Other transcripts

Transcripts

December 16, 2002

Host: Michael Grant
Topics:
U.S. Supreme Court mid-term review
In-Studio Guests:
Cathy O'Grady, professor of law at Arizona State University;
Paul Bender, ASU law professor and former U.S. solicitor general

>> Michael: Tonight on "Horizon", a look at what is shaping the United States Supreme Court's current session. The court is considering many cases, including several dealing with equal protection and free expression. And some that impact Arizona's native American tribes recovery of money damages from the government. Good evening, I'm Michael Grant. The president of the United States, of course, you a points Supreme Court justices who are then confirmed by the Senate. Historically about every two years a new justice has come into the court but the current Supreme Court panel has been together since 1994. That sets a longevity record. Here to talk about the significance of that and some of the noteworthy cases this term are Cathy O'Grady, professor of law at Arizona State University and ASU law professor Paul Bender, a former U.S. solicitor general. Paul, is the longevity record driving the speculation about who is going to quit and when?

>> Paul Bender: Well, it's not the longevity of these nine justices but justice Rehnquist has been on the court since 1972. So he has been on the court for 30 years. There's been speculation of his desire to retire while he's still healthy. And perhaps he's -- he was waiting for first a Republican president and then maybe a Republican Senate because he, I think, would care that he be replaced by somebody whose politics were somewhat similar to his.

>> Michael: To the extent -- we were talking about this on the Supreme Court review show back in July and there was some speculation he might resign at that point in time but I have to think the election result in November with the Republicans regaining control of the Senate almost like a magnet for him -- if he is planning on retiring any time soon.

>> Paul Bender: Right. I think there's a good chance he would retire in the summer at the end of the court's term to give the president time. Then the president has a choice as to whether to elevate one of the people presently on the court to the chief justice position, in which case the president gets two appointments, one of chief justice and another to bring somebody onto the court. Or to take somebody from the outside and make them chief justice directly. Presidents have done both of those things. The only people presently on the court who would seem to be likely possibilities to replace Rehnquist as chief justice if he should retire I would think would be Kennedy and O'Connor. The others are either too liberal for the president or too conservative to pass the Senate without a lot of controversy.

>> Michael: Cathy, justice O'Connor has referred to that idea she might be referred to chief as pure nonsense.

>> Cathy O'Grady: Maybe she's looking forward to retiring one of these days here soon, too.

>> Michael: That has been some speculation about that because of her health. But she seems to have regained --

>> Cathy O'Grady: I saw her on this show not that long ago and she looked terrific. She has seemed to regain some health, thigh, but we have over the years speculated about who is going to retire and what's coming up next and there has been speculation about her, although I think she's -- I predict she will not retire in the summer. I think she's probably in for a longer haul.

>> Michael: John Paul Stephens is the other one frequently mentioned because he is the --

>> Paul Bender: He is over 80 but as far as one can tell in excellent health, seems to be enjoying himself on the court and he has expressed concern about the court's steady movement to the right and if he -- he is probable' the most liberal justice on the court. If he were to retire he would be replaced by somebody who would be a lot more conservative and that would shift some decisions. My sense he would not retire until his health forced him to.

>> Michael: Cathy, refresh our recollection about the composition of the court, the various voting blocks and those kinds of things.

>> Cathy O'Grady: Ok. As you said earlier, the courts -- these same nine justices have been here for nine years now with Rehnquist and Scalia and Thomas and sort of the most conservative justices along with owe coner and Kennedy that are sometimes on certain cases more in the middle. They can swing votes either way. Then on the left of that spectrum we still have justices suitor, Breyer, Ruth Bader Ginsburg and Stephens, the --

>> Michael: Can sometimes lead to a lot of 5-4 decisions.

>> Cathy O'Grady: And I expect we'll see some 5-4 decisions this term.

>> Paul Bender: I think so. The main thing -- one interesting thing about Rehnquist retiring is he could well think that his agenda on the court has been satisfied. During his time on the court the court has adopted most of the things he wanted to see happen. Stop the expansion of individual rights for the poor and criminal defendants, stop Congress from having unlimited power to regulate commerce. Give the states sovereign immunity protection from federal lawsuits. All of those things have happened, and he could feel that that's been a very satisfying career.

>> Michael: On to looking at some of the specific cases several of the highest profile cases deal with equal protection and affirmative action concepts. Two cases out of the University of Michigan focus on the admissions procedure there. University of Michigan's law school's admission program does not reserve spaces for minority students but does seek to enroll a critical mass of minority students. Now, Paul, that's different than what happens with the undergraduate school where they actually assign point values for --

>> Paul Bender: Right. That's why the cases may come out differently. They are both from the University of Michigan but they're different plans. The law school plan has no numbers in it. It's an attempt to diversify the class by getting a critical mass of previously underrepresented minorities, but they -- they also consider in addition to race and ethnicity, they consider leadership ability, they consider special talents, they consider things that somebody may have done in the past that are really interesting. It's the most flexible program imaginable and it is copied from justice Powell's opinion in the BACI case, the last time the Supreme Court faced these issues.

>> Michael: About 25 years ago.

>> Paul Bender: 1978 in which he said the Harvard plan is constitutional, you can use race in the way Harvard uses it and the University of Michigan law school tried to copy that plan, be as flexible, open-ended as possible in an attempt to get diversity. Whereas the undergraduate liberal arts college has a 150 point scale that they rank people on, and they give up to 20 points extra to underrepresented minorities. They also give 20 points to athletes and 20 points to people who are economically disadvantaged and --

>> Michael: Recruited athletes.

>> Paul Bender: Right. None of these walk-ons. And five points if a parent is an alumnus. So they have a number of things but there's a rigid 20-point thing. It's not reserving places, which the court held in BACI was no good, but it has a rigidity that may cause the court to strike it down.

>> Michael: One of the criticisms, though, of the Bakke case 25 years ago and it's just too nebulous, just really doesn't articulate a standard where you could figure out if you are doing it right. You know for sure you shouldn't have a quota but that's about it.

>> Cathy O'Grady: Right.

>> Michael: The court may take perhaps this opportunity to define appear little more precise 90.

>> Cathy O'Grady: I think that's exactly why they took this case and universities have taken certain sentences or languages or dicta from Bakke trying to figure out how to define admissions policies around that. Whatever happens with this pair of casts from the University of Michigan I would hope we at least come away with it with -- that universities will be able to take guidance from it on what they can and cannot do.

>> Paul Bender: One reason I think court is not likely or at least there's some doubt about whether the court will strike down the program even though four members of the court don't like the use of race at all is that if you strike down the Michigan law school program, you're striking down the affirmative action program of virtually every law school in the country except for the couple that don't care about diversity. That's the kind of program everybody uses and I wonder whether justice O'Connor, who is the swing vote, would be willing to do something would that invalidate something that the entire legal community uses.

>> Michael: Cathy, let's go to Texas --

>> Let's not really go to Texas.

>> Michael: There is a Texas law that makes it a misdemeanor to engage in, quote, deviant sexual intercourse with another individual of the same sex.

>> Cathy O'Grady: Right.

>> Michael: That's before the Supreme Court. What's the issue?

>> Cathy O'Grady: The issue is equal protection as well as privacy concerns perhaps under the constitution. So they're raising these challenges, but primarily under the equal protection analysis the appellants are saying, look, you create some classifications mere and then treat people differently based on classifications and that should be unconstitutional. The two classifications they raise are homosexuals and gender based classifications because this particular statute says the criminality is dependent on gender. So it's only when people of the same sex are engaged in this particular --

>> Michael: In precise will he the same activity.

>> Cathy O'Grady: Right. The response to that is, whether it's two women or two men that violate the statute, they're treated equally under the statute, so gender doesn't create the classification that treats people differently. So the state says that's -- you know, that's not a problem. But whether or not the homosexual classification, which really is what this is directed at, whether that will raise constitutional concerns is squarely in front of the court. They've decided some of these same types of principles under due process in 1986 in Bowers versus hardwick and now we'll see again how the court deals with some of these same issues of privacy.

>> Michael: Public libraries involved in another case before the court.

>> Paul Bender: Another sex case before the court.

>> Michael: You need to restrict pornography available on the Internet in public libraries.

>> Paul Bender: This is an interesting first amendment problem. Congress wants to fund computers at libraries so people who can't afford their own computers can use libraries to access the Internet. But Congress doesn't want people to be able to get illegal speech over the Internet, like obscene speech or child pornography. So Congress has required that if you take the money, public libraries take the must not tee get computers, they have to install filters that will filter out obscene speech and child pornography. The problem with that is the only filters that will work to do that, they do it by words, not by pictures, the filters operate according to words, the only filters do that that filter a lot more than obscene speech. They filter out a lot of medical stuff, whole lot of stuff about sexuality, a whole lot of stuff protected by the first amendment, novels and things like that, even though they deal with sexuality. The issue is, can Congress in giving money to libraries basically require the libraries to censor what comes in on the Internet. This is a problem caused by the Internet. In the old days when there was no Internet, the libraries has limited budgets, if they didn't want to buy "Playboy," nobody could force them to do it. Here stuff is already on the Internet and Congress is forcing the Internet to censor and for that reason the third circuit unanimously held this was unconstitutional and the Supreme Court -- I think there is a Supreme Court will also, which is very protective of the Internet and very protective of that kind of free speech, will hold the statute unconstitutional as well. But Congress has a legitimate strong interest, I think, in stopping its funds be froming used to access the Internet to see illegal stuff.

>> Michael: So is the core issue, Paul, and the answer to this may be both, but sit the censorship aspect or the fact that you have to cast this net so broadly, as you point out, that you capture a lot of non-offensive, non-pornographic material while you are trying to catch the pornographic?

>> Paul Bender: Yeah, it's a dilemma. In ordered to what Congress legitimately want to do, you have to be very overbroad, and you have to censor out a lot of speech that is not illegal. But that's the only way you can do it. If you don't do that, then you have to let the libraries be there and people come in and access this stuff and the only way the libraries could stop it is, I suppose, to have somebody standing behind you as you use the computers and say, you're not allowed to do and that that's a very difficult thing to ask librarians to do. So it's a really interesting theoretical case and it's interesting because it's another one of these cases where first amendment law has to deal with the technological innovation of the Internet which is going to revolutionize, I think, the first amendment.

>> Michael: Another first amendment case coming out of Virginia, it's the cross burning case. This one has been getting a lot of attention recently because Clarence Thomas was active in the Orlando argument and he rarely is all that oral -- rarely is that active in oral argument.

>> Cathy O'Grady: He doesn't say too much and when he speaks out, everybody listens. The oral argument was heard in this case and about midway through the argument he stopped and cautioned the lawyers to be not to underestimate the impact and the effect of cross burning and its foundations in 100 years of lynching in the south and that kind of thing and it was very serious, of course -- just very sad and serious tone to this particular first amendment case, which comes from Virginia and which provide -- the statute in Virginia provides it's unlawful for any person to burn a cross with the intent of intimidating persons or groups of people, and then further provides that the very burning of the cross itself is prime facie evidence of an intent to intimidate so now we will look to see whether the court accepts this. There has been some prior cases have that dealt with burning of crosses, but different statutory language from different states. We'll see how they feel about this evidence standard that the very burning itself is prima facie evidence of intent.

>> Michael: This one requires, as you pointed out, with an intent to intimidate. I suppose that we were talking about it before we went on the air, we were talking about the difference being if you just had a Ku Klux Klan rally at some site and were burning the cross, this is our symbol, we're burning the cross, as opposed to gathering at a black family's front yard --

>> Cathy O'Grady: Right. This is interesting because two cases came up to the court through this path and one of them was a cross in a black family's backyard, and the other was a Ku Klux Klan rally in a big sort of lot but the cross was so huge and it could be seen from a public highway nearby. So I think -- and some of the questions from the judges -- the justices indicated that they're interested in this notion of intent.

>>Paul Bender: To me the really interesting thing about that is its impact on the affirmative action cases. The big dramatic thing about Thomas' remark was the lawyer for the two defendants was saying, you can walk down the street with a burning torch, why can't you have a burning cross. Justice Kennedy said the reason for that is 200 years of history about burning crosses and their effect on American life and the justices all seemed to understand that in the same context, it seems to me, is really relevant in the affirmative action cases. The reason you have to use race conscious affirmative action is 200 years of history of discrimination against blacks which you can still see in segregated housing pattern. Whether the court will see those two things as parallel is a really interesting thing.

>> Michael: Cathy, what has the court previously said in general about hate crimes?

>> Cathy O'Grady: Well yes the impact of this case. States will be looking to say, what can we do in our ordinances to try to protect people from this sort of -- these sort of hate crimes. The precedent here is RAV versus City of St. Paul, and there in a 9-0 opinion, the -- they were all -- they were all for this judgment but split on the reasoning. That Minnesota crime made it -- somebody brought a cross burning case under it and the law prohibit the display of symbols like swastikas or cross burning that were intended to arouse anger, alarm or resentment. So that's --

>> Michael: And the court struck that down?

>> Cathy O'Grady: The court struck that down as violating the first amendment.

>> Michael: You think the critical distinction here being the intent to intimidate?

>> Paul Bender: The intent to intimidate. The first amendment has to protect statements that cause anger and resentment, because fit doesn't, then dissenting speech would be able to be stopped but intimidating is something a lot stronger than that.

>> Michael: A couple cases on the docket involve Arizona Indian tribes. United States versus White Mountain Apache tribe goes back to 1960 when Congress declared that a former Arizona military post would be held by the United States in trust for that tribe. Subject to the right of the secretary of the interior to use any part of the land and improvements for administrative or school purposes for as long as they are needed for that purpose. Cathy, first off, we should note there's been a whole lot of publicity generally about the interior department's use and/or misuse of tribal trust monies going back maybe a century. This is not -- it's getting to similar arguments but it's not -- neither of these cases are tied up in that?

>> Cathy O'Grady: That's right. They're not the cases that you're thinking of although the impact of this case could have far reaching effects on whether when there is a breach or an allegation of a breach of the fiduciary duties that the government owes to the Indian tribes whether the tribe can then bring the government to court and sue for money damages, and that's the This pair of cases. One is the White Mountain Apache tribe case that you mentioned and the other is brought by the Navajo nation. So one involves the repair of buildings on the Indian reservation and the other involves some negotiation and conduct of the secretary, Department of Interior in negotiating a coal mining royalty lease on -- that involved the Navajo nation and what sort of royalty percentage they would receive.

>> Michael: The issue on both being whether or not government is going to be held accountable for these alleged --

>> Cathy O'Grady: Violations of trust.

>> Paul Bender: In that case there was a finding of a breach of trust and I don't think anybody disagrees there was a breach of trust. Secretary HODEL gave the Indians a bad deal and it's clear did he. The question is whether the government is liable for damages for that and the damages are alleged about $600 million which is puny next to the damages for the mishandling of all in the deny trust funds which is other litigation going on but it's a lot of money. The government is arguing the government is not liable for monetary damages each for a breach of trust unless there a federal statute that explicitly waives federal immunity for those monetary damages and there is isn't any federal statute like that. There is precedent that suggests that a breach of trust is always compensable with monetary damages when the government does it and that makes sense unless there's monetary damages, the beneficiary of the trust never gets relief because you don't know about the breach until it's too late. But I think there is a -- the court is very protective of state immunity and I think they will be just as protective of federal immunity.

>> Michael: Getting back to this larger other and dispute, these two cases from Arizona could have certainly impacts on the development of that whole --

>> Cathy O'Grady: Right. And we know there's a trust and a fiduciary duty here, but how is it going to be enforced? How can we make sure that they live and live by those responsibilities?

>> Michael: Megan's law, sexual offender registration statutes involved in a couple of cases.

>> Paul Bender: Yeah. Yeah, every state has a Megan's law now. Megan's law was a law passed after 1994, a woman by the name -- a girl by the name of Megan, I forget her last name, was sexually assaulted, maybe even killed n New Jersey, I believe, by somebody who had been convicted as a sex offender and was living in the community. These Megan's laws provide -- they generally provide that sex offenders have to register and the registry has to be public. These are two different attacks on those kinds of laws. The first, really, I think that have -- the first serious attacks have that gotten to the Supreme Court, one attack is by somebody who says, yeah, I was a sex offender but I'm completely rehabilitated, I'm not dangerous anymore and you're putting my name on a registry that says, danger sex offenders and although there is a footnote to the thing that says we haven't looked at these individually, it starts out by saying dangerous sex offenders.

>> Michael: The argument there is you have not given me a hearing to determine my current dangerousness.

>> Paul Bender: Right. He says he's not dangerous, and it's a plausible thing. And he says it's not fair to list me as dangerous and to ruin my life in that way without giving me a hearing. That's one case. The other case are people who were convicted of sex offenders before there were Megan's laws and they're arguing to make them now register and they have to register four times a year at their local police station and their names go on this public registry, they say that is punishment, and it is punishment that it was -- which was enacted after they committed the crimes, and so it violates the expost fact owe clause by the principle, you can't raise the punishment after the person does the crime and they say, so that's in a way a narrower challenge because it only applies to people who were convicted before Megan's law but most of the people, I think that Megan's law apply to were convicted because these statutes were only in the last eight years or so. Those are two substantial challenges. Lots of lower court opinions on these and the court will decide basically whether Megan's laws are constitutional or not or whether they have to be trimmed by giving people hearings if they want them about dangerousness and, two, by not applying them to people who were convicted before the laws were enacted.

>> Michael: Whether California's so-called three strikes law is constitutional is in front of the court. Again in a couple of different cases where people are being sentenced to some pretty long terms for, I think, what most of us would say, that's a reasonably minor offense.

>> Cathy O'Grady: Boy, after eight years of the California law being out, we now have the court finally taking it up and going to take a look at it, and one of the cases, this guy who is a drug addict and was financing his drug habit stole some videotapes from K Mart on two different occasions. These would normally be misdemeanors but under one portion of California law they first up graded it to a felony and then they compared it with other petty theft and nonviolent offenses he'd had in the past and he has now been sentenced, that's his third strike, which could have been a misdemeanor, but they upgraded it to a felony and then coupled it with his past and sentenced had time life in prison with no possibility for parole until 50 years. So that's --

>>Paul Bender: One, they raised it from a misdemeanor to felony and then raised it from an ordinary felony to life sentence.

>>Cathy O'Grady: I think it's fair to say that many states have enhancement of sense tenses based on past offenses, but here we have a really very strong statute that's going to take -- going to get a good look.

>> Michael: The basic argument being, hold it, under the 8th amendment, that sentence is --

>> Cathy O'Grady: Is disproportional, there is no proportionality here, and that cruel and unusual punishment thing, to take a look at this, especially if you are just looking at the third strike, and say, wow, life in prison with no possibility of parole.

>> Michael: For videotape.

>> Paul Bender: But the argument is these are repeat offenders, that you shouldn't look at the third one, they're dangerous --

>> Cathy O'Grady: The argument is he's a recidivist but every single crime has been a nonviolent sort of crime and so really when you look at the whole picture, it's a pretty harsh result.

>> Michael: A criminal suspect shot five times by police in and then questioned. The issue here is not the shooting five times. The issue is the questioning and whether or not the state can be held liable for civil damages for, for money damages.

>> Cathy O'Grady: Yes, the lawsuit in this particular instance is not against the officers who were there at the shooting when they pulled this man off of a bike as he was going through a field. This is just a horrible, tragic case this, guy is now blind and paralyzed, but a sergeant came on the scene and continued to question him in the ambulance and later in the hospital, even after doctors asked him to leave, and they continued to -- he continued to question him. Now, he got some information from him finally and never used it in any sort of trial. They never brought any charges against this guy. The guy was completely innocent. They didn't even pursue anything against him. And now he's suing under 1983 this sergeant for the interrogation. The question is, the fifth amendment violation, does it take place -- does it go to police conduct and mean that we're free from this threat of coercive interrogation or is it a trial evidence sort of protection?

>> Michael: It's my guarantee against self-incrimination , but if the state never uses it, I didn't incriminate --

>> Paul Bender: You didn't incriminate yourself. Some justices seem to it this only violation of the constitution occurs when the confession is introduced and that the questioning itself, as long as you don't use physical force, but the questioning without Miranda warnings or when somebody is in pain may not itself be unconstitutional. If it is unconstitutional, that opens up police officers who do this kind of interrogation f they don't give the Miranda warnings or do coercive questioning to civil lawsuits, which could be a major problem, but, on the other hand, those lawsuits might do something to restrain police from questioning people unconstitutionally.

>> Michael: Paul Bender, always pleasure. Appreciate it. Cathy, O'Grady, our thanks to you as well. We'll see how these turn out. If you would like a transcript of tonight's program or find out what's coming up on "Horizon," please have visit the Channel 8 website at www.kaet.asu.edu, click on "Horizon" on the left side of the screen. Join us tomorrow. We I will tell you about the "Florence Project," a group of lawyers giving free legal advice to immigrants being held in an Eloy prison. Wednesday an update on the Rodeo-Chediski fire on its six-month anniversary. And Thursday, a roundup of this year's and next year's economic outlook from three local economists. That's part of the rest of the week on "Horizon." Thanks for joining us on this Monday evening. I'm Michael Grant. Have a good one. Good night.