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October 29, 2003
[This program first aired October 9, 2003.]

Host: Michael Grant
Topics:
· Preview of the United States Supreme Court's session
In-Studio Guests:
Arizona State University law professors Paul Bender and Cathy O'Grady

>> Michael: Tonight on "Horizon," the United States Supreme Court has started its session. But got an early start with some oral arguments on a campaign finance law. Other issues before the court this session that we'll analyze, an Arizona tuition tax credit case and several workplace discrimination cases. Good evening, I'm Michael Grant. Joining me to talk about those cases and others that focus on religion, criminal law and federalism are Arizona State University law professors Paul Bender and Cathy O'Grady. Gosh, it must be near the first Monday in October.

>> Paul Bender: We're getting there. You can tell by the leaves turning and the Supreme Court meeting.

>> Cathy O'Grady: And the cool weather in Arizona.

>> Michael: That's right.

>> Paul: That comes a little later, unfortunately.

>> Michael: And the cool weather in Washington. In fact if I recall correctly, I think it actually was the swamp in Washington that historically led the court to "let's get back in early October" because you don't want to be there…

>> Paul: Washington is a tropical climate.

>> Michael: That's right. So far this is not shaping up -- there's a couple exceptions, but this is not shaping up to be a big-league session.

>> Paul: With one big exception, and that's the challenge to the McCain-Feingold campaign finance reform bill, but aside from that, no, and especially in comparison with last term, which was a blockbuster term, with at least two really big decisions, the upholding of race conscious affirmative action programs in higher education and the striking down of laws prohibiting homosexual sodomy. Those are two very important but practically and theoretically cases. There's nothing like that except for McCain-Feingold.

>> Michael: Cathy, those cases certainly drew a lot of lightning from the general public.

>> Cathy: They did. Last term was an exciting term. I remember just waiting every day checking the news every 10 minutes to see whether a case came down or not. In addition to the University of Michigan cases and the sodomy case, the cross burning case, the limit on punitive damages that the court got into last year, those were really big cases.

>> Paul: And upholding the California three strikes.

>> Cathy: Upholding the three strikes law, that was another very big case. It turned out to be kind of a really big blockbuster term last term, and I think we'll have -- and as the term progresses, we'll get more and more excited about it but I don't see it right now being even similar to last year.

>> Paul: Some of the cases have interesting facts but nothing except for McCain-Feingold that threatens to or prom ties change any big principles of American constitutional law. Or have a big factual impact on people -- no abortion cases yet, probably won't be any abortion cases.

>> Cathy: Unless they take the pledge case.

>> Paul: Yes.

>> Michael: Thank you for that segue. We're going to talk about cases they have taken, and we should note that we are taping this a little early, and at the time we're taping, the court has not yet decided, Paul, whether it will take the pledge of allegiance case out of the 9th circuit. Refresh our recollection on what's involved in the pledge of allegiance case.

>> Paul: Well, a panel of the 9th circuit held that requiring students to say the pledge of allegiance was a violation of the constitution, and I think that people who are opposed to that decided they'd go directly to the Supreme Court rather than try to get the 9th circuit en banc to reverse it. They've gone directly to the Supreme Court. There's a lot of outrage about the 9th circuit doing that. The aspect of the pledge that's challenged is the words "under God" that were put in somewhere around the second world war.

>> Michael: I want to say 1948 but I might be off a couple years. It literally -- it was a law that said we're adding the words "under God" to the pledge of allegiance.

>> Paul: That's right. And that's being challenged of the violation of the establishment of religion clause because it supposedly prohibits the state from taking sides with regard to religious questions and this seems to be the state taking a side. So it's a very plausible challenge on theoretical grounds, although there's a lot of public outrage about what the 9th circuit did.

>> Michael: Cathy, this would be strange. If the decision were allowed to stand, do I have this correct, that only student residing in the coverage area of the 9th circuit would not be able to say "under God" if you're in Michigan you're okay.

>> Cathy: In school, because a later opinion limited it to the reading of the pledge in schools, but -- that's why most people think that the court won't let that stand that way, that students are reciting the pledge differently across the country. I think that this might be held up on a standing issue because the father who brought this claim on behalf of his daughter didn't have custody for a while, or it was questionable whether he had custody and now we think appear lower court is granting joint custody, but the court may be waiting for some more concrete proof of that to confirm his standing to bring the case on behalf of his daughter and I think that might be what they're waiting on.

>> Paul: There is no standing -- they may hold there is no standing. The court has a history of trying to avoid these things if it can. For example, with affirmative action, the fifth circuit held you couldn't use race at all in law school admissions several years ago. Which directly contrary to the court's Bakey decision, the court did not take that case and waited several years and took it from the University of Michigan and held that the 5th circuit was wrong. So the court is capable of waiting a number of years to let things settle down and clarify themselves.

>> Michael: Cathy, let me understand the exit strategy here. If the court took it and said, well, hold it, the plaintiff didn't have any standing, we are going to vacate the Court of Appeals opinion because you didn't have a live case or controversy in front of you, you then don't reach the issue on the merits and that is how it goes away?

>> Paul: And it wipes out the 9th circuit decision. So children in California and Washington and Oregon and Arizona can say "under God."

>> Cathy: It's a funny messed up procedurally case. Parties on both sides -- some want the court to be able to take this and clarify the issue. We'll see.

>> Michael: Since you've talked about it three times already, let's go to McCain-Feingold. Now -

>> Paul: Do we have to? It's so complicated it's really hard to explain.

>> Michael: Maybe we can break into it its component parts but procedurally it's a little strange from the standpoint that the Supreme Court took oral argument on this in September, the swamp conditions not withstanding, and had been -- Congress devised an accelerated procedure to get this through.

>> Paul: Congress passing this knowing there were going to be constitutional challenges to it and Congress has done with this a number of other statutes recently, including statutes regulating the Internet, set up a special procedure and said if you want to challenge this, you bring it in a three-judge District Court in the District of Columbia and then it goes directly to the Supreme Court, and it said that the court should accelerate, expedite, their consideration of the issue in order to clarify it before the next presidential and senatorial and house election cycle. The district court, that heard argument, I think said it would try to decide it by the end of last year and didn't and months went on and people wondered what went on and then they came out with a 1600-page decision. Then so the Supreme Court is really squeezed in time because I think they would like to get it done by the end of the calendar year. So they set argument a month before their regular term started so that they could hear the argument and start working on the opinions and I think they hope to get the opinions out sometime this fall.

>> Michael: Paul, is the large issue here the fact that McCain-Feingold restricts contributions to political parties?

>> Paul: So-called soft money.

>> Michael: Yeah.

>> Paul: The last federally election reform, which is like almost 30 years ago, put limits on contributions to candidates. The parties and the candidates and contributors have gotten around that substantially by contributing money to political parties, and the parties in turn use the money to support the candidates, and as long as the parties stay away from blatantly saying "vote for Joe blow," that's been permitted.

>> Michael: In fact, if I recall correctly, isn't there a federally election commission interpretation that specifically lists -- it's like the seven words you can't say on radio -- these are the seven words you can't say in a political ad if you want to claim the soft money.

>> Paul: As long as you don't say that, it's okay. That's why we have so much money going into elections now. So after years of trying and under Senator McCain's leadership, Congress -- and Feingold, Congress pass add new law which is intended to limit those soft money contributions. It raises the amount you can contribute some but would place fairly strict limits on soft money contributions and the main effect of that would be to lessen the amount of money that's spent on campaigns.

>> Michael: But, of course, the argument made that that's in violation of the first amendment.

>> Paul: The Buckley case in the late '70s made a constitutional distinction between limits on what you could spend independently, your own money, candidate's money and supporters' money and the court said it's unconstitutional to say how much you can make independent expenditures but permitted a limit on the amount you could contribute to a candidate, a lot of people think that's wrong. Some people think the distinction ought to be removed ask you shouldn't be able to remove either expenditures or contributions. Other people think you ought to be able to limit expenditures and contributions. The Supreme Court has signaled in several recent cases that it's uneasy with that distinction. So the most important issue is are they going to continue to permit limits on contributions to political candidates or are they going to hold some people would like them to, that that's free speech and you can't limit it at all.

>> Michael: One of the other provisions that I think has been fairly high profile and I think a lot of people think the court will strike, one other provision of McCain-Feingold, is a prohibition by certain entities, I believe for a period of like 60 days before a general election, running ads.

>> Paul: And that seems to fly directly in the face of the thing they decided in Buckley, namely that you can't limit independent expenditures. So that's probably one of the more vulnerable ones. I don't think it's as practically important as a limitation on soft money. There are limitations on what banks can do and what labor unions can do and corporations. There are 12 cases before the court because 12 different parties from the National Rifle Association to the Democratic Party challenged this and the -- the court heard four hours of argument on this one case.

>> Michael: In your hunch the court will feel -- you have the primary season coming up in January, the court will feel it needs to hand down that decision before the end of the year?

>> Paul: And also that I think it will feel, properly so, that the decision has to be pretty clear about what you can do and what you can't do because people are going to have to act on that right away. So unlike the lower court decision, which people can't make head or tail out of sometimes to decide what it is we can do and what not, the court has to come out with something pretty clear and it's going to, I think, going to do it before the end of the year.

>> Michael: The Supreme Court will also take up what I refer to as a classic gerrymandering case and that's basically can you just design a district with purely political Republican and Democrat considerations in mind?

>> Paul: It's not only a district, it's all the districts in the state. Can you district a state legislature in order to make sure that your party remains in power? Gerrymander in order to make sure that the party that's in power then remains in power for the foreseeable future. The court in the past, the Supreme Court in the past, has been very much hands off about that, although it's been really intrusive with regard to attempts to district, with regard to race in order to give minority districts. It has basically said you can do it for political reasons whenever you want.

>> Michael: Is it basically because court has said that's really a political question?

>> Paul: Yes.

>> Michael: That is a rough and tumble thing.

>> Paul: It's politics. That's what politics are about. In this case the lower court followed and that said, I think this comes from Pennsylvania and I think the Republicans in Pennsylvania district -- didn't the Democrats complain it was gerrymandered it to retain Republican court, and the court said, yeah, but we don't do anything about that. Political gerrymandering is okay unless you basically abolish the other party and the Supreme Court took that case, which suggests that that some people on the court are interested in getting more involved in political gerrymandering, which could be important.

>> Michael: It will be interesting to see if like Texas, perhaps two or three of the justices flee the jurisdiction to deprive the court of a quorum. But I guess that would be another issue.

>> Michael: Cathy, let's go up to the state of Washington. This is a strange case. It deprives a scholarship for somebody who wants to be a theology major.

>> Cathy: This kid, Joshua Davy was award add scholarship and then it was pulled out from under him. The state of Washington has a program where moderate poverty kids or moderate income kids that do well in high school, top 10% of their class and want to go to an accredited state institution, college, are given money. They're awarded scholarships and it's otherwise a neutral program except it also provides that those scholarships will not be available is a theology make sir declared. So Joshua Davy was awarded a scholarship and then he declared his major and they pulled it out from under him and this is interesting because it pits the free exercise clause of the first amendment and Davy is obviously declaring this violates his right to freely exercise his religion against the state making sort of an establishment clause arguments and saying that, hey, look at our Washington state constitution, they have like so many other states what's known as blame amendment sort of law in their state constitution which is a very strong establishment clause provision. It's rooted in anti-Catholic history, really. But now the state is standing up and saying, well, despite the history and intent behind this, it now serves a very valid purpose of making sure that the establishment clause is rigidly protected in our state and so we, the Washington state, says we're not going to allow any state funds at all to be going toward any religious purpose.

>> Paul: That's in the Washington constitution. Very similar, I think almost identical, to the Arizona constitutional provision, which says no public money shall be spent to support religious education.

>> Cathy: It's a very strong -- it's stronger than the federal establishment clause.

>> Michael: If I recall correctly, the lower court ruling was, no, that violates his right to free exercise.

>> Cathy: Well, the 9th circuit said if you're going to have an otherwise neutral program, you need to keep it neutral and that's in violation of the free exercise clause and they recognized an important state interest here and this really is going to be a state's interest type of case as well, they recognized that, but said it's not compelling enough given the violation of the free exercise provision.

>> Paul: Again, it's a little surprising that the court decided to take that, because one would guess that the Supreme Court majority would feel the same way, that is, that the Washington scholarship program was unconstitutional because it discriminated against people who want to major in religion and yet the court takes the case.

>> Cathy: There was a pretty strong dissent from the 9th circuit as well saying this could threaten all scholarship types of programs and that kind of thing and the state doesn't have to constitutionally -- doesn't have to fund the exercise of a constitutionally protected right, and so -

>> Michael: Well, and, Paul, we should disclose that you have worked on this case, but the court has indicated that it is -- well, hasn't indicated, it has taken the attempted federal challenge to the tax credits that Arizona has for private schools.

>> Right. Although they have just granted certiorari, we won that case unanimously and I think maybe what happened with the Washington case, they see a 9th circuit decision and figure, we got to take -- ours happened to come out in a way I know a lot of people on the court don't like and namely, the District Court judge in our case said you can't challenge a state tax statute in federal court. There's a thing called the federal tax injunction act which limits the ability to challenge state tax statutes in federal court, and the district judge said it applied -- the 9th circuit panel unanimously said it did not apply, and the 9th circuit denied rehearing en banc and the Supreme Court now granted certiorari. The issue has to do with the jurisdiction of federal courts to consider constitutional attacks on state tax -

>> Michael: It really doesn't get to the first amendment arguments.

>> Paul: Not yet.

>> Cathy: We're still waiting for that, in federal court at least.

>> Paul: But it's an important case because it deals with the breadth of federal jurisdiction. There's some people on the Supreme Court who want to narrow federal court jurisdiction over state laws generally and they may use this as a way of starting to do that.

>> Michael: Incidentally, I understand that the Supreme Court actually has in their word processing section a sort of a standard phrase that we note that this case is on certiorari from the 9th circuit but there are other more compelling reasons why we reverse.

>> Paul: They usually leave out the second part of that phrase.

>> Cathy: I think the 9th circuit is doing bet inner recent years.

>> Paul: They're doing better. I saw a chart recently prepared by one of the 9th circuit judges, but still which showed that the 9th circuit was the circuit most reversed, that several circuits had 100% of their cases reversed last year and the 9th circuit just had 76% of the cases. But the chart revealed what is not normally said, the 9th circuit had more than 50 cases in the Supreme Court last year. And about half of them were reversed. So -

>> Cathy: We're trying to keep them in business up there in Washington. We're giving them some work to do.

>> Michael: Another Arizona case, Americans with Disabilities Act case, whether that is violated -- a company had a policy that said we won't rehire you if you are fired for drug abuse.

>> Cathy: Actually I think the company policy, Hughes Missile, was any time an employee is fired or quits in anticipation of discharge, they're not available for rehire. You know, all employees, no matter what. And here there's really kind of -- the court found that there's a factual issue as to what happened, but this guy was fired, basically terminated, because he didn't pass a drug test, and so he has -- he had a known drug and alcohol problem. He was let go. Well, after rehabilitation and two years passed, he reapplied again and he was summarily refused, his application was denied and he's claiming it rises to a disabilities act challenge, and the 9th circuit found enough facts here to move forward on that, and, really, noted that if the company is just sort of summarily denying employees, and that incorporates employees who have a disability like drug and alcohol illness, that's considered -

>> Michael: That is considered a disability under the act?

>> Cathy: The ADA doesn't protect employees who are currently using illegal drugs, but it does protect employees who have been rehabilitated from a drug problem. So if that's what's happening here, the 9th circuit says that would be a violation of the ADA. So...

>> Michael: Another ADA case that is in front of the court, I'm sorry, Cathy, I just do not follow this fact scenario at all.

>> Paul: You're not old enough.

>> Cathy: Actually this is an age discrimination in employment act case. It's ADEA, and it's kind of interesting. It's very interesting, actually because it involves something that's going on across the country. A collective bargaining agreement where the union basically had to give up retirement benefits for retired employees, and so in the new bargaining agreement, retired employees were -- are not going to be receiving health care benefits any longer, but it excepted out employees who were 50 years or older after a certain date, and the employees who were 40 years -- between 40 and 49 years, they are protected, which is, I was sad to learn, by the age discrimination in employment act. Anybody over 40 is protected. So they brought this challenge saying, hey, look, you know, we're protected under this act and we were disadvantaged, even though our colleagues who are older than us were advantaged, we were disadvantaged. And so we want to raise this particular -

>> Paul: It's kind of a reverse discrimination. These people are saying we were discriminated because you're favoring people older than us and we're protected by act because everybody over 40 is protected by the act but the people who wrote the act were trying to protect you from being discriminated against because you were older. These people are saying they're discriminated against because they're younger.

>> Cathy: The 6th circuit said they could bring this challenge and one dissent on that panel saying, look this, statute has never been used for younger employees to be challenging benefits to be given to older employees.

>> Michael: Does seem a little strange.

>> Cathy: Seems a little strange. We'll see how that one turns out.

>> Michael: Federalism, Paul, Tennessee, court is going to deal with whether states are immune to suits under the federal bankruptcy laws?

>> Paul: Before I do that, I should correct something I said a couple of minutes ago. The 9th circuit about half the case, 50% of the cases, that the Supreme Court had from federal courts last year came from the 9th circuit, and three quarters of those were reversed. So the percentages were better, but their raw numbers of reversal were still a lot higher than any other circuit. And some these federalism cases come there, too. As you probably know, the court has developed a doctrine of sovereign immunity that protects the states against being sued by private people for violating federal law, including the patent law, the copyright law, unless the law is passed under Congress' power to enforce the 14th amendment. So this year the court has a case in which a disabled person sued the state claiming that the courthouses and other public buildings were not modified to permit disabled persons to have entry and the state said, you can't sue us for that because you're suing under the ADA, which the court had held is not passed under the 14th amendment, it's passed under the commerce clause, but the lower court said, no, this is different because these people are asking for access to courthouses and public buildings and that -

>> Michael: Which would implicate the 14th amendment.

>> Paul: And so the court has to decide that. Recently the court has taken another federalism case where the issue is whether federal bankruptcy laws can be used to bring states into federal court. Now, that's another power in article 1 of the constitution that they can pass bankruptcy laws but the court had held that copyright laws and patent laws cannot authorize suits against states by private people. So the question here is whether that's going to also apply to bankruptcy laws.

>> Michael: Now, this court traditionally has obviously been a state's rights kind of court. Think it's going to continue to be a state's rights kind of court?

>> Paul: With some exceptions it's been a state's rights court. Defer to the Florida Supreme Court with regard to counting ballots. But in general with regard to protecting states against suits by private people, protecting states against suits by prisoners to get out of jail, they've been very protective of states, and the question is whether they'll continue doing that. Last term one of the cases that people had not noticed too much, they did decide one case permitting a private person to sue the state under the -- under a law providing that people -- you have to give family leave to an employees, and the court said that was different because that was a gender discrimination remedy, and gender discrimination is something that's addressable under the 14th amendment. Some people think that that was a turn of the court, and the court is going to be more lenient toward these suits under federal law, and these two cases will really show whether that's true or not. I suspect it's not true and the court will really continue to protect state's rights.

>> Michael: Cathy, let's talk touch on a couple in the criminal law area. Case out of Arizona dealing with search and seizure.

>> Cathy: We're excited about that because it's another case out of Arizona and that deals with a car searched and whether it was searched incident to an arrest or not because that was a case where a guy drove up to his home. He arguably had no idea that police were there, I think there was a factual question about that, and not a big factual record, and after he walked away from the car they went and searched the car and found some evidence that they used against him. They arrested him and put him in the police car and then went to search the car. It's all about whether that vehicle search was proper.

>> Michael: Because if they're arresting him away from the car they really have no cause.

>> Cathy: There's an exception to the warrant requirement that if you're a passenger in a car, you have easy access to that gun or weapon, or whatever might be in the glove compartment or you could destroy the evidence but he was not sitting in the car.

>> Paul: So that's a rule about how many feet you have to get away from your car in order to stop them from searching the car.

>> Cathy: The thing the court was interested in, he may not have had any idea that the police were even making contact with him or initiating the contact.

>> Paul: He didn't run away from the car to avoid the police. He walked away voluntarily and they arrested him. A couple interesting Miranda cases also that the court has not dealing with the constitutional but dealing with the application.

>> Michael: All right, Paul Bender, we're out of time. Cathy O'Grady, and thanks to you. If you would like to learn more about these cases or others before the Supreme Court we will have a link on our website at www.kaet.asu.edu. You can click on "Horizon" in the lower left of the screen and that will lead you to the link, as well as information about upcoming "Horizon's" and transcripts of our shows. Tomorrow on "Horizon" we'll have a visit with local reporters on our Friday journalist roundtable where we review the week's news events. Thank you very much for joining us this evening. I'm Michael Grant. Have a great one. Good night.

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