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Octoober 19, 2004

Host: Michael Grant
Topics:
· U.S. Supreme Court Preview
In-Studio Guests:
· Paul Bender, Arizona State University law professor;
· Cathy O'Grady, Arizona State University law professor

>> Michael Grant:
Tonight on "HORIZON," the United States Supreme Court is back in session. Before it are cases including whether 17-year-olds can be executed, if local governments can take private property for the public good, and if a male coach can contest his firing under a law designed to help female athletes. Also, could this be the last session for some Supreme Court justices? We'll look at the retirement issue and how the presidential race could affect the makeup of the court.

>> Michael Grant:
Good evening, I'm Michael Grant. Welcome to "HORIZON." The longest sitting panel, we think, of Supreme Court Justices opened its term two weeks ago before the high court is a case that could throw out federal sentencing guidelines, one that addresses the medical use of marijuana, and since their term began, justices have agreed to review whether the Ten Commandments can be displayed on government property. These nine Justices have served longer than any panel of jurists since a 12-year interval from 1811 to 1823. No justice has retired in the last 10 years, but that could change after the presidential election.

>>> Joining me now to talk about the makeup of the court and some of the more important cases before it are ASU law professors Paul Bender and Cathy O'Grady.

>> Cathy O'Grady:
It's nice to see you, Michael.

>> Paul Bender:
The court got a head start on us this time, because it opened its term a couple of weeks ago.

>> Michael Grant:
Paul, really in fairness, I will not ask you anything about your personal experience with that court that sat since 1811.

>> Paul Bender:
No, those people I didn't know too well, but these people I knew very well in the early 90s. It's the same people who are still there.

>> Michael Grant:
Let's go to the speculation obviously about possible retirement most often centers around Stephens because he's the oldest. Justice Rehnquist isn't far behind. He's the longest serving.

>> Paul Bender:
True.

>> Michael Grant:
And Sandra O'Connor. Do you think any of those three are likely to retire, say, next year?

>> Paul Bender:
Some of it may depend on the outcome of the presidential election. Because Justices seem to want to retire voluntarily when a president of their own party is in power. And so if Kerry would win the election, it may be that Rehnquist and O'Connor would decide that they will stay on for another four years hoping that they could retire when a Republican is there. On the other hand, there were rumors that both of them were thinking of retiring before the Bush against Gore case, you know four years ago. And the fact that that was so controversial I think may have made them change their minds, especially Justice O'Connor where there was this rumor about her wanting Bush -- saying at a dinner party saying that she wanted Bush to win because she was thinking of retiring, and she wanted Bush. So it's possible if Bush wins the election, one or both of those will voluntarily retire. And if Kerry wins, I think it's possible that Stephens might decide to voluntarily retire. I've got to tell you, they are all healthy. They all seem to enjoy it. And so -- and so I -- it may be perfectly possible that they'll just stay around for another four or five years. Judges tend to be very long lived these days.

>> Michael Grant:
Speaking of collegiality before we dive into the cases, remind us again about the three relatively distinct blocks that exist on the court.

>> Cathy O'Grady:
Well, Justice Scalia and Thomas are seen as the most conservative members of the Supreme Court. Scalia, Thomas and Rehnquist joins them frequently on the right, as being very conservative. Justices O'Connor and Kennedy are often seen in the middle as swing votes. I think they are fairly conservative Justices but can kind of moderate moderately go either way and then the other four, let's see there is briar Ginsberg, Souter and Stevens, Justice Stevens, that's right, as the most liberal and Stevens is widely know to be liberal.

>> Paul Bender:
I think it's very unlikely no matter what happens, that the court's direction is going to change, unless Bush should win and then two or three of the more liberal Justices would retire. Then you could get a majority. If Bush wins and Rehnquist retires, it's unlikely that he would be replaced by anyone more conservative than he is.

>> Michael Grant:
That's true.

>> Paul Bender:
Even if he were there would be three people.

>> Michael Grant:
That would not be the case if Stevens retired but that might not be likely if bush was to win.

>> Paul Bender:
Stevens might decide to -- the court is so closely balanced that that might make them reluctant to retire.

>> Michael Grant:
Speaking of which, refresh our recollection on 5-4 votes last term?

>> Paul Bender:
A lot, a lot of them, at least a quarter of the cases were 5 to 4. That's been true for a the last few year on issues like federalism, like Affirmative Action, like the death penalty, or the Arizona Ring case, for example. A couple of years ago, they were 5-4. And the swing vote is usually O'Connor or Kennedy. One term it's Kennedy, one term it's O'Connor.

>> Michael Grant:
Is there a pattern to what determines that swing vote? I mean, which way they break? Is there a discernible pattern.

>> Cathy O'Grady:
Looking at O'Connor and Kennedy, for example, I think -- I don't know, I think O'Connor really takes -- and Kennedy, too. They take close careful looks at the facts of the case and sometimes they give clues in prior cases on how they are going to go, but I find them a little bit more unpredictable. Maybe Paul has a system for figuring them out. I think that they can feel empathetic in many ways towards the situation and struggle that.

>>Paul Bender:
O'Connor is especially Pragmatic. So it's how she views the issue. Like Affirmative Action, she voted to affirm Affirmative Action programs even though some of her previous opinions indicated she wouldn't. There was a general consensus in universities, in the business communities in this country that those programs were important. That has a big impact on her.

>> Michael Grant:
The Supreme Court began the term with four dozen cases. They have been adding new ones this week. This week the Supreme Court took on a Texas redistricting case. Last week justice agreed to hear two cases, one from Texas, another from Kentucky involving the display of the Ten Commandments. Arizona in fact displays the Ten Commandments on public property at Wesley Bolin plaza. There are a number of cases before the Supreme Court that have Arizona ramifications.

>> Paul Bender:
At least that one and the Oklahoma primary case have direct impact. There is a ten commandments very similar to the Texas case where -- I think in Texas it was the eagles or the elks or somebody

>> Cathy O'Grady:
Fraternal order of the eagles.

>> Paul Bender:
I never heard of them before.

>> Paul Bender:
Gave Texas the Ten Commandments to put in its place. There are other things in the same place. There are other monuments. In Arizona Wesley Bolin park is very similar. The 10 commandments are there, but we honor veterans and there is a peace symbol there. So to me the issue is whether that area becomes a public forum where different messages are put. And if it is, then it seems to be very hard to say it's unconstitutional to have a religious message there. On the other hand, if there were only the 10 commandments on state property, that would be the state preferring a religious message.

>> Michael Grant:
Cathy, that was pretty much the case in one of the underlying cases. In other words, it had been the only display for some time.

>> Cathy O'Grady:
Right, that was the Kentucky case, I think. The 10 commandments had been the only display at two of the courthouses and they had it at a school. And so when the challenge came, they added to the display. They put the declaration of independence and the preamble to the constitution and put a heading saying something like foundations of our law, and included the 10 commandments as part of that. And the court took a look at that and found it -- and was not persuaded that the purpose, the primary purpose was secular for that display and found that the religious purpose was overriding.

>> Michael Grant:
Obviously the issue being First Amendment and whether or not this amounts to an establishment of a religion.

>>Cathy O'Grady:
Right or the favoring of a religion over nonreligion.

>> Paul Bender:
It's perfectly possible that the Kentucky case and Texas case will come out differently. There is a much stronger argument that the placing of the 10 commandments in a school room or courtroom where very important things are going on and people are learning things or people's fates are being decided, it raises much more serious establishment clause problems than putting it at Wesley Bolin park. Most people aren't aware it's there.

>> Michael Grant:
Right. The death penalty. The court is being called on to decide whether 16 and 17-year-olds can be executed.

>> Cathy O'Grady:
Right, they had earlier decided many years ago that juvenile offender at the age of 15 or younger cannot be executed. That would be cruel and unusual.

>> Paul Bender:
It's not the age they are executed. It's the age they committed the crime.

>> Cathy O'Grady:
Right, so juvenile offender--by the time they get through the process, the death penalty process--they are much older. And the question here now is the execution of 16 and 17-year-old offenders at the time that they commit that crime. And whether that's cruel and unusual punishment under the Eighth Amendment?

>> Michael Grant:
Why do we search for a national consensus on the Eighth Amendment?

>> Cathy O'Grady:
Because the court told us that the standard for looking at an Eighth Amendment test requires us to look at the progress of a maturing society. So we're going to look at a national consensus and see, how does our society feel about the execution or the punishment that's imposed under this Eighth Amendment? Two years ago in a Virginia case before the Supreme Court, the court held that the consensus had changed on the mentally retarded, and they decided, you'll remember, two years ago that that was prohibited.

>> Michael Grant:
Why, then, don't a run a national public opinion poll to figure out if in fact under the 4th amendment my property and my papers should be secure from seizure?

>> Paul Bender:
That's a good question. The court has uniquely treated the Eighth Amendment differently. They don't do a public poll to find out what offends due process or as you point out an unreasonable search. If almost everybody thinks it's unreasonable that may have an impact but they make up their own mind on that. On the cruel and unusual punishment because it's hard to give content to what cruel is, they established years ago that what's cruel is what the consensus says is cruel. Here they decided a couple of years ago that the consensus was, both in this country and -- this is one of the rare cases they looked abroad for the consensus, is that mentally retarded people should not be executed because their mental facilities weren't good enough. The argument is that juveniles before they are 18 are somewhat like mentally retarded people. They haven't matured to have judgment that adults have.

>> Michael Grant:
Justice Kennedy, this has been orally argued and Justice Kennedy brought out a point that I hadn't thought about. He was concerned as to whether or not gangs, for example, if they were to decide that 16, 17-year-olds could not be executed, could use 16 and 17-year-olds as hit men.

>> Cathy O'Grady:
That they would recruit 16 and 17-year-old members to do the actual killings or commit egregious crimes because they think they could persuade them that they wouldn't be subject to the death penalty.

>> Paul Bender:
But they might spend the rest of their lives in jail.

>> Cathy O'Grady:
Right, but Kennedy is seen as a possible swing and O'Connor is identified as the swing in the mentally retarded case, four of the Justices indicated that they would favor a ban on the juvenile offender vote as well.

>> Paul Bender:
Kennedy indicates that he's seriously thinking --

>> Cathy O'Grady:
And O'Connor was pretty quiet during the oral argument.

>> Michael Grant:
Another case that doesn't affect Arizona but sort of springs out of a case that certainly affected Arizona and that's the one on whether or not the federal sentencing guidelines are constitutional.

>> Paul Bender:
That's probably the most important case of the term because the federal sentencing guidelines were a solution that the federal government imposed years ago to the problem of trying to equalize sentencing and still making the sentencing responsive to people's individualized circumstances. So they took the total discretion away from judges and set up these guidelines which say if so and so happens you can give a larger sentence. If such and such happens, you can give me more. If such and such was the case, you should give less.

>> Michael Grant:
Is it literally that form you like?

>> Paul Bender:
Yeah, they are charts. If it's below a certain amount of drugs, it's 5 years. If it's above that amount you get 10 years.

>> Cathy O'Grady:
But the judge has a lot of discretion to look beyond what the jury found or what the defendant admitted to and can find additional drug use, additional drug sales or additional participation in the drug ring and increase the sentence.

>> Paul Bender:
The federal guidelines and the states which have done the same thing have those factors, but they let the judge find how many ounces of drugs there were.

>> Michael Grant:
Now the issue is don't you have to impanel a jury to find those kinds of facts?

>> Paul Bender:
The Supreme Court held that with regard to 9 Washington sentencing guidelines at the end of last term and it threw everybody into a panic. So much so that the court took two cases over the summer which they never do and set them for argument on the first day the term, because the federal government went to them and said hey, we don't know what to do, judges don't know whether they can use these guidelines to sentence. You have to look at this case quickly. Not only did the court hear it right away, but it's very likely that they will decide it very soon. It's almost impossible to distinguish the Washington case and some part of the guidelines at least is going to fall. That might end up revolutionizing sentencing in the United States.

>> Michael Grant:
Another thing that might end up revolutionizing something is whether or not the federal controlled substance act can be applied to intrastate marijuana growing.

>> Cathy O'Grady:
That's right. This case comes out of California where the 9th Circuit held that the plaintiffs showed a strong likelihood of success in looking for a preliminary injunction. This is about the California compassionate Use Act which allows the medical use of marijuana. In California, two of the plaintiffs, their doctors told them, very serious illnesses, brain injuries and spinal illnesses, nothing else was working for them. The doctors prescribed marijuana, and they grow their own. They've been growing their own pot for their own use pursuant to their doctors order. There is no sale, no interstate activity or trafficking. Yet there is a federal statute, the federal controlled substance act, and so federal agents came in, did a sweep, found six or so marijuana plants, took them and the plaintiffs went to the court to ask for an injunction to stop them from doing that any further.

>> Michael Grant:
The issue here being because there is no interstate activity, does congress have the power to pass that kind of law under the commerce clause.

>> Cathy O'Grady:
Right, is this a commerce clause. Is this constitutional, this act. We've got some case, the Lopez you gun free school case. And violence against women case, which the court said was not a proper use of the commerce clause. So we'll put this to the test. They have found this statute unconstitutional, but always under facts that consider trafficking, the selling of the drug. And not the use for personal purposes.

>> Paul Bender:
Lopez and Morris both really emphasized the fact that there was no commercial activity in these cases.

>> Michael Grant:
Lopez was the gun case, 500 feet of the school.

>> Paul Bender:
The federal government prohibits you from having a gun within a thousand feet or 500 feet of a school. The Supreme Court said congress can't do that because that doesn't affect interstate commerce enough. The court had never struck down a federal statute on the grounds that it went beyond the commerce clause. This case is a very strong case for applying the Lopez, and the 9th Circuit did exactly that and said the statute is unconstitutionally applied. The Supreme Court took the case. The odds of the Supreme Court reversing the 9th Circuit case are close to 100%.

>> Michael Grant:
Very high.

>> Paul Bender:
If it did the other, that would really be an interesting thing.

>> Michael Grant: In fact, on word processing, they have a standard opening line, we note that this case arises from the 9th Circuit but there are other more compelling reasons why we reversed.

>> Paul Bender: Exactly.

>> Michael Grant:
Let's go to the state of Oklahoma. They may decide on an election primary, election law that's very similar to the State of Arizona.

>> Paul Bender:
It's called the semi open or semi closed primary. I forget which. Where the state says that independents can vote in any party primary they want if the parties are going to let them, and they usually are, but that if you are registered in one party, as a member of say the Republicans, you cannot vote in the Democratic primary, even if the Democratic party would like to let you. If you are a registered Democrat you can't vote in the republican can primary. That's being challenged by a party which says hey, we're a party, we're ourselves. We're a political organization, we should have the right to determine who can vote in our primary.

>> Michael Grant:
First Amendment association rights.

>> Paul Bender:
That's a pretty powerful argument, here, which I think will be very seriously taken by the court, which really is very strong in believing about first amendment rights about political association. So it's possible that the Oklahoma statute will fall, which would mean the Arizona statute would fall as well.

>> Michael Grant:
Continuing the trend of cases that have some Arizona déjà~vu aspects to them, there is a case out of Connecticut that the court will consider that's very much like the Mesa brake shop condemnation case.

>> Cathy O'Grady:
Right that stopped at the Arizona Court of Appeals, but Mesa was trying to condemn and take a regulatory taking of a brake shop because they wanted a hardware store to go in there instead is the way I remember that case. Here we have a case because the court has not looked at eminent domain for many years and now they have a couple of important property cases on the docket. Here out of New Light Connecticut, a historic neighborhood called Fort Trumbell believe. These are not blighted. They are older homes, and the city wants to take the homes under the takings clause, pay just compensation, but then turn it over to basically a developer who is going to use it for another private use, a big large-scale development that the city suggests is going to bring in lots of extra tax revenues. So is that a public use to take justify the taking that you want to turn it over to another private developer for a different private use that the city has decided is better. More money.

>> Michael Grant:
The 5th and 14th amendments not only requiring the compensation aspect, but also requiring an underlying public purpose, but issue being here is this a public purpose.

>> Cathy O'Grady:
Right, the city can condemn if it's a public use.

>> Paul Bender:
It's public use. I don't think anybody would doubt that the attempt to get more jobs would be public purpose. But is it a public purpose within the meaning of that clause. This is a new development. In the old days people didn't take property in order to turn it over to private developers, but with roads or courthouses or schools or things like that, this is a really important case, too, because as you point out, that's happened in Mesa and it's happening all over the country.

>> Michael Grant:
Justices this week ordered a lower court to take a second look at a ruling involving how the state of Texas handled its redistricting after the 2000 census. In that case, Democrats allege the Republican dominated legislature gerrymandered districts to the benefit of the GOP candidates. They were told to take into account the Justices split decision in a similar case in April. I've got a personal attraction in this case because it's been fun to watch what Texas has done with the Democrats fleeing to Oklahoma and New Mexico to deny the legislature a quorum, but the court there decided, Paul, that, well, so they did it for political purposes, no harm, no foul, but the court, the Supreme Court now sending it back and saying take another look at this.

>> Paul Bender:
That's really puzzling because some years ago the court suggested that political gerrymandering could be unconstitutional. But it never announced the standard. And then last term as you said, they had a case from Pennsylvania which was clearly political gerrymandering, it was done to give the Republicans more power than the number of Republicans would warrant, and the court split 4-4-1. 4 people said we ought to take this seriously. Four people said we were wrong in the past to suggest it might be unconstitutional, it can't be unconstitutional. And here Justice Kennedy the swing vote says I don't think it's probably unconstitutional, sometimes it might be unconstitutional, I don't know exactly when, but it might be sometimes. And now they send the case back to a Texas court to consider their situation, political gerrymandering in light of that decision, in light of that nondecision, plus there is no majority on the court, which will not help the Texas court at all.

>> Michael Grant:
Did you simply pour over Justice Kennedy's decision and say gee this Texas thing had to be the one he was talking about?

>> Paul Bender:
Well, he didn't say that. They ought to bring Justice Kennedy down to Texas and have him testify before the court. It's really puzzling because what they are really doing is saying, look, we haven't been able to resolve this issue. We'd like you to try and maybe if you do a good job resolving it, that'll help clear our minds and then we'll be able to reach a decision on this question in the future. It's really important because almost every state does political gerrymandering.

>> Cathy O'Grady:
This has five Democratic seats that are at issue. So the stakes are high.

>> Paul Bender:
It's not going to affect this election.

>> Cathy O'Grady:
Right, no.

>> Michael Grant:
They are already in place, so --

>> Paul Bender:
The gerrymandering will be done. What Tom delay did will be effective in this election.

>> Michael Grant:
It counts for what the Ds do.

>> Paul Bender:
You get in power and try to stay there.

>> Michael Grant:
And then partisan welfare is contemplated.

>> Paul Bender:
And then the other side does the same thing to you. It's back and forth.

>> Michael Grant:
Cathy, what about the male coach who is suing under title 9?

>> Cathy O'Grady:
Yeah, that's one of Paul's favorite cases. That's whether he can be -- he's claiming he was removed in retaliation for standing up and supporting his women's basketball team. He complained that they were not receiving the benefits they were entitled to under title 9. His female basketball coach and does he have standing to raise a claim that he was fired in retaliation. That's not been decided yet under title IX whether that would exist, so that's going to let us know whether somebody can -- somebody has a claim has a right of action and has standing to raise it.

>> Paul Bender:
Somebody who is not part of the gender that's being discriminated against. He's the coach of the women. He complained about that. He got fired for complaining, and now he says he has standing to raise the women's rights under title IX, which guarantees that women and men will be treated equally in education.

>> Cathy O'Grady:
So he's looking for this implied right of action basically under the statute.

>> Michael Grant:
We are just about out of time, but there is a wine case that brings the 21st amendment, the state's power over alcohol in conflict with the commerce clause.

>> Cathy O'Grady:
If you love wine, this is a very important case. And right, exactly. States -- some states have regulation that is out of state wineries cannot ship their product to in-state customers. And they've created this barrier for out of state wineries. With the Internet, people are ordering wine from other states. So this puts the dormant commerce clause which really regulates that with states, up against the 21st amendment and their rights there.

>> Michael Grant:
Okay, well, we will be meeting frequently to see how these cases come out. Cathy O'Grader, good to see you. Paul Bender good to see you.

>>> Michael Grant:
If you would like more information please visit our web site at www.azpbs.org. When you get there, scroll down, look for the word " HORIZON." Once you click on " HORIZON," you can find links to the Supreme Court and other related sites. Tomorrow night please join me for a special one-hour edition of " HORIZON." We'll take a look at all 10 propositions on November's ballot. Thursday, we'll take a look at candidates running for congress and also candidates for Maricopa County sheriff. And on Friday, the panel of journalists will be here at this not so roundtable to talk about the week's top news stories. That's the rest of the week on "HORIZON." Thank you very much for joining us on this Tuesday evening for a preview of the Supreme Court term. I'm Michael Grant. Have a great one. Good night.

 

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