>>>Coming up next on “Arizona Horizon,” the United States
Supreme Court session began this week and the High Court is
already making big headlines. We’ll get a preview of the
session with ASU law professor Paul Bender, next on “Arizona
Horizon.” “Arizona Horizon” is made
possible by contributions from the Friends of Eight, members of
your Arizona PBS station. Thank you.
>>>Good evening, and welcome to “Arizona Horizon,” I’m Ted
Simons. The U.S. Supreme Court’s new
session is underway and the assembled justices wasted no
time in reshaping the debate over same-sex marriage.
The High Court is set to take up a variety of cases this session
along with two from Arizona. Joining us is ASU law professor
Paul Bender.>>Always eventful, but not as
eventful as people thought it was going to be.
Almost everybody thought they were going take one of the gay
marriage cases. That would have been the
signature event of the term, and it probably wouldn’t have
decided until the end of the term, but they decided not to
grant certiorari.>>Why did they do that?
>>When you’re thinking about that, you should bear in mind
what the result or effect of them denying cert in those five
cases, they have put on hold decisions permitting them to go
forward in those states. As soon as they denied cert they
knew gay marriage was going to expand pretty dramatically to
all the states in those three circuits.
That’s a lot of states. So can you do that and still
think there’s a possibility that you would ultimately hold that
it’s constitutional to ban gay marriage?
By the time they get around to it now, it’ll be a year or two
from now, 90% of the country will live in states that permit
gay marriage. So I view that denial as
basically raising the white flag by the people who are opposed to
gay marriage. We know there are four people on
the court who think it’s constitutional to ban gay
marriage. Scalia, Roberts, Alito and
Thomas. They could have granted cert but
they didn’t. Why not?
Because they don’t have the fifth vote.
If they don’t have the fifth vote now, when will they have a
fifth vote?>>And it had to be Kennedy, yet
Kennedy went ahead and temporarily blocked.
What did he do and why did he do it?
>>I think that makes sense. There’s no circuit split.
That’s the one time the Court will have to take that case.
The ninth circuit held the way the other circuits held that,
bans on gay marriage are unconstitutional.
But the losing parties in those two states can go to the full
ninth circuit and asked for an en banc review.
If they held gay marriages are constitutional, then there will
be a split in the circuits. I think it makes sense for
Kennedy to give them time to ask the circuit whether they want to
take the case. I think it would make sense to
hold up until they decide. You don’t want people getting
married and a year later, hey, those marriages are invalid.
That would be just terrible. It makes sense to me to have him
give a statement, give them time to go to the ninth circuit.
To give them time to file a cert decision just doesn’t make
sense. I assume that’s what he’s doing.
He’s giving them enough time to file a rehearing en banc
petition before the 9th Circuit. If the 9th Circuit was to take
this case, they can take it without the decision going into
effect.>>Have they refiled?
Do we know what the 9th Circuit is going to do?
>>I think they have already asked, but they haven’t done
anything and probably won’t for a while.
To grant a hearing en banc you need all of the judges in the
Circuit in majority. They pick 11 judges out of the
20-odd that they have and those 11 could be tilted one way or
another, it’s all random. It’s not inconceivable that the
9th Circuit would grant the hearing, reverse the decision,
uphold the bans on gay marriage. If they did that, the Supreme
Court would have to take the case.
But that’ll be a year from now, and meanwhile gay marriage will
be the law in all those states and the circuits they just
denied cert on the other day.>>And it seems like we kind of
know what the Court is going to do.
>>You would think so. It’s hard to imagine one of
those people like Kennedy changing his mind in the next
couple of years. Why would you do that, if he
didn’t do it now?>>Very quickly, how unusual for
a single justice to put a temporary block on something?
>>That’s common, just for a couple days before he can give
it over to the full court. There’s a conference tomorrow
and I assume Kennedy will present the application for the
stay. If the court gives a stay, what
are they saying? Unless it’s just a stay to go to
the 9th Circuit and ask for a rehearing en banc.
They could give a cert petition. If they give a stay just for the
purpose of a rehearing petition, I don’t think that means
anything. They are giving them a chance to
create a cert conflict. Why would people want to create
a conflict to grant cert so they would then lose?
>>Would they just want to have it heard?
>>Why? It would make no sense for them.
They will get an opinion about gay marriage and the due process
generally, the protection clause generally, it could be a very
broad individual rights opinion. Kennedy a would write it.
He would assign it to himself and you can never tell what
Kennedy will do. I would think — they have lost
this battle, I think they realize.
And I would think they would just forget it now.
>>The time is long gone for sending a message, in other
>>Let’s get to Arizona cases. The Arizona Independent
Redistricting Commission, this case now the legislature
challenging. Give us an example of what’s
going on and why the court is deciding to get involved.
>>That’s a very good question. What’s going on, the people of
Arizona in 2000 adopted a constitutional amendment to take
redistricting of both state legislative and congressional
districts away from the legislature and give it to the
Independent Redistricting Commission.
And they have now done the independent commission’s done it
twice. And the second time was after
the 2010 census. And that — that guided what
happened in 2012 elections. Well, 2012 elections, five of
the nine congressional seats in Arizona are Democratic.
I think the Republican legislation saw that coming and
fault the Independent Redistricting Commission.
They didn’t like what they did so they are trying to get that
changed. What they have done is they have
brought a suit saying it’s unconstitutional for a state to
have redistricting done by an independent commission.
And I would have thought that the Court would say, we’ve
already said in two or three cases that states have a lot of
freedom in how they redistrict. There’s no conflict in the
circuits. Independent redistricting
commissions are the wave of the future.
More and more states are doing it.
It’s thought to be a good government thing.
It’s hard to argue against it, except for partisan political
reasons. Why the court would want to jump
into that is very difficult for me to understand.
>>Isn’t the argument that the United States Constitution gives
power to draw these districts to the quote, unquote, legislature?
>>But what does that mean? Can the governor veto
redistricting? Can the legislature give it to
— if the legislature is redistricting, the people take
out a referendum on that? The Court has already said both
of those things can be done. If you’re going to give the
Governor that much power and let the people overturn what the
legislature does, then you’re not just giving it to the
legislature. And it’s hard to think why the
people who framed the U.S. Constitution in 1787, would have
wanted to say to the states, you district, but you’ve got to do
it in a certain way that your formal legislature.
What would be the reason for that?
It’s hard for me to see what the reason would be for the court to
take the case to, stir things up.
If they were to strike down the Arizona Redistricting Commission
that would put a stop to what I think most people in politics
think is a really good development.
And that is to get redistricting out of the partisan arena.
We know what legislatures do when they redistrict.
The first thing they do is save their own seats.
>>And then they gerrymander to maximize the strength of their
pretty. That’s not a very Democratic
thing to do.>>The question is, is the
commission allowed under the Constitution, under federal law.
You’re saying that the precedent says —
>>There’s precedent on the commission’s side but there is
language that’s difficult to overcome.
By the legislature thereof. The question is by the
legislature thereof mean? The most natural think I think
it for to mean is by the normal legislative process of the
state, whatever that is. They meant to say they do it the
way you do legislation. They meant to say don’t have the
governor do it. That is why they said
legislature. Otherwise do whatever you do.
That’s the language in the old cases that uphold letting the
Governor veto and letting it be a referendum, say that’s the
normal legislative process, and that’s okay.
And that makes sense. What the framers were doing
there was to say states should draw the districts unless
Congress wants to take it over. If you say the states should
draw the districts, why shouldn’t it be up to the states
to decide how they are going to do it?
Why would the Constitution of the United States stop the
people of the state from saying how they want to district their
states?>>You’re saying if people say
we want a come toyings do it, that falls under the umbrella?
>>Exactly. It would be especially ironic to
the supreme court to say the people cannot get districting
congressional seats away from the legislature, but they can
get redistricting the legislature away from the
legislature. There’s nothing in the
Constitution to stop that. It doesn’t make any sense.
>>Any idea where the Court’s going to go on this?
>>The fact that they took it creates doubt in my mind.
They didn’t have to. When I think about it I say to
myself, is it really plausible they will stand in the way of
this development nationwide to get redistricting out of the
partisan arena? It troubles me, because it’s one
of several things the Court’s done recently that really seem
to be done for partisan political reasons.
That is Republicans versus Democrats, rather than for
principle reasons. There were cases last week where
they stopped voting changes for going through, which were going
help minorities in voting which the Republicans were against and
Democrats were for. The court gave stays to keep the
thing the way Republicans want it.
If that’s done for political reasons that’s very unfortunate.
>>Two Arizona cases this session.
>>Yes.>>The other is involving a
church sign ordinance in Gilbert.
The idea of a city or town being able to put into ordinance
nonprofit signs, you can’t do this, you can’t do that.
This has made it to the Supreme Court.
>>That’s also surprising. But it’s there for a technical
reason that’s important. In the law of the First
Amendment, the doctrine makes a difference that when you you
restrict speech you do it on the basis of content.
If it’s content based you need a compelling interest and it has
to be narrow. If it’s content neutral the
state has a lot of latitude. The question is there’s 19
different kinds of signs that you can put up in Gilbert
without a permit. The church comes under temporary
events signs. Those have to be I think six
square feet maximum, and they can only be put up for a day
before the event, they have to be taken down right after the
event. Political signs for political
candidates can be 32 square feet and they can approximate up
unlimited time before the election.
So the argument is, hey, that’s a discrimination against the
church’s signs. If it’s a content
discrimination, the City has to show a compelling reason to do
that. I don’t think they can.
If it’s not a content discrimination, the city can say
we just decided this was a reasonable thing to do, and they
normally can get away with it. The question is whether that
kind of difference, not content in the sense of viewpoint, that
is, not favoring liberals over conservatives or the other way
around. But it’s content-based in the
sense that what’s your sign for? Is it for a political campaign?
Then it can be a big sign. Is it for an event that’s
temporary? It has to be a little sign.
That’s content but in a different way.
What the court ought to do is say that’s not content based.
There’s no testosterone have strict scrutiny of that kind of
decision. It doesn’t threaten to harm
anybody because of minority status or political views or
anything like that. They ought to have the latitude.
This course has not very duff on First Amendment cases.
It wouldn’t surprise me if it’s content-based and the city needs
to have a strong reason to do it.
>>There was a split there.>>That’s true.
>>Did it surprise you?>>No, it’s a very difficult,
contentious issue around the country.
How do you define content-based for First Amendment purposes.
Content neutral things tend to be upheld.
>>And not the only free expression case for the court,
we have a couple of them, very quickly what’s going on with
these cases?>>They are both really
interesting. The first one, Elonus, involved
when you can convict somebody for threatening.
He broke up with his wife and got really — really was in bad
shape and started to post things on his FaceBook page which were
threatening. A lot of them were just rap
lyrics he quoted. But they seemed to say to his
wife, I’m going come and get you.
He was prosecuted under federal statue which makes it a crime to
threaten people over the internet and things like that.
He says he didn’t really mean it as a threat, he was just letting
off steam, he was venting as they say.
The judge told the jury, if a reasonable person would think
that that was a real threat, then he’s guilty.
He says the judge should have told the jury, you can only
convict him if the jury believes he intended it to be seen as a
threat. And the lower court said, they
don’t have to prove he intended it.
And the court took that case?>>So the court again seems to
be winding up maybe to be a very strong First Amendment case, and
to free a whole lot of threatening stuff you would
think ought to be able to be stopped.
>>And including knowing the intent of someone who’s —
>>How do you do that? That surprised me.
The other case involved judges who run for election.
A number of states elect judges and that’s a problem.
Because when you frown election you have to raise money.
Who do they raise money from? From lawyers.
Who do the lawyers go before to get their cases decided?
The judges they just did or didn’t contribute tox the states
have said it’s not a great solution but they have said
judges cannot directly solicit money.
They can’t go to somebody and say please give me money.
They can appoint a committee to do that but the judge shouldn’t
do it himself. This judge signed a fund-raising
letter. She signed a fund-raising
letter. And the question is whether you
can be censured for that kind of free speech.
The lower court said yes, and the Supreme Court takes that
case. It sounds like they may be
saying it’s unconstitutionally for a state that elects judges
to put limits on how the judges can campaign and raise money.
The Court has held several times raising money for campaigns is
free speech.>>As well as, we mentioned the
Gilbert sign case, religiously focused if not targeted.
But a couple of other religion idea here’s.
The Abercrombie and Fitch case deal with religion in terms of
Muslims and how they practice.>>The Gilbert case is true,
it’s a religious group that wants to put up the sign.
But I don’t think the religious nature has anything to do with
it. There is one who wants to grow a
beard in prison. He wants to do it for religious
reasons. Nobody doubts that there are
sincere religious reasons. The state doesn’t want to let
him do it.>>He said, I’ll keep it a
half-inch, beard which seems to weaken his case some.
If it’s his religion, what’s he compromising about?
>>I think Scalia said something in the oral argument about that.
>>The state says it’s going to be dangerous.
>>This case applies essentially the same statute involved in the
hobby lobby case last year. It’s the same standard.
If you interfere with somebody’s free exercise of religion you
have to have a compelling interest, and you — what you do
has to be as narrow as possible to serve that interest.
The issue in this case is does the state have a compelling
interest to stop him from growing a half inch beard?
Why is that danger? You can’t hide much in a half
inch beard. The state has come up with a
number of reasons, and the court did not seem to be very friendly
towards the state’s argument. Maybe they are sort of
embarrassed into it, having held that a business owner can impose
his religious views on his employees in the Hobby Lobby
case. Here is a Muslim with religious
views. Are they going to say sorry, you
can’t exercise your religion in prison when they don’t have a
really good reason.>>Which brings up that
Abercrombie and Fitch story.>>That is a Muslim young woman
who wants to work in Abercrombie & Fitch.
They have a dress code which says we’ve got to dress in the
kind of clothes we sell, eastern collegiate wear.
She wears a headscarf. So she asked a friend of hers,
do you think my headscarf is going to be a problem.
The frequented asked the supervisor, who said that’s not
a problem as long as it’s not black.
>>Everyone looks better in black.
>>She interviews for the job, the person who interviews her
graded her very high and says she should be hired.
He’s worried about the headscarf.
The woman was interviewed in the headscarf.
It wasn’t talked about at the interview.
She goes to the district manager and says, what do I do about the
headscarf? He said, don’t hire anybody who
wears a headscarf. The lower court said that’s okay
because the woman who wanted employment never said, I need to
wear a headscarf for religious reasons, directly to them.
In order to sue them for religious discrimination she has
to affirmatively say, I need to do this for religious reasons.
And say to them, will you let me have an accommodation.
Since she didn’t go through those steps she can’t sue.
The court took that case, again suggesting they are going hold
what seems common sense cal. Everybody knows she was
presented from wearing a headscarf because that’s what
Muslims do. That would be religious
discrimination and they should make an accommodation for that.
>>Interesting. Before we get you out of here,
there’s been talk of either Justice Ginsberg retiring or
among some, mostly Democrats and liberals, that she should retire
before President Obama leaves office.
>>There is a very well-known liberal constitutional scholar
has written an article saying she should retire.
Because if she wants her leg ga he is to continue she should do
it now so she’ll be replaced by somebody nominated by Obama,
somebody who would vote like her.
If she waits Republicans may win the next presidential election
and she would be replaced by somebody with different views.
A number of people have said that.
I think that is completely wrong and I think she is bright enough
not to listen to that. When you have judges retiring
based on their views staying alive, they are there for the
wrong reason. They are not supposed to be
plotting to have their legacy reinforced in the future.
>>Has that been done historically?
Have their been folks who have calculated their retirements?
>>You never know for sure, I’m sure there have been but I think
it’s wrong. Because you should decide the
cases before you. You shouldn’t be planning what
the Court’s future is going to be.
I want my cases to stand up and not yours.
She is right not to do that. She is right now able to do the
work. She enjoys doing the work.
She does it very well from her point of view and a lot of
people think she does it very well and she enjoys it.
Why should she retire?>>We’ve got like one minute
left now. That’s not much time for this
question. Is this still a Kennedy court?
>>Of course. It’s been the same since justice
O’Connor left and was replaced by Alito.
Four strong conservatives, and four moderates or liberals on
the other side, Ginsberg and Breyer and Kagan.
And Kennedy is the only one with any frequency who goes back and
forth between those groups. He usually goes with the
conservatives but not always. As we know primarily in the gay
rights cases, but most cases that are close you said
yourself, it all depends on what Kennedy is going to do.
That’s not going to change.>>Does that strike you as an
overtly political court?>>I don’t think he is
politically partisan in a Republican Democratic way.
I think he’s quite conservative but I don’t think he does it as
a Republican. I don’t know, I don’t think so.
There are I think people on the court who see things through a
partisan lens. And I think that’s one of the
explanations for why those four people always stick together.
>>Yeah.>>Because what they stick
together on are the agendas of the two major political parties.
That is very unfortunate from my point of view.
>>Sounds like no one’s swaying all that much from the four and
It would be a good development to get some people on the court
who are not allied with either of those groups.
>>Always a pleasure, good to have you.
>>Same here.>>>Friday it’s the
“Journalists’ Roundtable.” We’ll look back on the Arizona
Secretary of State debate here on the horizon set.
And a beheading video comes into play for the race for
Congressional district 9. Those stories and more Friday on
the “Journalists’ Roundtable.” That is it for now.
I’m Ted Simons. Thank you so much for joining
us. You have a great evening.
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