once last term, more conservative than Scalia, more conservative than Thomas. And Roberts was also a little more conservative than Scalia. So the court clearly seemed to be moving to the right. The question now is will it stay that way this term or some people think there's been movement back towards the left. I'm not sure that that's true. Both Roberts and Alito voted have with the liberals in cases where the court was not unanimous several times, six or seven times, each one, which is a lot more than last term. But they've only done it in cases where the result would have been liberal even if voted on conservative side, 7-2 cases. So even if both of them in a 7-2 case would go on the conservative side, it would be 5-4. So to know things are really a little more liberal than last year, you would have to see them voting on liberal side when it made a difference and when their vote changed the result and that hasn't happened and probably not likely to happen. I think they are voting on the conservative side so that Roberts can sign the opinion and also so that they can negotiate to make the opinion somewhat narrower.

>> Ted Simons:
Cathy, Kennedy still the big swing vote?

>>Cathy O'Grady:
Well no, and that's so far that's what and that kind of goes to what Paul was going to saying. First of all, we have some of the biggest cases yet remained to be decided and we're only about halfway through. It's hard to tell in certainty. We've had so many 7-2 cases and 6-3 cases at this point and very few, just one, 5-4 case. And Kennedy, we are seeing him more in the decent now than we did last term. He is not necessarily at this point that center vote that's critical for a win or victory in the case. That's different from last term with number of 5-4 opinions with the Kennedy in the majority always.

>>Ted Simons:
Are there other differences you're seeing among members and justices right now. Is anyone looking like they're doing something just a little bit different than last go around?

>>Cathy O'Grady:
One of the things I'm noticing this term and maybe you are, too, Paul, is there's a number of opportunities for the justices to discuss their opinions about stare decisisness and precedent. We are seeing always from Thomas and Scalia a real willingness, especially from Thomas, to overturn the established precedent if he disagrees with it. And now there's been some thought that Roberts and Alito are in that mold as well. Roberts is getting criticized fairly for that because during his confirmation hearing he was a staunch advocate of precedent and the stare decisis as the foundation of our legal system. Now there are opportunities for the justices to be talking and writing about the importance of adhering to precedent.

>>Paul Bender:
It's a big issue.

>> Cathy O'Grady:
It's a big issue.

>>Paul Bender:
In the back of everybody's mind is "Roe and Wade." Now there are not five votes on the court to overrule "Roe versus Wade" now. But if Senator McCain becomes president and Justice Stevenson retires, and Senator McCain was able to get through the Congress (and that's a big question mark) someone like Alito and Roberts who He (McCain) says that's his model for he like to put on the court. Then Alito and Roberts and new justice would have to face the question of whether they are ready to overrule that. I think one difference between Alito and Roberts and Scalia and Thomas and I think Alito and Roberts are little more open to following presidents they don't like. Thomas has absolutely no loyalty and neither does Scalia. They are very strong principle people. It's important to see some cases come up later this year will show us whether Roberts and Alito will have the same disregard of precedent. If they will, roe and wade will be in trouble if McCain gets elected.

>>Ted Simons:
Back to your point regarding the future of the court and the next president who will be deciding how much I mean how many justices will the next, first four years, let's keep it at four years for now. What's the next president going to be seeing?

>> Paul Bender:
You can't tell for sure. Justices are amazing long lived. It's apparently an easy job.

>>Cathy O'Grady:
Stress free

>>Paul Bender:
No I don't know why it's true. Olive Wendell Holmes was in his 90's. Justice Stevens is in his late eighties-He's in very good health but you can never tell. He is the most likely one to leave first. After that nobody else is liable to leave because they were in the 70s. Four of them could leave. Anything could happen. If Obama is president, I think the model of who he would like to appoint, he said this, are people like Ginsburg and Breyer--People who are moderate liberals. He talked recently about people with empathy and understanding the problems with poor people and underprivileged. If he replaced Stevens nothing would change if he replaced one of his appointees. That would be true if he replaced Ginsburg with one of the appointees. The conservatives tend to be young. If McCain were president and he would nominate somebody like Alito and Roberts. The Democrats would probably have control of the Senate. It would be a very interesting episode as to whether the Democrats would let him to that or force him to appoint somebody more moderate.

>>Cathy O'Grady:
The other distinction he mentioned is how do you look at the Constitution? Is it a dynamic document meant to be read broadly to cover the day? Or is it static and meant to be read in history in the context of the framers? That's a clear difference there between McCain and Obama.

>> Paul Bender:
Oh, absolutely.

>> Cathy O'Grady:
That's a distinction on empathy.

>>Paul Bender:
McCain is focused on more focused in on issues like abortion. Obama was a lawyer.

>> Cathy O'Grady:
McCain is not.

>> Paul Bender:
He's thought about this stuff a lot. He has a philosophy which is sort of moderately liberal philosophy which he would reflect.

>> Ted Simons:
Alright let's get to some of these cases. We'll start with the cases to be decided, Paul, Guantanamo Bay, habeas corpus at issue here?

>> Paul Bender:
Yeah that's an interesting case it's about the third time before the court. This case involves the status of Guantanamo bay detainees who were first brought over there. They sued at that time challenging the fact that the government intended to hold them indefinitely without any trial or anything like that on the theory they are enemy combatants and they challenged the condition of their confinement. . The lower court said when they sued you have no access to federal court. You're not citizens and you're not in the United States. So the habeas statute doesn't apply. Supreme Court reversed that and said yes the habeas statute does apply. So they went back to the district court. Congress acted immediately and rewrote habeas statute to try to keep them out of court. That case went back up to the Supreme Court and the Supreme Court said to Congress that you haven't done it yet. It's not clear enough. Habeas statute still applies to them. Congress acted again and it made it absolutely clear that these people remember for some of them it took three or four years after the lawsuit was brought, that their lawsuit should be dismissed. That's the issue now whether Congress had the power to exclude these people from federal court. The constitution says you can't suspend the writ of habeas corpus. The question is this suspension of the writ? It turns in part on whether Guantanamo Bay is part of United States. It turns English common law on what was habeas corpus at the time of the Constitution. And it also turns on a little bit as to whether the remedies that congress is giving them are adequate enough. At one time it seemed like the biggest case of the term, now that the war is not at the center of attention now, maybe not. It's a very important case to show the court's attitude whether military operation should be subject to judicial control.

>> Ted Simons:
Any indication?

>>Paul Bender:
I think they will hold. They have access to habeas corpus and Justice Kennedy is a swing vote and earlier cases he made it clear he thinks the court should be involved this kind of thing.

>>Ted Simons:
You mentioned one time this was considered major case.

>>Paul Bender:
Yeah.

>>Ted Simons:
It looks like D.C. gun rights is a biggy.

>> Cathy O'Grady:
That's a widely watched case by everybody. It seems gun ownership is a civil liberty issue of this term. In the country it's such a contentious and controversial issue. The Supreme Court never interpreted the second amendment squarely. And that's what they're going to be doing in this case. We'll wait and see. There are two issues much does the second amendment gives an individual constitutional right to possess a gun? That's the individual view. Or is it a right that's tied to a military to a national military or state-run military system? Secondly, if there is an individual right, can it be regulated by the government? To what degree? What would be the standard that we would have to apply to a government regulation? Will it be very strict so that it's such a fundamental right that the government can't regulate it easily or more of a right subject to reasonable regulation? Both of those questions are fascinating, I think. The thing about the individual rights question that's so interesting me is it's an exercise in interpretation of language, of intent, of context. The constitutional amendment says a well-regulated militia being necessary to the security of a free state. And then it says the right of the people to keep and bear arms shall not be infringed. So we have an analysis of every word and comma in that sentence to figure out what it means.

>>Ted Simons:
With that, what does the court look at? Do they go back to the founding fathers and read mail? How far will they go?

>>Cathy O'Grady:
They will go back and figure out what was going on in 1791. There's an argument being made that this amendment was made to address a provision in article 1 section 8 Congress the power to dismantle militia. It was individuals voluntarily keeping guns in their homes in case they need to come together. They can use the gun to shoot a bear as it was approaching their cabin. This is what the oral argument was about. It was about what was going on in that day and what was meant by the words.

>>Ted Simons:
Interestingly the N-R-A actively tried to keep the court from looking at this in the sense they were a little worried about the court. Is there any indication how they will see this?

>>Cathy O'Grady:
I'm thinking that the court based on the oral argument and we don't have decision yet, I think the court will find an individual right. This will go against the weight of authority from the circuit courts that decided this issue. Once they find an individual right linked to the second amendment, then the question is how much regulation is happen. we have seen the solicitor general take a middle ground position arguing it shouldn't be given a strict review that the federal government needs to regulate machine guns, reasonable regulations about criminals having guns and N-R-A is fighting that.

>>Paul Bender:
This is an easy case for the court to fight and hold. This is individual right and historical evidence seems to me otherwise. It's a regulatable individual right. It's regulatable in a reasonable way and that's tremendously flexible to let the court ultimately decide. They don't have to decide it here and send it back to the lower court. The lower court said it was an absolute thing. And send it back and the question is now they can regulate it and is it reasonable regulation. The court likes the flexibility these days. I think it's likely to happen. I don't think that's what the framers intended. As we know that's not always the way it goes.

>>Ted Simons:
Let's go to another case that's ready to be decided or should be decide the death penalty for rape situation, child rape specifically. This is what the first time in 30 years the courts looked at something like this.

>>Paul Bender:
The assumption for 30 years has been the only case to give the death penalty is a homicide or where somebody died. This challenges that. This is very attracted to people who believe in the death penalty to say, gee, the brutal rape of a 12-year-old girl, I think in this case, if anything gets a death penalty that should. What's the difference if somebody died or not? The problem is even if you believe in the death penalty, once you pass the line somebody has to be killed. It doesn't have to be somebody killed it's just a really bad crimes you can give the death penalty to. How do you control that? It seems almost impossible to do that. My sense is that the court will stick to that line. if you open it up, then you are just going to have endless series of cases where state legislatures want to give the death penalty and the court will have it can you do it for this? Can you do it for rape about for an adult woman? What about rape about using a knife? Or a bank robbery where you tied people up as hostages for two days or something likes that? It opens up a mess for the court. I think they will stay to the line of death but it will be close case.

>>Ted Simons:
Previous shields for mentally challenged and killers under 18 as far as they are going to go.

>> Paul Bender:
Well, right now it is. Ultimately the court will rule the death penalty is unconstitutional. That will not happen now. more and more justices who have been on the court thinking it was constitutional Justice Powell no longer on the court Justice Stevens has now has changed his mind and he has said the death penalty is constitutional he said he would vote against it. Because they see it now in operation and see how quirky it is and how irrational it is. I never talked to a judge who enjoyed death penalty cases. They are horrible for them. Ultimately I think it will happen but not in the next several years.

>>Ted Simons:
Cathy that brings us to decided cases and Kentucky and lethal injection there. talk was about this one and this is interesting in that I believe it talks to what we were referring to earlier with the narrow ruling where don't bring something broad to this court. Make it narrow. Make it focused.

>> Cathy O'Grady:
Right. They were looking specifically at Kentucky's system using lethal injection widely considered and agreed that if it's done absolutely properly it's the most humane way. This case sets aside bigger issues. Except this is the case where Justice Stevens came out and said he was completely against death penalty. He used this case to do that. This assumes the constitutionality of the death and is this method of doing it violation of the eighth amendment. The argument is Kentucky used a three drug protocol. The first drug a barbituate put the person in a deep unconscious state. The second one paralyzed them and third one caused heart attack and death. If the first drug wasn't done or administered properly, if the person was not in a deep enough state of consciousness, there would be no way for anyone to know because the second drug created a paralysis. This was to create a dignified-looking death. And so there was this real fear that these people were in pain. So everyone agreed that it would violate the Eight Amendment if the first drug wasn't administered properly because it would be severely painful. Yet, they found on the records of the facts presented in these cases coming out of the Kentucky and standards that the justices were willing to apply, that there was no evidence that they were doing it improperly and no alternatives suggested that the justices were willing to accept as tried and true.

>> Ted Simons:
So not necessarily a surprise that we had Stevens and brier voting with conservatives with this?

>>Cathy O'Grady:
That's a good example of adhering to precedent. Stevens in his opinion came out and said he's decided now he's against the death penalty. But, adherence to precedent required him to concur with the majority rather than dissent.

>>Paul Bender:
For now if there were four other people in the court to agree with him, I think he would change his mind. It's a hard case how do you prove when somebody's dead what kind of pain they suffered before they died. The argument was if there's a risk of painful death and you could eliminate or reduce the risk by using a different method. It's cruel and unusual not to eliminate the risk. The court said no you don't have to eliminate the risk. The defendant who's about to be executed has to come in and show that it's going to be cruel and unusual.

>>Ted Simons:
Speaking of the death penalty-- Mexico-born death penalty case involving Texans. The Bush administration seemed to be on one side they are not used to being on?

>>Paul Bender:
It's weird and an Arizona component. A bunch of the Mexican people who went, 50 of them, to the international court of justice said the United States is violating our treaty which gives a person, say a Mexican, a chance to meet with the consul and be advised by them. Texas and others don't do that and then they convict them. The international court of justice warned that's a violation of their right. And two, you cannot say they waived that right because they didn't object to fair trial. Of course they didn't object. They didn't know about it. That's the whole point. And so they said you can't use a waiver as well. The Texas supreme court said who cares about the international court of justice interpretation of a treaty we're going to apply our waiver rule. The President wrote a memorandum saying that he thinks state courts should adhere to the international court of justice they should hold to that. The Texas court that decided the case said that's really interesting because that's the President who is the advocate of the waiver rule and now he's turning around and telling us not to use it. We're going to ignore him, too. And the Supreme Court said they could ignore minimum.

>>Ted Simons:
What does it say about negotiating future treaties?

>> Paul Bender:
This court is way, way, way behind most countries in making domestic law adhere to international treaties. Most international law is not automatically applicable in the United States. It waits for congress to pass a statute applying it and it hasn't happened here. So what it means is we continue to go on the way we are and look as international courts do and say we can do what we want.

>> Ted Simons:
Cathy another case that may have some Arizona connections regarding voter I-D. This time I believe in Indiana.

>> Cathy O'Grady:
That's right.

>>Ted Simons:
Basically the I-D's at the polls, go ahead.

>>Cathy O'Grady:
Right and the Indiana law is a lot stricter than the Arizona law. We do have an Arizona I-D., voter I-D. case currently in litigation in federal court right now challenging that Arizona statute. In Indiana it required a photo I'd., had to be government-issued photo I'd. there were arguments being made that going to the right office with your birth certificate or passport and getting--if you didn't are driver's license-getting that I-D was burdensome on the elderly and poor and the disabled. Those groups are pretty much traditionally all democrats. The Democrats were challenging-this is very partisan. The voter I-D statues are a very partisan split. The court on the record upheld the Indiana statute because it was brought as a facial challenge meaning it never had a chance to go into effect. There were no facts really to weigh any supposed burden on the voters. And the court decided on the record on these facts there wasn't enough.

>>Paul Bender:
And that's another example of a very moderate opinion. Stevens wrote an opinion for three justices including Roberts and saying these voter I-D laws may be unconstitutional but you have to bring in prove that they really bar people and not just challenge people on all applications but just those on people. The law is constitutional for now but the court left open the possibility of being challenged in the future.

>>Ted Simons:
I am sensing a theme here with this narrow ruling.

>>Cathy O'Grady:
Right and it's and it's worth noting with the Arizona statute allows other kinds of I-D to be presented. You can have one photo I'd. or two non-photo pieces of I-D including your sample ballot or voter registration or bill. It's more flexible I think than the Indiana statute.

>>Ted Simons:
Well we have a couple of minutes here and I want to get to the gay marriage ruling in California and their Supreme court and how it affects Arizona in the sense of if people in Arizona go to California now and get legally recognized as being married, when they come back to Arizona, what are they?

>>Paul Bender:
Arizona does not have to recognize that marriage. There's a federal statute that says that. Interestingly, just yesterday New York said they would recognize legal out of state marriages even though they do not have gay marriage. The short answer to your question is does not effect Arizona at all directly because the California ruling is under California constitution. It says the ban on gay marriage violates the equal protection clause of the constitution and right to get married in the California constitution which they found in there. Our court of appeals rejected those arguments a couple of years ago and Arizona Supreme Court refused to review the case. If the case comes up again in Arizona the fact that now that you have two state supreme courts saying bans of gay marriage violate equal protection- it might encourage Arizona's court to think about whether it wants to join that parade. If that keeps happening in other states, then ultimately the bans on gay marriage will fall. So you may be beginning to see a ground swell.

>>Ted Simons:
And you're also probably seeing a way to ignite foes. What they're saying is happening. The courts are overturning the law.

>>Paul Bender:
Gay marriage is illegal in Arizona now. So people say what do you need to change the constitution? They say the courts may hold it's unconstitutional to ban it. Well our courts have not done that. But the fact that the California court did, I think energizes those people to get a constitutional amendment passed.

>>Ted Simons:
Very good. Fascinating discussion. There were so many other cases I wanted to get to.

>> Paul Bender:
You could spend hours. We do spend hours.

>>Ted Simons:
Thank you again both of you for joining us on horizon. That's it for now. Thank you for joining us on "Horizon." You have a great evening.

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