Horizon, Host: Ted Simons

August 1, 2013


Host: José Cárdenas

Supreme Court Review


  • The United States Supreme Court released a number of rulings in its final few weeks in session. Arizona State University Law Professor Paul Bender will provide analysis of the session and long term impact of the rulings.
Guests:
  • Paul Bender - Law Professor, ASU
Category: Government   |   Keywords: ruling, supreme court, review,

View Transcript
Jose Cardenas: Thank you for joining us. The United States Supreme Court released a number of rulings in its just completed term. Joining me with analysis of this session and the long term impact of the rulings is ASU law professor Paul Bender. This is a yearly ritual. You have given commentary on the big news ones, defense of marriage, so forth. I would like to focus on some of the broader implications and what we're seeing the analysis of the decision has pointed out justice Kennedy was on the 5-4 decision, in the majority on 20 of 23. What does this say about the importance of his role?

Paul Bender: His role has been important for years. What it says is it continues to be important. It's very hard to find a case where Justice Kennedy doesn't get what he wants. Even when somebody else writes the opinion, Justice Kennedy seems to have influenced what happened because he probably said I won't join in that opinion unless you make it that way. Because he's the fifth vote in so many cases it's really the Kennedy court. The thing I find most interesting at the end the last term when chief justice Roberts joined with the liberals to uphold Obamacare, people said the court is going to be changing. He's a statesman, he's going to rescue the court from the solid blocks, partisan blocks that have been there for years and this term will be a test of whether that happens and he flunked the test. It did not happen. This term was just as solidly partisan on both sides. Roberts was just as solidly conservative as he's been and so is Kennedy who in case after case, what happens is what Kennedy wants to happen.

Jose Cardenas: I have seen some analyses indicating that justice Roberts even when he's voting with the liberals lays the groundwork for a future conservative decision. He gets some concessions from liberals in decisions that go their way and he joins and uses that in cases and there were examples of that.

Paul Bender: He did in the voting rights act. He had gotten Ginsberg and Breyer to join with him several years ago. Now when he holds it unconstitutional and they dissent he says those two joined my opinion when it says so and so. I don't think it forces them into doing something they don't want to do, but he's a long-term planner. He knows where he wants to go and he uses his power. Sometimes he will join the liberal majority so he can assign the opinion to somebody who will write an opinion more to what he likes, for example, the Arizona voting registration case. He and Scalia joined with the liberals and assigned the opinions to Scalia which I'm sure was much more favorable to Roberts' point of view than if Ginsburg or Breyer had written it.

Jose Cardenas: There's been a lot of discussion about the liberals versus conservatives but also about the women on the court and what role they play.

Paul Bender: Well, I think the three women on court are the three strongest justices. Clearly they are smart, they write well, I think they are persuasive. I think if anybody is going to bring the court together, going to break down the traditional partisan divisions it would be somebody like Justice Kagan or Justice Sotomayor. They are people who understand other people. They can work on trying to get people together on something. I'm really impressed with them. It's true they are all members of the liberal block. It would be nice if there was somebody like that on the other side so that some alliances could be forged across the usual divisions.

Jose Cardenas: Some people think that Justice Kagan is kind of the equivalent of Justice Scalia in terms of not just intelligence but the writing style, the ability to really put it to the other side.

Paul Bender: There's a lot in common but there's a big difference I think in that I don't think Justice Scalia has ever been successful in persuading other people to join with him and I don’t think he cares about that. He says what he wants to say, if you agree fine, if you don't, he's okay. I think she will as time goes on try to play the role of getting people together, trying to figure out what common points might be that she can get a majority that's not the traditional conservative versus liberal majority. I think that's her personality. She's very good with people. She likes to bring people together. I think that she is going to turn out in the long run to be somebody more like Justice Brennan, who in the days of the Warren court is really the Brennan court. He managed to get people, Justice Blackmun to join with him in things he never thought he would do. Brennan would figure out things that people wanted and would try to adapt his views to try to get three, four, five people together who weren't together before, move the law in the way that he wanted to do it. I think Kagan might do that. Scalia just doesn't have that kind of personality.

Jose Cardenas: I want to talk about Scalia. Justice Kagan has had to recuse herself in some critical cases, so I would expect as time goes on she will play a greater role in the court.

Paul Bender: Right. The recusal, she had to recuse herself because she was solicitor general before she went on the court. Solicitor general's office of the United States is involved in two-thirds to three-quarters of the cases the court sees. They were ones she worked on when she was in the lower court. That should be over now. She would be able to participate. This year one case that she did not participate in that was important was the affirmative action case from Texas. Where it was a challenge to the Texas affirmative, race conscious affirmative action program and there were only eight justices instead of nine. Because she was recused I think what happened was there were four conservatives want to overrule the Supreme Court's decision that approves of affirmative action to get diversity in higher education, and the four people, Kennedy and the three liberals, don't want to -- if they had voted that way it would have been a - tie and no opinion appeared the lower court would be affirmed. Chief Justice Roberts joined with the liberals and Kennedy arks signed the opinion to Kennedy so it would come out less favorable to affirmative action than the lower court opinion. So that if Kagan had been there that could not have happened because if she had been there, she and the four liberals and Kennedy would have made the majority and Ginsburg would have written the opinion and you would have a much more pro affirmative action opinion. Those things happen but that's not going to happen anymore. She will be in every case from now on.

Jose Cardenas: We have been making reference to Scalia. Is it just my imagination or has he been more irascible and cranky than usual?

Paul Bender: He's been cranky all the time. He joined a couple of times with the liberals but his whole career he has been cranky but he can be nasty to his colleagues. When he disagrees he doesn't just say I disagree, he says you're wrong, you're crazy, you're stupid, irrational, nobody could possibly think that. That's his style.

Jose Cardenas: A lot of readings from the bench, which is not normal practice.

Paul Bender: It used to be but isn't any more. Those are the things that make it hard for him to be somebody to bring the court together because he doesn't treat his colleagues as people he wants to agree with, he wants to say what he wants to say and if he disagrees he just wants to make that clear. He doesn't want to compromise.

Jose Cardenas: Couple of those decisions he joined with the liberals, those tending to 4th amendment search and seizure where he's very strong on the rights of individuals against government intrusion.

Paul Bender: That's another area where he takes a strong position. He believes that experts should have to testify rather than just hand in reports, for example, that hearsay evidence should not be brought inasmuch as it is. People have a right to confront the witnesses.

Jose Cardenas: The DNA ruling.

Paul Bender: The DNA ruling was really interesting. Earlier in the term, there he joined with the liberals to dissent from the decision that Kennedy wrote that permits police to take DNA from everybody they arrest just the way they take fingerprints for in this case serious crimes but I don't think you could be limited to that. He wrote an opinion saying this is really bad for the future. Something very bad is going on here. It wasn't clear to me what he thought bad was going on but it was clear he like a lot of liberals really worries about the government intrusion on his privacy. That is one area.

Jose Cardenas: One last question, Justice Ginsberg, who apparently is very close friends with Justice Scalia though they couldn't be more opposite in their opinions. She too read a number of her dissents from the bench. She is obviously getting up in her years. What can we expect?

Paul Bender: Her health was bad a couple of years ago. But I think she recovered from that, and I know she seems frail but her voice has always been weak and she is getting on. She's over 80, but she wants to stay on the court. I don't think she's going to leave unless forced to by health. Right now I don't see anything that's going to force her to leave. Some people have suggested maybe she would leave while Obama was still president to make sure that he would get to replace her rather than the person who replaces him. I don't think she will do that. That's not her of the she wants to be on the court, she wants to do what she wants to do. I think she will stay as long as she can.

Jose Cardenas: We'll see you again hopefully sooner than next July, but thank you so much for joining us.

Paul Bender: Thanks for having me.

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