Horizon, Host: Ted Simons

October 16, 2008


Host: Ted Simons

U.S. Supreme Court Review

  |   Video
  • ASU Law Professor Paul Bender previews the upcoming U.S. Supreme Court session and discusses how the presidential election's outcome will affect the court.
Guests:
  • Paul Bender - Law Professor, Arizona State University


View Transcript
Ted Simons
>>> Bad words on live television, religious monuments as free speech, and federal laws versus state laws, those are some of the issues the U.S. Supreme Court is preparing to tackle as it starts its new term. A Supreme Court preview is next on "Horizon."

Announcer
>> "Horizon" is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Ted Simons
>> Hello and welcome to "Horizon." I'm Ted Simons. The first Monday in October was, of course, the start of a new team for the United States Supreme Court. The justices may not hear cases quite as meaty as the gun control and Guantanamo Bay cases of last term. But they will consider a number of weighty issues including when federal laws trump state laws. And a couple of Arizona cases are on the docket, cases related to constitutional protections against unreasonable search and seizure. Here to guide us through the court's new term is Arizona State University law professor Paul Bender.

Ted Simons
>> Paul, always a pleasure. Thanks for joining us.

Paul Bender
>> Same here. Glad to be here.

Ted Simons
>> Sounds like not necessarily a lot of block-buster cases, maybe the biggest news is the Supreme Court coming away from the court.

Paul Bender
>> The biggest, most important thing will happen in the election in November. The court is really poised and has been for a number of years without any clear direction. There are four now, four very conservative justices. There used to be three, but O'Connor was replaced by somebody more conservative, Alito, and there are four moderately liberal justices -- and Kennedy, he is not a solid vote, he will not vote to overrule Roe v Wade, and two of the most important cases, the Guantanamo Bay case, which the court decided the judiciary had some jurisdiction to see what was going on at Guantanamo, and those people had some rights, and the case involving whether to give the death penalty for a crime that didn't involve a killing, Kennedy took the liberal position, 5-4 decisions. So, if McCain were to win the election, he has said that his favorite justices on the court are the two Bush appointees, Alito and Roberts. And earlier time when he ran for president last time, he said his favorite justices were two of the other conservatives, Scalia and Thomas. If he could appoint somebody like that to the court, there would be five really conservative justices, and that would change the court enormously. Take a look at last term again. The conservatives, if they had another vote would have won, would have held that the judiciary has no jurisdiction to supervise or inquire on what goes on in Guantanamo. The military, administration can treat those people however they want, torture them, hold them indefinitely. The court would have decided that. The court would have decided to give the death penalty for crimes other than murder. Who knows where that would have ended. It would have stirred up controversy in the court.

Ted Simons
>> Has Obama given any indication of the type of person he would be looking at?

Paul Bender
>> He has said, I think for a couple of occasions, he would be looking for somebody with empathy, somebody who can emphasize with the disadvantaged, people whose rights might be in danger. He would probably appoint people very much like the two Clinton appointees, Ginsburg and Breyer, and they are moderate liberals. And if that were to happen, if Obama were to win, the most likely person to leave the court is Justice Stevens. He is in his late 80s. And then Ginsburg, the two people in the moderate liberal block. If one of those persons should leave and be replaced by a staunch conservative, there would be staunch conservatives. The law school here, we have an affirmative action program, enables us to have substantial numbers of American Indians, Blacks, Hispanics in the class. The number of our graduates who would be nonwhite would be tiny, that would be seen throughout the legal system, throughout the country in how many judges would be nonwhite and stuff like that. Criminal procedure things, those five very conservative people would probably want to overrule Miranda. They would get rid of the exclusionary rule, go back to the way we were before the Warren Court in the late 40s and early 50s. That would change the court a lot. Obama's appointments would basically leave the court where it is, and Kennedy would remain the central figure, which has been an interesting thing. He has evolved some -- this election is probably the most important thing for the future of the court. Especially since they don't have anything on the docket that is a real block buster case.

Ted Simons
>> Back to that point, does the court look at an election year and say, hold off on the big stuff until we get past this? Is that --

Paul Bender
>> Who knows? These -- it's funny. In the old days when politicians got to be on the court, people like Earl Warren, governor of California, Yugo Black, a senator for a long time, when those people got on the court, you assumed those people paid attention to elections because they were used to doing that. It was part of their lives. Now we have a court made up entirely of federal appellate judges. Everybody was a federal appellate judge before being on the court. I don't think those people are as attuned to politics of the day. They are used to living their lives in the appellate courts. There probably are some people on the court who care about politics a lot, but I think most of the people on the court are not going to be affected in what they themselves do by what happens in the election.

Ted Simons
>> In general terms, economy right now, in total turmoil here. I know the court is insulated, at least theoretically it is supposed to be, but is it affected by the financial climate in the sense of perhaps deregulation is looked on a little differently, perhaps employer rights might be looked on a little differently? They can't be completely devoid of what is happening on Wall Street, can they?

Paul Bender
>> They are not devoid. They are not exposed in the way most Americans are to the turmoil. They have life tenure jobs, very good salary, and most had a lot of money before they went on the court. Their personal finances are not in any trouble. Or if it is trouble, moderate trouble. Sure, they know what is going on. And, yes, I think if they had a case that involved federal power to regulate financial institutions, it is almost unbelievable that they would say there is no federal power to do that. Although a couple of them probably would. There are really strong ideological people on the court that don't believe in federal regulation. Yes, it would have an impact on them. If the country were to go into a deep depression, it would have an impact on the court. When Roosevelt finally got to appointing people to the court in the late 30s, those people revolutionized American constitutional law by giving the federal government powers that it never had before to deal with the financial crisis. And I would assume that the court today, especially if Obama were to win so that it didn't become a really conservative court, would want to give the federal government a lot of power to deal with the crisis.

Ted Simons
>> Last question on this particular aspect, but would a McCain maybe change how he looks at a Supreme Court nominee because of financial concerns? In other words, a literalist, someone who doesn't want certain things happening to the free market, would he look at someone like that in the same eye if the economy continues the way it is?

Paul Bender
>> Who knows? I don't know. I would think not. He is not a lawyer. He doesn't look at these things the way a lawyer might. I think he looks at it in an ideological way. He knows the kinds of people he likes, the real conservatives on the courts. I think he would pick somebody like that. Before we get off this topic, if McCain were to win, he doesn't necessarily have the power to appoint anybody he wants. If Democrats retain control of the Senate, they could block an appointment they didn't like. Force him to compromise. Something in the paper over the weekend suggesting that the election didn't make any difference to the court in the future. That is just wrong. The election would make a tremendous difference because the court is so balanced right now. So one shift from the liberal to the conservative side would really change things.

Ted Simons
>> Before we get to the Arizona cases that are involved here and search and seizure, exclusionary, these sorts of things, last question about the makeup of the court, is someone there noticeably changing at all? Are you seeing evolution one way or the other in any of the justices?

Paul Bender
>> The only one that I have seen that with to any considerable extent is Kennedy. That's important. He is the one in the middle on all of these things. Over the years, he has become, I think, more liberal. When he first got on the court, he was absolutely opposed to race conscious affirmative action programs. Now, I have argued a number of cases before him at that time involving that kind of stuff, and you could never get his vote to approve anything where race was used in an affirmative way. He has changed some. He has still voted to strike down affirmative action programs in Seattle, Louisville a couple of years ago, but he wrote a separate opinion chastising the chief justice for saying that race conscious affirmative action was like racial segregation. So, he wouldn't have done that ten years ago. He has been the leader on the court in terms of gay rights. Written the two major gay rights opinions. I think he is gravitating a little bit. Death penalty stuff also, he seems to be gravitating a little toward the liberal side. But it is only a little bit. He is still a very reliable vote in most cases for the conservatives. The rest I see no -- that is not a big surprise. They were all appellate judges. All seen the issues before. All talked about them and have decided about them, and they know what they think about the stuff.

Ted Simons
>> Arizona involved in a couple of cases here regarding the exclusionary rule, search and seizure. What is going on?
Paul Bender
>> The two important cases, both from Arizona involving the fourth amendment, one is called a Gant case, and that was a case where the police arrested somebody after he left his car. He was about ten feet away, and they arrested him on a warrant for some felony that they weren't interested in. What they were interested in was drugs. They didn't have probable cause to search his house or car or him. But they arrested him for something else, put him in the back of the patrol car, handcuffs, locked the patrol car, and then went and searched his car. When you arrest somebody who was just driving a car, few feet away from it, whether you have the power to search the car. The Arizona Supreme Court said 3-2 no to that. They held the search unconstitutional. The Supreme Court took the case probably to reverse it. Important case for Arizona law as well as U.S. law. Arizona has a constitution. If Arizona Supreme Court had decided that case under the Arizona constitution, that the search violated the Arizona constitution, that would be the end of the case. The U.S. Supreme Court cannot unchange the meaning of a state constitution. That is for the state court. They knew that was possible. The parties didn't argue the Arizona constitution. We're not going to do that. They exposed themselves to being reversed by using the U.S. constitution. A number of state courts are starting to do something different, decide these cases under state constitutions because that insulates the decisions from a conservative Supreme Court review. The Arizona Supreme Court didn't do that here and they will probably get reversed from that. The other case is from Tucson. The Arizona court of appeals, intermediate appellate court -- U.S. Supreme Court thought this was important enough to take. A gang task force stopped a car because they didn't have mandatory insurance the license plate check showed. They were not interested in that. They were interested in gangs. They saw a guy in the back seat of the car who looked like he might be a gang member. They engaged him in conversation. Would you mind coming out? He knew he didn't have to get out -- the police woman who asks him to get out immediately searches him and finds drugs and guns. The question is whether that is a constitutional search. Whether police have the right to talk to somebody on the -- there are two other fourth amendment cases involving interesting issues also. That is one of the potentially important issues of the term. There are at least four people on the court who don't like the exclusionary rule. Probably five. This case gives them a -- that would give police a lot more power in law enforcement to search houses and cars and things like that.

Ted Simons
>> Quick definition of the exclusionary rule.

Paul Bender
>> Evidence that is obtained in violation of the constitution cannot be admitted in a trial. So, if I search your house illegally and I find drugs in the house, I cannot introduce those drugs in evidence against you because the search was unconstitutional, and the court did that as a way of enforcing the constitutional restriction on illegal searches because they said if we don't exclude this evidence, who is going to stop the police from doing it? They're not going to get prosecuted for violating the constitution by the same prosecutors they are working for. It is hard for somebody convicted of a crime to win a lawsuit against the police for searching their house. The court said we need a remedy, and that is the exclusionary rule. That has been a mainstay of American law for a long time and I think it is in danger now.

Ted Simons
>> How unusual is it for a case to leap frog from appeals over state Supreme Court to the U.S. Supreme Court?
Paul Bender
>> Quite unusual. Happens once or twice a year. Because normally if the case is important enough for the Supreme Court to take, you would think it would be enough for a state Supreme Court to take.

Ted Simons
>> It seems to me, correct me if I am wrong, it seems like cars are involved in a lot of these Fourth Amendment cases. Have we figured out cars yet?

Paul Bender
>> That is one of the ironies of the Gant case, car case. Supreme Court has had at least ten different car search cases, probably closer to 20, and they have never been clear about what the rules are. Can you search the glove compartment, under the seats, the trunk? The Arizona -- faced with law that makes absolutely no sense. Instead of saying we don't care about that, we can do it under the Arizona constitution and the way we think is right, they try to follow that law and probably got it wrong. Now they're going to get reversed. Why don't they say -- at least when the federal law is a mess and you can't tell what it is, it would make sense, and more and more state supreme courts are deciding cases under the state constitution.

Ted Simons
>>> Another looks to be F.D.A. labeling, state versus federal and that dynamic.

Paul Bender
>> It is more than F.D.A. labels. It is a big issue. And probably that is the most important thing before the court, unless they get rid of the exclusionary rule. The court has been on a trend of using federal regulatory statutes to eliminate state tort law, state personal injury law. And to say that, for example, this term, a case that is going to come up, and I think it is pretty clear how it is going to come out, a woman got an injection of a drug, which was meant to cure the nausea that goes around with bad migraine headaches, a drug to do that, and she got an injection of it, but when the injection goes into an artery by mistake, it is very, very bad. And it basically caused gangrene in the limb -- the label -- the F.D.A. said the label was safe. The label said be careful when you give this drug. Real problem when it goes into an artery. There is a way to use it that you can use, but it is a dangerous way and be careful when you do that. They used that dangerous way and that is what happened. The person who was injured sued under state law, the F.D.A. may have been satisfied with that label, but a safe label would have been don't use that method, and got a several million dollar verdict under state law saying you had an improperly labeled product. The F.D.A.'s approval is a floor, a minimum, but not a maximum, or if the F.D.A. says it is okay, does it mean that a state cannot impose any greater restriction or any higher standard on the label or the product or the drug? That is what lawyers call a preemption issue. And that -- that is lawyer talk for the constitution makes the federal government the supreme government, ruling government. If Congress says something that has a right to say every state law to the contrary is wiped out, if the state says the speed limit on a road is 75, and congress says it is 65, it is 65, not 75. Congress can, if it wants, preempt state law, but very often, as in this case, they don't say anything about it. They pass an F.D.A. statute and say, hey, you can't sell the drug until you get F.D.A. approval, until the label is approved. The issue is is that all you need? If the -- is that just one of several hurdles that you have to pass? That is really important stuff. It gives -- the preemption power gives congress the power to get rid of state personal injury law and make it a uniform national law. That is the way things are going. The irony, people on the court, which usually believes in the state's right, they are voting for the federal law overcoming the state law. Here they're on -- but the people who are on the preemption side, getting rid of state personal injury law are in the -- two big cases will probably move that further in that direction. And that could become a major federal legislative issue.

Ted Simons
>> Two more cases I want to get to, if we can. Religious freedom case out of Utah involving what, monuments?

Paul Bender
>> Yes, a -- a religion which I have never heard of, but a religion, nobody doubts that. And they have seven aphorisms, I don't know what they are, but the courts assume they are there and they are religious. One of the things it has in it is the ten commandments. They come and say we would like to put up a monument. And the mayor says, no, you can't do that. If you let them do it, you have to let us do it. He says no, no, that park is only for things that have a close connection with the city, and your thing doesn't have a close connection with the city. The lower court said that was unconstitutional. You can't make that distinction. If you let one religion put their ten things, you have to let the other one put their seven things. The -- the lower court said -- the Supreme Court has taken the case. It is hard for me to think that they're going to say that a city park can decide to let a Christian or Judea Christian monument be in the park and keep out something from another religion. That is the issue before the court.

Ted Simons
>> The other one is the F.C.C. overstepping --

Paul Bender
>> I knew you were --

Ted Simons
>> fleeting expletives comes to play.

Paul Bender
>> This is important for you guys. The F.C.C. which has the power to fine broadcast stations and take away a license if they are indecent had a rule that fleeting expletives, you know what I'm talking about, four letter words that just come out, were not indecency if they were just fleeting. Only bad if they were deliberate, like the George Carlin record of the things you can't say on television. They changed that rule a couple of months ago. Cher got a music award on fox, of all networks, and she used the "f" word in accepting the award and Nicole Richie did the same thing. Fleeting expletives are indecent. Fox has gone to court to try to stop that. What the court below said if you had this rule for a long time, fleeting expletives were not indecent, why did you change? You have to have a good reason to change, and you didn't give a good reason for changing. They said as a matter of administrative law you can't change it unless you come up with a good reason. That is the issue that the court has to decide. Keep an eye on that one. You may need to --

Ted Simons
>> Watch my --

Paul Bender
>> Among other letters.


Ted Simons
>> How do you think the court is going to do on that one?

Paul Bender
>> I don't know. I would hope that they would say that the old rule is right and the F.C.C. doesn't have a good reason to change it, but I suspect that they will do the opposite and uphold the F.C.C.

Ted Simons
>> With all of the credit things going on, crises that never seem to end, are you expecting at a time further down the road that the Supreme Court will take up things that are being implemented or at least discussed and maybe further implemented now?

Paul Bender
>> What do you mean? What kinds of things?

Ted Simons
>> Just in terms of the government's power to do certain things --

Paul Bender
>> Oh, right, yeah.

Ted Simons
>> -- in the market.

Paul Bender
>> It could well be. Constitutional question has not been raised about the various schemes to deal with the crisis. It could come to -- if Obama or McCain were elected and came up with imaginative plans, new things for the government to do, that could raise the issue over whether they have the power.

Ted Simons
>> Thank you for being here.

Paul Bender
>> Thank you.

Ted Simons
>> Thank you for joining us. I'm Ted Simons.

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>> If you have comments about "Horizon," contact us at the addresses listed on the screen. Your name and comments may be used on a future edition of "Horizon."

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