Horizon, Host: Ted Simons

July 1, 2013


Host: Ted Simons

Supreme Court Review


  • From same-sex marriage to voting rights, the United States Supreme Court released some blockbuster rulings in its final few weeks in session. Arizona State University Law Professor Paul Bender will analyze the big rulings.
Guests:
  • Paul Bender - Law Professor, Arizona State University
Category: Law   |   Keywords: law, ASU, ruling, marriage, voting rights,

View Transcript
Ted Simons: The United States Supreme Court released a number of blockbuster rulings in the final days of its most recent term. ASU law professor Paul Bender is here with analysis of the high court's session. Welcome.

Paul Bender: Thank you.

Ted Simons: Your thoughts on the term.

Paul Bender: They really weren't blockbusters, except for one of them. People thought there would be three big cases, gay marriage, the Voting Rights Act, and affirmative action programs in universities. There was only one really big important decision, and that was the one that held a part of the Voting Rights Act unconstitutional. Otherwise the court ended up not really deciding big things, especially with regard to gay marriage. The thing that I was looking for this term, and I think most people were looking for who follow the Court, you may remember at the end of last term Chief Justice Roberts, who usually sides with the conservatives, broke with that and wrote an opinion with the four liberals on the court upholding Obama-care. A lot of people said, does that mean he's becoming more moderate? That he is going to be the center of a coalition so that we'll break down the blocks that have been on the Court? This term we thought would tell whether that was going to happen or whether that was just an aberration and really was a solid member of the conservative block. Well, he really is and that kind of moderation is not happening. You can see that in most of the case that strikes down section of the Voting Rights Act which required -- and still requires covered jurisdictions to submit any change in their voting laws or regulations to the Justice Department before they go into effect. It still requires that, but the Court said the formula that was used to decide who was covered and who wasn't was unconstitutional. So you can't use that now.

Ted Simons: Exactly what did the Court look at and what did the Court decide?

Paul Bender: The Court looked at the formula which the statute sets up to say which states are covered and which states are not. The formula turns on how many voted in the presidential elections in 1964, 1968, 1972, and the Court said that formula is outdated. It should have been updated by Congress. Because Congress didn't update it, they are going to hold it unconstitutional. That is just a remarkable thing for the court to do. Congress is given by the Constitution the affirmative power, and responsibility I think, to enforce sections -- Article XV of the Constitution which prohibits discrimination in voting. Roberts said we know this stops discrimination in voting. We know it works. We would like the formula to be better, more modern, finely tuned. The court I thought had no power to do that. Congress had the power to do it. Congress has the power to do anything it thinks is necessary and proper to deal with voting discrimination. There was nothing in Roberts' opinion that said, it was unusual, it was -- I would have designed a better formula. It was strange for the Court to do, to stand in the way of Congress when Congress is trying to enforce a provision of the Constitution which prohibits racial discrimination in voting.

Ted Simons: Compared to the court's actions and how you saw the voter's action with the voter registration law.

Paul Bender: The court held it unconstitutional because of part of Arizona's proposition 200, which says you need to bring to the registration place, you need to submit affirmative proof of citizenship. The court said that violated a federal statute which said you didn't need to bring that in order to register to vote. The interesting thing about that is, at the end of an opinion, that is an opinion that seemed to be a coalition of people. Scalia wrote that opinion and the liberals joined in that. Arizona might be able to reinstate this requirement if they go back to the federal election commission and ask to have that requirement put into the Arizona form that the federal government prepares. If the commission won't do that, maybe he said Arizona could then go to a court and get that. It's a strange thing for a court to do. I think it's holding out a hope that's not there, because the test would be, said Scalia, if Arizona can show they need this in order to make effective their requirement that you have to be a citizen to vote, maybe they could force the Commission to let them do this. Arizona I don't think can show that. There's no history of noncitizens voting in Arizona. The fact that you need to make people bring documentation, I don't think you can prove that.

Ted Simons: At the heart of this particular decision was basically that Congress regulates federal elections. Correct?

Paul Bender: Right. Well, the states regulate it, but Congress can override that regulation. That's what Congress tried to do here.

Ted Simons: The whole idea was to make it easier to vote.

Paul Bender: They said Arizona was making it harder and they are not allowed to do that.

Ted Simons: And that affected Arizona greatly, and even the preclearance affected Arizona greatly.

Paul Bender: Oh yeah, now, the redistricting commission has a redistricting scheme and it is pending in the justice except for preclearance. It doesn't have to be precleared anymore.

Ted Simons: Is it unusual to have these two particular decisions, one in with which people leaning left celebrated, and the other people leaning right celebrated? Is that unusual?

Paul Bender: No, it's not unusual. All decisions don't come out in the same direction. There are always some liberal decisions and some conservative decisions. To me, the most important thing is that the Court stands in the way of Congress' attempt to ensure there be no racial discrimination in voting. Then in the case from Texas, the Court stood in the way of the University of Texas' desire to have more diversity in their classrooms. The court is using constitutional amendments that would design -- were designed to give minorities the right, and to stop discrimination against minorities. Congress has done that in the Voting Rights Act, and Texas did that in their affirmative action program. The court gets in the way of states and Congress trying enforce the constitutional rights of minorities. That's what happened.

Ted Simons: That's what happened in the Texas decision.

Paul Bender: Yeah, they stood in the way of that and said, no, you have to give it another look, it's got to be narrowly tailored and needs strict scrutiny. Why is the Court standing in the way of states. It keeps saying they believe in state autonomy. Why get in the way of states trying to integrate their societies? Why get in the way of Congress, that's trying to ensure minority voting rights. It didn't say you couldn't have a race conscious affirmative action. That's because Justice Kennedy was unwilling to join the four who wanted to overrule the case and say that you can't. It's not going to be held unconstitutional, but it's also going to be difficult to do. The other message of the term, other than that Roberts is not becoming a moderate, is that it's still Kennedy's court. Everything he wanted in the end of this term he got. He's on the winning side of everything except -- with one exception, and even there he's on the winning side. So in all of these cases, it's up to him to decide what to do. He is willing to permit affirmative action but he wants to monitor it very closely. He did not want the federal government to be able to say that even though a state recognizes gay marriage, still, the federal government will not treat those people as married. So that in New York, where this case came from, it recognizes these two women as being married. But the statute says for federal purposes they are not married, so they can't file a joint tax return, they don't get the marital exclusion over the estate tax. Kennedy wrote an opinion, - again, joined by the liberals. We're just saying you can't do that. States have the primary responsibility about marriage. If the state wants to protect gay couples by calling them married, the federal government has no business interfering with that. He said the state is challenging the dignity of these couples.

Ted Simons: He said children would be humiliated, made to feel lesser class citizens, the whole nine yards.

Paul Bender: Really strong stuff. The question we are left with now is they did not decide on whether California's ban on gay marriage -- California is the opposite of New York, they want to ban gay marriage whether that's constitutional or not -- and you have Justice Scalia reading Kennedy's opinion, saying, I know he's going to strike down proposition that bans gay marriage. And then Chief Justice Roberts saying, I know what Kennedy's going to do. And Kennedy is absolutely silent on that issue, says not a word. Yet it's up to him what's going to happen. They didn't decide that this time, because three of the liberals joined with Kennedy and Scalia to say there was no jurisdiction over the California case, because the Governor and Attorney General of California refused to defend proposition 8. That only applies in California. In other states like Arizona, where the Governor would defend that ban, that case will come back to the Supreme Court. If the membership of the Court doesn't change, again, it'll go back to this justice. People know him and read the tea leaves in exactly the opposite direction.

Ted Simons: Eventually they will find out. And so the legacy of this particular court, what are the history books going to write about the last two terms?

Paul Bender: It's a quite conservative court. But they don't have five really conservative votes. It has not been able to, except in some areas, to move the Court in a really conservative direction. What you've had for 15 or 20 years is a conservative court that hasn't made any big changes in constitutional law. Once again, they didn't make a big change in constitutional law because they didn't decide the California ban on gay marriage case. The legacy will be a fractured court, four people on this side, four people on the other side, it used to be O'Connor and Kennedy in the middle. When you read these opinions you say, I'm not satisfied that was done in a rational way. The opinions don't seem like they are dealing with the issues.

Ted Simons: We heard Chief Justice Roberts was concerned about the trust the American public has in the court. Should he be concerned?

Paul Bender: I think he should be concerned, because I think that this court is not being true to the discussion in a number of respects. The main one we saw here was in minority vote rights. And also, just the California case. The people of California adopted proposition 8, the supreme court says they defend it. There's nothing the people who propose that can do about it. Kennedy says, hey, you don't understand direct democracy which we have in California. The people are allowed to make law. Somebody ought to be there to defend the substantiality of law. I found that a really powerful opinion by Kennedy, but it was a minority opinion.

Ted Simons: Has that ever happened before where a state has decided to refuse to defend something?

Paul Bender: I don't know that that's ever happened before the -- sometimes the federal government will refuse to defend some federal legislation, but they would permit Congress to step in and do it. The president thought DOMA is the thing that has to treat these people as not married, even though they are. People from Congress were permitted to intervene. Somebody should be able to defend them, and the supreme court 5-4 over a really good dissent by Kennedy says, sorry, if the people pass it and government officials don't want to defend it, it doesn't get defended.

Ted Simons: Wow.

Paul Bender: That's the kind of legacy I find muddled.

Ted Simons: All right. Well, good stuff, Paul, again, thanks for joining us throughout the term and for the overview here. I can't wait for next session.

Paul Bender: Every term is interesting.

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