Erwin Chemerinsky & Joan Biskupic on Supreme Court Term Preview

UCI Law Dean Erwin Chemerinsky and Joan Biskupic, Visiting Professor at UCI Law and CNN legal analyst, preview the unusual upcoming SCOTUS term and discuss cases of race, religion and the death penalty.

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[Narrator] Welcome to UCI Law Talks, presenting both perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw,  #UCILawTalks

[Erwin Chemerinsky] My name is Erwin Chemerinsky, dean of the law school and I'm here with Joan Biskupic. Joan is a visiting professor of law at the University of California, Irvine. She's editor in charge of legal affairs at Reuters on leave this year while she's at UCI and also a contributing analyst for CNN. It's wonderful to be with you and have the chance for this conversation. We're going to be talking about the coming term of the Supreme Court. The justices will come back on Monday, September 26 for their so-called long conference considering all of the search petitions that accumulates in the last three months. We can expect there will be a number of grants of review by the Supreme Court next week. At this point, there are 28 cases on the Supreme Court's docket for the term that will begin on Monday, October 3. It will be an unusual day because again, like at the end of last term, there will only be eight justices on the bench. Joan do you have any initial thoughts about the upcoming term of the Court?

[Joan Biskupic] Thank you Erwin and it's a pleasure to be here with you today and what's especially nice is that when we finish this, I will not be flying back to Washington, DC. I will continue for this academic term here at UCI, which I'm just loving so far. But I do think it's important to pause for a moment to consider the historic nature of the upcoming term. This will be the first one in 30 years without Justice Antonin Scalia who died in February. It will be the first one with eight justices for a very protracted amount of time here. We do not know when we will have a ninth justice. President Obama has nominated Merrick Garland it is unlikely that, that nomination will be acted on anytime soon. So this is a court that it will be dealing with eight for many of the cases we're about to talk about. So what does that mean on the issues? Just generally, Erwin, I think we can look to evidence from last term when the justices were down to eight. They don't seem ready to take great strides in any areas of the law. They are more willing to compromise; they are looking for narrow; they are looking for creative ways to decide things without deciding anything that will be as Chief Justice Roberts even said during his confirmation, a jolt. So I think what we're looking for is more of a holding pattern while the political situation clarifies itself. Finally, just who to watch and why do we care, Justice Kennedy, California’s own, is critical on this court but he soon might not be as relevant just because he will, if the court becomes more liberal he will, no longer be the justice in the middle. But I think we should watch for any partnerships that he develops with Justice Stephen Brier who could become more critical. I also think that we should watch for Justices Samuel Alito and Clarence Thomas to maybe pick up the mantle of Justice Scalia who they seem to want to keep in their memories as long as possible because he was a fellow conservative and one that they both highly respected.

[EC] I agree with everything you said. I think there's been a real effect of only eight justices in shaping the docket for so far this term. As of June 26, the Supreme Court granted review and only 17 cases for the coming term usually half the docket is set by the end of June when the summer recess. They quickly took 11 cases on June 27 and 28 to bring it up to 28 cases though even that's a bit less than usual. And there's no blockbuster cases likely on the docket so far. At least there's no cases on the most controversial issues like abortion, affirmative action, guns; I think that's deliberate. I think these justices are trying to stay away from the issues that are likely to produce a 4–4 split. Obviously, I agree with you; they're going to have eight justices for at least some if not all of this term. I think there's a real chance if Hillary Clinton is elected November especially if there is then a Democratic Senate to be that Republicans could decide to confirm Merrick Garland in December. Garland will be 64 years old then; by all accounts he's moderate. I could imagine Senate Republicans deciding they'd rather have a 60 for a moderate than take the chances on a much younger liberal. But even then, Garland would miss the October, November, and December oral arguments and if it's the next President, Clinton or Trump, who picks Scalia’s replacement then I can't imagine there will be confirmation hearings until late next spring and the court will go all of next term with just eight justices.

[JB] Yes. I think – I'll tell you what I think. It's hard to know; we don't even know who will be president but I think that given where the Senate Republicans are even if the Senate flips to Democratic for the next calendar year, I think we're looking at eight justices. No action on Merrick Garland but I would think that if Hillary Clinton becomes president that the smart political choice might end up being Merrick Garland. So one way or another he might end – be on the court. And one last thing I was reminded of when you were talking about the shifting numbers of what kinds of cases and sheer number of cases they’re taking, I think that this is a very important time for the chief. This is the strongest challenge that Chief Justice John Roberts has had professionally, probably for all of his life. He spent the first decade on this court with a majority, able to do many things he wanted to do, and that's slipping through his fingers probably depending, again, on the election. And in talking to some people about John Roberts recently, the phrase came up: will John Roberts' life tenure turn into a life sentence of sorts if he suddenly becomes one of the first chief justices in American history not to have a majority for most of his tenure?

[EC] And of course, that like so much depends on the November election. The reality is that the next president is likely have three or four seats to fill on the Supreme Court specially if he or she serves for two terms. Since 1960’s, 78 years old is the average age which a justice left the bench. Justice Scalia was 79 when he passed away on February 13. If you think about it, Ruth Bader Ginsburg is 83, Anthony Kennedy is 80, Stephen Brier is 78. And so, if you replace some or all of them along with Justice Scalia, that's going to determine the composition for years to come. If it's Donald Trump, then Chief Justice Roberts is going to be the majority – the head of a Republican majority for years, decades to come but if it's Hillary Clinton then you're right, John Roberts will be the first chief justice in a very long time to be in the ideological minority.

Why don't we talk about some of the cases for next term? One of the things that's striking to me is with only 28 cases on the docket, so many are dealing with issues of race. And one that deserves to get a lot of media attention is Pena-Rodriguez v. Colorado.

[JB] Yes, this one tests the Sixth Amendment right to an impartial jury about a man who was convicted of harassing two girls in a bathroom at a racetrack facility in Colorado. And after he was convicted, it emerged that one of the jurors who is known in the record only as HC said that one of the reasons he wanted to get in evict was because the defendant was a Mexican and Mexican men take whatever they want. Now many of our listeners will immediately think how could a juror possibly get away with saying that? Wouldn’t that undermine the verdict here? But the truth is, there's another competing interest here, not just the right to a fair trial which is the way this case is being appealed to the Supreme Court. It’s the idea that what goes on in a jury room stays in a jury room; it's the secrecy of jury deliberations. In fact, when this case was heard by the Colorado Supreme Court, it ruled against Pena Rodriguez. Mr. Pena Rodriguez appealing to say that what's overriding is a state rule of evidence mirroring the federal rule of evidence that anything in the jury room stays there and it can't be used to challenge the verdict. Now, a dissenting judge on the Colorado Supreme Court played right into, probably, the reason the justices took it up – took up the case when she said there are times when deliberations would be so tainted by racial bias that that would trump, so to speak, the usual presumption that in favor of the secrecy of the jury. And what's interesting here is that the Supreme Court itself in recent years has taken up this question of the competing interest between a right to a fair trial and the secrecy of jury deliberations and said as recently as 2014 that secrecy is overriding. But in that case, Justice Sotomayor writing for the majority said that there might be a time when a case of juror bias is so extreme that almost by definition the jury trial right has been abridged. And that's what the defendant is pointing to here and saying this is a case where the usual policies of juror phonology and juror privacy are overcome by juror bias.

[EC] You know, it will be interesting to see how the court weighs those two competing considerations. If this isn't the case that meets what Justice Sotomayor was talking about, hard to know what would be the situation. The state was so explicit and so racist.

[JB] Yes and there was an additional one. This man said – first of all he says I didn't do it. I didn't do it and his alibi witness said he was with him. He was not even at the racetrack facility and this juror in question H. C. not only disparaged the defendant’s ethnicity but when he was referring to the alibi witness he said well understand he's an illegal alien so we shouldn't trust him either. So it was compounded not just against the defendant but against one of his key witnesses.

[EC] There are another couple of cases about race that I talk about. I should disclose I'm co-counsel in these cases and evinces the beginning there Bank of America v. City of Miami and Wells Fargo v. City of Miami. They're going to actually both be argued in a consolidated basis on election day. What they involve is a claim that these banks were intentionally directing very undesirable mortgages with a high likelihood foreclosure to a dominant minority, low-income communities. We've long heard of banks engaging in redlining as a practice where they would not be willing to give mortgages to predominately minority, low income communities. This is in essence reverse redlining and the claim is that Bank of America that Wells Fargo targeted particularly individuals of color, low-income individuals with mortgages knowing there was a very high likelihood they'd be a foreclosure. There was a foreclosure and then the property is, to a large extent, left vacant. The City of Miami brings a lawsuit saying that its aggrieved and can sue under the Fair Housing Act. It says it has to absorb many costs by virtue what the banks were doing. The Federal District Court in Florida dismissed the case for lack of standing saying that Miami doesn't have standing to be able to sue is an aggrieved party under the Fair Housing Act. But the United States Court of Appeals of the Eleventh Circuit reversed the Eleventh Circuit said that Miami has alleged a sufficient injury to meet the requirements for standing both under the Fair Housing Act and also with regard to Article three of the Constitution. So it's a question about standing. It's in a very important context, a number of other cities including Los Angeles who filed identical suits against banks for this reverse redlining practice. To some extent, it goes back to a Supreme Court case from late June 2015, the Texas Department of Housing Affairs v. Inclusive Community, where the Supreme Court 5-to-4 said that you can bring a claim under the Fair Housing Act based on a discriminatory impact, a disparate effect. And that's what Miami is saying here that the banks were engaged in a practice with a discriminatory effect and even a discriminatory intent.

[JB] This is a very difficult area for this court; the tends to divide it and I'm glad you referred to the 2015 Fair Housing Act case because that was a case that grew out of the Supreme Court's effort to really take on the breadth of this landmark civil rights law. Three times the justices had agreed to take up this issue and it seemed very much driven by the conservative justices who thought that the Fair Housing Act was being too broadly construed by lower courts to allow claims to be brought under the law. But in the end, Justice Kennedy who's become much more crucial as a vote on racial issues just is bent on many issues went and joined with the Liberals to allow the act to be broadly interpreted and it'll be interesting to see what happens here. Now again, it's quite different when we're dealing with just eight justices rather than the nine but even if it splits if the court divides 4-4 in this case, it would let stand or affirm affirmed by an equally divided vote the ruling that you just referred to from the eleventh Circuit.

[EC] Yes and of course since Justice Kennedy's opinion, in the Texas case was joined by Justices Ginsburg, Briar, Sotomayor, and Kagan, there’d be hope that there'd be five votes to affirm thinking that the three dissenters who are still on the court almost surely will reverse the eleventh Circuit. But I can tell you as well the lawyers in the case were very aware all we need is a 4-4 in order to go forward.

[JB] Right and what you're hoping is that Justice Kennedy continues his pattern of moving to the left on race.

[EC] Absolutely. And of course, Fisher v. University of Texas from June 23 being the most recent example, where for the first time in his career on the court he voted to uphold an affirmative action program.

[JB] Right. It's so interesting that even though we keep talking about a sort of a holding pattern for eight, we're seeing the justices moving in different ways even with the reduced numbers.

[EC] Another case involving race also a criminal case is Buck v. Davis. Do you want to talk about that a bit?

[JB] I do and this is a case that will be heard the very first week the justices are in on Wednesday, October 5. Duane Buck an African-American was convicted of murder in 1996 and one of his defense experts, this was somebody who was ostensibly on his side, a psychologist said that Buck was more likely to be dangerous in the future because he is a black man. And in Texas, future dangerousness is a prerequisite for the death sentence so this really mattered. Four years after Mr. Buck was sentenced to death, Texas did acknowledge that race as a dangerousness in testimony was unconstitutional but he was far enough along in his appeals that one of the key issues here is it can he get through that? Can he get through the gate to even appeal his sentence at this point? And this is another one of these cases just like the first one I talked about where the court is being asked to set aside the usual rules and in that one it was the usual jury privacy rules. In this one, it's the usual rules against when you can appeal your case and in this one, Mr. Buck is saying that this – the threat to the Administration of Justice here is exceptional given what was done below and Texas is constantly giving the Supreme Court challenges based on its procedures in state. They've had many problems there and they're always trying to revise them and the question is: how much do prior defendants – are they – how much are prior defendants able to take advantage of this? Now a version of this case was before the justices back in 2011. They did not take Mr. Buck’s – Duane Buck’s case at that point but some of the conservative justices did note that they were troubled by the psychologist’s testimony and even Justice Alito, I believe, deemed it bizarre. So Texas officials say that Duane Buck should be denied based on procedural grounds because he's come late to the game in terms of his appeal but I think there are enough signs from the court on this one that he might have a good chance to actually be able to bring his case at this time.

[EC] Buck’s claim is for ineffective assisted counsel. He says my lawyer was ineffective by putting on an expert that says that I'm more likely to be dangerous because of my race. That almost seems like an obvious case of malfeasance by the defense lawyer. The technical legal issue in this case is whether a Certificate of Appealability should have been granted. And just explain that a bit what’s different with regard to Habeas Corpus than I think any other area is that in any other area in federal court, if you lose you can appeal. But in 1996, federal statute, the Anti-Terrorism and Effective Death Penalty Act said that you can only appeal a denial of a written Habeas Corpus if you get what's called a Certificate of Appealability. And the district court can grant you the Certificate of Appealability, the Court of Appeals can grant you a Certificate of Appealability but somebody has to grant you the Certificate of Appealability. Here, Buck was denied the Certificate of Appealability. So the precise issue before the court is: should the Certificate of Appealability have been granted? And it's in the context of what seems really egregious ineffective assisted counsel and unnecessary as well.

[JB] That's right. So it will really test the justices who tend to be more formalistic, who tend to feel okay there's a rule here the reason Congress passed the requirement for a Certificate of Appealability was to have finality in death sentences. Will this overcome that usual procedural hurdle?

[EC] That's exactly the issue. I was going to mention a couple of other cases to do with race in a different context: voting. And the Supreme Court has before it now one case in Virginia, Bethune-Hill v. Virginia State Board of Elections and another from North Carolina, McCurry v. Harris. Both involved where the race was impermissibly used in drawing election districts. The Virginia case involves with the Virginia legislature; the North Carolina case involves congressional districts. The Supreme Court in 1993, in Shaw v. Reno, said that it violates equal protection of the Constitution for the government to use race in drawing election districts unless it meets what's called strict scrutiny as a compelling reason and no way to achieve the goal. In 1995, in a case called Miller v. Johnson, the Supreme Court said if race is used as the predominate factor in drawing election districts, that then violates equal protection unless strict scrutiny is met. In a subsequent case, Easley v. Cromartie, the Supreme Court says it's okay for the government to use race in drawing districts if they're doing so to predict likely votes. So it's okay to look to the fact that African-Americans are disproportionately as Democrats in drawing election districts but it's not okay to use race if the goal is to make it easier to elect minority representatives like creating a majority minority district. So the question is: how is it decided when the race is the predominant factor in drawing districts? How is it determined whether race was used in order to assess likely voting patterns? Was race used for impermissible purposes trying to elect minority representatives? What I find interesting about these two cases is that with regards to the Virginia case, a three judge federal district court votes two to one to uphold the Virginia system. A key characteristic was that there's 12 majority black districts with regard to this house with the Virginia legislature. They wanted to make sure there was at least 55 percent African-American population in them. The three judge court said for 11 of them, race wasn't the predominant factor. It was things like political party affiliation where said well this is to meet the requirements of the Voting Rights Act and they uphold this. By contrast, in North Carolina, the court strikes this down and the North Carolina court says that race was used as the predominant factor in drawing these two congressional districts to create two majority black congressional districts. And therefore, it violates equal protection so the court has one case that was upheld, one was struck down from two states that border one another: Virginia and North Carolina. In this context, it's also worth remembering cases like Shaw v. Reno and Miller v. Johnson and so many others were 5-4 with Justice Scalia in the majority. Maybe we should shift from talking about race cases to talk about some of the others that are on the docket. There's a very important church-state case on the docket: the Trinity Lutheran case v. Pauley.

[JB] Yes and like race cases, this ends up dividing the justices typically 5-4 maybe 4-4 this time around. This very thorny religious dispute was accepted just before Justice Scalia died and it bears his mark. I would bet that he in fact voted to accept this petition. In fact, the petition that comes from these challengers had quoted Justice Scalia. Here are the facts: it involves a church that runs a little preschool and it applied for a grant under Missouri law that gives money for playground resurfacing using scrap tire material. The program is the Missouri Scrap Tire Grant Program and it's funded through fees collected on new tires sold. It seems innocuous enough, but what's important here is the broader principle of when government money can be used for religious purposes. And in 2004 for example, in a case called Locke v. Davey, one that was written in fact by conservative Chief Justice William Rehnquist, the Supreme Court upheld a Washington State provision that barred public scholarship aid to college students pursuing degrees in theology. Now that was a 7-2 opinion and it was it basically reaffirms the longstanding principle that state grant money or state taxpayer money cannot be directed to religious principles. But in that case, the two dissenters were Justice Scalia and Justice Thomas and the challengers here invoke them and invoke something that Justice Scalia said that goes right to the heart of this case. And what he said was that when a state makes a public benefit generally available that benefit becomes part of the baseline against which any burden on religion should be measured. And when the state withholds that benefit in this case, withholding the Scrap Tire Grant Program, it actually violates the free exercise of religion the same way it would if it imposes a tax. Now, I think this is a really hard case for the justices and I think it would have been very hard for a majority to rule in favor of the church here the Trinity Lutheran church that wants this grant money. But now, without Justice Scalia I think it's going it's a tougher one and what's interesting here is that the question is whether the exclusion of churches from what the challenger say is an otherwise neutral secular aid program violates free exercise when the state has no valid Establishment Clause Concern. Now, this is one where the challenger say that but what Missouri comes back and says is that actually our own state constitution prohibits it. We don't want to give money to fund religious school programs so right in this program our Missouri Constitution is forbidding it and also saying of course there are broader federal constitution concerns. Interestingly, the justices took this case but they have not scheduled it and it would normally be in line to be scheduled and I'm just wondering if the justices think: do we really want this case? Should we wait until there's a ninth justice or how should we handle it because as I said, it's a very thorny issue. Church-state cases come to tend to come down 5-4. Again, if they end up hearing it with just the four justices and – with the eight justices and it splits 4-4, the lower court ruling against Trinity Lutheran Church withstand.

[EC] Justice Kennedy is so consistently been with the conservatives in separation of church-state issues so he would be predicted to be with Roberts, Thomas, and Alito. And Ginsburg Breyer, and Kagan are predicted on the other side. I wondered the same thing you did since cert was granted early in terms of among the cases that are being heard this term the briefing is done are they deliberately trying to put it off for oral argument with the hope that there would be a ninth justice or am I reading too much into the tealeaves? It's also interesting usually Establishment Clause cases about government aid involve whether the government giving certain aid to religious schools violates the Constitution. This is the opposite as the government is refusing to give aid to religious schools a violation of their free exercise of religion? Locke v. Davey was at the college level, this obviously is the elementary school level. Does that make any difference?

[JB] Well and it is you know – we're talking playgrounds. It comes with some sympathetic facts but even with sympathetic the facts they have to think of the broader principle and this might be one where there's a little bit of buyer's remorse, in fact, granting it.

[EC] Let me mention one other case where cert’s been granted and that I want to ask you about one where it's certainly going to be before the court that we don't know if they're going to take it. The one that I wanted to mention was Jennings v. Rodriguez. This involves the question: if somebody is being held as an undocumented immigrant waiting deportation and they can be held for more than six months, do they have to be given a bail hearing? Does the government, in order to keep them locked up pending deportation, have to be able to show that they're a flight risk or a risk to the society? The Ninth Circuit said yes here, that they do have to get a bail hearing. The government has to make a demonstration. The United States is vehemently disagreeing in claiming that its powers especially in the context the war on terror should give them the ability to tame these individuals without a bail hearing and without showing a flight risk or risk of dangerousness. It's a case that I think will also get a lot of media attention. I wanted to ask you about a case that hasn't been granted though it's certainly gotten a good deal of media attention. This is the Gloucester County case and involves a transgender student someone who was born a girl transitioned into being a boy and wants to be able to use the school facilities, bathrooms, lockers away from boys. The United States Court of Appeals for the Fourth Circuit ruled in the students favor and maybe take it from there in terms of then what's going on in the Supreme Court.

[JB] That's right the young student Gavin Grimm just wanted to use the boy's bathroom at the high school and it's to – The Supreme Court in August block the effect of this Fourth Circuit ruling you're referring to. You know, it was right before school was going to start and the court said essentially you know we're going to block what happened below and now we're going to decide whether we want to take up the appeal from the school district on the merits. Once the supreme poor blocks a lower court ruling the presumption usually is that it will hear the appeal. I don't know if that will happen here. Obviously, throughout the country right now, there are a lot of controversies over school district policies and Obama Administration guidance that extends federal protections against sex discrimination to transgender people. In fact, this is what the Fourth circuit had relied on in great measure in this case and we know that there's a separate lawsuit percolating out there on behalf of Texas and other conservative leaning states challenging the Obama Administration guidance on transgender student policies in this case. So the reason there's a little bit of a question mark about whether the Supreme Court really wants to take this up now is that when Justice Stephen Breyer voted, as such giving a fifth vote to grant the stay with the four conservatives, here, he described his vote as a courtesy to the four conservatives to at least put it on the calendar to decide – whether they should decide, which is exactly what's going to happen in their conferences now when they decide the full range of their cases for the year. So I think this is a really important question; I think this is a very difficult one to predict however.

[EC] Well there's so many fascinating aspects to it Justice Kennedy has been the leader of the court with regard to gay and lesbian rights. Every Supreme Court case in history that ends in rights for gays and lesbians, the majority opinion was written by Anthony Kennedy. And yet here, it involves a transgender student, Justice Kennedy votes with Roberts, Thomas, and Alito who always dissent in the gay rights cases. It takes four votes to grant a case in the Supreme Court. Do we read from what happened in August that there are four votes to grant? But even if those four justices want to overturn the Fourth Circuit, unless they think they have a chance of a fifth vote, would they want to take the case? Four-four means the Fourth Circuit decision stands. In the legal issue in part is: is discriminating the transgender student sex discrimination in Title IX? But it's also about how much deference is given to an agency and interpreting a statute, a much less controversial issue. So all of this is mixed together and it’d be interesting to see whether the court ends up taking the case.

[JB] That's right. Even though the issue might not be as emotional, the topic is and it comes at that intersection of gay and lesbian rights. But here, rather than having to do with sexual orientation where we know Justice Kennedy has staked out ground, this is sexual identity which is new terrain for them.

[EC] Well see and hopefully we can do this again especially after the court grants additional cases in its September conferences in the fall. Maybe we can then talk about some of the other grants in the coming term. Thanks so much for doing this.

[JB] Thank you Erwin and thanks to the University.

[Narrator] Thank you for joining us at UCI Law Talks. Produced at the University of California, Irvine School of Law.