Horizon, Host: Ted Simons

July 2, 2009


Host: Ted Simons

Supreme Court Review


  • There have been several major Supreme Court cases this session, including two recent decisions originating in Arizona. Join Arizona State University Law Professor Paul Bender as he comments on the United States Supreme Court’s current session.
Guests:
  • Paul Bender - Professor, Arizona State University


View Transcript
Ted Simons:
Tonight on a special edition of "Horizon," a look back at decisions handed down by the U.S. Supreme Court during its latest term. A Supreme Court review, next on "Horizon." Good evening, welcome to "Horizon." I'm Ted Simons. The nation's high court wrapped up another term. It hands down decisions on everything from campaign finance, to reverse discrimination. Some of the cases originated in Arizona, one dealing with a strip search after student on school grounds, and another with state funding for English language learners. Here to provide his legal analysis is A.S.U. law professor Paul Bender, he's been reading those often lengthy Supreme Court decisions so we don't have to.

Paul Bender:
That's why I am so bleary-eyed.

Ted Simons:
Let's, before we get to those decisions, specifically let's talk about the court overall and in general. Is the current court veering left, right, or veering toward the center?

Paul Bender:
It's a complicated question. People have to understand, there are four people on this court who are very conservative. They are the chief justice, justice Alito, who may be the most conservative, justice Scalia and justice Thomas. If those people had their way, if they had a fifth vote, they would move very strongly to the right. Those are people who certainly would like to overrule Roe V Wade, who would like to get rid of a lot of the protections the court has given to criminal defendants like the exclusionary rule, and Miranda. And there's a whole list of things like that, race conscious affirmative action, they would like to say that's forbidden. But they don't have a fifth vote. The fifth vote that they don't have a fifth vote to do, that but they win a lot of cases. But when they win the cases they have to get usually almost always justice Kennedy makes the fifth vote, if it's a 5-4 divided case. Justice Kennedy, while they are solidly on the right and maybe even moving more to the right, justice Kennedy is moving a little bit to the left. So you have moving in both directions, but he's in the middle. And you can see that over and over again this term, that there are things that the four of them would really like to do, like hold the section 5 federal voting rights unconstitutional. No question they want to do that. He wouldn't do it. And so the opinion they write, it comes out the conservative way in this particular case, but on a very narrow ground. And he won't go along with their agenda of getting rid of that. You can see that over and over again this term. The question what's happened -- basically the conclusion is that they're not moving in any direction. Because those four people can't get a fifth vote for the radical things they want to do, the four people on the left who are really moderate liberals, don't have a big agenda. There's -- they want to keep things the way they are. And then there's Justice Kennedy. So the only time there's going to be any big movement is when Kennedy will agree with the conservatives about something big they want to do, and that's happening less and less. And part of that I think is that Kennedy is becoming more sensitized to some kinds of civil liberties stuff, and also I think some of the extremism those people is driving him away.

Ted Simons:
It's interesting you bring that up. Some of the reading did I in preparing for this show suggested that Kennedy may very well be veering a little bit toward the right and much of what Chief Justice Roberts is doing is planting the seeds for when he can get Kennedy to come around.

Paul Bender:
Those are seeds that will never sprout. Kennedy is not going to come around. If we were going to come around he would have come around 15 years ago. Kennedy is not a newcomer to the court. He came to the court with a lot of strong position and they've evolved a little bit to the extent they've evolved, they've evolved to the left. So the only way Roberts' seeds are going to bloom is if he gets a fifth vote. And he has shown no ability to convince Kennedy to come his way, and indeed, as I was trying to say, if anything he's repelled him. Kennedy wrote an opinion last term, two terms ago, in response to something Roberts said about race conscious affirmative action. Roberts basically said it is just as bad as racial segregation. He said that's absolutely the constitution doesn't permit you to use for race, and Kennedy said I don't like the program, I'm voting with you. But you are wrong to think that racial segregation done for the purpose of keeping black people down is the same as racial integration done for the purpose of integrating the country. And that's the kind of thing that's happening to Kennedy. And Roberts is not having any success in pulling him farther right.

Ted Simons:
That being said, is this right now, this last term, was this term the most divided in recent memory?

Paul Bender:
It's more divided than last year, more 5-4 cases A. lot of 5-4 cases this year. We've had terms that have been this divided in the last 15 years. The court has basically stayed the same for the last 15 years. Four quite conservative people. It used to be three, now it's four. It used to be O'Conner and Kennedy in the middle. Now you have four and Kennedy in the middle. Four relatively moderately liberal people, and then those two swing votes. And what's changed is that Alito has replaced O'Connor, and in that sense it's more conservative. Because the liberals, there's no O'Connor to get on some of these cases. She agreed with him to uphold race conscious affirmative action program for the University of Michigan law school. Alito never would have done that. In that sense it's more conservative. But that happened a couple years ago. What's happening now I think is that Kennedy is continually refusing to go along with these broad rules they would like to devise to turn back the clock. And if anything, I think he's moving to the left. And you can these with some of these opinions.

Ted Simons:
Let's look at some of these opinions. Start with Horn V Flores. Here in Arizona, 5-4 vote sending it back to the ninth circuit. What do the courts say?

Paul Bender:
Perfect example of what I'm talking about. That's a case involving the supervision by federal judge of the state educational program and the funding of the state educational program. There's a federal statute that requires the state to teach people whose native language was not English, English as soon as possible so they can learn. And they have to fund it appropriately. And the federal judge here has been trying to do that for the last 10 years. The case is almost 20 years old. And there are four people on the court, I think who would like to say, you can't do that at all. Federal judges should be out of that business. And that was the argument that was made to them in the Flores case. They didn't do that, because Kennedy would not go along with that. Instead, they sent the case back again for another trial. They said you should be more flexible below. There are some things you ought to think about. But still leaving the door open to the federal judge forcing the state to adequately fund these English language learner programs, because Kennedy I think understands that these are really important programs. And where 10 years ago I think his basic conservativism would have said the federal government judges ought to be out of these state programs. They're central to the state's well-being. But I think he's come to realize over the years that there is a function to be served by federal judges intruding when things really go bad. So he's unwilling to agree to any broad rules that say keep out. He likes the flexibility.

Ted Simons:
But the court does by its ruling pretty much tell the states that they can go ahead and set money limits. Wasn't money the major factor?

Paul Bender:
Yes, but the Supreme Court didn't tell the state it could do anything. The Supreme Court said that the lower court judges, the ninth circuit and the district judge should examine some things and make a decision about whether the state was doing the right thing. They should see whether the English language learner programs are adequate. If they're not, they ought to do something about it. So they have left not only a little crack, they've left a wide crack in the door for the court to continue to supervise that.

Ted Simons:
And no broad opinion because you couldn't get Kennedy on board.

Paul Bender:
That's my view.

Ted Simons:
OK. Another Arizona case, high profile, strip search case, this one was an 8-1 with Clarence Thomas the one. But talk about this case.

Paul Bender:
Even that one involves some moderation of what you would think was a broad decision. The question in that case is whether -- it's called a strip search, but it really wasn't a full strip search. It was looking down and up a 13-year-old girl's underwear in school. In an attempt to see whether she was hiding prescription drugs. The student had said she was selling them, and she asked and she said no, and she didn't have anything, so they took her to the room, the school nurse and the secretary of the principal took her to a room and asked her to take off her blouse and skirt. And they didn't see anything and they had to look down her panties. And the question -- and they didn't find anything because she didn't have anything. And so she sued. And the question was, was that an unconstitutional search. And should the principal and the school be liable for that. And the court said 8-1 that it was an unconstitutional search. That searches have to be reasonable, and given all the circumstances, that search was not reasonable. But then they held that that rule was not clearly established. And the court has developed a rule of the last 20 years that you -- though you have a right to sue state officials who violate your constitutional rights, you can't recover unless no reasonable state official would have done that. Any reasonable state official would have known it was unconstitutional. So here they say we think it's unconstitutional, eight of us think it’s unconstitutional, but we can't say that any reasonable school principal would have known that, and therefore they have qualified immunity. So she can't recover any damages. Although they do lay down the rule that that kind of search is unconstitutional.

Ted Simons:
Clarence Thomas was the dissenter, and his idea was safety in schools is not the domain of the constitution, and basically it provides court-sanctioned hiding places for students.

Paul Bender:
Well, that's his view. Like most of these cases, it's interesting, you look at the opinions in that case, Justice Ginsburg writes an opinion it starts about the humiliating nature of this search. Justice Thomas's opinion starts off talking about school principals have to have freedom to control discipline in the school. And so those are both considerations. And they're both valid. The question S. how do you weigh them. And she obviously weighs the privacy concern along with the other seven justices, and he weighs the freedom of school officials to run their institutions the way they want to.

Ted Simons:
I know -- another Arizona case, the Gant case involving the search of a car. The idea that you to be a certain distance from the car to allow the search?

Paul Bender:
Well, some people think, and there was -- here's a guy who drove up to his house, they suspected him of drugs. But they didn't have enough evidence to search him for drugs. But he was driving with an expired license. So they wait for him to drive up to his house, he gets out of the car, is walking away, 10 feet away from the car, they grab him and put him in the squad car and then search his car for the drugs. The question is whether they can do that. And some people on the court wanted to say that, yes, they can, any time you arrest somebody who is driving a car or right after he was driving, you can search the car. But the majority of the court in that case said no, that that's unconstitutional. The search of the car has to be justified somebody some danger to the police officers, like he's got a gun. But once they handcuff him and put him in the squad car, there's no more danger. That case is important along with a couple other cases involving that kind of search because the court had a chance this term to really alter or even get rid of the exclusionary rule, which says that evidence is unconstitutional. There were 30 or four cases where they had the opportunity to do that. Most of them, I think two or three, they held the search was unconstitutional, but they wouldn't say that the evidence should not be -- that the evidence should be permitted in even though I'm sure there were four people on the court who would want to say, it doesn't matter. Search. Suit officer who made the search, but don't mess up the criminal prosecution by keeping -- but again, they couldn't get a fifth vote to do that. So you have little intrusions on to the exclusionary rule but it stands the way it is. And I think that's because Justice Kennedy is not open to going along with those big movements.

Ted Simons:
I know in reading up on that particular case the dissent was that it replaced a clear fourth amendment press. The idea was, that was clear, why are we messing that up?

Paul Bender:
The majority sit was messing it up, the way it was being interpreted didn't make sense. There is no reason why police should search a car when they don't have any probable cause to search it. And there's no danger, because the person who was driving the car is now in the back of the squad car. So what they ought to do is if they have probable cause, get a warrant to search the car, and if they don't, wait until they do. And so -- again, it's closely divided court. Every once in a while you'll get them ruling on that side of criminal procedure stuff, though most of the time cases come out the other way.

Ted Simons:
Why a voting rights act case, involving a Texas district that had to have preclearance as far as voting changes?

Paul Bender:
That's been the law since 1965. That jurisdictions that have a history of voting discrimination, racial voting discrimination, and there's a formula they use to work that out, before they can make any changes in their voting laws, they have to get them pre-cleared by the attorney general in Washington. If the attorney general doesn't they can go to a federal district court. And the purpose of that is if they could put them into effect right away, and if they were discriminatory, it takes a long time for the courts to hold that and people can lose their right to vote. A lot of people think that legislation has had its time, and is no longer needed and no longer good. And it is a state sovereignty. So again I think four people on the court very much wanted to, and I think the court took the case, in order to hold the voting rights part in section five unconstitutional. But they ended up not doing that and Justice Roberts writes an opinion in which he gives you every reason why it's unconstitutional. Then he says, but we're not going to do that because we found a narrower way to come out on the side of the district. Some people have said that shows his statesmanship. It shows he didn't get a fifth vote. And the reason he couldn't is because Justice Kennedy wouldn't go along with it.

Ted Simons:
Does it not also show he's basically saying, OK, you got this one, you know where I stand, you put this up here again, you know where I stand, you know where we're going.

Paul Bender:
But he's not going there unless he has four other votes. The people make a mistake when they think about the Supreme Court. The Supreme Court isn't a single individual. The Supreme Court is nine people. And in order to do anything to change the law, they need five votes. So it's not as though those five people are one who strategize. One person can do that, but five people don't do that. What happens is this three, four want to do this, the fifth one doesn't want to. So they have to compromise. So it is a process of compromising. It's not a single entity who is plotting these things. So I think these stories about how the court is strategizing and looking to the future, I think misses the essential nature of the court. And the court is not in the next three years, and if Obama gets reelected, the court is not going to move to the right. Because Obama is not going to appoint anybody on the court who would join the four conservative people.

Ted Simons:
We had a case in Connecticut involving white firefighters and discrimination case there. Talk about the case and -- it sounds again as if discrimination law could have really had a broad opinion here, but again, focused.

Paul Bender:
Right. It's really an interesting case, but very narrow. It's a case where they would give me an exam for promotion in the fire department. New Haven, like a lot of fire departments around the country, has a history of racial discrimination. Sometimes some of those departments never hired a black person. Most of them still have very few black people and almost none in leadership positions, captains and lieutenants. And so for some reason the way they promote is to give a written exam and an oral exam. Would you think they would promote according to how well people could fight fires. But instead they use a civil service model. And so they give this exam, and New Haven tried to make sure the exam was not going to be discriminatory and impact, usually these exams tend to have a much higher minority failing rate than the white failing rate. So they brought in consultants, they worked out the exam, they gave the exam and it turned out that black people did very badly on the exam. And the way it worked out, no black people, and I think maybe one Hispanic, would have been promoted to one of these positions. So they would still be in the situation of being disproportionately white. So they didn't certify the exam after thinking about it the civil service commission decided they wouldn't certify the exam because it would perpetuate the discriminatory effect. So the people who did well on the exam, sued. And the question is whether you can disregard the exam because it doesn't do what you're entitled to tray to do, which is get more diversity on your firefighter force. But can you, when the exam doesn't work, can you say, we'll try again. And the court said no. In order to do -- but they didn't say you could never do that. They said in order to do that you have to point to something that's wrong with the exam. And all they said that New Haven did was say, well, it didn't get the results we wanted. And therefore we're going to try it again. So again, that's a moderate position, and not at Alan unreasonable one when people work for six months to pass an exam, take courses, buy books, find out they did well, but take -- to take it away from them, you need a good reason.

Ted Simons:
Wasn't one of the white firefighters had dyslexia, and got some counseling and education for that, and wound up studying for six months, and was going through all these hoops and hurdles, he finally passes and then they tell him, thanks but no thanks.

Paul Bender:
So the court said could you do that. But you'd have to show that the exam was deficient. Not merely that the results were not the ones that you wanted to get. And again, in that case, justice Scalia writes an opinion in which he sells you can never do anything racially based to try to diversify your work force. That's unconstitutional. You can't use race to try to integrate your fire department, police department, whatever. Nobody joined that opinion. So he would like to go there, but right now even the other three conservative people wouldn't do that.

Ted Simons:
The nominee from the president involved in that case in the lower courts. Sotomayor, is with that going to be a factor further doubt road for her in terms of confirmation? Not necessarily not making it to the court, but in how the public perceives her and perhaps her fellow justices?

Paul Bender:
I don't think so. For a couple of reasons. One, though she was on this panel, and she was reversed, that happens. I'm sure they were all reversed before they came on the court. It was treated as a relatively routine case by the second circuit panel, because there was precedent in the circuit that you could do that kind of thing. And so there with as a case that said you could do it. The Supreme Court has changed the law in taking that case, and said, no, you can't do it just because it has a disparate racial impact. You gotta show there's something wrong with the test after you've given the test. You can try to design the test that doesn't have the racial impact, but once you've given it you've got to have a reason that the test was bad to do it. So that's a change in the law, and I don't think anybody could seriously say she was deficient and not foreseeing that change in the law, especially since the person she is replacing, justice Souter, defended in that case. So there are four people who were on the other side. The fact somebody gets overturned 5-4, I don't think shows in any way that they're out of the mainstream.

Ted Simons:
Was there also concern she gave a cursory opinion on it that it seemed as if from some folks they saw a glancing blow here, almost a dismissal of the case?

Paul Bender:
Yeah. First of all, that's not fair to blame her for it. There are three judges on the panel. And I don't know who decided to treat it in a relatively cursory way. But it was just the -- justifiable to do it in light of the circuit precedent. Circuit panels are supposed to follow other circuit panels. You're not supposed to disagree with another panel. If you're want -- if you want to overturn a panel, you should hear the case. If you see another panel decision that governs a case, you do write a dismissive opinion. So I don't think you can blame her or any of the other judges on that. And somebody tried to get the whole court to do it, and I it this ways a fairly closely divided vote. But the majority of the circuit voted against for hearing it. So you can't say she sticks out in any way as being a bad judge.

Ted Simons:
That being said, last question, regarding putting her on the court and we're assuming she makes it. Will she be an intellectual force on the court? What kind of impact do you think she might? V?

Paul Bender:
She's not going to change votes in the near future, because I think she will vote very much the way Justice Souter would have voted in almost every case. She may be a little more conservative in criminal cases, maybe. I think she will be a force on the court. Because she's a very strong person. She's very smart, she's got a lot of experience, and she sees things from a somewhat different perspective. And the rest -- than the rest of them. And that's her strength. And I don't think she's going to be too shy in talking about how she sees the things. So I think that will be a very valuable addition to the court. There's nobody on the court there except Clarence Thomas who grew up in a rural environment who grew up in an inner city slum environment. And raised herself out of that by her own hard work. That's an experience that is important. And also she has suffered discrimination along the way. And that's another experience that I think is relevant. So I don't think she'll be shy about sharing her approaches to those things when she's on the court.

Ted Simons:
And real quickly, you still see the same kind of divide once she gets on the court.

Paul Bender:
It won't change at all.

Ted Simons:
All right. Fascinating stuff. Good stuff. Thanks for joining us.

Paul Bender:
Nice to be here.

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